United States District Court, D. Minnesota
FURNITUREDEALER.NET, INC. Plaintiff,
AMAZON.COM, INC., and COA, INC. d/b/a COASTER COMPANY OF AMERICA Defendants.
Michael Lefeber, BRIGGS & MORGAN, PA, for plaintiff.
M. Cislo, CISLO & THOMAS, LLP, and Robert J. Gilbertson,
GREENE ESPEL, PLLP, for defendant COA, Inc.
MEMORANDUM OPINION & ORDER
R. TUNHEIM CHIEF JUDGE
case arises out of a contract between Plaintiff
FurnitureDealer.Net (“FDN”) and Defendant Coaster
Company of America (“Coaster”) in which FDN
agreed to create a website to market Coaster's products.
FDN, a furniture marketing company, noticed that copyrighted
material it created for Coaster began appearing on Defendant
Amazon.com's (“Amazon”) URLs. FDN brought
this action against Coaster after learning that it provided
the allegedly infringed material to Amazon. Against Coaster,
FDN alleges direct copyright infringement, contributory
infringement, vicarious infringement, unjust enrichment,
breach of contract, breach of the covenant of good faith and
fair dealing, and violations of the Digital Millennium
Copyright Act (“DMCA”).
now moves to dismiss FDN's claims under Fed.R.Civ.P.
12(b)(6) and, in the alternative, requests a more definite
statement under Rule 12(e). Because FDN has alleged facts
sufficient to support its claims, the Court will deny
Coaster's motion to dismiss as to every claim save
FDN's unjust enrichment claim. The Court will grant
Coaster's motion to dismiss the unjust enrichment claim
because that claim is preempted by the Copyright Act.
Finally, because it is possible for Coaster to reply to
FDN's allegations, the Court will deny Coaster's
motion for a more definite statement.
a Minnesota corporation specializing in the creation,
production, and management of marketing solutions for home
furniture companies. (Am. Compl. ¶¶ 1, 8, May 14,
2018, Docket No. 6.) As part of its services, FDN creates and
manages websites for furniture retailers. (Id.
¶ 8.) In creating websites, FDN also creates content
that appears on the sites, including written descriptions of
its clients' products. (Id.) These descriptions
include search-engine-optimized (“SEO”) text.
(Id.) SEO text is, in essence, text that is tailored
to maximize its prominence on the internet, particularly in
response to online searches. (Id. ¶ 36.) As the
effectiveness of SEO text increases, so do the rankings of
the websites associated with the text. (Id.)
Likewise, when SEO text is compromised, website rankings and
traffic decrease. (Id.) For that reason, FDN tightly
controls and regulates the use and distribution of the
furniture descriptions it writes to service its clients'
tool FDN employs to protect and track its assets is a library
of original product content (the “Content
Library”), which includes content created for all
clients FDN serves. (Id. ¶ 8.) The Content
Library is stored in a database (the “Automated
Database”), which was copyrighted in September 2015.
(Id. ¶¶ 8-9 & Ex. A, Docket No. 6-1.)
The Certificate of Registration from the U.S. Copyright
Office identifies the title of the work as “Automated
database of furniture catalogs and collections (photographs
and text).” (Id. ¶ 9, Ex. A.) The
“new material” listed on the certificate includes
“Compilation, arrangement, original text, original
photographs and revisions to certain prior
Alleged Infringement by Coaster and Amazon
Coaster is a California furniture company and a long-time
customer of FDN. (Id. ¶¶ 3, 10.) In
February 2010, Coaster and FDN entered into an agreement (the
“Agreement”) establishing that FDN would create
and maintain a customized website for Coaster at
www.coasterfurniture.com (the “Website”).
(Id. ¶¶ 11-12, 31.)
relevant part, the Agreement contains the following
terms: (1) FDN owns the Website but licensed it
to Coaster; (2) FDN owns all rights, title and
interest to all original content created by FDN for the
Website; (id. ¶ 11; Decl. of Larry Furiani
¶ 3, July 6, 2018, Docket No. 39, Ex. 1
(“Agreement”) at 3, Docket No. 40); (3) use of
FDN's original content is limited to the Website and
websites of Coaster-authorized dealers who enter into
separate licensing agreements with FDN; (Am. Compl. ¶
12; Agreement at 6, 10); (4) Coaster retains all rights and
title to domain names and design elements that it provides
for the Website; (Agreement at 3); and (5) in exchange for
creating and maintaining the Website, Coaster would provide
FDN with referrals of authorized dealers with whom FDN could
share its original content; (id. at 2).
to the Agreement, FDN created the Website and wrote SEO text
(the “Descriptive Text”) to market Coaster's
products, using Coaster's catalog as a starting point.
(Am. Compl. ¶¶ 10-11.) With other content used on
the Website, FDN added the Descriptive Text to its Content
Library. (Id.) FDN alleges that the Descriptive Text
is therefore protected not only by the Agreement, but also by
the copyright of FDN's Automated Database. (Id.
¶ 11.) To alert third parties against using copyrighted
material, FDN placed a graphic on each page of the Website.
(Id. ¶ 34.) The graphic includes FDN's logo
and states, “All rights reserved. Nothing on this page
may be copied or reproduced without explicit
the Website was up and running and before February 2016, FDN
noticed that the Descriptive Text it created for Coaster
began appearing on Amazon URLs used to promote and sell
Coaster furniture. (Id. ¶ 14.) By February
2016, FDN had identified and collected at least 394 Amazon
URLs where its Descriptive Text appeared. (Id.
