Case 1:17-cv-09307-JPO Document 65 Filed 01/02/19 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`KING-DEVICK TEST INC.,
`Plaintiff,
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`-v-
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`NYU LANGONE HOSPITALS, et al.,
`Defendants.
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`17-CV-9307 (JPO)
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`OPINION AND ORDER
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`J. PAUL OETKEN, District Judge:
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`Plaintiff and Counterclaim-Defendant King-Devick Test Inc. (“King-Devick”) has filed
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`the instant lawsuit against Defendants and Counter Claimants New York University, NYU
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`Langone Hospitals, Steven L. Galetta, and Laura J. Balcer (collectively, “Defendants”), claiming
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`among other things that Defendants have infringed its registered copyright in an eye-movement
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`test that can aid in detecting concussions. (Dkt. No. 41 (“Compl.”) ¶¶ 88–97.) Defendants, in
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`turn, have asserted several counterclaims, one of which seeks a declaration that King-Devick’s
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`copyright is invalid. (Dkt. No. 52 (“CC”) ¶¶ 73–85.) King-Devick now moves to dismiss that
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`counterclaim for failure to state a claim. (Dkt. No. 35.) For the following reasons, the motion is
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`denied.
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`I.
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`Background
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`A.
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`Factual Background
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`For purposes of resolving King-Devick’s partial motion to dismiss, the Court assumes the
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`truth of the factual allegations in Defendants’ counterclaim complaint.1 See Walker Process
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`Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172, 174–75 (1965).
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`1 Technically, King-Devick’s partial motion to dismiss is directed at the counterclaims
`asserted at Docket Number 30 in connection with Defendants’ Answer to the First Amended
`Complaint. While King-Devick’s motion was pending, however, King-Devick filed a Second
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`1
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`Case 1:17-cv-09307-JPO Document 65 Filed 01/02/19 Page 2 of 14
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`In 1976, two students at the Illinois College of Optometry, Alan King and Steve Devick,
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`developed an eye-movement test, known as the King-Devick test (the “K-D Test”), as part of a
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`senior project. (CC ¶¶ 2, 19.) The K-D Test, which asks a participant to read strings of single-
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`digit numbers from left to right off a series of three successively administered test cards as
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`rapidly and accurately as possible, can be used to detect eye-movement impairments linked to
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`dyslexia or abnormal brain function. (CC ¶¶ 2, 18–20; see also Compl. ¶¶ 9–10.)
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`While creating the K-D Test, King and Devick studied the Pierce Saccade Test, an earlier
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`eye-movement test developed in 1972. (CC ¶¶ 19, 25.) Like the K-D Test, the Pierce Saccade
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`Test consists of: (1) a demonstration card containing five rows of single-digit numbers joined by
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`arrows that direct the participant to read from left to right and top to bottom; (2) one test card
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`that contains multiple rows of single-digit numbers, with the digits in each row connected by a
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`horizontal line; (3) a second test card that is similar to the first, but that has no horizontal lines
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`connecting the digits in each row; and (4) a third test card that is similar to the second, but in
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`which the horizontal rows of unconnected digits are vertically spaced closer together. (CC ¶ 21.)
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`The K-D Test, though, differs in some ways from the Pierce Saccade Test. For example,
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`the K-D Test changes the Pierce Saccade Test by changing the number of horizontal rows
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`contained on each test card and by increasing the number of digits contained within each row.
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`(CC ¶ 22.) A side-by-side visual comparison of the two tests is reproduced below2:
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`Amended Complaint (Dkt. No. 41), and Defendants have responded with a superseding Answer
`and Amended Counterclaims (Dkt. No. 52). Given that all of the arguments King-Devick has
`asserted in support of its partial motion to dismiss apply in full to the Amended Counterclaims,
`the Court treats the currently operative Answer and Amended Counterclaims at Docket
`Number 52 as the target of King-Devick’s motion.
`2 The test-card sequence for the Pierce Saccade Test begins at the top-left corner and runs
`down the first column before moving to the top of the second column, whereas the test-card
`sequence for the K-D Test begins at the top-left corner and runs across the first row before
`moving down to the left side of the second row.
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`2
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`Case 1:17-cv-09307-JPO Document 65 Filed 01/02/19 Page 3 of 14
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`(CC ¶ 21.)
