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Sarvis v. Polyvore, Inc.

United States District Court for the District of Massachusetts

August 9, 2013, Decided; August 9, 2013, Filed

CIVIL ACTION NO. 12-12233-NMG

Opinion

REPORT AND RECOMMENDATION RE: DEFENDANT'S MOTION TO DISMISS

DOCKET ENTRY # 16

BOWLER, U.S.M.J.

Pending before this court is a motion to dismiss for failure to state a claim (Docket Entry # 16) filed by defendant Polyvore, Inc. ("defendant" or "Polyvore"). On April 4, 2013, this court held a hearing and took the motion to dismiss under advisement.

PROCEDURAL BACKGROUND

On January 30, 2013, plaintiff Robert Sarvis ("plaintiff" or "Sarvis") filed an amended complaint pursuant to Rule 15(a), Fed. R. Civ. P. (Docket Entry # 14). The amended complaint sets out the following claims: declaratory judgment (Count One); permanent injunction (Count Two); direct copyright infringement (Count Three); contributory copyright infringement (Count Four); and vicarious copyright infringement (Count Five). (Docket  [*2] Entry # 14). Plaintiff seeks "a declaration that the Polyvore's [sic] use of the Images was an infringement of Plaintiff's registered copyright pursuant to 17 U.S.C. § 501," an injunction to "enjoin Polyvore from further infringement of the Images pursuant to 17 U.S.C.S. § 502(a)," an award of "damages in the amount of $3,000,000 for the willful infringement by Polyvore of the registered copyrights" and costs. (Docket Entry # 14, p. 8). On February 4, 2013, plaintiff filed a notification letter as an exhibit to the amended complaint which he "inadvertently . . . failed to attach" to the amended complaint. (Docket Entry # 15).

The current dispute concerns images on defendant's website that purportedly infringe copyrighted work of Sheila Wolk ("Wolk"). (Docket Entry # 14, ¶ 7). Plaintiff is the alleged assignee of Wolk's work. 1 (Docket Entry # 14, ¶ 5). The amended complaint asserts that because Polyvore did not remove the 26 infringing images, it is liable for direct infringement. (Docket Entry # 14, ¶¶ 29-31). The amended complaint also alleges defendant's contributory infringement because defendant receives a financial benefit by allowing users to cut and paste the images after removing  [*3] the copyright marks. (Docket Entry # 14, ¶¶ 36 & 44). Finally, plaintiff contends that defendant is liable for vicarious copyright infringement because Polyvore "profits from the direct infringement of the Images" and has been "capable of stopping the infringement of the Images but has declined to do so." (Docket Entry # 14, ¶¶ 51 & 52).

On February 4, 2013, defendant filed the motion to dismiss (Docket Entry # 16) pursuant to Rule 12(b)(6), Fed. R. Civ. P. ("Rule 12(b)(6)"), and a memorandum in support (Docket Entry # 17). Defendant first argues that the copyright claims fail because plaintiff fails to adequately plead statutory standing under the Copyright Act, 17 U.S.C. § 501(b). (Docket Entry # 17, p. 17). Second, defendant contends that the images on its website are transformative uses and therefore do not infringe the original images. (Docket Entry # 17, p. 17). Third, defendant asserts that the allegations that Polyvore's users may have infringed are insufficient to show that Polyvore is liable for direct infringement.  [*4] (Docket Entry # 17, pp. 18 & 19). Fourth, defendant maintains that the contributory liability claim fails because a defendant is not liable for merely providing means with which a third party infringes. (Docket Entry # 17, pp. 20 & 21). Fifth, defendant submits that the vicarious liability claim is insufficient for failing to "plead any 'obvious and direct financial interest' in the alleged copyright infringement." (Docket Entry # 17, p. 22). Defendant then asserts that, "plaintiff's claims are barred by the Digital Millennium Copyright Act," 17 U.S.C. § 512 ("DMCA"), because Polyvore "meets the threshold requirements for Safe Harbor Protection" (Docket Entry # 17, pp. 22 & 23) and because plaintiff's notice of the infringement was inadequate under 17 U.S.C. § 512(c) (Docket Entry # 17, p. 25).

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2013 U.S. Dist. LEXIS 112539 *; 2013 WL 4056208

ROBERT SARVIS, Plaintiff, v. POLYVORE, INC., Defendant.

Subsequent History: Adopted by, Dismissed by, in part Sarvis v. Polyvore, Inc., 2013 U.S. Dist. LEXIS 135054 (D. Mass., Sept. 19, 2013)

Magistrate's recommendation at Sarvis v. Polyvore, Inc., 2015 U.S. Dist. LEXIS 39448 (D. Mass., Mar. 2, 2015)

Magistrate's recommendation at Sarvis v. Polyvore, Inc., 2015 U.S. Dist. LEXIS 140415 (D. Mass., Aug. 24, 2015)

CORE TERMS

infringement, images, amended complaint, users, contests, copying, contributory, copyright infringement, vicarious, website, argues, assignee, motion to dismiss, notification, editing, allegations, transform, financial benefit, Underwriters, distributed, documents, asserts, plaintiff's claim, safe harbor, contends, profits, amend, tools, copyrighted work, judicial notice