17-1957-cv
Yamashita v. Scholastic Inc.


                               United States Court of Appeals
                                     FOR THE SECOND CIRCUIT
                                          ______________

                                            August Term, 2017

                      (Argued: February 2, 2018           Decided: August 28, 2019)

                                          Docket No. 17‐1957‐cv
                                            ______________

                               MICHAEL YAMASHITA, MICHAEL YAMASHITA, INC.,

                                                                      Plaintiffs‐Appellants,

                                                   –v.–

                                             SCHOLASTIC INC.,

                                                                      Defendant‐Appellee.*
                                             ______________

B e f o r e:

                                 POOLER, SACK, and CARNEY, Circuit Judges.

                                             ______________

        Plaintiffs‐Appellants Michael Yamashita, a professional photographer and sole
owner of Michael Yamashita, Inc., and Michael Yamashita, Inc. (collectively,
“Yamashita”), appeal from a judgment entered in the United States District Court for
the Southern District of New York (Forrest, J.) in favor of Defendant‐Appellee Scholastic
Inc., a textbook publisher, finding Yamashita’s statement of claims for copyright
infringement insufficient under Fed. R. Civ. P. 12(b)(6). Yamashita argues that the
District Court erred in: (1) dismissing his one‐count Complaint for infringement, which



*   The Clerk of Court is directed to amend the docket caption to conform to the above.
alleged that Scholastic exceeded the limitations of the licenses that it purchased for
Yamashita’s photographs from Corbis Corporation, a stock photography agency;
(2) ruling that Yamashita’s proposed amendments did not cure the Complaint’s defects
and therefore denying leave to amend as futile; and (3) denying Yamashita leave to add
to his Complaint four new, common‐law claims. We address Yamashita’s first two
arguments in this Opinion, and the third in an accompanying summary order. We
AFFIRM the District Court’s judgment.

       AFFIRMED.
                                        ______________

                              MAURICE HARMON (Christopher Seidman, Gregory N.
                                   Albright, on the brief), Harmon Seidman Bruss & Kerr,
                                   LLC, Grand Junction, CO, for Plaintiffs‐Appellants
                                   Michael Yamashita and Michael Yamashita, Inc.

                              EDWARD H. ROSENTHAL (Craig B. Whitney, on the brief),
                                   Frankfurt Kurnit Klein & Selz, P.C., New York, NY, for
                                   Defendant‐Appellee Scholastic Inc.
                                     ______________




PER CURIAM:

       Plaintiffs‐Appellants Michael Yamashita, a professional photographer and sole

owner of Michael Yamashita, Inc., and Michael Yamashita, Inc. (collectively,

“Yamashita”1), appeal from a judgment entered in the United States District Court for




1Although some of the transactions we describe took place in the context of Michael
Yamashita’s corporation as well as or in place of him personally, for ease of reading we refer to
both the individual and his corporation throughout this Opinion using the personal pronouns
“he,” “his,” and “him.” We note any difference where required.



                                                2
the Southern District of New York (Forrest, J.) in favor of Defendant‐Appellee Scholastic

Inc. (“Scholastic”), an international publisher of children’s books and textbooks. In 2016,

Yamashita sued Scholastic for copyright infringement, claiming that Scholastic

exceeded the use limits set in the licenses to Yamashita’s works that Scholastic

purchased from Corbis Corporation (“Corbis”), a stock photography agency that

Yamashita had authorized to license his works. The Complaint did not specify the use

limits imposed by the Corbis license nor did it allege how Scholastic breached those

limits. The District Court dismissed the Complaint for failure to state a claim and

denied leave to amend on futility grounds.

       On appeal, Yamashita argues primarily that the District Court erred by: (1)

finding the Complaint insufficient; (2) ruling that his Proposed Amended Complaint

did not cure the defects in the Complaint that the Court identified; and (3) denying him

leave to plead four new, common‐law claims. We address the first two of these

arguments in this Opinion, and the third in an accompanying summary order.

       For the reasons set forth below, we AFFIRM the District Court’s judgment.




