Case 17-1957, Document 39, 10/02/2017, 2138220, Page1 of 47
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`17-1957-cv
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`United States Court of Appeals
`for the
`Second Circuit
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`
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`
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`MICHAEL YAMASHITA, MICHAEL YAMASHITA, INC.,
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`– v. –
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`SCHOLASTIC INC.,
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`Plaintiffs-Appellants,
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`Defendant-Appellee.
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`––––––––––––––––––––––––––––––
`ON APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`BRIEF FOR DEFENDANT-APPELLEE
`
`EDWARD H. ROSENTHAL
`CRAIG B. WHITNEY
`FRANKFURT KURNIT KLEIN & SELZ, P.C.
`488 Madison Avenue, 10th Floor
`New York, New York 10022
`(212) 980-0120
`Attorneys for Defendant-Appellee
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page2 of 47
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, Defendant-
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`Appellee Scholastic Inc. states that Scholastic Corporation is a publicly held
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`corporation owning 10% or more of Scholastic Inc.’s stock.
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page3 of 47
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`TABLE OF CONTENTS
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`B. 
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`C. 
`
`Page
`TABLE OF AUTHORITIES ................................................................................... iii 
`PRELIMINARY STATEMENT ............................................................................... 1 
`ISSUES PRESENTED ............................................................................................... 2 
`STATEMENT OF THE CASE .................................................................................. 2 
`A.  YAMASHITA’S COMPLAINT CONTAINS NO SPECIFIC
`ALLEGATIONS OF INFRINGEMENT .............................................. 3 
`THE CASE IS TRANSFERRED TO THE SOUTHERN
`DISTRICT OF NEW YORK ................................................................ 5 
`THE LOWER COURT DISMISSES THE CASE AS A
`“FISHING EXPEDITION” AND “AIMLESS TRAWLING”
`NOT PERMITTED BY RULE 8 .......................................................... 7 
`D.  YAMASHITA’S AMENDED COMPLAINT LARGELY
`REPEATS THE CONCLUSORY ALLEGATIONS ............................ 8 
`SUMMARY OF THE ARGUMENT ...................................................................... 10 
`ARGUMENT ........................................................................................................... 11 
`I. 
`THE DISTRICT COURT APPLIED THE PROPER PLEADING
`STANDARD UNDER RULE 8 .......................................................... 11 
`YAMASHITA’S COPYRIGHT INFRINGEMENT CLAIM IS
`BASED ON PURE SPECULATION ................................................. 14 
`III.  YAMASHITA’S ALLEGATIONS MADE “ON INFORMATION
`AND BELIEF” DO NOT CURE THE PLEADING DEFECTS ........ 18 
`IV.  THE DISTRICT COURT PROPERLY DENIED LEAVE TO
`AMEND YAMASHITA’S COPYRIGHT INFRINGEMENT
`CLAIM AFTER ANALYZING THE PROPOSED
`AMENDMENTS ................................................................................. 24 
`
`II. 
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`i
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`

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`V. 
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`THE DISTRICT COURT PROPERLY DENIED LEAVE TO
`PLEAD COMMON LAW CLAIMS .................................................. 27 
`A. 
`The District Court Properly Denied Leave To Plead
`Bailment .......................................................................... 27 
`The District Court Properly Denied Leave To Plead
`Breach Of Contract ......................................................... 31 
`The District Court Properly Denied Leave To Plead
`Conversion ...................................................................... 36 
`The District Court Properly Denied Leave To Plead
`Accounting ...................................................................... 38 
`CONCLUSION AND SUMMARY OF REQUESTED RELIEF ........................... 39 
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`D. 
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`B. 
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`C. 
