Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 1 of 14 PageID #:531
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`No. 1:14-cv-01470
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`Judge Amy J. St. Eve
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`Joanne M. Denison,
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`Plaintiff,
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`Jerome Larkin, Melissa Smart, Sharon Opryszek,
`Leah Black, Nextpoint, Inc and the Illinois Attorney )
`Registration and Discipline Commission,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER.
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`AMY J. ST. EVE, District Court Judge:
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`Plaintiff JoAnne M. Denison (“Plaintiff”) brings this action against Defendants Jerome
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`Larkin, Sharon Opryszek, Melissa Smart, Leah Black, and Nextpoint (collectively,
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`“Defendants”) alleging copyright infringement, vicarious copyright infringement and
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`contributory copyright infringement in violation of 17 U.S.C §101 et seq. Defendants move to
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`dismiss Plaintiff’s Complaint in its entirety. Jerome Larkin, Sharon Opryszek, Melissa Smart,
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`and Leah Black (collectively, the “IARDC Defendants”) move to dismiss for failure to state a
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`claim pursuant to Federal Rule of Civil Procedure 12(b)(6) 1. Nextpoint also moves to dismiss
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`for failure to state a claim pursuant to Rule 12(b)(6). For the following reasons, the Court grants
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`Defendants’ motions to dismiss.
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`1 The IARDC Defendants also raised the Younger doctrine as a basis for dismissal. Because
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`the Court is dismissing Plaintiff’s claims for failure to state a claim pursuant to Rule 12(b)(6), it does not
`address Defendants’ argument for abstention pursuant to the Younger doctrine.
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 2 of 14 PageID #:532
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`BACKGROUND2
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`This case arises out of an Illinois Attorney Registration and Disciplinary Commission
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`(“IARDC”) disciplinary proceeding. Plaintiff, a licensed attorney in the state of Illinois, is suing
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`the IARDC and Nextpoint for using portions of her copyrighted Blog (“Blog”) as evidence
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`against her in an attorney disciplinary proceeding. The IARDC has alleged that Plaintiff made
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`false statements about judges and other lawyers on her Blog, which addresses the guardianship
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`proceeding of Mary Sykes. (R. 1-4, Pl. Exhibit C ¶ 6.)3
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`I. Mary Sykes
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`Mary Sykes was a 90-year-old woman who was put into guardianship in December of
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`2009. (R. 1, Compl. ¶ 6.) Plaintiff investigated Ms. Sykes’ case and allegedly found “a large
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`number of irregularities” in the case. (Id.) Plaintiff believes that Ms. Sykes was a victim of
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`courtroom corruption. (Id.)
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`In late 2011, Plaintiff created the Blog to, in her words, “provide a forum for the friends
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`and relatives of Mary Sykes, a probate victim, to speak out against corruption in the courtroom.”
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`(R.1, Compl. ¶ 6.) Plaintiff applied for and received a copyright registration for the Blog on
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`January 26, 2013. (R 1-4, Pl. Exhibit A.) Plaintiff posted her own writings as well as the
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`writings of others on the Blog. The writings included allegations of corruption in the Probate
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`Court of Cook County, that Sykes was the victim of elder abuse, and that the guardians ad litem
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`and the court had physically or mentally harmed Sykes. (R. 1-4, Pl. Exhibit C ¶ 6.) This
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`2 The Court accepts Plaintiff’s factual allegations as true for purposes of Rule 12(b)(6).
`3 Plaintiff submitted a redacted version of the IARDC complaint against her. The Court may take note of
`the IARDC proceeding against Plaintiff in this motion to dismiss because the IARDC complaint is a
`public record. Ill. S. Ct. R. 766(a) (attorney disciplinary proceedings are public). See Ennenga v. Starns,
`677 F.3d 766, 773-74 (7th Cir. 2012) (“Taking judicial notice of matters of public record need not convert
`a motion to dismiss into a motion for summary judgment”). Defendants filed the un-redacted IARDC
`complaint as R. 24-1, Defendant’s Exhibit 1.
