Case: 1:20-cv-00118-MWM Doc #: 12 Filed: 06/03/21 Page: 1 of 15 PAGEID #: 161
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`IN THE UNITED ST A TES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`WESTERN DIVISION - CINCINNATI
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`MIKE McCLEESE,
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`Case No. 1:20-cv-118
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`Plaintiff,
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`Judge Matthew W. McFarland
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`V.
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`NATORP'S, INC.,
`CRAIG NATORP,
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`Defendants.
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`ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS'
`MOTION TO DISMISS (Doc. 7)
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`This case is before the Court on Defendants' Motion to Dismiss Certain of
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`Plaintiff's Claims pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 7.) Plaintiff has filed a
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`Memorandum in Opposition (Doc. 10) and Defendants have filed a Reply (Doc. 11)
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`making this matter ripe for review.
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`FACTS
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`Plaintiff Mike McCleese owns a Vermont-based landscape company specializing
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`in the design and installation of custom gardens. Defendant Natorp's Inc. ("Natorp's")
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`is an Ohio-based nursery outlet offering custom landscape design services. Defendant
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`Craig Natorp is the Vice-President and shareholder of Natorp's, and leads the
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`landscape design team.
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`Throughout his extensive landscaping career, McCleese collected various
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`photographs of unique projects and gardens. But in February 2010, Natorp's began
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`using approximately 24 of McCleese' s photos on its commercial website. The parties
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`disagree precisely as to how Defendants came into possession of the photos and
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`whether such use was authorized. Defendants contend that they received authorization
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`from a now-former Natorp's employee who had previously worked with McCleese on
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`some of his landscape designs. McCleese argues that only he could grant such
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`authorization, which he never did.
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`In May 2018, McCleese visited Natorp' s website and discovered one of his
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`photos on the main homepage. Upon further investigation, he found an additional 23
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`photos of his posted on Natorp' s website. They were listed under headings such as
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`"Backyard Landscape Photos" or "Natural Stone Step Photos." (Doc. 7-6, Page ID 113.)
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`Each webpage that contained one of Mccleese' s photos also contained Natorp' s own
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`trademark and copyright symbols at the top and bottom, respectively. Later that month,
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`while on a work trip to Ohio, McCleese visited Natorp's headquarters and requested
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`that the photos be removed. Natorp' s complied and removed all of his photos from its
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`website shortly thereafter. The photos, however, still remain online at various social
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`media outlets including Natorp's private website, Facebook, and Pinterest.
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`McCleese thereafter registered a copyright for his photos on January 10, 2019.
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`McCleese asserts that he "does not license his photos for any commercial purpose, does
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`not sell copies of his photos, and his photos are unpublished." (Doc. 5, 1 52.)
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`After the parties failed to resolve the dispute, McCleese filed suit in the U.S.
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`District Court of Vermont but his complaint was dismissed for lack of personal
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`jurisdiction. So, in March 2020, he filed the present lawsuit that alleges five causes of
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`action: Count I for direct copyright infringement against both Natorp' s and Craig
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`Natorp; Count II for violation of the Digital Millennium Copyright Act against
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`Natorp' s; Count III for false advertising in violation of the Lanham Act against both
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`Natorp' s and Craig Natorp; Count IV for vicarious copyright infringement against
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`Craig Natorp; and Count V for common law unfair competition against both Natorp's
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`and Craig Natorp. Defendants now move to dismiss causes I, III, IV, and V against
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`Craig Natorp and causes II, III, IV, and V against Natorp's.
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`LEGAL STANDARD
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`When considering a Fed. R. Civ. P. 12(b)(6) motion to dismiss, the Court accepts
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`all allegations of material fact as true and construes them in the light most favorable to
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`the non-moving party. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-55 (2007). To survive,
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`the complaint must contain "sufficient factual matter, accepted as true, to 'state a claim
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`to relief that is plausible on its face."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Twombly, 550 U.S. at 570). Facial plausibility is met when "the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is
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`liable for the misconduct alleged." Id. "Asking for plausible grounds simply calls for
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`enough fact to raise a reasonable expectation that discovery will reveal evidence."