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`ii
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`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Advanced Magnetics, Inc. v. Bayfront Partners, Inc.,
`106 F.3d 11 (2d Cir. 1997) ..................................................................................... 25
`AGCS Marine Ins. Co. v. Hymel & Assocs., LLC,
`No. 16 Civ. 6899, 2017 WL 2729093 (S.D.N.Y. June 22, 2017) .......................... 33
`Arista Records LLC v. Doe 3,
`604 F.3d 110 (2d Cir. 2010) ........................................................................... passim
`Aronette Mfg. Co. v. Capitol Piece Dye Works, Inc.,
`6 N.Y.2d 465 (1959) ............................................................................................... 30
`Ashcroft v. Iqbal,
`556 U.S. 662 (2009) ................................................................................... 12, 14, 23
`Baiul v. NBC Sports,
`No. 15 Civ. 9920, 2016 WL 1587250 (S.D.N.Y. Apr. 19, 2016) ....................37, 38
`Bell Atl. Corp. v. Twombly,
`550 U.S. 544 (2007) ........................................................................................ passim
`Command Cinema Corp. v. VCA Labs, Inc.,
`464 F. Supp. 2d 191 (S.D.N.Y. 2006) .................................................................... 31
`DiVittorio v. Equidyne Extractive Indus., Inc.,
`822 F. 2d 1242 (2d Cir. 1987) ................................................................................ 17
`Doyle v. Mastercard Int’l Inc.,
`No. 16 Civ. 4270, 2017 WL 2874528 (2d Cir. July 6, 2017) ................................. 35
`Dubay v. Trans-Am. Ins. Co.,
`75 A.D.2d 312 (2d Dep’t 1980) .............................................................................. 31
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
`499 U.S. 340 (1991) ................................................................................... 12, 13, 14
`Gary Friedrich Enters., LLC v. Marvel Enters., Inc.,
`713 F. Supp. 2d 215 (S.D.N.Y. 2010) .................................................................... 38
`
`iii
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`Grace v. Corbis-Sygma,
`487 F.3d 113 (2d Cir. 2007) ................................................................................... 31
`ITT Corp. v. Lee,
`663 F. App’x 80 (2d Cir. 2016) .............................................................................. 35
`Kelly v. L.L. Cool J.,
`145 F.R.D. 32 (S.D.N.Y. 1992), aff’d 23 F.3d 398 (2d Cir. 1994) ..... 12, 13, 14, 15
`Kousnsky v. Amazon.com, Inc.,
`631 F. App’x 22 (2d Cir. 2015) .............................................................................. 13
`Lefkowitz v. McGraw-Hill Global Educ. Holdings, LLC,
`23 F. Supp. 3d 344 (S.D.N.Y. 2014) ...................................................................... 26
`Marvin E. Herman, Inc. v. White,
`Nos. 91 Civ. 5025, 73412, 1994 WL 363980 (S.D.N.Y. July 13,
`1994) .................................................................................................................29, 30
`Marvullo v. Gruner & Jahr,
`105 F. Supp. 2d 225 (S.D.N.Y. 2000) .................................................................... 18
`Miller v. Holtzbrinck Publishers, L.L.C.,
`377 F. App’x 72 (2d Cir. 2010) .............................................................................. 37
`Muench Photography, Inc. v. The McGraw-Hill Cos., Inc.,
`No. 12 Civ. 6595, 2013 WL 5372785 (S.D.N.Y. Aug. 15, 2013) .......................... 26
`Muller Boat Works, Inc. v. Unnamed 52%2C House Barge,
`464 F. Supp. 2d 127 (E.D.N.Y. 2006) .................................................................... 29
`Mulvaney v. King Paint Mfg. Co.,
`256 F. 612 (2d Cir. 1919) ....................................................................................... 30
`Netzer v. Continuity Graphic Assocs., Inc.,
`963 F. Supp. 1308 (S.D.N.Y. 1997) ....................................................................... 38
`Palmer Kane LLC v. Scholastic Corp.,
`No. 12 Civ. 3890, 2013 WL 709276 (S.D.N.Y. Feb. 27, 2013) .......................17, 18
`Petrella v. Metro-Goldwyn-Mayer, Inc.,
`134 S. Ct. 1962 (2014) ......................................................................................22, 23
`
`iv
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`Psihoyos v. John Wiley & Sons, Inc.,
`748 F.3d 120 (2d Cir. 2014) ................................................................................... 22
`Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC,
`813 F. Supp. 2d 489 (S.D.N.Y. 2011) .................................................................... 36
`S.E.C. v. Credit Bancorp, Ltd.,
`No. 99 Civ. 11395, 2000 WL 1752979 (S.D.N.Y. Nov. 29, 2000),
`aff’d, 290 F.3d 80 (2d Cir. 2002) ............................................................................ 30
`SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC,
`137 S. Ct. 954 (2017) ........................................................................... 22, 25, 29, 34
`Sohm v. Scholastic,
`Case No. 16 Civ. 07098 (S.D.N.Y.) ....................................................................... 24
`Thyroff v. Nationwide Mut. Ins. Co.,
`8 N.Y.3d 283 (2007) ............................................................................................... 36
`U.S. v. $79,000 in Account No. 2168050/6749900 at Bank of N.Y.,
`No. 96 Civ. 3493, 1996 WL 648934 (S.D.N.Y. Nov. 7, 1996) .............................. 29
`Williams v. Citigroup Inc.,
`659 F.3d 208 (2d Cir. 2011) ................................................................................... 25
`Young-Wolff v. McGraw-Hill Cos.,
`No. 13 Civ. 4372, 2014 WL 349711 (S.D.N.Y. Jan. 31, 2014) ............................. 21
`Statutes
`17 U.S.C. § 106 ............................................................................................... 21, 35, 38
`17 U.S.C. § 507(b) ....................................................................................................... 22
`Other Authorities
`3-18 Milgrim on Licensing § 18.64 (2017) ................................................................. 20
