United States District Court, C.D. California
PRESENT HONORABLE CHRISTINA A. SNYDER JUDGE
CIVIL MINUTES - GENERAL‘O'
(IN CHAMBERS) - DEFENDANT'S MOTION TO DISMISS (Dkt. 13,
filed March 2, 2018)
Court finds this motion appropriate for decision without oral
argument. Fed.R.Civ.P. 78; C.D. Cal. Local Rule 7-15.
Accordingly, the hearing date of April 9, 2018 is vacated,
and the matter is hereby taken under submission.
January 1, 2018, plaintiff Barry Rosen filed the instant
action against defendants Hollywood Show, LLC
(“defendant”), Myron Ross d/b/a “Heroes
& Legends, ” and Does 1 through 10 (collectively,
“defendants”). Dkt 1 (“Compl.”).
Plaintiff asserts claims for copyright infringement and
contributory copyright infringement. Plaintiff contends that
he is the photographer and owner of a copyrighted photograph
(the “Subject Photograph”) of actress Gena Lee
Nolin, and asserts that defendants unlawfully reproduced and
distributed an identical or substantially similar copy (the
“Accused Image”) of the Subject Photograph.
March 2, 2018, defendant filed a “notice of
demurrer.” Dkt. 13 (“MTD”). On March 19,
2018, plaintiff filed an opposition. Dkt. 15
(“Opp'n”). On March 26, 2018, defendant filed
a reply. Dkt. 16 (“Reply”).
carefully considered the parties' arguments, the Court
finds and concludes as follows.
alleges the following facts.
is an individual residing in California. Compl. ¶ 4.
Defendant is a California limited liability company with its
principal place of business in Studio City, California.
Id. ¶ 5. Ross is an individual residing in
California and doing business as “Heroes and
Legends”. Id. ¶ 6.
created and owns the Subject Photograph, which was registered
with the United States Copyright Office. Id.
¶¶ 1-2. Plaintiff alleges that defendants accessed
the Subject Photograph and created unauthorized prints that
were allegedly published, advertised, distributed, or
monetized by defendants. Id. ¶¶ 3-4, 13.
Plaintiff contends that defendants were provided with notice
of the alleged infringement in August 2017, and asserts that
the dispute could not be resolved. Id. ¶ 5.
further alleges that defendant and plaintiff previously
entered into a settlement agreement concerning the sale of
unauthorized copies of photographs that plaintiff owns, and
that according to this agreement, plaintiff is obligated to
provide defendant with notice of any vendor's alleged
infringement at defendant's events if defendant
advertised or identified that vendor at least seven days
before the event where the accused prints were offered for
sale. Id. ¶ 6. Plaintiff asserts that defendant
failed to advertise or identify Legends as a vendor for the
event in which the Subject Photograph was allegedly
reproduced, and thus defendant was not entitled to notice in
advance of the filing of this action. Id.
alleges that the Subject Photograph and the Accused Image are
identical, or at least substantially similar. Id.
¶ 7. Plaintiff further asserts that each defendant
distributed, marketed, and published the Accused Image.
Id. ¶¶ 11-12.
plaintiff asserts that defendants are each vicariously liable
for the alleged infringement because defendants knowingly
induced and profited from the unauthorized reproduction of
the Subject Photograph. Id. ¶ 18. Plaintiff
alleges that defendants had direct financial interests in the
unauthorized reproduction, publication, and distribution of
the Subject Photograph. Id. ¶¶ 18-19.
Further, each defendant allegedly had the ability ...