                                      BACKGROUND2

       Michael Yamashita is a professional photographer and the sole owner of Michael

Yamashita, Inc. In an agreement entered into sometime before 2000, Yamashita

authorized Corbis, a stock photography agency, to grant limited licenses for use of



2As we must on reviewing a Rule 12(b)(6) dismissal, we accept as true the facts as stated in the
Complaint and the Proposed Amended Complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220,
230 (2d Cir. 2016).



                                               3
Yamashita’s photographs to interested publishers. Corbis, acting under its own

agreements with Scholastic (the world’s largest publisher and distributor of children’s

books), granted such licenses to Scholastic. Corbis is not a party to this suit.

1.     Original Complaint and transfer to the Southern District of New York

       In June 2016, Yamashita sued Scholastic in the United States District Court for the

District of New Jersey, alleging that the publisher infringed his copyright in

82 photographs by exceeding the terms of the corresponding limited licenses purchased

through Corbis. Yamashita listed the photographs that were the subject of the suit (the

“Photographs”) and some related information in a spreadsheet attached as Exhibit 1 to

his Complaint.3

       Exhibit 1 displayed the following information for each Photograph: (a) a

“thumbnail” copy of the image; (b) an “Image ID” number; (c) a brief description of the

image;4 (d) the image’s copyright registration number and registration date; (e) the

number and date of the invoice that Corbis issued to Scholastic capturing the related

license; and (f) the imprint within Scholastic for which the publisher had purchased the

related license. In addition, the Exhibit 1 spreadsheet included a column labelled




3The spreadsheet contains 119 rows, each corresponding to an invoice issued by Corbis to
Scholastic. Several rows appear to reference one and the same photograph, compare J.A. at 17
(Row 1), with id. (Row 3), but in general, each row appears to be assigned to a single image.

4E.g., J.A. at 17 (Row 1: “Lobby at the Guggenheim Museum”); id. (Row 2: “Beekeeper at
Work”); id. (Row 5: “Kendo Students at Practice”).



                                               4
“Publication” and another column labelled “License Limits.” With two exceptions,5 the

columns provided for “Publication” and “License Limits” contained no data.

       In his Complaint, Yamashita alleged “[u]pon information and belief” that “the

licenses granted Scholastic were expressly limited by number of copies, distribution

area, language, duration, and/or media.” J.A. at 12, ¶ 11. Scholastic “exceeded the

licenses” that it purchased, Yamashita alleged, and “infringed Yamashita’s copyrights

in the Photographs in various ways,” including (in Yamashita’s words) by:

              a. printing more copies of the Photographs than authorized;
              b. distributing publications containing the Photographs
              outside the authorized distribution area;
              c. publishing the Photographs in electronic, ancillary, or
              derivative publications without permission;
              d. publishing the Photographs in international editions and
              foreign publications without permission; and/or
              e. publishing the Photographs beyond the specified time
              limits.
Id. ¶ 13. According to Yamashita, “at the time Scholastic represented to Corbis that it

needed specified, limited licenses to use the Photographs in particular publications,

Scholastic often knew its actual uses would exceed the rights it was requesting and

paying for.” Id. ¶ 12. Yamashita asserted that “Scholastic alone knows of [its] wholly

unauthorized uses,” and that Scholastic did “not share[] this knowledge with

Yamashita.” Id. at 13, ¶¶ 14–15. The Complaint also identified eight other lawsuits in



5Rows 16 and 80—both citing licenses for a photograph of “Astronaut Ellison Onizuka”—
identify the publication in which the photograph appears (“SSS Hawaii” and “Hawaii
(SSS)(PBK)”) as well as the applicable license limits (20,000 and 25,000, respectively).



                                              5
which Scholastic in recent years “has been sued for copyright infringement in

furtherance of its under‐licensing practices.” Id. ¶ 16. As a remedy, Yamashita sought

both injunctive relief and damages.

       Scholastic moved to dismiss the Complaint under Federal Rule of Civil

Procedure Rule 12(b)(6) or, in the alternative, to transfer venue to the Southern District

of New York. Yamashita opposed both. The United States District Court for the District

of New Jersey (Chesler, J.) granted the motion to transfer, concluding that, inter alia, the

suit fell within a valid forum selection clause contained in certain Preferred Vendor

Agreements (“PVAs”) between Corbis and Scholastic that governed their licensing

relationship. It also ruled that Yamashita was bound by the PVAs’ forum selection

clause—which designated the Southern District of New York for dispute resolution—

because Corbis acted as Yamashita’s agent when it entered into the PVAs. See Yamashita

v. Scholastic Inc., No. 16‐cv‐3839 (SRC), 2016 WL 6897781, at *2−3 (D.N.J. Nov. 21, 2016).