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`National Business Development Services, Inc. v. American Credit Educ. and Consulting Inc.,
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`299 Fed.Appx. 509,512 (6th Cir. 2008) (quoting Twombly, 550 U.S. at 555).
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`The Court does not accept as true any "conclusory legal allegations that do not
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`include specific facts necessary to establish the cause of action." New Albany Tractor, Inc.
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`v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir. 2011). The plaintiff's complaint
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`instead "must contain either direct or inferential allegations with respect to all material
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`elements necessary to sustain a recovery under some viable legal theory." Weisbarth v.
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`Geauga Park Dist., 499 F.3d 538,541 (6th Cir. 2007).
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`ANALYSIS
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`I. Copyright Infringement
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`Defendants' motion to dismiss count I against Craig Natorp is denied. To
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`succeed on a copyright infringement claim, a plaintiff must establish (1) ownership of a
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`valid copyright; and (2) copying of constituent elements of the work that are original.
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`ECIMOS, LLC v. Carrier Corp., 971 F.3d 616, 627-8 (6th Cir. 2020) (quoting Feist Publ'ns,
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`Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,361 (1991)). The purpose of the second prong is
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`to examine "whether any copying occurred." Lexmark Int'l, Inc. v. Static Control
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`Components, Inc., 387 F.3d 522,534 (6th Cir. 2004) (emphasis added).
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`The first prong is not contested here. As to the second prong, Defendants argue
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`that McCleese fails to provide factual allegations that connect Craig Natorp' s individual
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`conduct to the alleged acts of infringement. Principally, Defendants highlight that the
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`Complaint alleges Craig Natorp merely" authorized" infringement of the photos but
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`does not allege that he actually engaged in infringement himself.
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`The Court disagrees. The Complaint does allege factual matter that, when taken
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`as true, plausibly demonstrates that Craig Natorp was involved in some infringement
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`activity. First, Craig Natorp is the company's Vice President and a shareholder in the
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`family-owned corporation. It is plausible that, through these positions, Craig Natorp
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`exercises some degree of authority over the day-to-day activity of the business. Second,
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`Craig Natorp leads the landscape design team. McCleese alleges that Defendants used
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`his photos for advertisements to promote their landscape services. Craig Natorp' s team
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`would have been the ones to complete those services. The Complaint further alleges
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`that Natorp's could not possibly believe that the photos represented its own design
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`team's work. And if anyone at Natorp's would know what was and was not a product
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`of its own landscape design team, it would be the landscape design team leader.
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`While Defendants are correct that most of the Complaint refers only to the
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`company and not Craig Natorp individually, it is well established that a corporation is
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`an entity that can only act through its agents. Barge v. Jaber, 831 F.Supp. 593,601 (S.D.
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`Ohio 1993). Craig Natorp's position in the company and management of the landscape
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`design team leaves the Court with a "reasonable inference" that it is plausible he copied
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`some constituent element of McCleese's original work. Iqbal, 556 U.S. at 678. The
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`Complaint also raises a reasonable expectation that more information could be revealed
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`upon discovery. Twombly, 550 U.S. at 555. Defendants concede that the Complaint
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`alleges sufficient factual matter to state a plausible claim for copyright infringement
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`against Natorp's, Inc. The Complaint achieves the same as to Craig Natorp.
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`II. Vicarious Infringement
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`Defendant's Motion to Dismiss count IV against Craig Natorp is also denied. A
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`party may be held vicariously liable for copyright infringement when (1) a defendant
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`has the right and ability to supervise the infringing conduct; and (2) the defendant has
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`an obvious and direct financial interest in the infringement. Gordon v. Nextel Commc'ns
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`& Mullen Advertising, Inc., 345 F.3d 922, 925 (6th Cir. 2003). Vicarious copyright liability
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`is an "outgrowth" of the common law doctrine of respondeat superior, which holds the
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`employer liable for the acts of its agents. Id. That a defendant lacks knowledge of the
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`infringing activity is irrelevant to the analysis. Id.
