CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`
`DISTRICT OF MINNESOTA
`
`Plaintiff,
`
`Civ. No. 18-232 (JRT/HB)
`
`
`
`MEMORANDUM OPINION &
`ORDER
`
`
`
`FURNITUREDEALER.NET, INC.
`
`
`
`v.
`
`AMAZON.COM, INC., and COA, INC.
`d/b/a COASTER COMPANY OF
`AMERICA
`
`
`
`
`
`Defendants.
`
`Michael Lefeber, BRIGGS & MORGAN, PA, 80 South Eighth Street, Suite
`2200, Minneapolis, MN 55402, for plaintiff.
`
`Daniel M. Cislo, CISLO & THOMAS, LLP, 12100 Wilshire Boulevard,
`Suite 1700, Los Angeles, CA 90025, and Robert J. Gilbertson, GREENE
`ESPEL, PLLP, 222 South Ninth Street, Suite 2200, Minneapolis, MN
`55402, for defendant COA, Inc.
`
`
`
`
`
`
`
`This case arises out of a contract between Plaintiff FurnitureDealer.Net (“FDN”)
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`and Defendant Coaster Company of America (“Coaster”) in which FDN agreed to create a
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`website to market Coaster’s products. FDN, a furniture marketing company, noticed that
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`copyrighted material it created for Coaster began appearing on Defendant Amazon.com’s
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`(“Amazon”) URLs. FDN brought this action against Coaster after learning that it provided
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`the allegedly infringed material to Amazon. Against Coaster, FDN alleges direct copyright
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`infringement, contributory infringement, vicarious infringement, unjust enrichment,
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 2 of 26
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`breach of contract, breach of the covenant of good faith and fair dealing, and violations of
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`the Digital Millennium Copyright Act (“DMCA”).
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`Coaster now moves to dismiss FDN’s claims under Fed. R. Civ. P. 12(b)(6) and, in
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`the alternative, requests a more definite statement under Rule 12(e). Because FDN has
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`alleged facts sufficient to support its claims, the Court will deny Coaster’s motion to
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`dismiss as to every claim save FDN’s unjust enrichment claim. The Court will grant
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`Coaster’s motion to dismiss the unjust enrichment claim because that claim is preempted
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`by the Copyright Act. Finally, because it is possible for Coaster to reply to FDN’s
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`allegations, the Court will deny Coaster’s motion for a more definite statement.
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`BACKGROUND
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`I.
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`FurnitureDealer.Net’s Copyright
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`FDN is a Minnesota corporation specializing in the creation, production, and
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`management of marketing solutions for home furniture companies. (Am. Compl. ¶¶ 1, 8,
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`May 14, 2018, Docket No. 6.) As part of its services, FDN creates and manages websites
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`for furniture retailers. (Id. ¶ 8.) In creating websites, FDN also creates content that appears
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`on the sites, including written descriptions of its clients’ products. (Id.) These descriptions
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`include search-engine-optimized (“SEO”) text. (Id.) SEO text is, in essence, text that is
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`tailored to maximize its prominence on the internet, particularly in response to online
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`searches. (Id. ¶ 36.) As the effectiveness of SEO text increases, so do the rankings of the
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`websites associated with the text. (Id.) Likewise, when SEO text is compromised, website
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`rankings and traffic decrease. (Id.) For that reason, FDN tightly controls and regulates the
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 3 of 26
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`use and distribution of the furniture descriptions it writes to service its clients’ websites.
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`(Id.)
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`One tool FDN employs to protect and track its assets is a library of original product
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`content (the “Content Library”), which includes content created for all clients FDN serves.
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`(Id. ¶ 8.) The Content Library is stored in a database (the “Automated Database”), which
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`was copyrighted in September 2015. (Id. ¶¶ 8-9 & Ex. A, Docket No. 6-1.) The Certificate
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`of Registration from the U.S. Copyright Office identifies the title of the work as
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`“Automated database of furniture catalogs and collections (photographs and text).” (Id. ¶
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`9, Ex. A.) The “new material” listed on the certificate includes “Compilation, arrangement,
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`original text, original photographs and revisions to certain prior photographs.”1 (Id.)
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`II.
