Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517, Slip Op. (N.D. Ill. May 10, 2011) (Grady, J.).

Judge Grady granted in part defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Flava Works’ complaint in this copyright case involving adult entertainment on the internet. 

Direct Infringement

Defendant Gunter operates myVidster.com where users could post content, including the allegedly infringing videos. But, as an internet service provider ("ISP") Gunter was not liable for his user’s copying. And Flava Works did not allege that Gunter copied. The claim was, therefore, dismissed. 

Contributory Infringement

Flava Works could not rely solely upon its DMCA take down notices to defendants – even multiple notices – to prove either actual or constructive knowledge of the infringement. Flava Works, however, showed knowledge based upon seven notices it sent to defendants over seven months, in addition to the DMCA takedown notices. The contributory infringement count was, therefore sufficiently pled. 

Vicarious Liability

Flava Works did not sufficiently plead defendants’ direct financial interest in the alleged infringement. Flava Works did allege that defendants’ inexpensive storage space and video sharing attracts customers. But Flava Works did not allege that the presence of the allegedly infringing material drew customers. 


The Court dismissed Flava Works’ inducement claim. It was a "formulaic recitation" of the standard void of facts showing an infringing purpose of active steps fostering infringement. 

False Designation & Trademark Infringement

Defendants’ alleged posting on their website of Flava Works’ videos containing Flava Works marks did not constitute a use in commerce.