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`As to the first element, the Complaint states facially plausible facts that Craig
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`Natorp had the "right and ability to supervise" the alleged infringing activity. Cases
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`imposing vicarious liability typically do so upon individuals who exercise" day-to-day
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`control" of the business. See, e.g. Jobete Music Co., Inc. v. Johnson Commc'ns, Inc., 285
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`F.Supp.2d 1077, 1084 (S.D. Ohio 2003) (finding majority owner of radio station
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`vicariously liable for infringement where his duties "include supervising the station
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`staff ... [through which] station employees" ultimately report to him); King Records, Inc.
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`v. Bennett, 438 F.Supp.2d 812,852 (M.D. Tenn. 2006) (finding an individual vicariously
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`liable for a business's infringement when the individual defendant, "made all final
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`decisions, and was ultimately responsible for anything that happened at [the
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`business]").
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`In support of their motion to dismiss, Defendants cite to a Northern District of
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`California decision holding that "bare allegations" that an individual was a corporate
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`officer are insufficient to support the first element of a vicarious liability claim. Nebula,
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`LLC v. Chordiant Software, Inc., 2009 WL 750201 at *2 (N.D. Cal. Mar. 20, 2009). But the
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`Complaint here alleges far more than just Craig Natorp's title as an officer of the
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`corporation-namely that he is also a shareholder and directly oversees the landscape
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`design team. More analogous to the case at bar is Jobete Music where this Court held that
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`a defendant who was a corporate officer, shareholder, and supervisor of certain staff
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`was vicariously liable for copyright infringement committed by that staff. 285 F.Supp.
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`2d at 1084. It is plausible that as a team leader and Vice President, Craig Natorp had the
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`right and ability to supervise both the landscape design team specifically and actions of
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`the business generally.
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`As to the second element, the Complaint contains sufficient factual matter to
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`plausibly allege Craig Natorp' s "obvious and direct financial interest" in the infringing
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`activity. Gordon, 345 F.3d at 925. Defendants are correct in highlighting the Complaint's
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`threadbare allegations that Craig Natorp received a" direct financial benefit." But the
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`Complaint alleges additional facts that raise Craig Natorp' s obvious and direct financial
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`interest above the plausibility mark. Principally, the Complaint states that Natorp's has
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`acquired landscape design customers and sold goods and services associated with
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`landscape design since using McCleese' s photos. This allegation taken together with
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`Craig Natorp' s status as a shareholder, as leader of the design team, and as a corporate
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`officer gives rise to a reasonable inference that an "obvious and direct financial interest"
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`in the infringement is plausible. While the precise nature of Craig Natorp' s financial
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`interest is unknown, the Complaint also gives rise to the reasonable expectation that
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`discovery will shed further light on this issue.
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`III. False Advertising in Violation of the Lanham Act
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`Defendants' motion to dismiss count III against both Natorp' s and Craig Natorp
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`is granted. While both parties briefed arguments as to Copyright Act preemption and
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`whether McCleese could sustain a prima facie Lanham Act claim, the Court limits its
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`analysis to the issue of standing.
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`To have statutory standing under the Lanham Act, a plaintiff must demonstrate
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`(1) that he is within the "zone of interest" protected by Section 1125(a); and (2) show
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`"proximate causation" between the plaintiff's injury and the alleged violation of the
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`statute. Lexmark Int'l, Inc. v. Static Components, Inc., 572 U.S. 118, 129 (2014). While the
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`zone of interests test is "not especially demanding," a plaintiff still must plead an injury
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`to a commercial interest in sales or business reputation. Id. The plaintiff in Lexmark had
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`standing because its commercial position and competitiveness in the marketplace had
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`been injured. Id. at 137. Likewise, a plaintiff who alleges a loss of commercial investors
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`or damaged business reputation falls within the specific "zone of interests" protected by
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`the Lanham Act. Charleston Laboratories, Inc. v. SIDIS Corporation, 2017 WL 3725189 *4
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`(E.D. Ky Aug. 29, 2017).