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`According to Defendants, King and Devick also drew inspiration from a reading-speed
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`test, known as the Gilbert Test, which was developed in 1953. (CC ¶ 23.) The spatial
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`arrangement of single-digit numerals on one of the Gilbert Test’s test cards resembles the
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`arrangement of the numbers in the K-D Test’s second and third test cards. (Id.) A comparison
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`of the relevant Gilbert Test card and the K-D Test’s third test card is reproduced below:
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`(Id.)
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`After King and Devick completed their senior project in March 1976, they allowed the
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`Illinois College of Optometry Press to publish their final paper—with the K-D Test attached as
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`3
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`an appendix—and to place at least four copies in the school library. (CC ¶¶ 26–29.) Over the
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`next few years, the K-D Test drew attention from New York–based researchers as a possible tool
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`for detecting visual impairments in schoolchildren (CC ¶¶ 31–34), and on or around August 23,
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`1983, King and Devick successfully registered the K-D Test with the United States Copyright
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`Office. (CC ¶¶ 37–40; Dkt. No. 41-1 at 2.) In doing so, Defendants contend, King and Devick
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`intentionally failed to disclose their reliance on the Pierce Saccade and Gilbert Tests, as well as
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`their prior publication of the K-D Test without a notice of copyright in 1976. (CC ¶ 38.)
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`Thereafter, Devick pursued no further research associated with the K-D Test until 2009,
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`when he read an article about a New Zealand study that connected head concussions to certain
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`eye-movement impairments. (CC ¶¶ 43–44.) After discussing the article with Len Messner,
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`Director of the Illinois Eye Institute, Devick grew interested in the K-D Test’s potential as a
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`screening tool for detecting concussions in injured athletes. (CC ¶¶ 44-45.) Messner identified
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`Defendants Dr. Steven Galetta and Dr. Laura Balcer (together, the “Doctors”)—both at that time
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`neurology professors at the University of Pennsylvania—as two of the nation’s leading neuro-
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`ophthalmologists, and in 2010 Messner approached the Doctors about the possibility of their
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`studying the K-D Test. (CC ¶¶ 46, 48.)
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`After meeting Devick, the Doctors agreed to conduct two studies to assess the K-D Test’s
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`ability to screen for head trauma. (CC ¶ 48–49.) To facilitate these studies, Devick provided the
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`Doctors with free copies of the K-D Test and related materials, along with raw data that he and
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`his colleagues had previously collected. (CC ¶¶ 50–51, 53.) The Doctors’ initial studies showed
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`the K-D Test to be potentially useful in concussion detection, and over the next few years the
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`Doctors began to study the K-D Test’s possible applications to other neurological disorders. (CC
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`4
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`¶¶ 51, 58.) During the course of these studies, the Doctors continued to use and distribute the
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`materials Devick had provided. (CC ¶ 60.)
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`As their studies proceeded, the Doctors started to develop their own eye-movement test,
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`known as the Mobile Universal Lexicon Evaluation System (“MULES”). (CC ¶¶ 63–64.)
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`Rather than asking a participant to read numbers off a series of test cards, as the K-D Test does,
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`MULES asks the participant to name a series of colored images. (CC ¶¶ 64–65.) The Doctors
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`began to test MULES in 2016, and toward the end of that year they published an article assessing
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`the test as an alternative to the K-D Test for use in concussion screening. (CC ¶¶ 66–67.)
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`B.
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`Procedural History
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`On November 28, 2017, King-Devick, a Delaware company that now holds the copyright
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`in the K-D Test, initiated this lawsuit against the Doctors and their present employers, New York
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`University and NYU Langone Hospitals.3 (Dkt. No. 1; see also Compl. ¶¶ 1, 4–5, 11.) After
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`Defendants moved to dismiss certain of King-Devick’s claims (Dkt. No. 24), King-Devick
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`mooted the motion by filing a First Amended Complaint (Dkt. No. 27; Apr. 2, 2018 Minute
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`Entry). The case proceeded to discovery, and King-Devick amended the complaint once more to
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`ensure that it named the proper institutional defendants. (Dkt. Nos. 40–41.) The resultant,
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`presently operative Second Amended Complaint raises a number of claims against Defendants,
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`including a claim that Defendants have infringed King-Devick’s copyright in the K-D Test by
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`using and distributing the test in the course of developing MULES. (Compl. ¶¶ 88–97.)
