     14-1979
     Kousnsky v. Amazon.Com, Inc., et al.


                                     UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
     CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
     PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A
     SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
     CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
     THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
     COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 24th day of November, two thousand fifteen.
 4
 5   PRESENT:
 6               DEBRA ANN LIVINGTON,
 7               CHRISTOPHER F. DRONEY,
 8                           Circuit Judges,
                                     
 9               ANALISA TORRES,
10                           District Judge.
11   _____________________________________
12
13   Isack Kousnsky,
14
15                               Plaintiff-Appellant,
16                     v.
17                                                                                     14-1979
18
19   Amazon.Com, Inc., et al.,
20
21                     Defendants-Appellees.
22   _____________________________________
23
24
25   FOR PLAINTIFF-APPELLANT:                                   Isack Kousnsky, pro se, New York,
26                                                              NY.
27


     
      The Honorable Analisa Torres, of the United States District Court for the Southern District of
     New York, sitting by designation.
 1   FOR DEFENDANTS-APPELLEES:                                        Frank J. Colucci, David M. Dahan,
 2                                                                    Colucci & Umans, New York, NY.
 3                                                                    Randi W. Singer, Weil, Gotshal &
 4                                                                    Manges LLP, New York, NY.
 5
 6           Appeal from a judgment of the United States District Court for the Southern District of

 7   New York (Hellerstein, J.).

 8           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 9   DECREED that the case is AFFIRMED, in part, and REMANDED, in part, with instructions to

10   allow Appellant to amend his complaint.

11           Appellant Isack Kousnsky, proceeding pro se, appeals the district court’s dismissal of his

12   action for copyright infringement. We assume the parties’ familiarity with the underlying facts,

13   the procedural history of the case, and the issues on appeal.

14           We review de novo a district court’s grant of judgment on the pleadings pursuant to Rule

15   12(c). Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). “In deciding a Rule 12(c) motion,

16   we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the

17   allegations contained in the complaint as true and drawing all reasonable inferences in favor of the

18   nonmoving party.” Id. “To survive a Rule 12(c) motion, [plaintiff’s] ‘complaint must contain

19   sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”’”

20   Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678

21   (2009)).

22           Under the facts alleged, the district court properly dismissed Kousnsky’s complaint insofar

23   as it alleged that Pyramid infringed on his copyright by selling his work as permitted during the

24   three-year agreement period in their contract (the “Agreement”). “[C]opyright ownership is a

25   bundle of discrete rights regarding the owner’s ability to use his property.” Davis v. Blige, 505

                                                         2
 1   F.3d 90, 98 (2d Cir. 2007) (internal quotation marks omitted). An owner “may license others to

 2   exercise these rights or assign the rights to others.” Id. An “exclusive license” grants the

 3   “licensee the exclusive right—superior even to copyright owners’ rights—to use the copyrighted

 4   material in a manner as specified by the license agreement.” Id. at 99. “A valid license . . .

 5   immunizes the licensee from a charge of copyright infringement, provided that the licensee uses

 6   the copyright as agreed with the licensor.” Id. at 100. Here, the Agreement gave Pyramid the

 7   exclusive right to “publish, promote, sell and distribute photography provided by [Kousnsky] in all

 8   size posters and print format . . . by any means [Pyramid] reasonably uses now or in the future.”

 9   S.A. 27. Kousnsky could not bring a copyright infringement claim against Pyramid for selling his

10   work pursuant to the terms of the Agreement.

11          That said, Kousnsky alleged that Pyramid altered his photographs, which violated the term

12   in the Agreement that Pyramid could only promote, sell, and distribute Kousnsky’s images

13   “without modification.” S.A. 27. He also alleged that Pyramid violated the term that provided

14   Kousnsky final approval of the images sold. Id. In these respects, Kousnsky’s allegations that

15   Pyramid violated the Agreement were coterminous with his copyright infringement claim: absent

16   the Agreement as a defense, Pyramid could be subject to a valid claim of copyright infringement.

