Case 9:18-cv-80572-WPD Document 14 Entered on FLSD Docket 07/12/2018 Page 1 of 6

UNITED STATES DISTRICT COURT

CASE NO. 18-80572-CIV-DIMITROULEAS

LICKERISH, LTD.,

Plaintiff,
vs.

Z LIFESTYLE D/B/A WORLDLIFESTYLE.COM,

Defendant.
___________________________________/

ORDER DENYING DEFENDANT’S MOTION TO DISMISS COMPLAINT

THIS CAUSE is before the Court upon Defendant Z Lifestyle LLC’s Motion to Dismiss

the Complaint [DE 6]. The Court has carefully considered the Motion [DE 6], the Response [DE

9], the Reply [DE 10], the record in this case, and is otherwise advised in the premises. For the

reasons set forth below, Defendant’s Motion to Dismiss [DE 6] is denied.

I. Background

Plaintiff Lickerish, Ltd. (“Plaintiff”) is a photographic syndication company that provides

images to communication businesses. ¶ 2.1 Plaintiff has developed a large clientele through its

extensive library of pictures of celebrities and models taken by internationally-renowned

photographers. ¶ 2. Plaintiff created seven photographs (the “Works”), which includes 6 photos

of Melania Trump (the “Melania Works”) and a photo of Maggie Vessey, (“the Maggie Work”).

¶¶ 10-11. Plaintiff registered the Melania Works and the Maggie Work with the Register of

Copyrights. ¶ 11. Defendant Z Lifestyle LLC (“Defendant”) is a human interest entertainment

website. ¶ 3. On a date after the Works were created, Defendant, who has never been licensed to

use the Works, copied the Works. ¶¶ 13-14. After Defendant initially copied the Works, it made

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Facts in the background section are taken from the Complaint [DE 1].
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further copies and distributed the Works on the internet to promote the sale of goods and services

as part of its website. ¶ 16. Plaintiff never gave Defendant permission or authority to copy,

distribute or display the Works. ¶ 20.

Plaintiff has brought a single action for copyright infringement against Defendant.

Defendant has filed a Motion to Dismiss Plaintiff’s Complaint [DE 6], arguing Plaintiff has not

adequately pled that it has standing to sue for the alleged copyright infringement. The Court

finds that Plaintiff’s Complaint [DE 1] is adequately pled, and Plaintiff has standing to sue.

Accordingly, Defendant’s Motion to Dismiss [DE 6] is denied.

II. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an

unadorned, the-defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A pleading that

asserts mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of

action will not do.” Twombly, 550 U.S. at 555. And “on the assumption that all the allegations

are true (even if doubtful in fact),” the factual allegations pleaded “must be enough to raise a

right to relief above the speculative level.” Id. “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id.

(quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Id. This plausibility determination is “a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

“But where the well-pleaded facts do not permit the court to infer more than the mere possibility

of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled

to relief.’” Id. (brackets in original) (quoting Fed. R. Civ. P. 8(a)(2)). “The Supreme Court has

employed a ‘two-pronged approach’ in applying the foregoing principles: first, a reviewing court

should eliminate any allegations in the complaint that are merely legal conclusions; and second,

where there are well-pleaded factual allegations, ‘assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.’” Boyd v. Warden, Holman

Correctional Facility, 856 F.3d 853, 864 (11th Cir. 2017) (quoting Iqbal, 556 U.S. at 679).

III. Discussion

“To make out a prima facie case of copyright infringement, a plaintiff must show that (1)

it owns a valid copyright in the [work] and (2) defendants copied protected elements from the

[work].” Saregama India Ltd. v. Mosley, 635 F.3d 1284, 1290 (11th Cir. 2011) (quoting Peter

Letterese & Assocs., Inc. v. World Inst. of Scientology Enters., Int’l, 533 F.3d 1287, 1300 (11th

Cir. 2008)). “The legal or beneficial owner of an exclusive right under a copyright is entitled . . .

to institute an action for any infringement of that particular right committed while he or she is the

owner of it.” 17 U.S.C. § 501(b). Plaintiff claims standing to sue for copyright infringement as

the owner of the copyrights of the Works. Defendant argues that Plaintiff has not adequately

alleged it has standing to enforce the copyrights. According to Defendant, Exhibit 1 to the

Complaint [DE 1-2] (Certificates of Registration) shows that the respective photographers—not

Plaintiff—own the copyrights in the Works.