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`On May 31, 2018, Defendants answered the Second Amended Complaint and asserted
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`three counterclaims, one of which seeks a declaratory judgment that King-Devick’s registered
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`3 New York University was not initially named as a defendant (Dkt. No. 1), but it was
`added by consent in a subsequent amendment to the complaint (Dkt. Nos. 40–41).
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`5
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`copyright in the K-D Test is invalid. (CC ¶¶ 73–85.) King-Devick has moved to dismiss this
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`counterclaim pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
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`(Dkt. No. 35.) The motion has been fully briefed and is fit for resolution. (Dkt. Nos. 36, 38–39.)
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`II.
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`Legal Standard
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`To survive a motion to dismiss, Defendants’ counterclaim complaint “must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007)). Defendant’s allegations, in other words, must “allow[] the court to draw the
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`reasonable inference” that King-Devick’s copyright is invalid. Id. To determine whether
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`Defendants have cleared this hurdle, the Court may consider not only the counterclaim itself but
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`also any “documents attached to the [counterclaim] as exhibits, and any documents incorporated
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`in the [counterclaim] by reference.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602
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`F.3d 57, 64 (2d Cir. 2010) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d
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`Cir. 2007)). In doing so, however, the Court is “mindful that a motion to dismiss does not
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`involve consideration of whether ‘a [claimant] will ultimately prevail’ on the merits, but instead
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`solely ‘whether the claimant is entitled to offer evidence’ in support of his claims.” Id. at 65
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`(quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)).
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`III. Discussion
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`Under the Copyright Act of 1976, 17 U.S.C. § 101 et seq., King and Devick’s 1983
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`registration of a copyright in the K-D Test (see Dkt. No. 41-1 at 2) creates a rebuttable
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`presumption that the copyright is valid, see 17 U.S.C. § 410(c); Fonar Corp. v. Domenick, 105
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`F.3d 99, 104 (2d Cir. 1997). The counterclaim presently at issue, though, alleges that the
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`copyright is invalid notwithstanding that presumption for three reasons. First, Defendants allege
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`that the K-D Test is insufficiently original to merit copyright protection. (CC ¶ 77.) Second,
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`Defendants allege that the K-D Test is ineligible for copyright protection due to its publication
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`without notice of copyright in 1976. (CC ¶ 78.) And third, Defendants allege that King and
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`Devick secured their registered copyright fraudulently, by withholding material information from
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`the Copyright Office in connection with their application. (CC ¶¶ 79–84.) King-Devick
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`responds that Defendants have not plausibly alleged any of these theories of invalidity and that
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`the counterclaim must be dismissed as a result. (Dkt. Nos. 36, 39.)
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`1.
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`Originality
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`To be eligible for copyright protection, a creative work “must be original to the author.”
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`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). In particular, the work
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`must have been “independently created by the author (as opposed to copied from other works),”
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`and it must “possess[] at least some minimal degree of creativity.” Id. But even where a work’s
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`“written expression” is not original in and of itself because, for example, it consists entirely of
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`unadorned facts, the work can satisfy the originality requirement “if it features an original
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`selection or arrangement” of its unprotectable elements. Id. at 348.
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`Here, Defendants have plausibly alleged that the K-D Test is a “mere copy” of the Pierce
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`Saccade and Gilbert Tests, and that its deviations from these predecessors are insufficiently
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`creative to “embody any additional copyrightable authorship of King or Devick.” (CC ¶ 24.) As
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`explained above, both the K-D Test and the Pierce Saccade Test consist of four cards that
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`contain rows of single-digit numerals. (CC ¶ 21.) And the visual layout of at least the K-D
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`Test’s demonstration and first test cards bears a strong resemblance to the layout of the Pierce
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`Saccade Test’s counterparts. (See id.) To be sure, King-Devick correctly points out that the K-D
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`Test differs from the Pierce Saccade Test, most notably in that the numerals displayed in its
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`second and third test cards appear at sporadic intervals within each row and are not lined up
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`exclusively along the far edges, as in the Pierce Saccade Test. (Dkt. No. 36 at 11–12.) But to
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`the extent that this innovation evinces the “minimal degree of creativity” necessary to establish
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`originality, Defendants have plausibly alleged that it was not “independently created” by King
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`and Devick, Feist, 499 U.S. at 345, but was instead lifted from the Gilbert Test (CC ¶ 23).