`C.P.L.R § 213(2) .......................................................................................................... 32
`Federal Rule of Civil Procedure 8 ....................................................................... passim
`22A N.Y. Jur. 2d Contracts § 437 ................................................................................ 32
`
`v
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`PRELIMINARY STATEMENT
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`This appeal may appear to present a narrow question concerning the standard
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`for pleading copyright infringement, including whether speculative and conclusory
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`allegations of infringement are sufficient to state a claim. But the case has far greater
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`significance, particularly given the recent epidemic of copyright claims based upon
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`uses that date back fifteen or twenty years. At issue is whether copyright owners may
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`choose to remain ignorant of the licensed uses of their works, fail to secure an audit
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`right or even to ask their licensing agent for basic information about the licenses
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`issued on their behalf, and then (taking advantage of the so-called “Discovery Rule”
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`to attempt to avoid the statute of limitations) bring infringement suits without any
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`factual basis for claiming that the terms of the licenses had been exceeded.
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`For the reasons set forth below, the District Court was right to dismiss what it
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`characterized as Plaintiffs-Appellants Michael Yamashita and Michael Yamashita,
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`Inc.’s (together “Yamashita”) “aimless trawling.” Yamashita did not allege a single
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`specific fact to support his claim that Scholastic exceeded the terms of its licenses for
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`Yamashita’s photographs. He did not even identify the terms of the license
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`agreements that he alleged Scholastic exceeded—claiming that he did not know
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`them. Yamashita instead argued that Scholastic was required to defend itself against
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`his unsupported claims and provide evidence proving that it did not exceed the
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`license terms in over 100 licenses that he identified—some of which were nearly
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`twenty years old. The Orders of the District Court dismissing Yamashita’s claims
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`and then denying leave to amend should be affirmed.
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`ISSUES PRESENTED
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`1) Whether Yamashita’s Complaint, which lists, in conclusory fashion and
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`without pleading specific facts, five ways in which Scholastic might have infringed
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`Yamashita’s photographs, is sufficient to state claims for copyright infringement?
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`2) Whether the District Court, reviewing a proposed pleading that
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`contained the same deficiencies as the initial Complaint, properly denied Yamashita
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`leave to amend to reassert the same copyright claims?
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`3) Whether the District Court properly denied Yamashita leave to amend
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`his complaint to add common law causes of action that are unsupported by law and
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`the facts alleged?
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`STATEMENT OF THE CASE
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`Yamashita originally brought this action on June 28, 2016, accusing Scholastic
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`of copyright infringement related to 119 licensed uses (the “Uses”) of 83 photographs
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`identified in the exhibit to the Complaint (the “Photographs”). A10-33 (the
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`“Complaint” or “Compl.”). The earliest invoices for these licensed Uses date back to
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`June 16, 1999—nearly eighteen years before Yamashita filed the Complaint. A17,
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`rows 1-4. As of the date of filing, 77 of the invoices for the Uses (approximately
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`65%) were at least ten years old. A31, rows 1-79, 105-118.
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`The case was originally filed in the District Court for the District of New
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`Jersey. A10. As described below, that court transferred the case to the Southern
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`District of New York pursuant to a mandatory venue provision. The District Court
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`(Forrest, J.) then dismissed all but one of Yamashita’s claims for failure to state any
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`cause of action for copyright infringement. The parties settled the one remaining
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`claim, and this appeal followed.
