# Brown v. Netflix, Inc.

> District Court, S.D. New York · May 27, 2020

URL: https://www.frixlaw.com/law-library/cases/10323198

## Case

- **Court:** District Court, S.D. New York
- **Decided:** May 27, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10323198

## How later opinions describe it (automated extraction)

- finding the “standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a claim”
- finding motion to dismiss appropriate where “where the facts necessary to establish the defense are evident on the face of the complaint.”
- finding that the secondary use’s inclusion of a musical phrase used in 50 percent of the copyrighted material was not excessive, even though it contained the heart of the original material
- finding it was “not clear that defendants could have used any portion of the song [to fulfill its transformational purpose] without ending up with an excerpt” at the copyrighted work’s heart
- finding that an online service deemed transformational, which allows users to view only “snippets” of books, did not create a competing substitute for the books

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TAMITA A. BROWN, GLEN S. CHAPMAN, OPINION & ORDER
and JASON T. CHAPMAN, 19 Civ. 1507 (ER)
Plaintiffs,
– against –
NETFLIX, INC., AMAZON.COM, INC., and
APPLE INC.,
Defendants.
Ramos, D.J.:
Tamita Brown, Glen S. Chapman, and Jason T. Chapman (collectively, “Plaintiffs”) are
musicians who created the song Fish Sticks n’ Tater Tots (the “Song). In 2017, a documentary
film titled Burlesque: Heart of the Glitter Tribe (the “Film”) depicts a group of burlesque
dancers in Portland, Oregon, one of whom incorporated the Song in a performance.
Amazon.com, Inc. (“Amazon”), Netflix, Inc. (“Netflix”), and Apple Inc. (“Apple”) (collectively,
“Defendants”) are corporations that provide, among other products, video streaming services.1
The Film is available to view on Defendants’ platforms. Plaintiffs allege that the use of the Song
in the Film was unauthorized, and bring suit against Defendants for willful copyright
infringement. Before the Court is Defendants’ joint motion to dismiss the claims against Netflix
and Apple, and for judgement on the pleadings for Amazon. Doc. 28. Because the Court finds

the Film’s incorporation of the Song to be fair use, Defendants’ motion is GRANTED.

1 Streaming is the method by which film and television programs are delivered to viewers through computers and
other internet-enabled devices. Compl. ¶ 23–27, Doc. 5
I. BACKGROUND
A. Factual Background
Plaintiffs wrote, arranged, and recorded the Song in 2011. Compl. ¶ 15. he Song,
created for children, describes a student’s journey from her classroom to her school cafeteria to
eat fish sticks and tater tots for lunch. Defs.’ Mem. in Supp. of Mot. to Dismiss (“Mem. in
Supp.”), Doc. 29 at 10; Decl. of Jay Ward Brown (“Brown Decl.”), Ex. A (“CD of the Song”),

Doc. 30. hey were granted a U.S. Copyright Registration for the Song on May 1, 2012. Compl.
¶ 16.
On March 3, 2017, the Film was released on Defendants’ websites.2 Compl. ¶ 19. It
chronicles the stories of a group of burlesque dancers in Portland, Oregon through interviews,
backstage preparations, and on-stage performances. Mem. in Supp. at 2; Brown Decl., Ex. B
(“DVD Copy of Film”). In one scene, a dancer, who goes by the stage name Babs Jamboree,
performs an act in a food-themed show centered on the concept of a “reverse mermaid,” which,
in her telling, is a creature with the head of a fish and the legs of a woman. Mem. in Supp. at 3.
During the performance, Jamboree steps behind a sign labeled “hot oil” and emerges, having

removed her fish head and changed into brown leggings to appear as though she has been
transformed into fish sticks. DVD Copy of Film at 27:47–30:34. During the performance, eight
seconds of the Song plays, consisting of the lyrics “fish sticks n’ tater tots” sung by Brown a total
of five times. DVD Copy of Film at 29:55–30:03. he performance continues for approximately
20 more seconds with different songs in the background. DVD Copy of Film at 30:04–30:24.
he Film is available on Defendants’ websites for customers to purchase, rent, or stream. Compl.
¶¶22–27.