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`King-Devick counters that the K-D Test is indeed sufficiently original to merit copyright
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`protection because the precise selection and arrangement of its numbers meaningfully
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`distinguishes it from its predecessors. (Dkt. No. 36 at 11–13.) This merits-based argument,
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`though, is premature. Typically, “[w]hen the originality of a copyrighted work is at issue, it
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`becomes a question of fact for the jury to resolve.” Tin Pan Apple, Inc. v. Miller Brewing Co.,
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`No. 88 Civ. 4085, 1994 WL 62360, at *4 (S.D.N.Y. Feb. 24, 1994). And while a court may
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`resolve the question of originality as a matter of law at the summary-judgment stage if the
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`evidence is such that no reasonable juror could disagree as to whether or not the work in question
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`is “sufficiently creative to warrant copyright protection,” id., the question here is whether
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`Defendants have made sufficiently plausible allegations to justify the creation of an evidentiary
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`record on the question of originality in the first place. As the Court has just explained,
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`Defendants have done so.
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`Undaunted, King-Devick contends that resolution of the K-D Test’s originality requires
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`no evidence beyond the K-D, Pierce Saccade, and Gilbert Tests, which are all already included in
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`the present record. (Dkt. No. 39 at 2.) The Second Circuit, after all, has held that “no discovery
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`or fact-finding is typically necessary” in an infringement action to assess whether an allegedly
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`infringing work is “substantially similar” to a previously copyrighted work “because ‘what is
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`required is only a visual comparison of the works.’” Peter F. Gaito, 602 F.3d at 64 (quoting
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`Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir. 1991)). This rule, King-Devick
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`maintains, should apply to the “analogous situation” presented here. (Dkt. No. 39 at 2.)
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`King-Devick’s argument, however, overlooks the difference between the substantial-
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`similarity inquiry, which is used to assess whether a given work infringes the copyright of a
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`specific earlier work, and the originality inquiry implicated here, which considers whether a
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`given work is worthy of copyright protection in the first place. The former inquiry entails a
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`“side-by-side comparison” of two specific works for purposes of “analyz[ing] how alike or
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`different” they are. Boisson v. Banian, Ltd., 273 F.3d 262, 273 (2d Cir. 2001). In the context of
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`such an undertaking, access to the works in question may often be “all that is necessary” to
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`perform the requisite comparison. Peter F. Gaito, 602 F.3d at 64; see also, e.g., Effie Film, LLC
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`v. Pomerance, 909 F. Supp. 2d 273, 290–91 (S.D.N.Y. 2012).
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`The question of a work’s eligibility for copyright protection, in contrast, does not
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`necessarily turn on the degree of resemblance between that work and any one comparator.
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`Rather, a court must ask whether the work “display[s] some modicum of originality” in a more
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`abstract sense. Victor Lalli Enters., Inc. v. Big Red Apple, Inc., 936 F.2d 671, 674 (2d Cir. 1991)
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`(per curiam); see also Feist, 499 U.S. at 362–63 (holding that a novel compilation of preexisting
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`data was insufficiently original to merit copyright protection where the compilation’s organizing
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`principle was so “firmly rooted in tradition” as to be “not only unoriginal, [but] practically
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`inevitable”). And that assessment, in turn, generally “require[s] discovery and a . . . developed
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`record.” We Shall Overcome Found. v. Richmond Org., Inc., 221 F. Supp. 3d 396, 407
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`(S.D.N.Y. 2016); see Ulloa v. Universal Music & Video Distrib. Corp., 303 F. Supp. 2d 409,
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`413–14 (S.D.N.Y. 2004) (finding it “improper . . . on a motion for summary judgment” to make
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`a determination as to “the presence or absence of the degree of originality required to confer
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`copyrightability” in light of competing expert reports and other evidence regarding the level of
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`innovation exhibited by a particular musical composition).
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`Because Defendants have plausibly alleged that the K-D Test is insufficiently original to
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`be eligible for copyright protection, they are entitled to assemble the evidentiary record that
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`might ultimately allow them to prove it.
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`2.
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`Prior Publication
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`A creative work is typically divested of its common-law copyright protection upon
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`publication by, or with the authorization of, its author. See Kramer v. Newman, 749 F. Supp.