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`2
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 3 of 14 PageID #:533
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`guardianship proceeding has generated several state and federal proceedings involving Plaintiff
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`and her associate, Kenneth Ditkowsky.4
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`II.
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` IARDC Action Against Plaintiff
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`The Illinois Supreme Court has the power to discipline attorneys who have been admitted
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`to practice in the state of Illinois. In re Thomas, 356 Ill. Dec. 769, 791 (Ill. 2012) (citing In re
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`Mitan, 75 Ill. 2d 118, 123, 387 N.E. 2d 278 (1979), cert. denied, 444 U.S. 916 (1979)). The
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`Illinois Supreme Court enacted rules governing the discipline of attorneys and created the
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`IARDC to enforce those rules. Ill. S. Ct. Rules 751-80. The IARDC’s responsibilities include
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`conducting disciplinary proceedings affecting members of the Illinois bar. Ill. S. Ct. R. 751(a).
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`Investigations conducted by the IARDC remain private and confidential. Ill. S. Ct. R. 766(a)(1).
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`The Administrator in this case, Defendant Jerome Larkin, concluded that sufficient
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`evidence existed to establish misconduct by Plaintiff and brought the matter to the Inquiry
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`Board, which determines whether to file a complaint with the Hearing Board, pursuant to Ill. S.
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`Ct. R. 753(a)(2). If the Inquiry Board decides to file a complaint based on the misconduct, the
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`Administrator files the complaint with the Hearing Board. Ill. S. Ct. R. 753(b). Defendants
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`Melissa Smart, Sharon Opryszek and Lea Black are IARDC attorneys who represent Mr. Larkin
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`before the Hearing Board. The Hearing Board can recommend discipline, dismissal of the
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`complaint or petition, or nondisciplinary disposition. Ill. S. Ct. R. 753(c)(3). Disciplinary
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`actions include disbarment, suspension, censure, and reprimand. Ill. S. Ct. R. 770.
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`4Ditkowsky, 2012PR00014 available at http://www.iardc.org/ardcroll.asp (Review Board Dec. 5, 2013)
`(recommendation to the Illinois Supreme Court that Mr. Ditkowsky be suspended four years for making
`statements the lawyer knows to be false or with reckless disregard for its truth in regards to the Sykes
`matter); Ditkowsky, M.R. 26516 available at http://www.iardc.org/ardcroll.asp (Ill. Order March 15,
`2014) (Illinois Supreme Court Order suspending Mr. Ditkowsky for matters related to the Sykes case);
`Ditkowsky and Denison v. Stern, et al., No. 14-cv-375, 2014 WL 1607587 (N.D. Ill. Apr. 21, 2014) (Mr.
`Ditkowsky and Ms. Denison sued Defendant Larkin and others for allegedly violating their First, Fifth
`and Fourteenth Amendment rights and for intrusion upon seclusion after the IARDC began a proceeding
`against them for making false statements. Both counts were dismissed for failure to state a claim).
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`3
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 4 of 14 PageID #:534
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`Upon the filing of the recommendation of the Hearing Board, either party may appeal to
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`the Review Board. Ill. S. Ct. R. 753(d). The Review Board presides over an appellate review of
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`the Hearing Board’s determination. Ill. S. Ct. R. 753(d)(1). The Review Board may approve,
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`reject or modify the recommendation of the Hearing Board. Ill. S. Ct. R. 753(d)(3).
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`Additionally, the Review Board may make additional findings or may remand for further action.
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`Id. Either party may appeal the report and recommendation of the Review Board to the Illinois
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`Supreme Court. Ill. S. Ct. R. 753(e).
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` Defendant Black filed a disciplinary complaint on behalf of Defendant Larkin against
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`Plaintiff alleging professional misconduct in making false statements on her Blog. (R 1-4, Pl.