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`Alleged Infringement by Coaster and Amazon
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`Coaster is a California furniture company and a long-time customer of FDN. (Id. ¶¶ 3,
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`10.) In February 2010, Coaster and FDN entered into an agreement (the “Agreement”)
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`establishing that FDN would create and maintain a customized website for Coaster at
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`www.coasterfurniture.com (the “Website”). (Id. ¶¶ 11-12, 31.)
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`In relevant part, the Agreement contains the following terms:2 (1) FDN owns the
`
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`1 In preparation for litigation on the present motion, the parties learned that the U.S.
`Copyright Office has been unable to locate the deposit materials submitted in connection
`with FDN’s 2015 copyright. (Decl. of Daniel Cislo ¶¶ 7-8, July 6, 2018, Docket No. 42.)
`While not material in evaluating Coaster’s motion to dismiss, the Court notes that this may
`present an evidentiary issue in the case.
`2 While the Court is normally limited to the pleadings when considering a 12(b)(6) motion,
`it may consider “documents whose contents are alleged in a complaint and whose
`authenticity no party questions.” Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th
`Cir. 2003) (quoting In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996)).
`3
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`Website but licensed it to Coaster;3 (2) FDN owns all rights, title and interest to all original
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`content created by FDN for the Website; (id. ¶ 11; Decl. of Larry Furiani ¶ 3, July 6, 2018,
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`Docket No. 39, Ex. 1 (“Agreement”) at 3, Docket No. 40); (3) use of FDN’s original
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`content is limited to the Website and websites of Coaster-authorized dealers who enter into
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`separate licensing agreements with FDN; (Am. Compl. ¶ 12; Agreement at 6, 10); (4)
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`Coaster retains all rights and title to domain names and design elements that it provides for
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`the Website; (Agreement at 3); and (5) in exchange for creating and maintaining the
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`Website, Coaster would provide FDN with referrals of authorized dealers with whom FDN
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`could share its original content; (id. at 2).
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`Pursuant to the Agreement, FDN created the Website and wrote SEO text (the
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`“Descriptive Text”) to market Coaster’s products, using Coaster’s catalog as a starting
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`point. (Am. Compl. ¶¶ 10-11.) With other content used on the Website, FDN added the
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`Descriptive Text to its Content Library. (Id.) FDN alleges that the Descriptive Text is
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`therefore protected not only by the Agreement, but also by the copyright of FDN’s
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`Automated Database. (Id. ¶ 11.) To alert third parties against using copyrighted material,
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`FDN placed a graphic on each page of the Website. (Id. ¶ 34.) The graphic includes FDN’s
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`logo and states, “All rights reserved. Nothing on this page may be copied or reproduced
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`without explicit permission.” (Id.)
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`Because the Agreement’s contents are alleged in the Amended Complaint and neither party
`questions its authenticity, it is properly considered here.
`3 The Court notes that despite this provision, in 2013, Coaster’s counsel registered a
`copyright of the Website in Coaster’s name. While the Website itself is not the subject of
`this dispute, its ownership is relevant to the Court’s analysis of FDN’s copyright and
`DMCA claims.
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`After the Website was up and running and before February 2016, FDN noticed that the
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`Descriptive Text it created for Coaster began appearing on Amazon URLs used to promote
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`and sell Coaster furniture. (Id. ¶ 14.) By February 2016, FDN had identified and collected
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`at least 394 Amazon URLs where its Descriptive Text appeared. (Id. ¶ 19.) Because the
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`text appearing on the Amazon URLs was identical or nearly identical to the Descriptive
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`Text in its Content Library, FDN believed it was copied directly from the Content Library.
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`(Id. ¶ 14.)
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`On February 25, 2016, FDN submitted a takedown request to Amazon via email
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`pursuant to the Digital Millennium Copyright Act (“DMCA”). (Id. ¶ 17.) In the email,
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`FDN explained in detail its concerns about copyright infringement. (Id. ¶ 19.) It also
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`attached a spreadsheet containing a comparison of the text on Coaster’s and Amazon’s
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`websites for each instance of alleged infringement along with the corresponding URLs.