¶ 19.) Because the text appearing on the Amazon URLs was
identical or nearly identical to the Descriptive Text in its
Content Library, FDN believed it was copied directly from the
Content Library. (Id. ¶ 14.)
February 25, 2016, FDN submitted a takedown request to Amazon
via email pursuant to the Digital Millennium Copyright Act
(“DMCA”). (Id. ¶ 17.) In the email,
FDN explained in detail its concerns about copyright
infringement. (Id. ¶ 19.) It also attached a
spreadsheet containing a comparison of the text on
Coaster's and Amazon's websites for each instance of
alleged infringement along with the corresponding URLs.
(Id.) Amazon repeatedly asserted that it could not
identify the alleged infringements and requested more detail
from FDN. (Id. ¶¶ 20-29.) Although FDN
complied with Amazon's requests, Amazon did not take any
steps to remove the identified material in response to this
exchange. (Id. ¶ 29.)
email dated April 6, 2016, an Amazon employee explained to
FDN that Amazon had received the item descriptions from the
product manufacturer (i.e., Coaster). (Id. ¶
30.) Although Coaster's Vice President repeatedly denied
granting Amazon permission to use the Descriptive Text,
Amazon insisted that FDN work with Coaster to resolve the
issue. (Id. ¶¶ 32, 35, 37, 44.)
believing Amazon had acted independently, FDN brought suit
against Amazon on January 26, 2018. (Compl., Jan. 26, 2018,
Docket No. 1.) However, after learning that Coaster had (1)
allegedly uploaded the Descriptive Text onto the Amazon URLs
in question; and (2) failed to ask Amazon to remove the text
from its URLs, FDN added Coaster as a defendant. (Am. Compl.,
¶¶ 49, 50.)
this date, the Descriptive Text in issue remains on various
Amazon URLs. (Id. ¶¶ 48, 52.) FDN alleges
that it has suffered and continues to suffer losses because
of Amazon and Coaster's infringement. (Id.
¶¶ 51, 53.)
Coaster's Motion to Dismiss for Failure to State a
Standard of Review
reviewing a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the Court considers all facts alleged in
the complaint as true to determine if the complaint states a
“‘claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). To survive a motion to dismiss, a complaint must
provide more than “‘labels and conclusions'
or ‘a formulaic recitation of the elements of a cause
of action.'” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). Although the Court accepts the
complaint's factual allegations as true, it is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555
(internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. “Where a complaint
pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility, ” and therefore must be
dismissed. Id. The Court construes the complaint in
the light most favorable to the plaintiff, drawing all
inferences in their favor. Ashley Cty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
the Court is normally limited to the pleadings when
considering a 12(b)(6) motion, it may properly consider
materials that are necessarily embraced by the pleadings.
Enervations, Inc. v. Minn. Mining & Mfg. Co.,
380 F.3d 1066, 1069 (8th Cir. 2004). Such
materials include “documents whose contents are alleged
in a complaint and whose authenticity no party
questions.” Kushner v. Beverly Enters., Inc.,
317 F.3d 820, 831 (8thCir. 2003) (quoting In
re Syntex Corp. Sec. Litig., 95 F.3d 922, 926
(9th Cir. 1996)).
FDN's Copyright Claims
argues that FDN's copyright infringement claims (Counts
I-III) should be dismissed for four reasons: (1) FDN has not
adequately identified the material it alleges was infringed
upon; (2) the Descriptive Text is not copyrightable subject
matter; (3) Coaster had a right to the text as a joint
author; and (4) FDN has not adequately alleged that Coaster
had access to FDN's copyrighted work, which is a
necessary element of a copyright claim.
The Identified Material
repeatedly asserts that it is uncertain what material FDN
alleges was copyrighted and subsequently infringed upon. The
Court is unpersuaded. While the function and contents of the
Automated Database and Content Library are somewhat obscure
at this stage in the proceedings, the Court has no difficulty
identifying the material in issue as the Descriptive Text
that FDN produced for Coaster and placed on the Website.
Coaster points to the lack of examples of infringed material
in the Amended Complaint. But this is no matter; FDN has
described the Descriptive Text and the alleged infringement
in detail. Moreover, FDN alleges that it specifically
identified hundreds of instances of infringement, placed them
into a spreadsheet, and confirmed with Coaster's Vice
President that FDN owned the material in question.
(See Am. Compl. ¶¶ 19, 32-33.) Thus, the
Court finds that FDN has alleged facts sufficient to identify
the Descriptive Text as the subject of this dispute.
Copyrightable Subject Matter
Coaster argues that FDN's copyright claims should be
dismissed because the Descriptive Text is not copyrightable
subject matter. First, Coaster asserts that, as SEO text, the
Descriptive Text should be denied copyright protection under
the merger doctrine. Second, Coaster argues that the text
lacks the creativity required of copyrighted material.
Court first notes that the certificate of copyright
registration attached to the pleadings creates a rebuttable
presumption of a valid copyright in the Automated Database
(“the Copyright”). See Thimbleberries, Inc.
v. C & F Enterprises., Inc.,142 F.Supp.2d 1132,
1137 (D. Minn. 2001); 17 U.S.C. § 410(c) (“the
certificate of registration . . . shall constitute prima
facie evidence of the validity of the copyright . .
..”) However, because “copyright protection may
extend only to those components of a work that are original
to the author, ” FDN must show ...