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`McCleese contends that he has a commercial interest in his landscape design
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`services. Beyond this conclusory statement, however, McCleese fails to plead any facts
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`demonstrating an injury to a commercial or sales interest. Instead, the only injuries
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`McCleese pleads are immaterial to the legal analysis. First, the Complaint alleges a
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`conclusory accusation that McCleese has "suffered harm." (Doc. 5, ,r 70.) But in a
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`motion to dismiss, the Court need not consider threadbare recitation of legal elements
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`supported by mere conclusory statements. Iqbal, 556 U.S. at 678. Second, McCleese
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`alleges sadness, distress, and "profound grief" from Natorp's use of a particular
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`landscape job. (Doc. 5, i!39.) This injury is a mere psychological, emotional harm, one
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`that the Lanham Act does not contemplate. 15 U.S.C. § 1114, 1117.
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`Unlike in Charleston Laboratories, the Complaint here fails to allege any injury to
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`McCleese' s business reputation in the commercial marketplace or that McCleese lost
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`any business or investors at all. Charleston, 2017 WL 3725189 at *4. Unlike in Lexmark,
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`the Complaint here does not allege any facts as to how McCleese' s position in the
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`marketplace was harmed in any way. Lexmark, 572 U.S. at 137. In fact, the Complaint
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`itself undermines McCleese' s own argument. McCleese concedes that he "does not
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`license his photos for any commercial purpose, does not sell copies of his photos, and
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`his photos are unpublished." (Doc. 5, 1 52.) Further, instead of alleging any fact to
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`suggest a commercial harm to McCleese, the Complaint is mired with accusations that
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`the Defendants were "unjustly enriched." A plaintiff's standing under the Lanham Act
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`hinges on a commercial injury to the plaintiff, not merely a benefit to the defendant. See
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`Lexmark, 572 U.S. at 132.
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`In sum, the Complaint contains no factual allegations that McCleese suffered an
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`injury to his commercial sales interest or business reputation. And, as a practical matter,
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`McCleese himself is in the best position to realize and articulate the commercial injury
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`that Natorp's false advertising supposedly inflicted. Thus, discovery is not likely to
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`yield any additional information to this fact. Because the Complaint failed to allege any
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`commercial injury, the Court must conclude McCleese is not within the Lanham Act's
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`"zone of interests." Consequently, count III is dismissed.
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`IV. Common Law Unfair Competition
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`Defendants' motion to dismiss count V against both Natorp's and Craig Natorp
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`is granted. Both Ohio and federal courts have recognized that the same Lanham Act
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`analysis applies to claims under Ohio's statutory and common law of unfair
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`competition. See Leventhal & Assocs., Inc. v. Thomson Cent. Ohio, 128 Ohio App.3d 188,
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`714 N.E.2d 418,423 (Ohio Ct.App.1998); Barrios v. American Thermal Instruments, Inc.,
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`712 F.Supp. 611, 613-14 (S.D. Ohio 1988). Further, both parties agree that the common
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`law unfair competition claim stands or falls with the Lanham Act claim. Because the
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`Lanham Act claim fails, so too does McCleese' s state law claims - either by statute or
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`common law.1 Count Vis dismissed.
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`V. The Digital Millennium Copyright Act
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`Defendant's motion to dismiss count II against N atorp' s is granted. Section
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`1202(a) of the Digital Millennium Copyright Act ("DMCA") provides that "no person
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`shall knowingly and with the intent to induce, enable, facilitate, or conceal
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`infringement- (1) provide copyright management information that is false, or (2)
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`distribute or import for distribution copyright management information that is false."
