Beruflich Dokumente
Kultur Dokumente
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION
In assessing the amount and substantiality of Consequently, both the amount and
portion used, courts consider not only "the substantiality of the Work RNC used for its
quantity of the materials used" but also "their political mailers either weighs neutrally or
quality and importance." Campbell , 510 U.S. at against a finding of fair use. RNC used
587, 114 S.Ct. 1164. While "wholesale copying substantially all the Work quantitatively as the
does not preclude fair use per se," copying an entirety of the Work was copied. Further, the
entire work "militates against a finding of fair qualitative aspects of the Work were maintained
use." Worldwide Church of God v. Philadelphia in RNC's use for its intended purpose to
Church of God, Inc. , 227 F.3d 1110, 1118 (9th Cir. criticize Quist's political career in conjunction
2000) (quoting Hustler , 796 F.2d at 1155 ). with his musical background. Given that the
Similarly, "the fact that a substantial portion of whole of the Work was precisely maintained
the infringing work was copied verbatim is quantitatively and qualitatively for RNC's use
evidence of the qualitative value of the copied and intended purpose, this factor weighs against
material, both to the originator and to the a finding of fair use.
plagiarist who seeks to profit from marketing
someone else's copyrighted expression." Harper d. Effect on the Market
& Row , 471 U.S. at 565, 105 S.Ct. 2218. In evaluating the effect on the market of a use,
courts consider "whether the infringing use: (1)
If the subsequent user of the work "copies only
tends to diminish or prejudice the potential sale
as much as is necessary for his or her intended
of the work; (2) tends to interfere with the
use, then this factor will not weigh against him
marketability of the work; or (3) fulfills the
or her." Kelly , 336 F.3d at 820–21. Accordingly,
1161 demand for the original work." *1161 Hustler , 796
the use of an entire image may be reasonable if
F.2d at 1155–56 (internal quotation marks and
it serves the defendant's intended purpose. See
citations omitted). The "market for potential
Perfect 10 , 508 F.3d at 1167–68 (finding use of
derivative uses includes only those that creators
of original works would in general develop or Having weighed each of the fair use factors, and
license others to develop." Campbell , 510 U.S. at resolving all issues in favor of Peterman under
592, 114 S.Ct. 1164. The more transformative the the allegations in the Complaint, the Court
new work, the less likely the new work's use will finds that disputed issues of material fact
affect the market for the original work. See Kelly , remain on whether RNC's use of Peterman's
336 F.3d at 821. Where the use "does not Work constituted a fair use. Thus, RNC's
substitute for the original and serves a ‘different Motion to Dismiss on Count I is denied.
market function,’ such factor weighs in favor of
fair use." Seltzer v. Green Day, Inc. , 725 F.3d 1170, II. Intentional Interference with
1179 (9th Cir. 2013) (quoting Campbell , 510 U.S. Prospective Economic Advantage
at 591, 114 S.Ct. 1164 ). RNC next seeks dismissal of Peterman's
intentional interference with prospective
There is no basis in the pleadings for
economic advantage claim. Peterman asserts
determining the market effect of RNC's use of
that RNC's use of the Work for a use opposite
the Work as it remains a disputed issue of fact.
than intended has caused Peterman damages
Construing the pleadings in favor of Peterman,
and interfered with Peterman's prospective
it is uncertain whether the use of the Work in a
economic advantage and business relations.
political mailing criticizing Quist is likely to
(Doc. 1 at 9.) To state a claim for intentional
diminish the potential sale of the Work,
interference with prospective economic
interfere with the marketability of the Work, or
advantage, a plaintiff must adequately plead that
fulfill the demand for the Work. The only
the defendant's acts: "(1) are intentional and
evidence available in the pleadings about the
willful; (2) are calculated to cause damage to the
market for the Work was that Peterman was
plaintiff's business; (3) are done with the
contacted by the Montana Democratic Party to
unlawful purpose of causing damage or loss,
create the Work, that Peterman gave limited
without right or justifiable cause on the part of
license to the Work to the Montana Democratic
the actor; and (4) result in actual damages or
Party and the Quist campaign, and that RNC
loss." Victory Ins. Co. v. Montana State Fund , 378
used the Work in a political mailer. (Doc. 1 at 4.)