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`(Id.) Amazon repeatedly asserted that it could not identify the alleged infringements and
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`requested more detail from FDN. (Id. ¶¶ 20-29.) Although FDN complied with Amazon’s
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`requests, Amazon did not take any steps to remove the identified material in response to
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`this exchange. (Id. ¶ 29.)
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`In one email dated April 6, 2016, an Amazon employee explained to FDN that Amazon
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`had received the item descriptions from the product manufacturer (i.e., Coaster). (Id. ¶ 30.)
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`Although Coaster’s Vice President repeatedly denied granting Amazon permission to use
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`the Descriptive Text, Amazon insisted that FDN work with Coaster to resolve the issue.
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`(Id. ¶¶ 32, 35, 37, 44.)
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`Still believing Amazon had acted independently, FDN brought suit against Amazon on
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`January 26, 2018. (Compl., Jan. 26, 2018, Docket No. 1.) However, after learning that
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`Coaster had (1) allegedly uploaded the Descriptive Text onto the Amazon URLs in
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`question; and (2) failed to ask Amazon to remove the text from its URLs, FDN added
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`Coaster as a defendant. (Am. Compl., ¶¶ 49, 50.)
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`As of this date, the Descriptive Text in issue remains on various Amazon URLs. (Id.
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`¶¶ 48, 52.) FDN alleges that it has suffered and continues to suffer losses because of
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`Amazon and Coaster’s infringement. (Id. ¶¶ 51, 53.)
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`DISCUSSION
`
`I.
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`Coaster’s Motion to Dismiss for Failure to State a Claim
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`A. Standard of Review
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`In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
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`the Court considers all facts alleged in the complaint as true to determine if the complaint
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`states a “‘claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009). To survive a motion to dismiss, a complaint must provide more than “‘labels and
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`conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although the Court accepts the complaint’s
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`factual allegations as true, it is “not bound to accept as true a legal conclusion couched as
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`a factual allegation.” Twombly, 550 U.S. at 555 (internal quotation marks omitted). “A
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`claim has facial plausibility when the plaintiff pleads factual content that allows the court
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`to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Iqbal, 556 U.S. at 678. “Where a complaint pleads facts that are merely consistent with a
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 7 of 26
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`defendant's liability, it stops short of the line between possibility and plausibility,” and
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`therefore must be dismissed. Id. The Court construes the complaint in the light most
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`favorable to the plaintiff, drawing all inferences in their favor. Ashley Cty., Ark. v. Pfizer,
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`Inc., 552 F.3d 659, 665 (8th Cir. 2009).
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`While the Court is normally limited to the pleadings when considering a 12(b)(6)
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`motion, it may properly consider materials that are necessarily embraced by the pleadings.
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`Enervations, Inc. v. Minn. Mining & Mfg. Co., 380 F.3d 1066, 1069 (8th Cir. 2004). Such
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`materials include “documents whose contents are alleged in a complaint and whose
`
`authenticity no party questions.” Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th
`
`Cir. 2003) (quoting In re Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996)).
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`B. FDN’s Copyright Claims
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`Coaster argues that FDN’s copyright infringement claims (Counts I-III) should be
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`dismissed for four reasons: (1) FDN has not adequately identified the material it alleges
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`was infringed upon; (2) the Descriptive Text is not copyrightable subject matter; (3)
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`Coaster had a right to the text as a joint author; and (4) FDN has not adequately alleged
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`that Coaster had access to FDN’s copyrighted work, which is a necessary element of a
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`copyright claim.
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`i.
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`The Identified Material
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`Coaster repeatedly asserts that it is uncertain what material FDN alleges was
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`copyrighted and subsequently infringed upon. The Court is unpersuaded. While the
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`function and contents of the Automated Database and Content Library are somewhat
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`obscure at this stage in the proceedings, the Court has no difficulty identifying the material
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`in issue as the Descriptive Text that FDN produced for Coaster and placed on the Website.
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`Coaster points to the lack of examples of infringed material in the Amended Complaint.
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`But this is no matter; FDN has described the Descriptive Text and the alleged infringement
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`in detail. Moreover, FDN alleges that it specifically identified hundreds of instances of
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`infringement, placed them into a spreadsheet, and confirmed with Coaster’s Vice President
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`that FDN owned the material in question. (See Am. Compl. ¶¶ 19, 32-33.) Thus, the Court
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`finds that FDN has alleged facts sufficient to identify the Descriptive Text as the subject
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`of this dispute.