2 he record is silent as to who created the Film or when.
B. Procedural History
Plaintiffs filed the instant action on February 20, 2019, accusing Defendants of directly
infringing their right to publicly perform their work under 17 U.S.C. § 106(4); directly infringing
their right to reproduce their copyrighted work under 17 U.S.C. § 106(1); and of contributory and
vicarious copyright infringement, as well as inducement of copyright infringement, of their rights

of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. ¶¶ 37–79.
Amazon filed an Answer on April 22, 2019. Netflix and Apple did not answer the Complaint.
On November 13, 2019, Defendants jointly filed the instant motion to dismiss the claims against
Netflix and Apple pursuant to Federal Rule of Civil Procedure 12(b)(6), and for judgement on the
pleadings on the claims against Amazon pursuant to Rule 12(c). Mem. in Supp. 29.
II. STANDARD OF REVIEW
A. Rule 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). he plaintiff must allege sufficient facts to show “more than a sheer
possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557).
However, this “flexible ‘plausibility standard’” is not a heightened pleading standard, In re
Elevator Antitrust Litig., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (citation omitted), and “a complaint
. . . does not need detailed factual allegations” to survive a motion to dismiss. Twombly, 550
U.S. at 555.
he question on a motion to dismiss “is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v.
Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien,
56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is

to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for
relief without resolving a contest regarding its substantive merits” or “weigh[ing] the evidence
that might be offered to support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal
citations and quotation marks omitted). Accordingly, when ruling on a motion to dismiss
pursuant to Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and
draws all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is improbable . . . .”). “For purposes of this
rule, the complaint is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted).
B. Rule 12(c)
Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings
are closed — but early enough not to delay trial — a party may move for judgment on the
pleadings.” Fed. R. Civ. P. 12(c). “he standard for granting a Rule 12(c) motion for judgment
on the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a
claim.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (internal quotation marks
omitted). Accordingly, a motion for judgment on the pleadings should be granted “if, from the
pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs.,
Inc. v. Int'l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16
(2d Cir. 1995) (per curiam). he Court accepts as true the pleadings’ factual allegations and
draws all reasonable inferences in the non-movant’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d
Cir. 2014); see also Lombardo v. Dr. Seuss Enter., L.P., 279 F. Supp.3d 497, 505 (S.D.N.Y., 2017)
(noting that in considering a motion for judgement on the pleading “all pleadings — including

defendant's counterclaims — are taken to be true, subject to the same plausibility standard that
applies on a Rule 12(b)(6) motion”).
III. DISCUSSION
Plaintiffs assert two claims of direct copyright infringement — by public performance
under 17 U.S.C. § 106(4), and by reproduction under 17 U.S.C. § 106(1) — and three claims that
are contingent upon direct copyright infringement — inducement of copyright infringement,
contributory copyright infringement, and vicarious copyright infringement in violation of their
public performance and reproduction rights. Defendants do not dispute the validity of Plaintiffs’
copyright but argue that their use of the Song is fair use, which is a complete defense to direct
copyright infringement and, as a result, to any claims that are contingent on the direct
infringement. Plaintiffs, in turn, maintain that any fair use determination is premature at the

motion to dismiss stage and that, moreover, Defendants’ use was not fair.
he Court disagrees with Plaintiffs on both points and finds that Defendants’ use of the
song was fair. As such, the Court GRANTS Netflix and Apple’s motion to dismiss pursuant to
Rule 12(b)(6), as well as Amazon’s motion for judgment on the pleadings pursuant to Rule 12(c).
A. Fair Use at the Motion to Dismiss Stage
As an initial matter, Plaintiffs argue that the factual record is too premature to engage in a
fair use inquiry, and accordingly, that the motion should be denied. Pls.’ Mem. in Opp’n of Mot.
to Dismiss (Mem. in Opp’n), Doc. 32 at 2–3. Yet, Courts within this Circuit have consistently
considered motions to dismiss and motions for judgement on the pleadings regarding copyright
infringement claims. TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016)
(“[T]his court has acknowledged the possibility of fair use being so clearly established by a
complaint as to support dismissal of a copyright infringement claim.”); Kelly-Brown v. Winfrey,
717 F.3d 295, 308 (2d Cir. 2013) (finding motion to dismiss appropriate where “where the facts

necessary to establish the defense are evident on the face of the complaint.”); Lombardo, 279
F. Supp. at 505. he Court will therefore proceed to the merits of the motion.
B. Fair Use Defense to Direct Copyright Infringement
Copyright owners are entitled to six exclusive rights under 17 U.S.C § 106, including the
rights to “perform the copyrighted work publicly” and to “perform the copyrighted work publicly
by means of a digital audio transmission.” 17 U.S.C § 106 (4), (6). In order to state a claim for
infringement, “a plaintiff must allege both (1) ownership of a valid copyright and (2)
infringement of the copyright by the defendant.” Spinelli v. Nat’l Football League, 903 F.3d
185, 197 (2d Cir. 2018). However, “the fair use of a copyrighted work . . . is not an infringement
of copyright.” 17 U.S.C § 107. he following factors are used to determine whether use is fair:
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work
Id. Consideration of each factor is “mandatory.” Fox News Network, LLC v. Tveyes, Inc., 883
F.3d 169, 176 (2d Cir. 2018). he Court will therefore consider each of these factors in turn.
Factor One: Purpose and Character
he first statutory factor asks the Court to consider the “purpose and character” of the
reproduced work, also known as the work’s “secondary use.” 17 U.S.C. § 107(1). At the core of
this inquiry is whether the secondary use is transformative — understood as communicating a
“further purpose or different character, altering the first with new expression, meaning or