Having decided to transfer the case, the court declined to rule on the merits of the

motion to dismiss. See id. at *1.

2.     The motion to dismiss

       In the Southern District of New York, Scholastic renewed its motion and the

court dismissed the case. See generally Yamashita v. Scholastic, Inc., No. 16‐cv‐9201 (KBF),

2017 WL 74738 (S.D.N.Y. Jan. 5, 2017) (Forrest, J.). Invoking the copyright infringement

standard set forth in 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) (Table), the District Court ruled that the Complaint “[did] not plead

sufficient facts to support its claims beyond mere speculation,” and thus that the

pleading both ran afoul of Federal Rule of Civil Procedure 8 and failed to satisfy the



                                               6
plausibility standards for pleading established in Ashcroft v. Iqbal, 556 U.S. 662 (2009),

and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Yamashita, 2017 WL 74738, at *1−2.

       In particular, the court faulted Yamashita’s Complaint for its “speculat[ion]

about ‘various ways’ defendant[] might have infringed” his copyrights and its failure to

“name a single instance of infringement or [to] allege facts to establish a timeframe for

when such an infringement might have occurred.” Id. at *1 (quoting J.A. at 12, Compl.

¶ 13). In the District Court’s view, the Complaint did not “give the defendant fair notice

of what the claim is and the grounds upon which it rests,” id. (alteration omitted)

(quoting Twombly, 550 U.S. at 555). The court further found the Complaint inadequate

because it “contain[ed] so few factual allegations it is nothing more than a fishing

expedition,” id. at *2. The court therefore granted Scholastic’s motion to dismiss and did

so with prejudice.

3.     Proposed Amended Complaint and ruling on motion for reconsideration

       On Yamashita’s subsequent motions, the court denied both reconsideration and

leave to file a Proposed Amended Complaint (“PAC”), ruling that the PAC failed to

cure the original Complaint’s deficiencies. Indeed, the PAC was largely identical to the

Complaint, providing the same information about the parties, jurisdiction, and venue,

and the same allegations charging “Copyright infringement against Scholastic.” The

PAC contained several additions and modifications to the Complaint’s statement of the

copyright infringement claim, however. Yamashita attached to the PAC copies of three

images of his Photographs as they appeared in Scholastic publications. See J.A. at 310,

¶ 15 (Exhibits 2 through 4). With respect to one specific image, identified in Row 80 of

Exhibit 1, the PAC included additional information about Scholastic’s use of the image



                                              7
in one of its publications. Yamashita contends that the three new exhibits to the PAC,

Exhibits 2 through 4, established Scholastic’s use of the relevant image after the

expiration of the relevant license. See id. at 310–11, ¶ 16. And, unlike the original

Complaint, the PAC also asserted four common‐law causes of action: “Breach of

contract/specific performance”; “Bailment/breach of duties of bailee”; “Conversion”;

and “Accounting.” Id. at 312–18, ¶¶ 25–65.

       In the PAC, Yamashita casts Scholastic’s alleged infringement as a “‘commit‐the‐

perfect‐crime’ approach’” to copyright infringement. J.A. at 308, ¶ 2. Thus, he alleged

that Scholastic: “obtains access to a professional photographer’s high‐resolution

photographs in connection with licenses”; “secures licenses with unrealistically low

limits because that costs Scholastic less”; “use[s] the photographs beyond the limits of

the licenses”; “is able to conceal its infringements because the licensor does not know if

and when Scholastic exceeds any particular license’s limits”; “refuses to disclose

information about its usages of the photographs—information that is uniquely within

Scholastic’s control”; and “argues in court that infringements claims pleaded ‘upon

information and belief’ . . . must be dismissed because details known only to Scholastic

are not included in the complaint.” J.A. at 308, ¶ 2. The Complaint, too, contained these

allegations but presented them less emphatically as providing Yamashita’s justification

for the lack of particularity in pleading the alleged breaches. Compare id., with id. at 12–

13, ¶¶ 12−15.