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`17 U.S.C. § 1202(a). To properly plead a violation of§ 1202(a), a plaintiff must allege
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`that "(1) defendant knowingly provided false copyright information; and (2) that the
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`defendant did so with the intent to induce, enable, facilitate, or conceal an
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`infringement." Krechmer v. Tantaros, 747 Fed.Appx. 6, 9 (2nd Cir. 2018). "Copyright
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`management information" ("CMI") includes the name of the copyright owner(cid:173)
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`including as set forth in the notice of copyright-and the name of the author. 17 U.S.C. §
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`1202(c)(2), (c)(3).2
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`1 While the Complaint only alleges violation of Ohio's common law of unfair competition, Plaintiff's
`Response in Opposition entertains the possibility of amending the Complaint to include a statutory
`violation under the Ohio Deceptive Trade Practices Act (ODTPA). Because Plaintiff's Lanham Act claim
`fails, the prospective statutory ODTPA claim would fail for the same reasons as the common law claim.
`2 While the Complaint failed to reference whether the DMCA claim arose under Section 1201, 1202(a) or
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`The necessary element common to all DMCA claims is the defendant's
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`falsification of CMI. Because the Court finds that McCleese has not pleaded facts
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`sufficient to allege the existence of false CMI, the Court's analysis is limited to that
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`scope. To establish the existence of CMI, McCleese directs the Court to Natorp's
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`trademarked logo and standard copyright symbol located at the top and bottom,
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`respectively, of Natorp's webpages. (Doc. 7-6 at Page ID 113-15.) McCleese argues that
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`Natorp' s created false CMI merely by displaying its trademark and copyright on the
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`same webpage as McCleese' s photos. As such, McCleese argues that this false CMI is
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`"conveyed in connection" with his photos in such a way that anyone viewing the
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`photos online would conclude they were owned by Natorp' s.
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`The Court disagrees. Overwhelmingly, case law precedent demonstrates that
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`even when the same or similar facts alleged are accepted as true and viewed in light
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`most favorable to McCleese, there is not a plausible claim that false CMI exists. Where a
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`defendant's "copyright notice was at the bottom of every page of the website in the
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`generic website footer," copyrighted content on that webpage is not" conveyed" as false
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`CMI. GC2 Incorporated v. International Game Technology PLC, 255 F.Supp.3d 812,821
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`(N.D. Ill. 2017). The defendant's trademark or copyright that allegedly makes the CMI
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`false must appear in the "body" or" area around" the infringed work. Shell v.
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`Lautenschlager, 2017 WL 4919206 at *9 (N.D. Ohio Oct. 31, 2017). This interpretation "is
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`1202(b), McCieese has clarified that he intended a§ 1202(a) violation. McCleese concedes that while
`discovery may reveal a violation of§ 1202(b), he" does not make that argument at this time." Because the
`Complaint does not even allege the existence of any CMI contained in McCleese's original photos nor
`does it allege Natorp's altered or removed CMI, the§ 1202(b) claim is irrelevant. The Court proceeds on
`the understanding that McCleese is solely alleging Natorp's violated § 1202(a).
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`consistent with the text of the statute, which requires the CMI to be 'conveyed' with the
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`copyrighted work." Personal Keepsakes, Inc. v. Personalizationmall.com, Inc. (N.D. Ill. Feb.
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`8, 2012) (citing 17 U.S.C. § 1202(c)). "Such a rule prevents a 'gotcha' system where a
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`picture has no CMI near it but the plaintiff relies on a general copyright notice buried
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`elsewhere on the website." Id.
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`The Northern District of Illinois recently assessed an argument analogous to
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`McCleese's. Alan Ross Machinery Corporation v. Machinio Corporation, 2019 WL 1317664
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`(N.D. Ill. Mar. 22, 2019). In Alan Ross, the plaintiff alleged a violation of the DMCA
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`when plaintiffs photos and data were posted verbatim on defendant's website. Id. at*
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`1. To support the existence of CMI that was then falsified, the plaintiff argued its
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`copyright symbol at the bottom of its webpages sufficed to copyright every photo. Id. at
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`*3. In rejecting that argument, the court persuasively reasoned that, at most, a generic
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`copyright notice at the bottom of a webpage conveys the owner's intellectual property
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`rights in the entire website, not a blanket copyright to all of the photos or data listed on
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`any given webpage. Id. The same reasoning applies here. McCleese, the Complaint, and
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`its attached Exhibits rely on nothing more than a copyright symbol and the standard
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`Natorp' s trademark that appear on every page of the website. 3 McCleese does not
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`allege that Natorp' s altered or removed any copyright symbol on his photos. McCleese
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`3 In assessing a Rule 12(b)(6) motion, this Court relies on the complaint, exhibits attached to it, and
`documents that a defendant attaches to the motion to dismiss, if the plaintiff refers to those documents in
`his complaint and they are central to his claim. Amini v. Oberlin Coll. , 259 F.3d 493, 502 (6th Cir. 2001).