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`Exhibit C ¶ 10.) The IARDC complaint alleged that Plaintiff wrote in her Blog that the judges,
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`guardians ad litem, and other attorneys involved in the guardianship proceedings engaged in
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`improprieties including theft and embezzlement from the estate of the Ms. Sykes. (Id. ¶¶ 4-8.)
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`The IARDC alleged that these claims were false and brought an action against Plaintiff for:
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`a) making a statement that the lawyer knows to be false or with reckless
`disregard as to its truth or falsity concerning the qualifications or integrity of a
`judge, adjudicatory officer or public legal officer, in violation of Rule 8.2 of
`the Illinois Rules of Professional Conduct;
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`b) conduct involving dishonesty, fraud, deceit, or misrepresentation, in violation
`of Rule 8.4(c) of the Illinois Rules of Professional Conduct;
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`c) conduct that is prejudicial to the administration of justice, in violation of Rule
`8.4(d) of the Illinois Rules of Professional Conduct;
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`d) presenting, participating in presenting, or threatening to present criminal
`charges to obtain an advantage in a civil matter, in violation of Rule 8.4(g) of
`the Illinois Rules of Professional Conduct; and
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`e) conduct which tends to defeat the administration of justice or to bring the
`courts or the legal profession into disrepute.
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`(Id. ¶ 12.)
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`4
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 5 of 14 PageID #:535
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`III. Copyright Action Against IARDC and Nextpoint
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`Plaintiff brought this suit alleging that the IARDC infringed on her copyright by using
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`“15 paragraphs of text from the Mary Sykes Blog” in its disciplinary complaint which the
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`IARDC posted on its website. (R.1, Compl. at ¶ 10.) In addition, the ARDC copied “hundreds
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`of pages from her blog” and maintained them in her case file. (Id. ¶ 13.) Plaintiff alleges the
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`IARDC copied over 1,000 pages of the Blog and “then incorporated [it] into even further
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`exhibits.” (Id. ¶¶ 21, 23.) Plaintiff claims the amount copied was “far in excess of what the
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`IARDC needed for its investigation and trial.” (Id. ¶ 27.) Moreover, Plaintiff alleges that she
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`sent the IARDC a cease and desist letter and objected to its use of her copyrighted materials. (Id.
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`¶¶ 11,14.) The IARDC, according to Plaintiff, continued to copy and use portions of her blog for
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`the disciplinary hearing, including for trial exhibits.
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`Additionally, Plaintiff alleges that Nextpoint, which produces webpage software data,
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`also infringed on her copyright by allowing the IARDC to use Nextpoint’s software to capture
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`her Blog. (Id. ¶ 24.) Plaintiff claims that the copies exceeded the amount necessary for the
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`IARDC proceeding. (Id. ¶ 34.) In Count I, Plaintiff alleges that the Defendants committed direct
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`copyright infringement. (Id. ¶ 26.) In Counts II and III, Plaintiff alleges that Defendant Larkin
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`committed contributory copyright infringement and vicarious copyright infringement. (Id. ¶¶
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`29; 37.)
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`Plaintiff seeks (1) statutory damages for willful infringement against each and all
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`Defendants as jointly and severally liable; (2) a preliminary and permanent injunction against
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`copying portions of Plaintiff’s Blog; (3) an order that Defendants deliver up for destruction by
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`the United States Marshal all exhibit pages not used at trial and that Defendants pay the cost of
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`such destruction; (4) an order directing the IARDC to remove the 15 paragraphs of her Blog used
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`5
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 6 of 14 PageID #:536
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`to publish the January 8, 2013 complaint on the IARDC’s website and to mark the omitted
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`portions “copyrighted material omitted;” and (5) her reasonable attorney’s fees, costs, and other
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`relief under United States copyright law. (Id. p. 16.)