       The District Court rejected Yamashita’s post‐dismissal motions in a brief hand‐

written order. In addition to denying reconsideration, the court rejected Yamashita’s

request to amend his copyright infringement claim (except as to the Row‐80 image),




                                              8
ruling that amendment would be futile because “plaintiff has shown not a single fact

supportive of an infringement claim with regard to any of those images.” SPA at 4. The

court also denied Yamashita leave to add the proposed common‐law claims to his

Complaint, reasoning that each “depend[s] on a series of generic PVAs to which

plaintiff is not a party,” and that “[t]o bring such claims might well require joinder of

Corb[i]s.” Id. The court further wrote that “[i]t [was] also unclear and not ple[]d that

Scholastic has breached its obligations to Corb[i]s.” Id. Accordingly, the court ordered

Yamashita to file a revised amended complaint that would contain only Yamashita’s

claim relating to the Row‐80 image.

       Yamashita did as ordered; Scholastic answered; and the parties then stipulated to

a Rule 41 dismissal with prejudice of the Row‐80 infringement claim, whereupon the

court then entered judgment dismissing the case as to the Row‐80 infringement claim

and otherwise in favor of Scholastic.

       Yamashita timely appealed.


                                        DISCUSSION

       Broadly speaking, Yamashita asserts that the District Court erred in three ways.

First, he argues that the Complaint as pleaded sufficed to state a claim for copyright

infringement. Second, he contends that the court erred in denying him leave to file the

PAC and to amend his infringement claim as to all but the Row‐80 image. Third, he

maintains that the court abused its discretion in denying him leave to plead the four

additional, common‐law claims.




                                             9
       We focus here on the adequacy of Yamashita’s copyright infringement pleadings

and address the court’s denial of leave to add the proposed common‐law claims in a

related summary order issued concurrently with this Opinion.

1.     The sufficiency of the Complaint’s copyright infringement pleading

       Yamashita’s one‐count Complaint alleged 119 instances of copyright

infringement. Because the court dismissed the Complaint under Federal Rule of Civil

Procedure 12(b)(6), our review is de novo, “accepting all of the complaint’s factual

allegations as true and drawing all reasonable inferences in the plaintiffs’ favor.” Giunta

v. Dingman, 893 F.3d 73, 78–79 (2d Cir. 2018).

       In addition to the factual allegations contained in Yamashita’s Complaint, we

may consider documents—such as Exhibit 1—that he attaches to and relies on in the

Complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230‐31 (2d Cir. 2016). To

survive a Rule 12(b)(6) challenge, “the complaint’s ‘[f]actual allegations must be enough

to raise a right to relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762

F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555). When the well‐pleaded

facts “do not permit the court to infer more than the mere possibility of misconduct,”

the court must grant a motion to dismiss. Iqbal, 556 U.S. at 679; see also id. 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 of entitlement to relief.” (internal

quotation marks omitted)).




                                             10
       The parties have framed their dispute about the Complaint’s sufficiency around

the question whether the District Court erred by adopting the following four‐part

definition of an adequate copyright infringement claim, provided by the only copyright

case cited in its merits order: “1) which specific original works are the subject of the

copyright claim, 2) that plaintiff owns the copyrights in those works, 3) that the

copyrights have been registered in accordance with the statute, and 4) by what acts

during what time the defendant infringed the copyright.” Kelly, 145 F.R.D. at 36.

Pointing to Supreme Court precedent identifying only two elements of copyright‐

infringement—“(1) ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original,” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499

U.S. 340, 361 (1991), Yamashita urges that his Complaint was sufficient notwithstanding

its failure to provide details as to other elements.

       We think that, under our Circuit’s governing law, the correct disposition here

turns not on whether there are two or four elements of a generic copyright infringement

claim, but instead on the implications of the fact, acknowledged in Yamashita’s

Complaint, that Scholastic procured licenses to copy the Photographs. Whether

Yamashita’s Complaint was sufficient to withstand Scholastic’s motion is determined

by our answer to the question whether, in pleading copyright infringement, a plaintiff

who has authorized the licensed use of its work to the alleged infringer must allege

with specificity facts concerning the limits and asserted breaches of the licenses by the

alleged infringer.