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`542, 548 (S.D.N.Y. 1990). Thus, unless such a work enjoys statutory copyright protection, it
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`enters the public domain upon publication and is thereafter vulnerable to unauthorized use. See
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`id. The currently effective Copyright Act of 1976 affords no statutory protection to works that
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`entered the public domain prior to its January 1, 1978 effective date, see Brown v. Tabb, 714
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`F.2d 1088, 1090 (11th Cir. 1983), and the statutory regime in effect prior to that date provided
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`that a published work could avoid falling into the public domain only if the author “affixed the
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`proper [copyright] notice” to the publication, Kramer, 749 F. Supp. at 548. Accordingly, any
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`work published by or with the authorization of the author prior to January 1, 1978, typically
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`enjoys no copyright protection unless it bears a notice of copyright. See id. at 548–49.
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`Here, Defendants have alleged that King and Devick allowed the Illinois College of
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`Optometry Press to publish the K-D Test without a copyright notice in 1976 as an appendix to
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`King and Devick’s senior paper, and that at least four copies of the paper—with test attached—
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`were put in the school library. (CC ¶¶ 27–29.) Thus, Defendants argue, they have plausibly
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`alleged that the K-D Test entered the public domain prior to January 1, 1978, and so enjoys
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`neither statutory nor common-law protection. (Dkt. No. 38 at 16–19.)
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`King-Devick points out, however, that not every publication threatens to bring a work
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`into the public domain. Rather, this harsh result attaches only to a work’s “general publication,”
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`i.e., publication that makes the work “available to members of the public regardless of who they
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`are or what they will do with it.” Penguin Books U.S.A., Inc. v. New Christian Church of Full
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`Endeavor, Ltd., 288 F. Supp. 2d 544, 555 (S.D.N.Y. 2003) (quoting Acad. of Motion Picture Arts
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`& Scis., 944 F.2d 1446, 1452 (9th Cir. 1991)). In contrast, publication “to a definitely selected
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`group and for a limited purpose, and without the right of diffusion, reproduction, distribution, or
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`sale” represents only a “limited publication” that “does not result in the loss of the author’s
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`commonlaw copyright.” Kramer v. Newman, 749 F. Supp. 542, 549 (S.D.N.Y. 1990) (quoting
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`White v. Kimmell, 193 F.2d 744, 746–47 (9th Cir. 1952)). Even if Defendants’ allegations
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`plausibly allege the K-D Test’s limited publication in 1976, King-Devick argues, they do not
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`contain facts sufficient to plausibly allege the test’s general publication in that year. (Dkt. No.
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`36 at 15–18.)
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`The Court agrees that Defendants’ allegations regarding the K-D Test’s 1976 publication
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`are thin. But at the motion-to-dismiss stage, the Court is constrained to “draw[] all reasonable
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`inferences in favor of” Defendants. Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset
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`Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). While the Court doubts that the deposit of four copies
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`of a student paper in a school library would under most circumstances constitute general
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`publication capable of divesting that paper of copyright protection, Defendants here have alleged
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`that a group of out-of-state researchers accessed, utilized, distributed, and reproduced the K-D
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`Test without objection from King or Devick soon after its alleged publication.4 (CC ¶¶ 31–34.)
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`It is thus at least plausible that discovery could, by shedding light on the “access . . . scholars
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`[have] had” to the K-D Test and the “use [to which] those scholars [have] put” the test, Kramer,
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`4 Defendants further allege that these researchers, in connection with their research,
`reproduced the K-D Test in a 1983 Journal of American Optometric Association article. (CC
`¶¶ 32–33; Dkt. No. 52-7 at 632–33.) Defendants make no claim, however, that this publication
`bears on the validity of King-Devick’s copyright. The Court therefore need not address King-
`Devick’s argument that the 1983 article is of no legal significance. (Dkt. No. 36 at 18–20.)
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`749 F. Supp. at 551, provide evidence that the 1976 publication was effected in such a way as to
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`make the K-D Test “available to members of the public regardless of who they [were] or what
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`they [would] do with it,” Penguin Books U.S.A., 288 F. Supp. 2d at 555.5
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`The Court concludes, then, that Defendants have pleaded sufficient facts to entitle them
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`to proceed to discovery on this admittedly doubtful theory of copyright invalidity as well.
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`3.
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`Fraud
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`Where an author has procured a copyright registration by fraud, the registration confers
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`no presumption of validity. See Lennon v. Seaman, 84 F. Supp. 2d 522, 525 (S.D.N.Y. 2000). A
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`party seeking to establish such a fraud must show at a minimum that the author’s “application for
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`copyright registration [was] factually inaccurate, that the inaccuracies were willful or deliberate,
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`and that the Copyright Office relied on those misrepresentations.” Id. (citations omitted).