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`LEGAL STANDARD
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` “A motion under Rule 12(b)(6) tests whether the complaint states a claim on which relief
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`may be granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). Under Rule 8(a)(2), a
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`complaint must include “a short and plain statement of the claim showing that the pleader is
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`entitled to relief.” Fed. R. Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must
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`“give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
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`Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007) (citation
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`omitted). Under the federal notice pleading standards, a plaintiffs “factual allegations must be
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`enough to raise a right to relief above the speculative level.” Id. Put differently, a complaint
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`must contain sufficient factual content “to allow the court ‘to draw a reasonable inference that
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`the defendant is liable for the misconduct alleged.’” Charleston v. Board of Trs. of Univ. of Ill.
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`at Chicago, 741 F.3d 769, 772 (7th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
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`S.Ct. 1937, 173 L.Ed. 2d 868 (2009)). “In reviewing the sufficiency of a complaint under the
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`plausibility standard, [courts] accept the well-pleaded facts in the complaint as true.” Alam v.
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`Miller Brewing Co., 709 F.3d 662, 665–66 (7th Cir. 2013). In ruling on a Rule 12(b)(6) motion,
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`district courts may also consider documents attached to the pleadings without converting the
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`motion into a motion for summary judgment, as long as the documents are referred to in the
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`complaint and central to the claims. See Geinosky v. City of Chicago, 675 F.3d 743, 745 n. 1
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`(7th Cir. 2012). Additionally, although a plaintiff need not plead facts in the complaint to defeat
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`potential affirmative defenses, where “the allegations of the complaint itself set forth everything
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`6
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 7 of 14 PageID #:537
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`necessary to satisfy [an] affirmative defense,” the plaintiff pleads himself out of court. See
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`Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009).
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`ANALYSIS
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`The IARDC Defendants seek dismissal of the alleged vicarious, contributory and direct
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`copyright infringement claims pursuant to Rule 12(b)(6) for failure to state a claim. Nextpoint
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`also seeks dismissal of the direct copyright infringement claim pursuant to Rule 12(b)(6) for
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`failure to state a claim.
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`I.
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`Direct Copyright Infringement
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`The owner of a copyright has the exclusive right to reproduce the copyrighted work. 17
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`U.S.C §106(1). Copyright infringement occurs when anyone violates the exclusive rights of a
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`copyright owner. 17 U.S.C §501(a). “A plaintiff alleging copyright infringement must establish
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`two elements: ‘(1) ownership of a valid copyright, and (2) copying of the constituent elements of
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`the work that are original.” Janky v. Lake Cnty. Convention And Visitors Bureau, 576 F.3d 356,
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`361 (7th Cir. 2009) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.
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`Ct. 1282, 113 L. Ed. 2d 358 (1991)).
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`Here, Plaintiff alleges that she owns a copyright for the Blog and that the IARDC made
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`copies of this Blog. (R.1, Compl. ¶¶ 10-11; 24.) Copying copyrighted material is prima facie
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`evidence of copyright infringement. 17 U.S.C. §501. If the copying is for a fair use of the
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`material, however, it does not constitute infringement. 17 U.S.C §107. Fair use is an affirmative
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`defense to a copyright infringement claim. See Brownmark Films, LLC v. Comedy Ptrs., 682
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`F.3d 687, 689 (7th Cir. 2012).
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`The Copyright Act sets forth four, non-exclusive factors that a court must consider in
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`determining whether a particular use of a copyrighted work is a fair use: “(1) the purpose and
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`7
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 8 of 14 PageID #:538
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`character of the use…; (2) the nature of the copyrighted work; (3) the amount and substantiality
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`of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use
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`upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107 (2006). These
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`factors are “illustrative and not limitative” and “provide only general guidance.” Campbell v.
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`Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S. Ct. 1164, 127 L. Ed. 2d 500 (1994). The
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`Supreme Court has held that whether a particular form of copying is a fair use is an open-ended
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`and context-specific inquiry. Id. (“The task is not to be simplified with bright-line rules, for the
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`statute, like the doctrine it recognizes, calls for case-by-case analysis.”).