       We have recognized previously that authorization to copy copyrighted

material—i.e., through possession of an applicable license—is generally viewed as an




                                               11
affirmative defense to a claim of copyright infringement, and is a defense that the

alleged infringer must plead and prove. See Bourne v. Walt Disney Co., 68 F.3d 621, 630–

31 (2d Cir. 1995) (noting that the possession of a license by the alleged infringer is an

affirmative defense); see also Spinelli v. Nat’l Football League, 903 F.3d 185, 199 (2d Cir.

2018) (observing that, where plaintiffs allege that defendants used copyrighted

photographs without license to do so, the defendant bears the burden of proving the

existence of the license); Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a party

must affirmatively state any. . . affirmative defense, including: . . . license . . . .”). In

Bourne, we thus emphasized that “in cases where only the scope of the licenses is at

issue, the copyright owner bears the burden of proving that the defendant’s copying

was unauthorized.” 68 F.3d at 631. See also Graham v. James, 144 F.3d 229, 236 (2d Cir.

1998) (holding that when “the contested issue is the scope of a license, rather than the

existence of one, the copyright owner bears the burden of proving that the defendant’s

copying was unauthorized under the license.”). This rule carries intuitive appeal

because “[c]opyright disputes involving only the scope of the alleged infringer’s license

present the court with a question that essentially is one of contract: whether the parties’

license agreement encompasses the defendant’s activities.” Bourne, 68 F.3d at 631.

       Applying these principles in the context of initial pleadings, when the existence of

a license is not in question, a copyright holder must plausibly allege that the defendant

exceeded particular terms of the license. Although Yamashita stands in this suit not as a

party to the contract that set the limits now allegedly breached, and more as a

beneficiary of that contract, the Corbis‐Scholastic license still sets the terms that provide

the foundation for Yamashita’s Complaint.




                                                12
       Scholastic’s purchase of licenses for each of the Photographs is undisputed, as we

have said, so Scholastic was entitled to some copying. Rather, the gravamen of

Yamashita’s copyright‐infringement claim as originally pleaded is that Scholastic (1)

“represented to Corbis that it needed specified, limited licenses to use the Photographs

in particular publications,” and then (2) “exceeded the licenses and infringed Yamashita’s

copyrights in the Photographs.” J.A. at 12, ¶¶ 12, 13 (emphasis added). The Complaint

alleges that it did so by using them in greater numbers than it had a right to, possibly in

publications distributed outside the geographic boundaries of the license, and possibly

after expiration of the licenses, among other ways. J.A. at 12, ¶ 13.

       But the Complaint failed to identify any specific license limitations as having

been breached for any specific Photograph, except the Row‐80 image, as to which the

claim was settled and dismissed with prejudice,6 and possibly, as noted, the Row‐16

image.7 Instead, it offers a laundry list of license limitations that might have been

imposed and that might have been violated as to the numerous Photographs. Each of the

“various ways” in which Scholastic allegedly “infringed Yamashita’s copyrights”

would give rise to an actionable claim for a given Photograph, however, only if paired

with a license limitation that was included in the license covering that Photograph.

J.A. at 12, ¶ 13. Absent at least a modicum of such additional factual allegations,



6Yamashita alleged that, although Scholastic’s license for the Row‐80 image expired on
February 23, 2013, it continued to use the image thereafter. J.A. at 310–11, ¶ 16.

7As a marginal adjustment, we note that, as the table does for the image listed in Row 80,
Row 16 displays numerical license limits. Yamashita does not offer any specific argument that
the District Court erred in dismissing the claim related to the Row‐16 image, however.
Accordingly, we treat as forfeited any such argument.



                                              13
Yamashita’s Complaint is fairly characterized as no more than a collection of

speculative claims based on suspicion alone. Such a complaint for infringement neither

complies with Rule 8 nor states a plausible claim for relief. Accordingly, we are

compelled to agree with the District Court that the Complaint does not survive

Scholastic’s motion to dismiss. See Iqbal, 556 U.S. at 678–79.