`Plaintiff amended his complaint but did not include the exhibits attached to the original complaint. He
`does, however, refer to the exhibits. See, e.g., Doc. 5 at ,r,r 29, 44. And Defendants attach them to their
`motion to dismiss. Accordingly, the exhibits attached to the original complaint and the motion to dismiss
`are part of the pleadings.
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`does not allege that Natorp's superimposed its copyright symbol or trademark onto his
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`photos. Thus, McCleese fails to plausibly allege the existence of false CMI.
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`But McCleese contends that his case presents a unique issue: is false CMI created
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`when Natorp' s copyright and trademark "appear on pages consisting almost entirely"
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`of McCleese's photos? (Doc. 10 at 11.) Again, McCleese's own Complaint and attached
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`Exhibits undermine such an assertion. McCleese' s 24 copyrighted photos are found at
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`Exhibit D to the motion to dismiss, and are the same photographs attached to the
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`Original Complaint as Exhibit A. Exhibit D also includes images of Natorp' s webpages
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`that are titled, for example, "Stepper Photos," "Natural Stone Step Photos," or
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`"Backyard Landscape Photos." (Doc. 7-6 at Page ID 113-15.) These are the same
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`screenshots attached to the Original Complaint as Exhibit B.
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`While McCleese asserts those webpages contain" almost entirely" his
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`copyrighted photos, a simple side-by-side comparison reveals they do not. As an
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`example, one of Natorp' s webpages contains 54 photos, another page has 41, yet
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`another has 10. Assuming for the sake of argument that the webpage with 41 photos
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`titled "Backyard Landscape Photos" included all 24 of McCleese' s copyrighted photos
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`(which it does not), it cannot be said that the webpage consist" almost entirely" of
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`McCleese' s photos. The closest McCleese' s "almost entirely" claim comes to bearing
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`true is on the webpage titled "Pergola and Trellis Photos." But of the ten photos on that
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`webpage, at most, two are McCleese' s copyrighted photos. By McCleese' s own
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`admission, when a business "places its copyright notice on a webpage depicting many
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`images, but mistakenly includes a small, infringed image, it is unlikely that would be
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`sufficient to show that the infringer had falsified CMI." (Doc. 10 at 11.) The Court
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`agrees.
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`The Complaint does not allege facts to support the plausible existence of false
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`CMI. False CMI is a necessary element to sufficiently plead any DMCA claim and
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`because the Complaint fails to do so, count II is dismissed.
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`CONCLUSION
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`For the reasons stated above, the Court hereby GRANTS IN PART and DENIES
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`IN PART Defendant's Motion to Dismiss. This case will proceed on Count I against
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`both Natorp' s and Craig Natorp for copyright infringement and Count III against Craig
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`Natorp for vicarious infringement. Accordingly, the Court hereby ORDERS that:
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`1. Defendants' Motion to Dismiss Count I for copyright infringement is
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`DENIED;
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`2. Defendants' Motion to Dismiss Count II for violation of the DMCA is
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`GRANTED;
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`3. Defendants' Motion to Dismiss Count III for violation of the Lanham Act is
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`GRANTED;
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`4. Defendants' Motion to Dismiss Count IV for vicarious infringement is
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`DENIED; and
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`5. Defendants' Motion to Dismiss Count V for common law unfair competition
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`is GRANTED.
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`Case: 1:20-cv-00118-MWM Doc #: 12 Filed: 06/03/21 Page: 15 of 15 PAGEID #: 175
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`IT IS SO ORDERED.
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`JUDGE MATTHEW W. McFARLAND
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`15
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