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`A.
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`Purpose and Character of the Use
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`The first fair use factor for the Court to consider is the “purpose and character of the use,
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`including whether such use is of a commercial nature.” 5 17 U.S.C §107(1). The main inquiry is
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`whether the new work supersedes the objects of the original or adds something new. Harper &
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`Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 562, 105 S. Ct. 2218, 2231, 85 L. Ed.
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`2d 588 (1985). See also Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 693 (7th
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`Cir. 2012) (“Central to determining the purpose and character of a work is whether the new work
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`merely supersedes the original work, or instead adds something new with a further purpose or of
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`a different character.”)
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`5 The use of copyrighted material for commercial profit weighs against a finding of fair use. See Harper
`& Row, 471 U.S. at 539 (“The fact that a publication was commercial as opposed to nonprofit is a
`separate factor that tends to weigh against a finding of fair use.”). Plaintiff asserts that the IARDC
`proceeding is commercial in nature because, “upon information and belief,” the IARDC sells its decisions
`to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits. (R. 1, Compl. ¶ 18.) This
`statement is unfounded. The purpose of the IARDC is to “promote and protect the integrity of the legal
`profession, at the direction of the Supreme Court, through attorney registration, education, investigation,
`prosecution and remedial action.” IARDC Homepage (July 28, 2014), http://www.iardc.org/.
`Commercial profit is not part of protecting the integrity of the legal profession.
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`8
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 9 of 14 PageID #:539
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`The purpose and character of the IARDC’s use is unrelated to the purpose of the Blog,
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`which Plaintiff created to serve as a forum for people to “speak out against corruption in the
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`courtroom.” (R.1, Compl. ¶ 6.) As Plaintiff alleges, the IARDC used portions of the Blog as
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`evidence in its disciplinary proceeding against Plaintiff, the author of the Blog. The House
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`Committee on the Judiciary explicitly listed “reproduction of a work in legislative or judicial
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`proceedings or reports” as an example of a fair use. H.R. Rep. No. 94-1476, 65 (1976). In
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`addition, the Seventh Circuit has noted that reproducing copyrighted works for litigation is an
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`example of the fair use doctrine. Ty, Inc. v. Publications Intern. Ltd., 292 F.3d 512 (7th Cir.
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`2002). In Ty, Inc., a copyright infringement action, the Seventh Circuit commented on the
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`characterization of certain books at issue: “An even clearer case is a two-page spread in For the
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`Love of Beanie Babies entitled “Kitty Corner,” which we reproduce (without Ty’s permission!—
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`a good example of the fair-use doctrine in action) at the end of this opinion.” Id. at 519. Other
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`courts have also held that the use of copyrighted material in litigation constitutes a fair use. See,
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`e.g., Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003) (holding that the defendant's use of the
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`plaintiff's entire copyrighted work in a child custody proceeding ”does not undermine the
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`protections granted by the [Copyright] Act but only serves the important societal interest in
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`having evidence before the factfinder”); Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982)
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`(holding that the city councils use of copyrighted material in the legal proceedings was not “the
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`same intrinsic use to which the copyright holders expected protection from unauthorized use.”);
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`Stern v. Does, 978 F. Supp. 2d 1031, 1044-49 (C.D. Cal. 2011) (Reproduction of copyrighted
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`material for use in litigation or potential litigation is generally fair use, even if the material is
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`copied in whole.); Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 10 of 14 PageID #:540
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`F.Supp. 2d 627, 638 (E.D. Pa. 2007) (holding that law firm's copying of an entire set of
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`copyrighted web pages was justified where the web pages were relevant evidence in litigation).