Mont. 388, 344 P.3d 977, 980 (2015) (citing
RNC's use of the Work may have potentially Maloney v. Home and Inv. Ctr., Inc. , 298 Mont.
prejudiced further derivative use of the Work by 213, 994 P.2d 1124, 1132 (2000) ).
Peterman, however such evidence is not
The Copyright Act preempts state laws that
available on the face of the pleadings. Likewise,
regulate in the area of copyright. 17 U.S.C. §
though RNC's use would not likely substitute
301(a). "All legal or equitable rights that are
for the Work, and may have served a different
equivalent to any of the exclusive rights within
market function, there is no plain evidence in
the general scope of copyright as specified by
the pleadings to determine what effect RNC's
1162 Section 106... *1162 are governed exclusively by
use had on the Work. Finally, as the
this title.... [N]o person is entitled to any such
transformative purpose and character of the use
right or equivalent right in any such work under
remains a disputed issue of fact in the analysis
the common law or statutes of any State." Id. ;
above, it is additionally premature to determine
see Ryan v. Editions Ltd. W., Inc. , 786 F.3d 754, 760
what effect RNC's use had on the potential
(9th Cir. 2015) ("[T]he [exclusive] rights
market for the Work. Accordingly, a finding of
protected under the Copyright Act include the
fair use on the market effect of the use is
rights of reproduction, preparation of derivative
premature on this factor.
works, distribution, and display.") (quoting
Altera Corp. v. Clear Logic, Inc. , 424 F.3d 1079,
1089 (9th Cir. 2005) ). "Copyright preemption is
both explicit and broad: 17 U.S.C. § 301(a) Tool Mfg. Corp. v. Victor CNC Sys., Inc. , 7 F.3d
prohibits state-law protection for any right 1434, 1440 (9th Cir. 1993) (citations omitted); see
equivalent to those in the Copyright Act." also Aagard v. Palomar Builders, Inc. , 344
Media.net Advert. FZ–LLC v. NetSeer, Inc. , 156 F.Supp.2d 1211, 1219 (E.D. Cal. 2004) (rejecting
F.Supp.3d 1052, 1069 (N.D. Cal. 2016) (quoting that loss of business from sale of plaintiff s
G.S. Rasmussen & Assoc, Inc. v. Kalitta Flying Serv., copyrighted work was an additional element to
Inc. , 958 F.2d 896, 904 (9th Cir. 1992) ). intentional interference with prospective
economic relations claim because "federal
In determining whether a state law claim is
copyright laws already protect the exclusive
preempted by the Copyright Act, the Ninth
right of distribution.").
Circuit considers: (1) whether the content of the
protected right falls within the subject matter of Whether federal copyright law preempts a state
copyright; and (2) whether the right asserted law claim "therefore depends on whether the
under state law is "equivalent to the exclusive asserted right is qualitatively different than
rights contained in Section 106 of the Copyright those protected by the Copyright Act." Media.net
Act." Sybersound Records, Inc. v. UAV Corp. , 517 , 156 F.Supp.3d at 1070. The Second Circuit
F.3d 1137, 1150 (9th Cir. 2008). "Copyright law provides persuasive authority that the rights
does not preempt state laws with respect to protected by the Copyright Act are synonymous
‘activities violating legal or equitable rights that to those asserted in state law claims involving
are not equivalent to any of the exclusive rights tortious interference because "[i]n both cases, it
within the general scope of copyright as is the act of unauthorized publication which
specified by Section 106.’ " Id. (quoting 17 U.S.C. causes the violation. The enjoyment of benefits
§ 301(b)(3) ). from derivative use is so intimately bound up
with the right itself that it could not possibly be
In evaluating a plaintiff's state law claims, to the
deemed a separate element." Harper & Row
extent they "rely solely on defendant's use of
Publishers, Inc. v. Nation Enters. , 723 F.2d 195, 201
copyrighted material—that is, the reproduction,
(2d Cir. 1983), rev'd on other
performance, distribution, or display of the
1163 work—the claims are preempted." Sweet People *1163grounds , 471 U.S. 539, 105 S.Ct. 2218, 85
Apparel, Inc. v. Louis Grp, Inc. , 2013 WL 12131735, L.Ed.2d 588 (1985). Thus, to survive preemption,
at *6 (C.D. Cal. Jan. 31, 2013). Section 301(a) the "state claim must have an extra element
reflects a Congressional intent "that state-law which changes the nature of action." Laws v. Sony
claims which come within the subject matter of Music Entm't Inc. , 448 F.3d 1134, 1144 (9th Cir.