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`ii.
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`Copyrightable Subject Matter
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`Coaster argues that FDN’s copyright claims should be dismissed because the
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`Descriptive Text is not copyrightable subject matter. First, Coaster asserts that, as SEO
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`text, the Descriptive Text should be denied copyright protection under the merger doctrine.
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`Second, Coaster argues that the text lacks the creativity required of copyrighted material.
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`The Court first notes that the certificate of copyright registration attached to the
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`pleadings creates a rebuttable presumption of a valid copyright in the Automated Database
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`(“the Copyright”). See Thimbleberries, Inc. v. C & F Enterprises., Inc., 142 F.Supp.2d
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`1132, 1137 (D. Minn. 2001); 17 U.S.C. § 410(c) (“the certificate of registration . . . shall
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`constitute prima facie evidence of the validity of the copyright . . ..”) However, because
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`“copyright protection may extend only to those components of a work that are original to
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`the author,” FDN must show that the Descriptive Text itself is original and capable of being
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`copyrighted. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).
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`a. The Merger Doctrine
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`Under the merger doctrine, which applies to only a “small category of works,”
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`expressions of ideas may be denied copyright protection when “the idea behind the
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`expression is such that it can be expressed only in a very limited number of ways.” Toro
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`Co. v. R & R Products Co., 787 F.2d 1208, 1212 (8th Cir. 1986). The purpose of the
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`doctrine is to prevent monopolization of ideas when, “by copyrighting a mere handful of
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`forms, [a party] could exhaust all possibilities of future use of the substance [of the idea].”
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`Id. (quoting Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir. 1967)).
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`Coaster argues that the search-engine-optimization process used in the creation of the
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`Descriptive Text limits the number of ways the ideas behind the text can be expressed,
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`making application of the merger doctrine appropriate. The Court disagrees. While the
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`language FDN used in writing furniture descriptions was influenced by the SEO process,
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`the ideas behind those descriptions could nonetheless be expressed in a variety of ways.
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`Indeed, FDN describes a process that is fairly involved, such that the authors – not an
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`algorithm – ultimately determine how their marketing ideas will be expressed. The Court
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`thus finds the merger doctrine inapplicable here.
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`b. Creativity and Originality
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`In a similar vein, Coaster contends that, because the Descriptive Text consists mainly
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`of short phrases and descriptive language, it lacks the requisite creativity and originality
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`for copyrightability.
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`The Copyright Act extends copyright protection to “original works of authorship fixed
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`in any tangible medium of expression.” 17 U.S.C. § 102(a). “To be the original work of
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`an author, a work must be the product of some ‘creative intellectual or aesthetic labor.’”
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`West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1223 (8th Cir. 1219) (quoting
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`Goldstein v. California, 412 U.S. 546, 561 (1973)). “However, ‘a very slight degree of
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`such labor . . . almost any ingenuity . . . will be sufficient . . . .’” Id. (quoting M. Nimmer,
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`1 Nimmer on Copyright, § 1.08[C][1]). Accordingly, those works that have “no separate
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`value” from an original composition, such as individual words, labels, or very short
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`phrases, may lack the requisite creativity for copyright protection. Alberto-Culver Co. v.
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`Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972); see also Narrel v. Freeman, 872
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`F.2d 907, 911 (9th Cir. 1989) (ordinary phrases not copyrightable); Magic Marketing, Inc.
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`v. Mailing Servs. of Pittsburgh, Inc., 634 F. Supp. 769, 771-72 (W.D. Pa. 1986) (envelopes
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`containing phrases such as “GIFT CHECK ENCLOSED” were not copyrightable). Texts
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`found to constitute purely technical descriptions have likewise been denied copyright
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`protection. See, e.g., Feist Publ., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 344 (1991)
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`(facts not copyrightable).