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`Copying portions of the Blog for evidence does not supersede the Blog’s purpose as a
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`forum to discuss purported courtroom corruption. Moreover, it is uncontested that Defendants
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`used the reproduction of these copyrighted materials in a judicial proceeding. Therefore, the
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`purpose and character of the Defendants’ use of the Blog, as alleged, weighs heavily in favor of a
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`finding of fair use.
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`B.
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`Nature of the Copyrighted Work
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`The second fair use factor for the Court to consider is the nature of the copyrighted work.
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`17 U.S.C. §107(2). This factor “draws on Justice Story’s expression, the ‘value of the materials
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`used.’” Campbell 510 U.S. at 586 (citing Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841)).
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`The purpose of copyright law is “to Promote the Progress of Science and useful Arts.” U.S.
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`Const. art. I, § 8, cl. 8. Fictional and creative works are closer to the heart of copyright law than
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`factual works. See Stewart v. Abend, 495 U.S. 207, 237–238, 110 S. Ct. 1750, 109 L. ED. 2d
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`184 (1990) (contrasting fictional short story with factual works); Harper & Row, 471 U.S. at
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`563–564 (contrasting soon-to-be-published memoir with published speech); Sony Corp. of Am. v.
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`Universal City Studios, Inc., 464 U.S 417, 455, n. 40, 104 S. Ct. 774 (1984) (contrasting motion
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`pictures with news broadcasts). It is easier to establish a defense of fair use when the work is
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`farther from the heart of copyright law. See Campbell 510 U.S. at 586 (“This factor calls for
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`recognition that some works are closer to the core of intended copyright protection than others,
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`with the consequence that fair use is more difficult to establish when the former works are
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`copied”); Stewart, 495 U.S. at 237 (“In general, fair use is more likely to be found in factual
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`works than in fictional works”).
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`10
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 11 of 14 PageID #:541
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`Plaintiff asserts that the Blog was a “place to discuss legal issues and strategies, explain
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`laws and compliance with laws.” (R.1, Compl. ¶ 9.) As alleged, the Blog is closer to a factual
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`work or published speech than it is to a short story or unpublished memoir. See, e.g., Stewart,
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`495 U.S. at 237–238 (contrasting fictional short story with factual works); Harper & Row, 471
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`U.S. at 563–564 (contrasting soon-to-be-published memoir with published speech). The factual
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`nature of the Blog weighs in favor of a finding of fair use.
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`C.
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`The Amount and Substantiality of the Portion Used
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`The third factor for the Court to consider is the amount and substantiality of the portion
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`used. 17 U.S.C. § 107(3). This factor considers whether the amount used is reasonable in
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`relation to the purpose of the copying. Campbell, 510 U.S. at 586. Reasonableness depends on
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`how much the copy serves as a market substitute for the original. Campbell, 510 U.S. at 588
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`(“Once enough has been taken to assure identification, how much more is reasonable will
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`depend, say, on….the likelihood that the [copy] may serve as a market substitute for the
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`original”). Copying the entire work does not, however, guarantee a claim of copyright
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`infringement. Sony, 464 U.S. at 449-50 (“the fact that the entire work is reproduced…does not
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`have its ordinary effect of militating against a finding of fair use”) (citation omitted).
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`Here, Plaintiff alleges that Defendants copied the entire Blog. As she alleges, however,
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`the Defendants copied the Blog in connection with the disciplinary proceeding against her. As
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`the Court has already discussed, this is allowed given the uncontested underlying litigation
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`purpose of the materials. (supra pp. 8-9.) Further, as alleged, the IARDC only used fifteen
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`paragraphs as part of the public portion of that proceeding. (R.1, Compl. ¶ 10.) Fifteen
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`paragraphs is not a market substitute for a Blog that contains over “1,000 pages.” (R.1, Compl. ¶
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`23.); See Campbell, 510 U.S. at 586, 114 S. Ct. at 1175 (reasonableness depend on the likelihood
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`11
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 12 of 14 PageID #:542
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`that the copy may serve as a market substitute for the original). The amount of the Blog copied
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`by the IARDC and the significantly smaller amount used by the IARDC was reasonable in
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`relation to its purpose. Copying the entire Blog serves the important “societal interest in having
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`evidence before the factfinder.” Bond, 317 F.3d at 396. As such, this factor weighs in favor of a
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`finding of fair use.