       Resisting this conclusion, Yamashita points to district court decisions denying

motions to dismiss in cases that are, Yamashita asserts, “just like this one.” Appellants’

Br. at 33, 49; see also Appellants’ Rule 28(j) Letter, Doc. No. 61 (Feb. 5, 2018). The

complaints he cites, however, contained at least some more detailed factual allegations,

or attached additional documents supporting the infringement claims, making them

less entirely speculative than Yamashita’s, in our view. See, e.g., Lefkowitz v. McGraw‐

Hill, 23 F. Supp. 3d 344, 348‐49 (S.D.N.Y. 2014) (noting that plaintiff identified a number

of license limits that the defendant allegedly exceeded); Frerck v. Pearson Educ., Inc.,

No. 11‐cv‐5319, 2012 WL 1280771, at *1 (N.D. Ill. Apr. 16, 2012) (describing plaintiff’s

allegations that he directly licensed photographs to defendant publisher and that, for

some photographs, defendant used them without any license). We express no opinion

as to whether those cases were correctly decided. We decide only that the speculative,

indefinite allegations made in this case as to all photographs but that identified in Row

80 were insufficient to state a claim in light of Circuit precedent requiring a plaintiff to

allege infringement with some specificity when the defendant’s possession of a license

is undisputed.

       We are similarly unpersuaded by Yamashita’s argument that to require that

copyright plaintiffs allege in detail the operative license limitations conflicts with our




                                              14
decision in Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010). In Arista, as

Yamashita observes, we rejected the proposition that Twombly “imposed a heightened

standard that requires a complaint to include specific evidence, factual allegations in

addition to those required by Rule 8, and declarations from the persons who collected

the evidence.” Id. at 119. But Yamashita misapprehends the import of Arista for his case:

we do not fault him for failing to provide detailed documentation for each alleged

instance of infringement, but rather for his failure to allege even the applicable

limitations in Scholastic’s individual licenses so that it (and the court) can understand

how Scholastic is alleged to have exceeded those licenses.

       Moreover, his Complaint is qualitatively different in two ways from that of the

copyright holder in Arista: first, the latter’s allegations were more specific as to the

nature of the allegedly infringing acts, enabling the defendant to respond; and second,

the Arista court and the plaintiff were faced with an unidentified infringer, not just

unidentified infringing uses. Id. at 121. Here, by contrast, Yamashita names Scholastic

and admits, as it must, that the publisher was licensed to use the Photographs. Its

Complaint offers little else other than a list of the Photographs at issue and a conclusory

charge that the licenses were exceeded. To require more flesh on the bones of an

infringement complaint against a license user aligns both with our decision in Bourne

and the strictures of Rule 8.

       We take this position with some sympathy, still, for Yamashita. It appears that he

has no access, through his agent Corbis or otherwise, to information confirming or

rebutting the extent of Scholastic’s use of the images. Yet he feels there are grounds for

believing that Scholastic has made unpermitted uses of at least some of his




                                              15
Photographs. His predicament underscores the precarious position that freelance

commercial photographers occupy vis‐à‐vis their agents and publishers. There may be

few ways to hold large publishers that operate internationally accountable for their

usage of licensed copyrighted works. For this reason, Yamashita has launched what the

District Court termed a “fishing expedition,” “trawling” for infringement, trying to

place on Scholastic directly the burden of reporting and justifying its uses, and omitting

Corbis from the picture. Yamashita, 2017 WL 747738, at *2. But to sustain such a

complaint that alleges nothing but suspicions of infringement where a license has been

granted is to invite transformation of the courts into an audit bureau for copyright

licensing, an administrative function that we are hardly designed to serve.

       Yamashita is correct that Scholastic should be able to detail its uses of his images

and to pair those uses with the license limits that were imposed between it and Corbis,

demonstrating either its compliance or exposing its noncompliance with the applicable

licenses. But Yamashita does not explain why he is unaware of or cannot access the

terms of the licenses executed by Corbis on his behalf. That, at least, would give him the

first part of his infringement case: what limits on use were imposed as to each image. It

would still put him to the burden of finding instances of actual infringement on which

he could build a case against Scholastic, for even with the actual limits known, mere

suspicion of overuse is not enough under Bourne to sustain a complaint, or to avoid the

audit bureau scenario described above.

