Flava Works, Inc. v. Gunter d/b/a myVidster.com, et al., No. 17 C 1171, Slip Op. (N.D. Ill. Jan. 30, 2018) (Gettleman, J.).

Judge Gettleman granted in part defendants’ (collectively “myVidster.com”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff’s copyright, Lanham Act and related state law claims in this dispute regarding plaintiff’s adult entertainment website, videos and related products that myVidster.com allegedly allows to be collected behind its paywall website.

Of particular note, the Court held as follows:

• Plaintiff may have had a valid copyright claim. In an earlier iteration of the case, the Court held that a myVidster.com user that placed a video on the website was the infringer, not myVidster.com. However, plaintiff alleged that by backing up videos to the cloud, myVidster.com made a separate, infringing copy of plaintiff’s works. To the extent that were proven true, plaintiff could have a valid copyright claim.
• While the Court had previously held that bookmarking a video was not contributory infringement, plaintiff’s new complaint alleged contributory infringement based upon users downloading videos that had already been uploaded. In that case, plaintiff pled a sufficient contributory infringement claim.
• Because nothing in the complaint “plausibly suggests” myVidster.com profited from the alleged activity, there was no vicarious copyright infringement.
• The Court dismissed the inducement claims because they did not identify a single infringed work, and an underlying infringement is required for vicarious liability.

Plaintiff’s Lanham Act trademark infringement and unfair competition were “woefully deficient.” The claims did not identify a single mark that myVidster.com allegedly used, nor did they claim use of any mark in commerce.