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`While Coaster argues otherwise, the Descriptive Text at issue in this case consists of
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`more than single words, short phrases, labeling, or technical descriptions. Indeed, a review
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`of examples of the text reveals unique phrasing and language that seems designed to
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`maximize the attractiveness of the products described to online buyers. For instance, a
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`description of a dresser includes the sentence, “Two distinctive transparent doors add a
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`unique touch, while clean lines, simple molding, and square tapered feet create a
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`sophisticated style.” (Decl. of Mira Vats-Frounier ¶ 5, Ex. C-1 at 6, July 30, 2018, Docket
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`No. 54-4.) That this text is descriptive in nature does not preclude it from possessing the
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`minimal degree of originality required under the Copyright Act. As such, the Court finds
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`that the Descriptive Text has the creativity and originality required for copyrightability.
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`iii.
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`The Scope of the Copyright
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`Having established that the Descriptive Text is copyrightable, the Court must determine
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`whether FDN has alleged facts showing that it was indeed copyrighted.
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`Coaster argues that the Descriptive Text is not covered by the Copyright of the
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`Automated Database. FDN responds that the Automated Database is a type of “collective
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`work” for which the Copyright Act does not require registration of individual parts. “A
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`collective work is a work . . . in which a number of contributions, constituting separate and
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`independent works in themselves, are assembled into a collective whole.” 17 U.S.C. § 101.
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`The Copyright Office considers automated databases to be compilations, which include
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`collective works. Id. Thus, taking as true that that the registered work is an automated
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`database, the Court finds that it is properly characterized as a collective work.
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` The statutory language explaining the scope of a copyright’s protection in the case of
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`a collective work is vague. Section 409 states only that “in the case of a compilation . . .
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`an identification of any preexisting work or works that it is based on or incorporates, and a
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`brief, general statement of the additional material covered by the copyright claim being
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`registered” must be included. 17 U.S.C. § 409(9). Because the statute does not explicitly
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`state that registration of a compilation covers its component works when the authors of
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`those component works are not listed, some courts have barred infringement suits involving
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`such works. See, e.g., Muench Photography, Inc. v. Houghton Mifflin Harcourt Publ’g Co.,
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`712 F.Supp.2d 84, 94 (S.D.N.Y. 2010); Bean v. Houghton Mifflin Harcourt Publ’g Co.,
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`2010 WL 3168624, at *4 (D. Ariz. Aug. 10, 2010). However, others have interpreted the
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`statute to suggest that registration of a collective work covers component works so long as
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`the registrant has rights to those component works. For instance, in Metropolitan Regional
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`Information Systems, Inc. v. American Home Realty Network, Inc., the Fourth Circuit held
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`that component photographs of an automated database were covered by registration of the
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`database where the registrant had rights to those photographs. 722 F.3d 591, 597 (4th Cir.
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`2013); see also Masterfile Corp. v. Gale, 2011 WL 4702862, at *2 (D. Utah Oct. 4, 2011)
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`(registration of a collection extended copyright protection to constituent parts); Am. Inst.
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`of Physics v. Shwegman Lundberg & Woessner, P.A., 2012 WL 3799647, at *2 (D. Minn.
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`July 2, 2012) (registration of journals created copyright in those articles).
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`The Court finds that the latter view better aligns with the spirit of the Copyright Act.
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`As the court in Metropolitan Regional Information Systems stated, “[a]dding impediments
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`to automated database authors’ attempts to register their own component works conflicts
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`with the general purpose of Section 409 to encourage prompt registration.” Id. (citing U.S.
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`Copyright Office, Circular No. 1, 7: Copyright Basics (2012). Indeed, the Copyright Office
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`has stated that under its interpretation of the registration requirement, contributions to
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`collective works need not be individually registered. See Compendium of Copyright Office
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`Practices II § 615.06.
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`Here, FDN registered what the Court must infer was a collective work and retained
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`exclusive rights to the relevant components of that work – the Descriptive Text.
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`Accordingly, the Court finds FDN’s allegations sufficient to show that the copyright of the
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`Automated Database extends to the Descriptive Text.
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`iv.
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`Joint Authorship
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`Coaster next argues that it is a joint author of the Website and, as such, it shares equal
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`rights with FDN to any content on the site.
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`“The author [of a work] is the party who actually creates the work, that is, the person
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`who translates an idea into a fixed, tangible expression entitled to copyright protection.”
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`Community for Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989) (citing 17 U.S.C.