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`A. YAMASHITA’S COMPLAINT CONTAINS NO SPECIFIC
`ALLEGATIONS OF INFRINGEMENT
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`Appellant Michael Yamashita alleges that he is a professional photographer
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`who resides in New Jersey. A11 (Compl. ¶ 2). Appellant Michael Yamashita, Inc. is
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`a New Jersey corporation owned by Mr. Yamashita. A11 (Compl. ¶ 3). Appellee
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`Scholastic is a New York corporation that is the world’s largest publisher and
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`distributor of children’s books. A11 (Compl. ¶ 4).
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`In the Complaint, Yamashita claimed that Scholastic exceeded the scope of
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`119 licenses granted to Scholastic and, as a result, infringed the copyrights in the
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`Photographs at some unspecified time in one or more of five possible ways.
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`Yamashita provided no factual basis for his purported belief that this infringement
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`occurred. He did not identify the way in which any of the licenses had allegedly been
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`exceeded or when such alleged infringement had taken place. Yamashita merely
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`pled, upon information and belief, a list of ways all of these licenses could have been
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`exceeded, apparently at some point after they were licensed. A12 (Compl. ¶ 13
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`(listing five possible bases for infringement using an “and/or” connector)).
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`Yamashita confirmed that he had no specific information on how or when—or,
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`indeed, if—his Photographs had been infringed, alleging instead that “Scholastic
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`alone knows the full extent to which it has infringed Yamashita’s copyrights by
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`making unauthorized uses of the Photographs, but it has not shared this knowledge
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`with Yamashita.” A13 (Compl. ¶ 15).
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`Yamashita accompanied notice of the filing of the Complaint to Scholastic
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`with a demand that Scholastic provide information concerning his alleged
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`photographs, “including but not limited to those images identified in the complaint”
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`and offered to remove from the Complaint any claims based upon licenses that
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`Scholastic confirmed it did not exceed. A200. Thus, Yamashita sought to use this
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`litigation as a means of auditing Scholastic’s use of photographs, some of which were
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`licensed nearly twenty years ago.
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`The only material allegations in the Complaint based on facts rather than
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`speculation pled on unsupported information and belief were that: (1) Yamashita
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`owns the copyrights in the Photographs (A11 (Compl. ¶ 7)); (2) acting through the
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`stock photo agency Corbis Corporation (“Corbis”), Yamashita sold Scholastic limited
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`licenses to use those Photographs (A12 (Compl. ¶¶ 9-10)); and (3) that Scholastic has
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`been sued for copyright infringement in other cases involving other photographers
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`and other publications. A13 (Compl. ¶ 16). Yamashita did not identify the purported
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page12 of 47
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`limits to any license or describe how or when Scholastic may have exceeded such
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`limits.
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`The specific information in the Complaint about the alleged licenses to
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`Scholastic was included in the exhibit appended to the Complaint, which identified
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`the invoice date and Corbis’s invoice number for each of these licenses. A16-31.
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`The Exhibit listed 119 licensed Uses, but identified only three of the Scholastic book
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`titles that purportedly included licensed Photographs—two of which were apparently
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`the hardcover and paperback versions of the same publication. A10-33 (Compl.
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`¶¶ 16, 72, 80).
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`B.
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`THE CASE IS TRANSFERRED TO THE SOUTHERN DISTRICT OF
`NEW YORK
`On September 14, 2016, Scholastic moved to dismiss the Complaint for failure
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`to meet the standards of Federal Rule of Civil Procedure 8 (“Rule 8”) and/or to
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`transfer the matter from the District of New Jersey to the Southern District of New
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`York. A34-35. Scholastic based its motion to transfer on a series of mandatory
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`forum selection clauses in the preferred vendor agreements (the “PVAs”) between
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`Scholastic and Yamashita’s licensing agent, Corbis. A10-13, 59-100. Scholastic also
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`argued that the Complaint failed to satisfy the requirements of Rule 8 and, in
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`particular, failed to allege by what acts and at what time Yamashita’s Photographs
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`were allegedly infringed. A44-47. Finally, Scholastic argued that Yamashita
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`improperly was seeking to audit Scholastic for all uses of his Photographs, despite
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`lacking any right to do so under the Copyright Act or any bargained-for agreement he
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`identified. A47-48 (citing 17 U.S.C. § 106).
