Design Basics, LLC v. WK Olson Architects, Inc., No. 17 C 7432, Slip Op. (N.D. Ill. Feb. 11, 2019) (Ellis, J.).

Judge Ellis denied defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss as to plaintiffs’ copyright infringement claims and granted it as to plaintiffs’ Digital Millenium Copyright Act (DMCA) claims in this suit involving architectural plans.

The Court dismissed plaintiffs’ initial complaint because its allegations were too conclusory. Plaintiffs amended their complaint asserting additional facts. Plaintiffs’ allege infringement of twelve copyrighted works by eighteen of defendants’ plans, all specifically identified.

Defendants do not dispute plaintiffs’ copyright ownership. They dispute whether plaintiffs’ infringement claims are sufficiently pled. Plaintiffs specifically identified elements of their plans that defendants allegedly copied in their own plans. The Court acknowledged that “opportunities for originally are tightly constrained” in architectural plans, citing the Seventh Circuit in another case brought by plaintiffs. Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1100-01 (7^th Cir. 2017). But in this case, the Court could not hold at the Rule 12 stage that the elements plaintiffs identified were no protectable. The Court also noted that it could not do a more complete analysis of the alleged similarities because plaintiffs did not, and were not required to, attaching the alleged infringing plans to the compliant.

Plaintiffs’ allegations of defendants’ access to the copyrighted works based upon widespread advertising, including mailing advertisements directly to defendants, were sufficient. Additionally, plaintiffs pled that they had put the copyrighted plans on the internet. These allegations were sufficient to plead defendants’ access.

Plaintiffs’ allegations that defendants knew of plaintiffs’ copyrights and removed copyright notices from plaintiffs’ plans were sufficient to plead willfulness.

The Court allowed plaintiffs’ vicarious infringement claims for the same reasons it allowed the direct infringement claims.

Plaintiffs did not sufficiently plead their DMCA claim. Plaintiffs argued that defendants removed copyright management information (CMI) by making their own allegedly infringing plans without putting plaintiffs’ name and copyright information on them. But the DMCA required removal of CMI from plaintiffs’ original work. Not including CMI on a new, allegedly infringing work was not sufficient for a DMCA claim.