message.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (citing Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 579 (U.S. 1994)). hus, a transformative work is “one
that serves a new and different function from the original work and is not a substitute for it.” Id.
at 96. he use of unaltered copyrighted material — also known as raw material — is not
prohibited, and indeed, “raw material, transformed in the creation of new information, new
aesthetics, new insights and understandings . . . is the very type of activity” contemplated by the
fair use doctrine. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). he inquiry must also
consider whether the copyrighted materials are for a commercial or nonprofit educational
purpose, finding “the former tending to weigh against a finding of fair use.” TCA Television
Corp., 839 F.3d at 183 (internal quotation marks omitted). Yet, a finding of commercial use is

not dispositive, as “the more transformative the new work, the less significance of other factors,
like commercialism.” Id.
Plaintiffs argue that because the Song itself is “unaltered,” its use cannot be
transformative, and that because the subject of both works is “fish sticks,” that the idea
underlying the Song and the performance are “exactly the same.” Mem. in Opp’n at 5.
Moreover, they also suggest that record is underdeveloped as to whether the Film is a
documentary, and thereby has an educational purpose, or whether its purpose is purely
commercial, thereby making a finding of fair use premature at the motion to dismiss stage. Id.
at 3. Neither of these arguments is persuasive.
Plaintiffs argue that “[w]hen there is no alteration from the original there can be no [fair]
use.” Id. In support, they rely primarily on TCA Television Corp. v. McCollum; however, the
facts of that case are inapposite. In TCA Television Corp. v. McCollum, the secondary use not
only copied the raw material, but also duplicated “the comedic purpose of the original work,”

understood to be its original meaning. 839 F.3d at 184. Here, while Defendants do not alter the
Song and reference its concept of “fish sticks,” the performance serves a “new and different
function” from the Song, rather than offering merely a substitute for its tale of a student on her
way to lunch. HathiTrust, 755 F.3d at 96. Indeed, even Plaintiffs repeatedly note the differences
in purpose and character between the performance and the Song: the Song was created “with
children being the intended audience,” whereas the Film is “centered on strippers” and uses the
Song “while a scantily clad woman . . . begins to perform a strip dance routine.” Compl. ¶¶ 17–
18, 20; Mem. in Opp’n at 5. hese descriptions only confirm that Defendants’ use transforms the
Song: Whereas the Song communicates a light-hearted children’s story about a student looking
forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray

fish sticks not as a lunch food, but as a component of a “reverse mermaid.” CD of the Song;
DVD Copy of Film at 27:47–30:34. hese are, undoubtedly, “new aesthetics.” Blanch, 467 F.3d
at 252.
As to whether or not the Film has a commercial purpose, Defendants argue that their
status as a commercial entity is irrelevant because the Film is transformative and is a
documentary, and accordingly, offers criticism or commentary. Mem. in Supp. 29 at 14.
Regardless of Plaintiffs’ claim that the Film is not a documentary — in contradiction of the
evidence available in the record plainly demonstrating its documentary nature — the commercial
nature of a work nonetheless is not determinative of the first factor analysis. DVD Copy of Film;
Campbell, 510 U.S. at 584 (noting that “nearly all of the illustrative uses listed in the preamble
paragraph of § 107 . . . are generally conducted for profit” (internal quotations omitted)). Even if
the Film were purely commercial, as Plaintiffs allege, because the secondary use is of a
transformative nature, the first factor still weighs in favor of Defendants. See Cariou v. Prince,

714 F.3d 694, 708 (2d Cir. 2013) (“Although there is no question that [Defendant’s] artworks are
commercial, we do not place much significance on that fact due to the transformative nature of
the work”).
hus, the first factor weighs in favor of Defendants.
Factor Two: Nature of the Copyrighted Work
he second statutory factor considers the “nature of the copyrighted work.” 17 U.S.C
§ 107(2). his factor “has rarely played a significant role in the determination of a fair use
dispute.” Authors Guild v. Google, Inc., 804 F.3d 202, 220. Indeed, because this analysis
“inevitably involves” the first factor’s transformative purpose inquiry, “the second factor may be
of limited usefulness where the creative work of art is being used for a transformative purpose.”
Id.; Blanch, 467 F.3d at 257.

