IP Law Daily, COPYRIGHT—9th Cir.: No heightened pleading standard for copyright claims, a court of appeals reiterates, (Oct 6, 2022)

By Matthew Hersh, J.D.

A district court erred by demanding evidence at the motion to dismiss stage.

A federal district court in the Los Angeles wrongly insisted that a plaintiff in a copyright infringement lawsuit come forward with sufficient evidence to withstand a motion to dismiss, the U.S. Court of Appeals for the Ninth Circuit has held. The court, in an unpublished opinion that emphatically reversed and remanded on all claims, underscored that a complaint should survive a motion to dismiss as long as it alleges a plausible set of facts that could lead to liability, even if the court has doubts that the plaintiff will eventually be able to prove its case in the long run (APL Microscopic, LLC v. Steenblock, October 3, 2022, per curiam).

The players in the lawsuit are Dr. David Steenblock, D.O., and Andrew Paul Leonard. Steenblock is an industry leader in the use of stem cells to promote health and regenerative health benefits. He conducts his marketing on its website at https://strokedoctor.com/ and maintains a related Facebook web page titled, “Dr. Steenblock—Regenerative Medicine,” located at https://www.facebook.com/personalizedregenerativemedicine/. Leonard, meanwhile, is a skilled creator of microscopic art (a branch of photography known as “micrography”) and the principal of APL Microscopic, LLC, which operates as www.aplmicro.com.

The photographer, believing that the doctor had used his artwork without permission on his Facebook and Instagram pages, brought a lawsuit against the doctor in 2021. The complaint alleged direct and secondary copyright infringement as well as a violation of the Digital Millennium Copyright Act, or DMCA. The trial court granted the doctor’s motion to dismiss, leading to this appeal.

Standing. The court of appeals found that the photographer had adequately pleaded standing to bring the complaint. The copyright registration attached to the complaint showed that the work was registered to the photographer personally, and not to his LLC (which was formally the party to the complaint). The photographer alleged that he had transferred the copyright to the LLC, but the trial court found that he “present[ed] no evidence” of this. The court of appeals reversed. The complaint alleged that the transfer had taken place, and that was enough. “We do not require heightened fact pleading of specifics,” the court noted, “but only enough facts to state a claim for relief that it is plausible on its face.” At this point in the case, evidence was not required.

Direct copyright infringement. The court of appeals also found that the photographer had adequately pleaded direct infringement. The doctor contended that the allegedly infringing photos were not hosted on his own website but on a website operating as “Stem Cell Medical Solutions” that had nothing to do with him. But the photographer sued for the use of these photos anyway. The trial court, finding the photographer’s allegations conclusory and speculative—“any layperson can create a Facebook or Instagram page and include links on those pages to third-party websites,” the trial court noted—dismissed the complaint.

Again, the court of appeals reversed. The photographer “plausibly alleged” that the doctor controlled the social media pages on which the infringing works appeared. Indeed, the photographer has even attached to his complaint screenshots that appeared to associate the doctor with the phrase “Stem Cell Medical Solutions,” a business name similar to one of the accused URLs. To be sure, the court noted, it was also possible that, as the doctor contended, someone had borrowed his identity to make a website in his name. “But the court may not dismiss a plaintiff’s claims simply because it doubts their veracity,” the court of appeals emphasized. Indeed, under the leading Supreme Court precedent addressing motions to dismiss, Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” This complaint met that test, the court held.

Secondary copyright infringement. The court of appeals reached similar conclusions with respect to contributory and vicarious copyright infringement. The trial court dismissed these claims because they could not stand without the direct infringement claim. Moreover, the trial court concluded, “nothing in the record” indicated or “conclusively demonstrated” that the doctor controlled the social media pages or allowed for the distribution of the photos on those sites. “But [the photographer] need not ‘conclusively demonstrate’ anything at the pleading stage,” the court of appeals emphasized. These claims, too, would proceed.

DMCA claim. Finally, the court appeals also resuscitated the photographer’s claim under the DMCA. The trial court dismissed the claim because it felt it was “implausible” that the doctor operated the pages in question. But the court of appeals, having already reversed on this question, found it easy to restore the DMCA claim as well. The photographer provided images of his artworks from the doctor’s alleged social media pages that lacked his original watermark. That was enough, the court of appeals held, to state the DMCA claim.

The case is No. 21-55745.

Attorneys: Joel Benjamin Rothman (SRipLaw PLLC) for APL Microscopic, LLC. Harry A. Safarian (Safarian Firm, APC) for David A. Steenblock.

Companies: APL Microscopic, LLC

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