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`§ 102). A joint work is a “work prepared by two or more authors with the intention that
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`their contributions be merged into inseparable or interdependent parts of a unitary whole.”
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`17 U.S.C. § 101 (emphasis added). While “the respective contributions of authors to a
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`single work do not need to ‘be equal either quantitatively or qualitatively . . . [they]
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`must . . . be more than de minimus.’” Words & Data, Inc. v. GTE Communications
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`Services, Inc., 765 F. Supp. 570, 575 (W.D. Mo. 1991) (quoting 1 M. Nimmer, NIMMER
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`ON COPYRIGHT, § 6.07 at 6-18.2 (1990)). Because joint authors are equally entitled to
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`the copyright in their work, “an action for infringement between joint authors will not lie.”
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`Weissman v. Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989).
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`The intent joint authors must share has yet to be defined in this Circuit. Courts
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`elsewhere have taken two views on the matter. One view is that the parties need only
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`intend to integrate their contributions into a unitary whole. See, e.g., Words & Data, 765
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`F. Supp. at 575; Oliver v. Johanson, 2018 WL 6112964, at *15 (W.D. Ark. Nov. 21, 2018).
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`Under that view, collaboration alone may be “an independent ground for finding the
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`necessary intent for joint authorship.” Words & Data, 765 F. Supp. at 575. Other courts,
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`including the Second and Seventh Circuits, have required that joint authors intend, at the
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`time they make their contributions, “to regard themselves as joint authors.” Childress v.
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`Taylor, 945 F.2d 500, 507 (2d Cir. 1991); see also Erickson v. Trinity Theatre, Inc., 13
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`F.3d 1061, 1071-72 (7th Cir. 1994). This view is based partially on the premise that
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`requiring less than this would put collaborators in a position of joint authorship when they
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`never intended as much. In Childress, the court used as an example the relationship
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`between a writer and an editor. 945 F.2d at 507. The two collaborate and make individual
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`contributions to a unitary work, “yet very few editors and even fewer writers would expect
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`the editor to be accorded the status of joint author, enjoying an undivided half interest in
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`the copyright.” Id.
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`Like the Second and Seventh Circuits, the Court is persuaded that “equal sharing of
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`rights should be reserved for relationships in which all participants fully intend to be joint
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`authors.” Id. at 509. The Court will therefore look to the time FDN and Coaster made
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`their contributions and ask whether they intended to be joint authors.4 Before beginning
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`this inquiry, however, the Court notes that while the parties focus primarily on whether the
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`Website is a joint work, the work at issue here is not the Website, but the Descriptive Text.
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`The Court must therefore ask two questions: (1) whether Coaster is a joint author of the
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`Descriptive Text; and (2) whether Coaster is a joint author of the Website and, if so,
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`whether its status as such gives it equal rights to the Descriptive Text specifically.
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`With respect to the Descriptive Text, Coaster argues that by providing FDN with a
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`product catalog, it also provided the basic text, which FDN merely enhanced to create the
`
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`4 Indeed, this Court previously applied the same standard in United States v. Washington
`Mint, LLC, No. 9901768, 2001 WL 1640073, at *3 (D. Minn. Sept. 5, 2001).
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 15 of 26
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`longer product descriptions. Coaster contends that by providing the catalog, it made
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`“separate contributions” that became part of a “unitary whole,” making it a joint author of
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`the text. (Def.’s Reply Mem. at 8, Aug. 10, 2018, Docket No. 59.)
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`Even assuming Coaster’s provision of the catalog constitutes more than a de minimis
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`contribution, the Court is not persuaded that Coaster is a joint author of the Descriptive
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`Text. Coaster paid FDN to more effectively promote its products, in part through creating
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`tailored descriptions. The very nature of this relationship suggests that the parties did not
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`intend to be joint authors, but instead intended that FDN would provide Coaster with a
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`service by creating content for the Website. The Agreement confirms as much. It states
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`that “[FDN] will create and enhance content in the Content Library at Coaster’s request . .
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`. such as keyword enriching product descriptions.” (Agreement at 6.) That Coaster
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`provided short words and phrases to FDN through its catalog does not make it a genuine
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`collaborator, nor show the intent necessary for joint authorship. As such, the Court finds
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`it probable that FDN was the sole author of the Descriptive Text, and Coaster’s claim of
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`right to it fails.