Plaintiffs argue that the Song is intended for creative expression for public dissemination
and that this factor weighs in their favor because Defendants have not provided a persuasive
justification for their use. Mem. in Opp’n at 10. Notwithstanding Plaintiffs’ characterization of
the Song, the transformative nature of the Film renders the second factor “of limited usefulness.”
Blanch, 467 F.3d at 257. And while Plaintiffs argue that Defendants have not provided an
adequate justification for their use, such requirement is satisfied when the secondary use is found
to be transformative. Google, Inc., 804 F.3d at 220 (finding the second factor “not dispositive”
when the secondary use is transformative, even if “one (or all) of the plaintiff works were
[creative]”); Fox News Network, LLC, 883 F.3d at 178 (finding that where the first statutory
factor favors secondary use due to modest transformative use — “albeit slightly” — the second
factor “plays no significant role”).
Accordingly, the second factor is neutral.
Factor ^ree: Amount and Substantiality
he third statutory factor considers the “amount and substantiality of the portion used in

relation to the copyrighted work as a whole.” 17 U.S.C § 107(3). he analysis is “with reference
to the allegedly copyrighted work, not the infringing work.” Bill Graham Archives v. Dorling
Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). he factor “calls for thought not only about
the quantity of the materials used, but about their quality and importance, too.” Campbell, 510
U.S. at 587. he quantitative inquiry considers whether the secondary use “employs more of the
copyrighted work than is necessary,” whereas the qualitative inquiry asks whether the use was
“excessive in relation to any valid purposes asserted under the first factor.” HathiTrust, 755 F.3d
at 96 (citing Campbell, 510 U.S. at 588 (1994)). If the use qualitatively amounts to “the heart”
of the original work, although quantitatively minimal, the use could be considered substantial;
however, use of “the heart” of the copyrighted work is not dispositive. Indeed, when the work is

transformative, “the secondary use must be [permitted] to conjure up at least enough of the
original to fulfill its transformative purpose.” Cariou, 714 F.3d at 710 (citing Campbell, 510
U.S. at 588) (internal quotation marks omitted).
Quantitatively, the Film uses eight seconds of the Song’s 190 seconds, or 4.21 percent of
the Song. Mem. in Opp’n at 11; DVD Copy of Film at 29:55–30:03. Plaintiffs argue that
because the segment used is repeated three times in the Song, that the total used is more
accurately 12.63 percent of the Song. Mem. in Opp’n at 11. Yet Plaintiffs do not point to a
single instance in which a copyrighted work’s repeated refrain was counted more than once for
the quantitative assessment. Mem. in Opp’n at 11. his component, therefore, favors
Defendants.
Repetition can, however, be considered in the qualitative inquiry. Plaintiffs argue that the
segment used in the Film represents the “heart” of the Song, noting that the cited passage is the

chorus that gives the Song its name and is repeated throughout the Song. Mem. in Opp’n at 11.
Even assuming that this segment is the “heart” of the Song, this does not end the analysis. See,
Lennon v. Premise Media Corp., 556 F. Supp. 2d 310, 326 (S.D.N.Y 2008) (finding that the
secondary use’s inclusion of a musical phrase used in 50 percent of the copyrighted material was
not excessive, even though it contained the heart of the original material). Where the heart of the
copyrighted work is at the core of the transformative character, use of the heart is permissible “to
fulfill its transformative purpose.” Cariou, 714 F.3d at 710; see Lennon, 556 F. Supp. 2d at 326
(finding it was “not clear that defendants could have used any portion of the song [to fulfill its
transformational purpose] without ending up with an excerpt” at the copyrighted work’s heart).
hus, use of the “heart” of a work is permissible when it is necessary to achieve its

transformation. Such is the case with Defendants’ use — the dance depicted in the Film requires
the phrase “fish sticks and tater tots” to communicate the “reverse mermaid” transformation.
herefore, the third factor’s qualitative component also favors Defendants.
Because the portion of the Song used by Defendants is neither quantitively nor
qualitatively excessive, the third factor weighs in favor of a finding of fair use.
Factor Four: Effect Upon the Potential Market or Value
he fourth factor considers “the effect of the [secondary] use upon the potential market
for or value of the copyrighted work.” 17 U.S.C. § 107(4). his factor is “undoubtedly the single
most important element of fair use.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 566, (1985). he critical inquiry is whether the secondary use “usurps” the market of the
original, “where the infringer’s target audience and the nature of the infringing content is the
same as the original.” Cariou, 714 F.3d at 709. In such instances, the secondary use competes
with the original “so as to deprive the rights holder of significant revenues because of the
likelihood that potential purchasers may opt to acquire the copy in preference to the original.”