       And so, ultimately, we cannot accept Yamashita’s argument that we should

casually deem his entirely generic allegations of breach, pleaded “upon information and

belief,” sufficient simply because the facts regarding Scholastic’s actual use of the




                                             16
licensed material are “peculiarly within [Scholastic’s] possession and control.”

Appellants’ Br. at 31. He must marshal more than unsubstantiated suspicions to gain

entitlement to broad‐ranging discovery of his agent’s licensee.

       We acknowledge that in a similar suit brought by photographers against a

publisher, the Third Circuit has recently expressed disagreement with this approach,

albeit in a procedural context quite different from that before us. It declined to adopt the

pleading rule we enunciated in Bourne, explaining that “[t]he licenses obtained by [the

publisher] were not granted by the photographers directly . . . [a]nd the royalty

statements . . . lacked specific detail as to the scope of each license. . . [I]t [therefore]

stands to reason that the photographers may not be aware of each license issued, or the

scope of each license. Because they were not themselves directly privy to those licenses,

we cannot expect them to plead unauthorized use as part of a prima facie case.” In re

McGraw‐Hill Global Ed. Holdings LLC, 909 F.3d 48, 66 (3d Cir. 2018) (citing Muhammad‐

Ali v. Final Call, Inc., 832 F.3d 760‐61) (7th Cir. 2016)).

       But this panel is not at liberty to relax the pleading requirements as we have

previously applied them. The gravamen of the Complaint is that Scholastic violated

Yamashita’s copyright by exceeding the use limits provided in the Corbis‐Scholastic

agreement. For the reasons set forth above, Yamashita’s generic Complaint specifying

neither limits set nor limits breached does not state a claim under Fed. R. Civ. P. 12(b)(6)

and is insufficient under Rule 8 as it does not (in the language of Rule 8) “show[] that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).




                                                17
2.     Proposed Amended Complaint

       As noted above, the District Court denied leave to amend the Complaint with

regard to Yamashita’s copyright claim—except insofar as it related to the Row‐80

image—because the proposed amendment would not cure the Complaint’s defects and

amendment was futile.

       Ordinarily, we review a district court’s denial of leave to amend for abuse of

discretion. Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 224 (2d Cir. 2017). When,

however, the court denies leave to amend “based on an interpretation of law, such as

futility, . . . we review the legal conclusion de novo.” Id. (quoting Panther Partners Inc. v.

Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)). Because Yamashita offered his

proposed amendments in an attempt to cure deficiencies that led to a Rule 12(b)(6)

dismissal, we “consider the proposed amendments along with the remainder of the

complaint, accepting as true all non‐conclusory factual allegations therein, and drawing

all reasonable inferences in the plaintiff’s favor.” Id. at 225 (citation, internal quotation

marks, and alterations omitted).

       For the reasons described in Section 1, we need not linger long on Yamashita’s

suggestion that the PAC cured the defects in his copyright claim. First, the proposed

additions reflected in the PAC primarily relate to the Row‐80 image, for which the

District Court permitted amendment. The PAC’s attachments as Exhibits 3 and 4 of

copies of Scholastic publications containing two other images (appearing in Rows 10

and 85 of Exhibit 1) do not cure the deficiencies in Yamashita’s claims, because the PAC

does not allege which, if any, license limitations Scholastic breached by including those

images in those publications. See J.A. at 310, ¶ 15 (stating merely that, “[a]fter receiving



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limited licenses from Corbis, Scholastic copied Yamashita’s Photographs in at least the

Scholastic publications shown in Exhibits 2 – 4”). Contrary to Yamashita’s view, his

ability to plead a plausible infringement claim as to a single image (in Row 80) does not

render his claim plausible as to all the images shown in the other 118 rows in Exhibit 1,

absent plausible allegations of a connection between Scholastic’s license for and use of

the Row‐80 image and its license for and use of the other images, or plausible,

nonconclusory allegations of a pattern and practice of under‐licensing and over‐use.

       For these reasons, we identify no legal error in the District Court’s decision to

reject as futile Yamashita’s effort to amend this claim.


                                     CONCLUSION

       For the reasons set forth above and in the summary order that accompanies this

opinion, the District Court’s judgment is AFFIRMED.




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