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`In opposition, Yamashita once again confirmed that he had no factual basis on
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`which to bring any of his alleged claims, admitting that he had asked Scholastic for
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`“accurate information about Scholastic’s uses . . . of Yamashita’s images, including
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`but not limited to those images identified in the complaint . . . .” A121. Yamashita
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`gave no indication as to whether he had queried his agent for copies of the relevant
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`invoices (A121-122)—despite having consistently received royalty statements from
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`Corbis showing these transactions. A160-161 ¶ 6. Yamashita did make clear his
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`intention to audit Scholastic in discovery (A137-38), while simultaneously arguing
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`that Scholastic was “making [things] up” by claiming that Yamashita sought an audit
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`through this action. A135-139 (“But Yamashita’s right to discovery in this
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`infringement action does not depend upon a right to sue for an ‘audit’ under the
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`Copyright Act.”) (emphasis in original). Although Yamashita argued that, should the
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`District Court be inclined to dismiss, he should be granted leave to amend his
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`pleading, at no point did he attempt to replead or otherwise supplement his vague
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`allegations. A139.
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`On November 29, 2016, the District of New Jersey (Chesler, J.) ordered
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`transfer, but did not reach Scholastic’s motion to dismiss. See generally A272-277.
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`In so doing, Judge Chesler countered Yamashita’s argument that he should not be
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`bound to the forum selection clauses in the PVAs because he did not have notice of
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`them, because “[k]nowledge of the agreement between Corbis and Scholastic is thus
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`imputed to Plaintiffs, since Plaintiffs are principals and Corbis is their agent.” A275.
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`C. THE LOWER COURT DISMISSES THE CASE AS A “FISHING
`EXPEDITION” AND “AIMLESS TRAWLING” NOT PERMITTED BY
`RULE 8
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`Upon receipt of the case, the District Court for the Southern District of New
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`York inquired whether Scholastic intended to renew its motion to dismiss, which it
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`would hear without further briefing. A279. Scholastic confirmed that it did, and the
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`Court thereafter heard the motion. A280.
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`In the order that followed, the District Court dismissed Yamashita’s Complaint
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`in its entirety for failure to “plead facts to support its claims beyond mere speculation
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`. . . .” as is required by Rule 8. SPA1-3 (the “Dismissal Order”). As the District
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`Court stated, while the Complaint “speculate[d] about ‘various ways’ defendants
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`might have infringed” Yamashita’s copyrights, it failed to “name a single instance of
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`infringement or allege facts to establish a timeframe for when such an infringement
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`might have occurred.” SPA2-3. It also rejected Yamashita’s argument that he
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`properly established a timeframe for the alleged infringement by claiming that it
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`occurred after Scholastic obtained the photographs, noting that ‘[a]ny infringement
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`would necessarily happen ‘after’ defendants accessed the copyrighted material.” Id.
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`The District Court concluded that “[t]he complaint contain[ed] so few factual
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`allegations it is nothing more than a fishing expedition. Rule 8 does not permit such
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`aimless trawling.” SPA3. The District Court thereafter entered judgment on January
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`9, 2017, repeating this admonition. A281.
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`D. YAMASHITA’S AMENDED COMPLAINT LARGELY REPEATS THE
`CONCLUSORY ALLEGATIONS
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`On January 23, 2017, Yamashita sought reconsideration of the Dismissal Order
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`and leave to file an amended complaint. A282-283. Yamashita did not contest the
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`District Court’s finding that the initial Complaint was a fishing expedition. See A300
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`(“Yamashita accepts (but respectfully disagrees with) the Court’s ruling regarding the
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`sufficiency of the copyright infringement claims in the original Complaint, and does
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`not wish to relitigate the sufficiency of the original Complaint in this motion.”).
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`Instead, Yamashita referred to the District Court’s finding that “[Yamashita does] not
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`name a single instance of infringement or allege facts to establish a timeframe for
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`when such infringement might have occurred” (A289 (citing Dismissal Order at 2-
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`3)), and asked that the District Court allow him to replead the very same 119 Uses by
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`providing additional information related to only one. A293 (“Yamashita proposes to
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`amend the copyright infringement claims to address the Court’s finding that the
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`original Complaint does ‘not name a single instance of infringement or allege facts to
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`establish a timeframe for when such an infringement might have occurred.’”).
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`The proposed first amended complaint that Yamashita attached to his motion
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`(the “FAC”) provided no additional information whatsoever regarding 116 of the
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`8
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`Uses that the District Court dismissed and merely included images of 2 other licensed
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`Uses that provided no indication that Scholastic exceeded the terms of the licenses
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`for those Uses. See generally A307-429. Yamashita instead confirmed, as he did in
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`the Complaint, that he still had no information of infringement for those 118 Uses.