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`D.
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` The Effect upon the Potential Market
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`The fourth fair use factor is “the effect of the use upon the potential market for or value
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`of the copyrighted work.” 17 U.S.C. §107(4). This factor “requires courts to consider not only
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`the extent of market harm caused by the particular actions of the alleged infringer, but also
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`‘whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would
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`result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510
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`U.S. at 590 (citing 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A] [4], p. 13–
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`102.61 (1993)). This factor “requires a court to consider the effect of the use on the potential
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`market for the copyrighted work.” Sony, 464 U.S. at 497.
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`As laid out in Campbell, the Court considers (1) the extent that the copying resulted in
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`market harm and (2) whether unrestricted and widespread conduct of the sort engaged in by
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`Defendants would result in a substantially adverse impact on the potential market for the
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`original. Plaintiff fails to allege that the IARDC’s use of the Blog as evidence had any impact on
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`any alleged market for the Blog. Plaintiff never sold or offered to sell the Blog. (R.1, Compl. ¶
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`7.) Indeed, Plaintiff alleges that the Blog “is currently very popular and has experienced at least
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`44,000 hits to date since its creation.” (Id. at 5.) Further, Plaintiff has not identified any market
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`for or revenue generated from the Blog. The use of the Blog as evidence in a state disciplinary
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`12
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`

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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 13 of 14 PageID #:543
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`proceeding does not create any adverse impact on any perceived market for the Blog. As with
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`the other factors, this factor weighs in favor of Defendants’ fair use.
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`This Court, taking all fair use factors into consideration, finds that the copying of the
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`Blog by the IARDC and Nextpoint, as alleged in the complaint, was a fair use of the copyrighted
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`material consistent with 17 U.S.C §107. Since Plaintiff’s complaint leaves no possible outcome
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`but a finding of fair use, there is no valid claim for copyright infringement. Therefore, the Court
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`dismisses Count I, alleging copyright infringement, for failure to state a claim pursuant to Fed.
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`R. Civ. P. 12(b)(6).
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`II.
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`Vicarious and Contributory Copyright Infringement
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`In order to have a valid claim for contributory or vicarious copyright infringement,
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`Plaintiff must allege a valid direct copyright infringement claim. See Monotype Imaging, Inc. v.
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`Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005) (“To support a claim for contributory
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`copyright infringement, a plaintiff must demonstrate (1) direct infringement by a primary
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`infringer”); Monotype Imaging, Inc. v. Bitstream, Inc., 03 C 4349, 2005 WL 936882 (N.D. Ill.
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`Apr. 21, 2005) (“In order to support a claim of vicarious infringement, a plaintiff must
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`demonstrate: (1) direct infringement by a primary infringer”).
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`The Court dismisses Plaintiff’s claims for contributory copyright infringement (Count II)
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`and vicarious copyright infringement (Count III) for failure to state a claim pursuant to Rule
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`12(b)(6) because Defendants copied the Blog for fair use and thus no direct infringement exists.
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`13
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`Case: 1:14-cv-01470 Document #: 40 Filed: 08/13/14 Page 14 of 14 PageID #:544
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`CONCLUSION
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`For these reasons, the Court dismisses with prejudice Plaintiff’s complaint and her claims
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`of direct, vicarious, and contributory copyright infringement against Defendants Jerome Larkin,
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`Sharon Opryszek, Melissa Smart, Leah Black, the IARDC, and Nextpoint.
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`ENTERED:
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`AMY J. ST. EVE
`United States District Court Judge
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`14
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`Dated: August 13, 2014