copyright law and which protect rights 2006) (quoting Del Madera Props. v. Rhodes &
equivalent to any of the exclusive rights within Gardner , 820 F.2d 973, 977 (9th Cir. 1987) )
the scope of federal copyright law...should be (emphasis added).
litigated only as federal copyright claims." Id.
Peterman's intentional interference with
(citing Firoozye v. Earthlink Network , 153
prospective economic advantage claim is
F.Supp.2d 1115, 1122 (N.D. Cal. 2001).
preempted under federal copyright law as it
To avoid preemption, the state law claim must asserts rights under state law that are derivative
include "an ‘extra element’ that makes the right of her copyright infringement claim. Under the
asserted qualitatively different from those Ninth Circuit's framework in Sybersound ,
protected under the Copyright Act[.]" Altera Peterman's state claim is preempted because the
Corp. , 424 F.3d at 1089 (emphasis added). The content of the asserted right under state law
"extra element" must effectively change the falls within the subject matter of copyright, and
claim "so that it is qualitatively different from a the right asserted under state law is equivalent
copyright infringement claim." Summit Mach. to the exclusive rights contained in federal
copyright law. Peterman's claim is supported protects the exclusive right of distribution.
solely on RNC's alleged infringing use of the Consequently, Peterman's state law claim is
Work, a work protected by federal copyright law. preempted.
Further, the state law claim's strict reliance on
Peterman has not identified an independent
the infringing use of Peterman's Work as
theory of interference with economic advantage
support for the action is equivalent to the
apart from RNC's unauthorized use of the Work
exclusive rights granted under federal copyright
that would allow her to plead it outside of
law. Peterman's state law claim is therefore
federal copyright law. The Complaint does not
preempted because of its dependence on RNC's
contain any specific facts regarding any
use of the Work, a claim already secured by
economic advantage Peterman had that was
federal copyright law.
damaged by RNC's use of the Work outside of
Further, Peterman's intentional interference the alleged infringement. (Doc. 1 at 9.) Further,
with prospective economic advantage claim is the Complaint fails to include facts suggesting
predicated on RNC's unauthorized use of her that it was plausible that RNC's actions were
Work in violation of her copyright, and as a calculated to cause damage to Peterman's
result, is not "qualitatively different" from photography business or that RNC's actions
Peterman's copyright infringement claim. resulted in actual damage or loss to state a claim
Peterman potentially claims an "extra element" for intentional interference with prospective
as the potential loss of business as a result of economic advantage. (Id. ) To any extent
RNC's use of the Work during a time when the Peterman's claim is not preempted by federal
Work had special and increased value. However, copyright law, Peterman has additionally failed
Peterman's claim does not assert an extra to state a claim for relief. Thus, RNC's Motion
element that fundamentally changes the nature to Dismiss on Count II is granted.
of her claim to distinguish it from her copyright
Accordingly, IT IS ORDERED that Defendant's
infringement claim because it relies on the
Motion to Dismiss for Failure to State a Claim
unauthorized use of her Work as support. (Doc.
(Doc. 7) is GRANTED IN PART and DENIED IN
1 at 9.) Like the tortious interference claim
PART. Defendant's Motion to Dismiss Count I
presented in Harper , Peterman's intentional
is DENIED and Defendant's Motion to Dismiss
interference with prospective economic
Count II is GRANTED.
advantage claim alleges a violation of essentially
the same exclusive rights provided for by federal
copyright law. The Copyright Act already