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`A312 ¶ 21 (“Scholastic alone knows the full extent to which it has infringed
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`Yamashita’s copyrights by making unauthorized uses of the Photographs, but
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`Scholastic wrongfully has refused to share this knowledge with Yamashita…”). The
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`lone additional fact Yamashita pled concerned only to the Use identified in row 80 of
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`the initial Complaint (the “Row 80 Use”). Yamashita claimed that a reference to the
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`publication associated with the Row 80 Use appeared on Scholastic’s website as part
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`of a lesson plan—with no link or other apparent way to purchase that book—after the
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`invoice for the Row 80 Use allegedly expired. A302-303, A353-360.
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`In the FAC, Yamashita also sought to assert claims sounding in breach of
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`contract based on the PVAs (A312-316 ¶¶ 25-44), bailment (A316-317 ¶¶ 45-57),
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`and conversion, the latter two claims based on Scholastic’s possession of high-
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`resolution copies of his Photographs (A317-318 ¶¶ 58-62). Yamashita also argued
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`that these claims entitled him to an accounting—in other words, an audit—of all of
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`Scholastic’s uses of his photographs. A318 ¶¶ 63-65.
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`In an Order dated February 28, 2017, the District Court granted leave to amend
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`only as to the Row 80 Use, and denied leave as to all other Uses as “plaintiff has
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`shown not a single fact supportive of an infringement claim with regard to any of
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`these images.” SPA4. The District Court also denied leave to amend to add the
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`additional common law claims, because they largely depended on generic provisions
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`of the PVAs to which Yamashita was not a party. SPA4. The District Court noted
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`that the fact that Corbis was Yamashita’ agent “is not equivalent to standing in
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`Corb[i]s’s shoes in the contract for all purposes” and that the language of the PVAs
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`contradicted certain claims. SPA4. It also found Yamashita’s attempt to rely on
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`generalized provisions in these agreements was insufficient to support his claims.
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`SPA4.
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`The parties thereafter settled the Row 80 Use (A532-534), and this appeal
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`followed.
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`SUMMARY OF THE ARGUMENT
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`The District Court properly held that, to state a copyright infringement claim,
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`the plaintiff must plead the acts that constitute the alleged infringement and the time
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`frame in which they took place. Yamashita’s conclusory and wholly unsupported
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`allegations regarding the ways in which Scholastic might have infringed his
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`copyrights fail to meet the standards set forth in Rule 8 and Supreme Court decisions
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`interpreting that rule. Quite simply, Yamashita did not allege a single, specific fact to
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`support the conclusion that Scholastic infringed Yamashita’s copyrights—he did not
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`even plead the license terms that he claimed were exceeded. Yamashita’s allegation
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`that Scholastic had been sued by other photographers with respect to other
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`photographs in other publications does not provide a basis for Yamashita’s claims.
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`And his failure to include and/or enforce an audit right in the licenses with
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`Scholastic, or to pay attention to how his photographs were being used, do not allow
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`him to excuse his pleading deficiencies by arguing that only Scholastic knows how it
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`used his photographs. A plaintiff must not be allowed to bring claims based on
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`fifteen- or twenty-year old invoices and insist that a defendant prove that it has not
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`infringed the plaintiff’s copyrights by failing to monitor the licensed uses of his
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`copyrights and relying on pure speculation of infringement.
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`The District Court also properly denied Yamashita leave to replead 118 claims
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`of copyright infringement upon review of a proposed amended complaint that pled no
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`more facts relevant to these Uses than his original Complaint did. Finally, the
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`District Court correctly denied Yamashita leave to amend to bring common law
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`claims that were unsupported by relevant law and contradicted by the underlying
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`agreements and facts on which he purported to rely.
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`ARGUMENT
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`I.
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`THE DISTRICT COURT APPLIED THE PROPER PLEADING
`STANDARD UNDER RULE 8
`Yamashita’s principal argument is that the District Court improperly applied a
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`heightened pleading standard for a copyright infringement claim. That is plainly
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`incorrect. The District Court analyzed the sufficiency of Yamashita’s complaint
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page19 of 47
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`under Rule 8 and the standards articulated in Bell Atl. Corp. v. Twombly, 550 U.S.