17   Federal district courts “have exclusive, original jurisdiction ‘of any civil action arising under any

18   Act of Congress relating to . . . copyrights.’” Bassett v. Mashantucket Pequot Tribe, 204 F.3d

19   343, 347 (2d Cir. 2000) (quoting 28 U.S.C. § 1338(a)). “Whether a complaint asserting factually

20   related copyright and contract claims ‘arises under’ the federal copyright laws for the purposes of

21   Section 1338(a) ‘poses among the knottiest procedural problems in copyright jurisprudence.’”

22   Id. (quoting 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.01[A], at 12–4


                                                      3
 1   (1999)). The standard we adopted in Bassett is this: “When a complaint alleges a claim or seeks a

 2   remedy provided by the Copyright Act, federal jurisdiction is properly invoked.” Id. at 355.

 3   Thus, “federal courts possess subject matter jurisdiction over a copyright claim . . . even if the

 4   plaintiff seeking a copyright remedy is only entitled to that remedy ‘on a prior showing of

 5   contractual entitlement,’ i.e., even if the court must first resolve a state law issue.” Fed. Treasury

 6   Enter. Sojuzplodoimport v. Spirits Int’l N.V., 623 F.3d 61, 69 (2d Cir. 2010) (quoting Bassett, 204

 7   F.3d at 349, 355). Otherwise, “the plaintiff would be forced to litigate exclusively in state court

 8   and would be deprived of the remedies Congress provided in the Copyright Act.” Id. (citing

 9   Bassett, 204 F.3d at 348).

10          Here, Kousnsky claimed copyright infringement, not breach of contract, and he sought

11   remedies available in copyright: damages based on the unauthorized use of his artwork and

12   injunctive relief. However, Kousnsky’s complaint lacked the facts required to state a plausible

13   claim: he did not identify the artwork Pyramid allegedly altered or how it was altered, and he only

14   conclusorily asserted that Pyramid ignored his right to approve the work that was sold. Kousnsky

15   should be permitted to amend his complaint to include this detail.     See, e.g., Oliver Schs., Inc. v.

16   Foley, 930 F.2d 248, 252 (2d Cir. 1991) (“[P]ermission to amend to state a claim should be freely

17   granted.”). If he does, discovery may reveal “whether contractual understandings were breached;

18   whether these breaches were of conditions or covenants; if the latter, whether the breaches were of

19   sufficient importance to justify rescission or forfeiture” of the Agreement. Bassett, 204 F.3d at

20   356 n.14.

21          Further, the Agreement does not insulate Pyramid from copyright liability after the

22   three-year Agreement term ended. Kousnsky’s complaint alleged that, after the termination of


                                                       4
1    the Agreement, Pyramid continued to “create” and sell his work. As alleged, that claim was not

 2   plausible: Kousnsky did not articulate how or when Pyramid “created” and sold his work. See,

 3   e.g., Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir. 1994)

 4   (“[A well-pleaded copyright infringement claim requires a plaintiff to allege, inter alia,] by what

 5   acts during what time the defendant infringed the copyright.”). However, with more detail,

 6   Kousnsky may be able to assert a copyright infringement claim. So, the district court should also

 7   permit Kousnsky to amend his complaint to replead his claim that Pyramid continued selling his

 8   work after the Agreement term ended. See Oliver Schs., 930 F.2d at 252.

 9            Finally, Kousnsky’s claims against Amazon.Com, Inc., Art.Com, Inc., and eBay Inc. (the

10   latter of which he did not serve) were correctly dismissed. His only allegation against these

11   defendants was that Amazon did not take “corrective action” or properly deal with the complaints

12   he made about Pyramid’s conduct. He failed to identify any duty these defendants owed to him or

13   any conduct that infringed on his copyright. Cf. Johnson, 569 F.3d at 44 (“In order to succeed on

14   [his Due Process] claim, Johnson first must establish that he had a constitutionally protected

15   property interest in his UNICOR job assignment.”).

16            We have considered all of Kousnsky’s remaining arguments and find them to be without

17   merit.    Accordingly, we AFFIRM the judgment insofar as it dismissed claims against

18   Amazon.Com, Inc., Art.Com, Inc., and eBay Inc., but REMAND for the district court to amend its

19   judgment to reflect that the dismissal of Kousnsky’s copyright infringement claims against

20   Pyramid was without prejudice to amendment of the complaint.

21                                                FOR THE COURT:
22                                                Catherine O=Hagan Wolfe, Clerk



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