DeVore Family Partnership LLP v. McDougal Littell, No. 06 C 3484, 2006 WL 2861116 (N.D. Ill. Sept. 26, 2006) (Conlon, J.).

Judge Conlon refused to dismiss or strike plaintiff’s claim for defendants’ profits from sales of a textbook which allegedly included plaintiff’s copyrighted photograph.  Plaintiff alleged that it licensed defendants to include plaintiff’s photograph of the Himalaya Mountains in a run of no more than 40,000 textbooks, but that defendants made almost 1.5 million copies of the book.  Plaintiff sought, among other things, defendants’ profits from the allegedly infringing textbooks.

Defendants argued that the claim for profits should be dismissed or struck because plaintiff could not show that defendants’ profits were attributable to the use of a two inch square copy of plaintiff’s copyrighted picture on a single page of the 1,254 page textbook.  The Court ruled that dismissing plaintiff’s claim for profits would violate the liberal notice pleading standard, Fed. R. Civ. P. 8(a).  The Court acknowledged that profits are only available if plaintiff establishes that the profits are attributable to the infringement, but held that discovery was required to make that determination.

Defendants also sought to strike the claim for profits from the Complaint pursuant to Fed. R. Civ. P. 12(f).  The Court denied the request, noting that motions to strike are "generally disfavored" and that in order to grant a motion to strike a claim, a court would have to find that the claim was so unrelated to the Complaint that it was meritless and not worthy of any consideration.  Because the claim for profits survived the motion to dismiss, it did not meet the standard for a motion to strike.  I suspect that in the vast majority of cases, when the same claim is the subject of a combined motion to dismiss and to strike, if the motion to dismiss fails it follows that the motion to strike fails.  Having said that, however, I am curious to know whether anyone is aware of a case denying a motion to dismiss a claim, but granting a motion to strike the same claim.  If anyone has seen the case, post a comment or send me an email at