`
`Coaster next argues that by contributing photos and logos, providing product
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`information, and discussing ideas with FDN, it contributed to the “unitary whole” (the
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`Website) and is therefore a joint author with equal rights to any content on the site. As a
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`preliminary matter, it is not clear to the Court that Coaster’s contributions to the Website
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`were more than de minimis. But even assuming they were, the Court finds that the Website
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`is best characterized as a collective – not a joint – work, with each party enjoying ownership
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`over its individual contributions. The Agreement states explicitly that Coaster would keep
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 16 of 26
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`rights to any “design elements” it contributed and, likewise, that any content created by
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`FDN for the Website would belong exclusively to FDN.5 The parties’ insistence suggests
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`that they lacked the intent required for joint authorship; that is, an intent that they be
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`considered joint authors of the Website. Indeed, if they did intend to share authorship, it
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`is difficult to understand why they would bother at all with defining their respective rights
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`to the components of the site.
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`Because the facts alleged show that the parties did not have the requisite intent, the
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`Court will not address the consequences that would arise from joint authorship of the
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`Website.
`
`v.
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`Coaster’s Access to the Automated Database
`
`Coaster next asserts that FDN’s copyright claims fail because FDN has not shown that
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`Coaster had access to the Automated Database.
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`To show copyright infringement, a plaintiff must establish ownership of a valid
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`copyright and copying of original elements of the work. Mulcahy v. Cheetah Learning
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`LLC, 386 F.3d 849, 852 (8th Cir. 2004). Copying may be established by “(1) direct
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`evidence or (2) showing that the defendants had access to the copyrighted materials and
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`showing that substantial similarity of ideas and expression existed between the alleged
`
`
`5 The parties dispute which of them owns the Website itself. FDN created and managed
`the Website, and the Agreement states that “the Site licensed to Coaster . . . is owned by
`[FDN].” (Agreement ¶ 15.) At the same time, Coaster apparently possesses a copyright
`to the Website. However, even if Coaster did own the Website, it would only have a right
`to use those contributions that it also owns, i.e., the photos and logos it contributed. See
`Section B(iii), supra, for further discussion of registration and ownership of collective
`works.
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`CASE 0:18-cv-00232-JRT-HB Document 91 Filed 03/14/19 Page 17 of 26
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`infringing materials and copyrighted materials.” Rottlund Co. v. Pinnacle Corp., 452 F.3d
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`726, 731 (8th Cir. 2006).
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`Here, the only dispute is whether FDN has sufficiently alleged that Coaster had access
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`to the copyrighted materials. To establish access, FDN must show that Coaster had a
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`“reasonable possibility” of viewing its work. Moore v. Columbia Pictures Industries, Inc.,
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`972 F.2d 939, 942 (8th Cir. 1992). Coaster argues that FDN’s claim fails because FDN
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`does not explicitly allege facts showing that Coaster had access to the copyrighted material,
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`the Automated Database.
`
`This argument fails for three reasons. First, FDN need only show that Coaster had
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`access to the Descriptive Text, not the entire Automated Database. Second, FDN has
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`alleged facts showing that Coaster had access to the Descriptive Text. Courts may infer
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`access when the similarities between the allegedly infringing material and the copyrighted
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`work are “so striking and of such nature as to preclude the possibility of coincidence,
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`accident or independent creation.” Scott v. WKJG, Inc., 376 F.2d 467, 469 (7th Cir. 1967);
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`see also Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); Scott v. Paramount Pictures
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`Corp., 449 F. Supp. 518, 520 (D.D.C. 1978). Here, FDN alleges hundreds of incidences
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`of Amazon URLs incorporating language identical or nearly identical to the Descriptive
`
`Text to describe Coaster furniture. This similarity alone allows the Court to infer access.
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`Moreover, both as a member of the public and through its working relationship with
`
`FDN, Coaster indisputably had access to the Website where the Descriptive Text appears.
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`Coaster argues that access to the Website does not equate to access to the Automated
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`Database. While true, this point is immaterial. Again, at issue here is only the Descriptive
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`Text. Whether Coaster’s point of access to that text was through the Database or through
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`the Websit