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In the Complaint [DE 1], Plaintiff claims it owned the copyrights of the Works at all

relevant times. [DE 1] at ¶¶ 11, 23. The Certificates of Registration for the Works show that

photographers Antoine Verglas and Dimitriy Loiseauare are the claimants and authors for the

copyrighted Melania Works and Maggie Work, respectively. According to Defendant, this

demonstrates that the photographers, not Plaintiff, own the copyright. See 17 U.S.C. § 201(a)

(“Copyright in a work protected under this title vests initially in the author or authors of the

work.”). However, this only demonstrates that the photographers were the initial owners of the

copyright. Id. The fact that the photographers were the initial owners of the copyrights does not

contradict the allegation that Plaintiff was the owner of the copyrights at all times relevant to this

copyright infringement claim.

Defendant argues that if Plaintiff acquired legal or beneficial ownership of the copyright

through a transfer, it must allege the transfer occurred. See 17 U.S.C. § 204 (a) (“A transfer of

copyright ownership, other than by operation of law, is not valid unless an instrument of

conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of

the rights conveyed or such owner's duly authorized agent.”). While Plaintiff may need to

provide evidence of such a transfer to prove it has standing to enforce the copyrights, at this

stage it need only allege ownership. See Affordable Aerial Photography, Inc. v. Illustrated

Props. Real Estate, No. 9:16-cv-80109, 2016 WL 8786785, at *2 (S.D. Fla. May 3, 2016); See

also Twombly, 550 U.S. at 555. Defendant claims Affordable Aerial Photography is

distinguishable because the plaintiff in that case pleaded that it “became the owner of the

copyrighted works either by virtue of the fact that the works were for hire taken by

[photographer] in the course and scope of his employment for [Affordable], and/or by written

assignment from [photographer] to [Affordable], including assignment of the copyright

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registrations for said works.” Affordable Aerial Photography, 2016 WL 8786785, at *2. While

Defendant believes that Plaintiff must make similar allegations, alleging the ownership was

transferred to Plaintiff, this Court has clearly stated that “[plaintiff] need only allege, not prove,

ownership.” Id. Here, Plaintiff has alleged that it owns the copyright, and it is reasonable to infer

at this stage that Plaintiff obtained ownership through a valid transfer. Plaintiff has adequately

alleged ownership, and therefore has alleged standing to bring this action.

Defendant also argues that Plaintiff contradicts allegations in the Complaint [DE 1] by

stating in its Response [DE 9] that “Discovery will show that [Plaintiff] is the exclusive licensee

of the copyrights asserted.” Pl.’s Resp. [DE 9] at 5. While this statement may contradict

allegations that Plaintiff owns the copyrights, when evaluating a motion to dismiss, this Court

looks to the facts alleged in the complaint, not the arguments in the plaintiff’s response. See

Iqbal, 556 U.S. at 678 (stating to survive a motion to dismiss under Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” (emphasis added) (quoting Twombly, 550 U.S. at 570)). While Plaintiff’s

potentially contradictory statement in its response [DE 9] may be puzzling, it has no bearing on

this analysis because the Court must review allegations in the Complaint [DE 1], not statements

made in the Response [DE 9], when ruling on Defendant’s Motion to Dismiss [DE 6].

When the facts and exhibits are read in a light most favorable to Plaintiff, as they must be

at this stage, Plaintiff only needs to allege, not prove, that it owned the copyrights of the Works

at all times relevant to this action. Plaintiff has alleged ownership of the copyrights of the Works,

so Defendant’s Motion to Dismiss [DE 6] is denied.

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IV. Conclusion

Based upon the foregoing, it is hereby ORDERED AND ADJUDGED that Defendant Z

Lifestyle LLC’s Motion to Dismiss [DE 6] is DENIED.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida,

this 12th day of July, 2018.

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