Google, Inc., 804 F.3d at 223. his likelihood is closely linked to the first factor, as “the more the
copying is done to achieve a purpose that differs from the purpose of the original, the less likely
it is that the copy will serve as a satisfactory substitute for the original.” Id. (citing Campbell,
510 U.S. at 591). Critically, the fourth factor must also consider “‘not only the . . . market harm
caused by the particular actions of the alleged infringer,’ but also the market harm that would
result from ‘unrestricted and widespread conduct of the [same] sort.’” Fox News Network, LLC,
883 F.3d at 179 (citing Campbell, 510 U.S. at 590).
Here, the fourth factor weighs decisively in favor of Defendants. Plaintiffs repeatedly
acknowledge that the Film targets a different audience from their own, noting that they “created
the Song with children being the intended audience,” whereas the Film is “centered on strippers”

and is used “during a scene in which a woman dances to the Song while removing her clothing.”
Compl. ¶¶ 17–18, 20. As the Film’s use is transformative of the original, the potential market —
children or those who would acquire the Song on behalf of children — would not “opt to acquire
the copy” of a limited eight seconds of the Song “in preference to the original.” Google, Inc.,
804 F.3d at 223 (finding that an online service deemed transformational, which allows users to
view only “snippets” of books, did not create a competing substitute for the books). Put another
way, it is unlikely that parents would purchase copies of the film for their minor children so that
they could hear the excerpt of the Song in the Film.
Plaintiffs also argue that if such use of the Song were to become widespread, that is,
“without first obtaining a license from [them],” Plaintiffs would potentially be precluded “from
participating in at least two entire segments of the music industry,” which they identify as “music
for an individual to at least appear to dance to, and as background music” in films. Mem. in

Opp’n at 13. Yet, “not every effect on potential licensing revenues enters the analysis under the
fourth factor,” and a copyright holder “has no right to demand that users take a license unless the
use that would be made is one that would otherwise infringe an exclusive right.” Fox News
Network, LLC, 883 F.3d at 180 (internal quotation marks omitted). Moreover, only impacts on
“potential licensing revenues for traditional, reasonable, or likely to be developed markets should
be legally cognizable.” Id. Here, it is unreasonable to consider the potential uses named by
Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants’
motion. Because Defendants met their burden by showing that the Film’s secondary use would
not usurp that of the original, other similarly hypothetical uses would equally not deprive them of
prospective audiences. hus, the fourth factor weighs in favor of Defendants.

* * *
Because the first, third, and fourth factors weigh in favor of Defendants, and the second
factor is merely neutral, their alleged use of the Song is fair within the meaning of 17 U.S.C
§ 107. Accordingly, Plaintiffs’ claims of direct copyright infringement by public performance
and reproduction fail to meet the pleading standard required by Rules 12(b)(6) and 12(c). See
Lynch, 952 F.3d at 75 (finding the “standard for granting a Rule 12(c) motion for judgment on
the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a
claim”).
C. Contributory, Vicarious, and Inducement of Copyright Infringement
Plaintiffs also assert claims for inducement of copyright infringement, contributory
copyright infringement, and vicarious copyright infringement in violation of their exclusive
rights of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. 37-79.
While the Copyright Act does not create liability for contributory, vicarious, or inducement of
copyright infringement, “the common-law doctrine that one who knowingly participates or
furthers a tortious act is jointly and severally liable with the prime [sic] tortfeasor.” Arista
Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). However, there can be no contributory,
vicarious, or inducement of infringement where no direct infringement exists. Cariou, 714 F.3d
at 712. Because Defendants have successfully invoked the doctrine of fair use, no underlying
direct infringement exists. Fox News Network, LLC, 883 F.3d at 176 (finding fair use is an
affirmative defense to copyright infringement). Accordingly, Plaintiffs’ claims for inducement of
copyright infringement, contributory copyright infringement, and vicarious copyright
infringement also fail to meet the requirements of both Rules 12(b)(6) and 12(c).
IV. CONCLUSION
For the reasons stated above, the Defendants’ motion to dismiss and for judgement on the
pleadings is GRANTED with prejudice. The Clerk of Court is respectfully directed to terminate
the motion, Doc. 28, and to close the case.

It is SO ORDERED.

Dated: May 27, 2020 ele. CV | 2
New York, New York \
Edgardo Ramos, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10323198. Public record. Not legal advice.