Southall v. Force Partners, LLC, No. 20 C 3223, Slip Op. (N.D. Ill. Aug. 31, 2021) (Chang, J.).

Judge Chang granted in part defendant Force Partners’ Fed. R. Civ. P. 12(b)(6) motion to dismiss in this copyright infringement and Digital Millenium Copyright Act (“DMCA”) claims involving a picture of the inside of a restaurant bar.

Of note, the Court held as follows:

  • Force Partners’ claim that Southall never alleged that the photograph at issue was part of the deposit materials. This was a “classic example” of a defendant demanding too much and a plaintiff who could have easily avoided the issue. Having pled ownership of the copyright, Force Partners was not required to provide proof that the image was part of the copyright registration or deposit materials.
  • Whether or not Southall’s copyright registration should be given a presumption of validity because it was filed more than five years after the picture was taken, was not an issue that should be decided at the Rule 12 stage, nor was it one that would warrant dismissal if no presumption were granted.
  • Force Partners’ effort to limit Southall to actual damages and exclude attorney’s fees on a Rule 12 motion was “atypical.” Despite that, the Court dismissed Southall’s claim for statutory damages, which Southall disclaimed during briefing. The Court denied the motion as to attorney’s fees because while registration occurred some eighteen months after the alleged infringement commenced, discovery might show that Force Partners’ sought registration within thirty days of learning of the alleged infringement.
  • The Court denied Force Partners’ motion as it related to alleged removal of Southall’s copyright management information (“CMI”). While the complaint did not disclose the specific CMI that was allegedly removed, during briefing Southall identified it as a copyright notice of the webpage that displayed the photograph. That was enough to survive a motion to dismiss.