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`Here, Defendants allege that King and Devick’s 1983 application for copyright
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`registration deliberately failed to mention either the K-D Test’s relationship to the Pierce
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`Saccade and Gilbert Tests, or the test’s prior publication without notice of copyright in 1976.
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`(CC ¶¶ 80–83.) Defendants further allege that these omissions would have influenced the
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`Copyright Office’s ultimate decision to issue a registration. (CC ¶ 84.) King-Devick, for its
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`part, never disputes the sufficiency of Defendants’ allegations that King and Devick failed to tell
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`the Copyright Office about the K-D Test’s relationship to earlier eye-movement tests or prior
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`5 The Court acknowledges dicta in Kramer v. Newman, 749 F. Supp. 542 (S.D.N.Y.
`1990), suggesting at the summary-judgment stage that the “mere presence of an otherwise
`unpublished work in an academic library is not the legal equivalent of publication” as a matter of
`law, id. at 551. Without offering any view on that suggestion, the Court concludes at this early
`stage in the litigation that it is possible to reasonably infer from Defendants’ allegations that the
`1976 publication of King and Devick’s senior paper consisted of more than the paper’s “mere
`presence” in the school library.
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`publication and that these omissions were willful.6 (Dkt. No. 36 at 13–15.) King-Devick instead
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`argues only that Defendants have failed to plausibly allege that information about the K-D Test’s
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`relationship to its predecessor tests would have been material to the Copyright Office. (Id.)
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`Where an applicant for a registered copyright “fails to advise the Copyright Office of the
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`reliance upon the work of another, the [applicant] does not afford the Office the fair opportunity
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`to pass upon the question of originality in relation to the prior work.” Santrayall v. Burrell, 993
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`F. Supp. 173, 176 (S.D.N.Y. 1998). Accordingly, such an omission can be material if disclosure
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`would have “cause[d] the Copyright Office to consider rejecting the application” for want of
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`originality. Id. Here, though, King-Devick argues that because “the K-D Test on its face
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`contains original expression” that sets it apart from its predecessors, it “would have been granted
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`copyright protection whether or not” the copyright application had disclosed the K-D Test’s
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`reliance on the Pierce Saccade and Gilbert Tests. (Dkt. No. 36 at 15.)
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`Yet again, King-Devick’s argument comes too soon. As the Court has already
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`concluded, Defendants have alleged facts that plausibly suggest that the K-D Test was
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`insufficiently original to merit copyright protection. It is therefore necessarily plausible to infer
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`that knowledge of those facts would have caused the Copyright Office to consider rejecting King
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`and Devick’s application for a registered copyright or, put another way, that King and Devick’s
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`failure to disclose those facts was material. See We Shall Overcome Found., 221 F. Supp. 3d at
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`408 (deeming allegations that a copyright application had omitted “all reference” to the
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`antecedents of the work for which protection was sought to be “sufficiently specific . . . to
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`survive a motion to dismiss” despite the copyright holders’ claims of immateriality). Until the
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`6 To the extent that Defendants’ fraud allegations must satisfy the heightened pleading
`standards set out in Federal Rule of Civil Procedure 9(b), King-Devick makes no argument that
`the allegations fail to do so. The Court therefore assumes their sufficiency in this regard.
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`Case 1:17-cv-09307-JPO Document 65 Filed 01/02/19 Page 14 of 14
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`record is developed further on the question of the K-D Test’s originality, there is simply no basis
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`for assessing the materiality of the omissions King and Devick are alleged to have made.7
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`IV. Conclusion
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`For the foregoing reasons, King-Devick’s partial motion to dismiss is DENIED.
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`The Clerk of Court is directed to close the motion at Docket Number 35.
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`SO ORDERED.
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`Dated: January 2, 2019
`New York, New York
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`____________________________________
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` J. PAUL OETKEN
` United States District Judge
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`7 Although King-Devick neglects to address Defendants’ fraud theory insofar as it
`pertains to King and Devick’s failure to notify the Copyright Office of the K-D Test’s 1976
`publication, the Court concludes that because Defendants have plausibly alleged that this
`publication inserted the K-D Test into the public domain, Defendants have likewise plausibly
`alleged that the fact of publication would have been material to the Copyright Office.
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