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`544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under this framework,
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`Yamashita was required to plead factual allegations sufficient “to raise a right to
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`relief above the speculative level.” Twombly, 550 U.S. at 555. As the District Court
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`noted, “‘[w]here a complaint pleads facts that are merely consistent with a
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`defendant’s liability,’ it cannot survive a motion to dismiss.” SPA2 (quoting Iqbal,
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`556 U.S. at 678).
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`The District Court also cited Kelly v. L.L. Cool J., 145 F.R.D. 32 (S.D.N.Y.
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`1992), aff’d 23 F.3d 398 (2d Cir. 1994), for the elements that must be pled for a valid
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`copyright infringement claim—with the sufficiency required under Rule 8 and
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`Twombly/Iqbal. Kelly, which requires that a plaintiff allege, “inter alia, by what acts
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`during what time the defendant infringed the copyright” (145 F.R.D. at 36), remains
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`good law in this Circuit. Contrary to Yamashita’s argument, is not at odds with Feist
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`Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340 (1991). In Feist, the
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`Supreme Court articulated two elements that must be proven to establish copyright
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`infringement: “(1) ownership of a valid copyright, and (2) copying of constituent
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`elements of the work that are original.” Feist, 499 U.S. at 361. Feist made no
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`mention of applicable pleading requirements (indeed, the underlying case was
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`decided at the summary judgment stage) and has little direct applicability to the
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`sufficiency of Yamashita’s Complaint. There is no dispute that Yamashita ultimately
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page20 of 47
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`must prove copyright ownership and unauthorized reproduction (or other protected
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`right) to prevail on a copyright infringement claim. But, at the pleading stage,
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`Yamashita must plead facts to show that he could plausibly make such a claim.
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`Kelly—decided and affirmed after Feist—articulated the types of facts that
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`must be pled. Contrary to Yamashita’s contention, the elements discussed in Kelly
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`are neither outdated nor rejected by this Court. Rather, this Court recently reaffirmed
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`the holding in Kelly in Kousnsky v. Amazon.com, Inc., 631 F. App’x 22 (2d Cir.
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`2015), a case with a defective complaint similar to Yamashita’s. In Kousnsky, the
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`plaintiff alleged, among other things, that the defendant exceeded the scope of the
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`license to use plaintiff’s copyrighted work. The Court affirmed the dismissal because
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`the complaint “did not articulate how or when” defendant committed the acts that
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`plaintiff alleged to be beyond the scope of the license. Id. at 25.
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`Ignoring the District Court’s plain application of the proper pleading standard,
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`Yamashita relies heavily on Arista Records LLC v. Doe 3, 604 F.3d 110 (2d Cir.
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`2010), for the proposition that there is no heightened pleading requirement for
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`copyright infringement claims. But this is the proverbial straw-man argument
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`because neither the District Court nor Scholastic has stated otherwise. Arista applied
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`the pleading standards of Twombly, Iqbal, and Rule 8—just as both the Kelly court
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`and District Court did. Arista did not purport to overrule or contradict Kelly, or to
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`address the elements necessary to plead a copyright infringement claim.
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`Case 17-1957, Document 39, 10/02/2017, 2138220, Page21 of 47
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`Even without citation to or reliance on Kelly, under Yamashita’s own
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`argument, he would have had to allege plausibly that Scholastic copied his
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`copyrighted work (presumably without permission) to state a claim under Feist.
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`Brief and Special Appendix for Plaintiffs-Appellants, Dkt No. 26, dated Aug. 28,
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`2017 (the “Brief” or “Br.”) at 1. The District Court’s decision would still apply
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`under Yamashita’s articulation of the pleading requirements. As discussed below,
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`Yamashita “do[es] not name a single instance of infringement” in the Complaint and
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`therefore cannot plausibly allege that Scholastic copied Yamashita’s work or
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`otherwise violated one of his rights as a copyright owner. SPA2. Under any
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`formulation of the well-established elements of a copyright infringement claim,
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`therefore, Yamashita’s Complaint falls short of the required pleading standard.
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`II. YAMASHITA’S COPYRIGHT INFRINGEMENT CLAIM IS BASED
`ON PURE SPECULATION
`The District Court correctly held that Yamashita did not meet the applicable
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`pleading standard. Yamashita—by his own admission—lacked knowledge that
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`Scholastic infringed any of his copyrighted wo