Live Face on Web, LLC v. KAM Dev., L.L.C. d/b/a Green Energy Air Sealing, No. 16 C 8604, Slip Op. (N.D. Ill. Dec. 20, 2016) (Kocoras, J.).

Judge Kocoras granted in part with leave to replead defendant’s Fed. R. Civ. P. 12 (b)(6) motion to dismiss in this copyright dispute involving plaintiff Live Face On Web (“LFOW”) software that creates a “walking” and “talking” personal host on a website.

LFOW sufficiently pled direct copyright infringement by alleging that defendants copied, stored, used and distributed an infringing copy of LFOW’s software.  LFOW also alleged that defendants’ accused software was substantially similar to LFOW’s software, including copying arbitrarily chosen letters and terms chosen to prove any copying .  LFOW also sufficiently pled vicarious copyright infringement by stating that defendants had “a direct financial interest in the infringement” because defendants’ web spokesperson promoted defendants’ products.  That was sufficient to plead vicarious copyright infringement.

The Court disregarded defendants’ arguments regarding actual damages because defendants did not respond to LFOW’s identified allegations in reply.

The Court dismissed LFOW’s claims against the individual defendant because it was unclear whether the claims were made against the defendant individually or solely as a corporate officer.