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. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 24 th day of November, two thousand fifteen. 3 4 PRESENT: 5 DEBRA ANN LIVINGTON, 6 CHRISTOPHER F. DRONEY, 7 Circuit Judges, 8 ANALISA TORRES,  9 District Judge. 10

_____________________________________ 11 12 Isack Kousnsky, 13 14 Plaintiff-Appellant , 15 v. 16 14-1979 17 18 Amazon.Com, Inc., et al., 19 20 Defendants-Appellees . 21

_____________________________________ 22 23 24 FOR PLAINTIFF-APPELLANT: Isack Kousnsky, pro se, New York, 25 NY. 26 27

 The Honorable Analisa Torres, of the United States District Court for the Southern District of New York, sitting by designation.2 FOR DEFENDANTS-APPELLEES: Frank J. Colucci, David M. Dahan, 1 Colucci & Umans, New York, NY. 2 Randi W. Singer, Weil, Gotshal & 3 Manges LLP, New York, NY. 4 5 Appeal from a judgment of the United States District Court for the Southern District of 6 New York (Hellerstein, J .). 7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 8 DECREED that the case is AFFIRMED , in part, and REMANDED , in part, with instructions to 9 allow Appellant to amend his complaint. 10 Appellant Isack Kousnsky, proceeding pro se, a ppeals the district court’s dismissal of his 11 action for copyright infringement. We assume the parties’ familiarity with the underlying facts, 12 the procedural history of the case, and the issues on appeal. 13 We review de novo a district court’s gran t of judgment on the plead ings pursuant to Rule 14 12(c). Burnette v. Carothers , 192 F.3d 52, 56 (2d Cir. 1999). “In deciding a Rule 12(c) motion, 15 we apply the same standard as that applicab le to a motion under Rule 12(b)(6), accepting the 16 allegations contained in the complaint as true and drawing all reasonable infe rences in favor of the 17 nonmoving party.” Id. “To survive a Rule 12(c) motion, [pla intiff’s] ‘complaint must contain 18 sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”’” 19 Johnson v. Rowley , 569 F.3d 40, 44 (2d Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 20 (2009)). 21 Under the facts alleged, the di strict court properly dismisse d Kousnsky’s complaint insofar 22 as it alleged that Pyramid infringed on his copy right by selling his work as permitted during the 23 three-year agreement period in their contract (t he “Agreement”). “[C]o pyright ownership is a 24 bundle of discrete rights regarding the ow ner’s ability to us e his property.” Davis v. Blige , 505 253 F.3d 90, 98 (2d Cir. 2007) (interna l quotation marks omitted). An owner “may license others to 1 exercise these rights or assign the rights to others.” Id . An “exclusive license” grants the 2 “licensee the exclusive right—supe rior even to copyright owners ’ rights—to use the copyrighted 3 material in a manner as specified by the license agreement.” Id . at 99. “A valid license . . . 4 immunizes the licensee from a charge of copyright infringement, provided that the licensee uses 5 the copyright as agreed with the licensor.” Id . at 100. Here, the Agreement gave Pyramid the 6 exclusive right to “publish, promote, sell and distribute photography provided by [Kousnsky] in all 7 size posters and print format . . . by any means [Pyr amid] reasonably uses now or in the future.” 8
S.A. 27. Kousnsky could not bring a copyr ight infringement claim agai nst Pyramid for selling his 9 work pursuant to the terms of the Agreement. 10 That said, Kousnsky alleged that Pyramid alte red his photographs, whic h violated the term 11 in the Agreement that Pyramid could only prom ote, sell, and distribute Kousnsky’s images 12 “without modification.” S.A. 27. He also alleged that Pyramid violated the term that provided 13 Kousnsky final approval of the images sold. Id. In these respects, Kous nsky’s allegations that 14 Pyramid violated the Agreement were coterminous with his copyright infringement claim: absent 15 the Agreement as a defense, Pyramid could be subject to a valid claim of c opyright infringement. 16 Federal district courts “have ex clusive, original jurisdiction ‘o f any civil action arising under any 17 Act of Congress relating to . . . copyrights.’” Bassett v. Mashantucket Pequot Tribe , 204 F.3d 18 343, 347 (2d Cir. 2000) (quoting 28 U.S.C. § 1338(a)). “Whether a complain t asserting factually 19 related copyright and contract cl aims ‘arises under’ the federal c opyright laws for the purposes of 20 Section 1338(a) ‘poses among the knottiest proce dural problems in copyright jurisprudence.’” 21 Id. (quoting 3 Melville B. Nimmer & David Nimmer , Nimmer on Copyright § 12.01[A], at 12–4 224 (1999)) . The standard we adopted in Bassett is this: “When a complaint alleges a claim or seeks a 1 remedy provided by the Copyright Act, fe deral jurisdiction is properly invoked.” Id . at 355. 2 Thus, “federal courts possess subject matter jurisd iction over a copyright cl aim . . . even if the 3 plaintiff seeking a copyright remedy is only en titled to that remedy ‘on a prior showing of 4 contractual entitlement,’ i.e., even if the c ourt must first resolve a state law issue.” Fed. Treasury 5 Enter. Sojuzplodoimport v. Spirits Int’l N.V. , 623 F.3d 61, 69 (2d Ci r. 2010) (quoting Bassett , 204 6 F.3d at 349, 355). Otherwise, “the plaintiff would be forced to li tigate exclusively in state court 7 and would be deprived of the remedies C ongress provided in the Copyright Act.” Id . (citing 8

Bassett , 204 F.3d at 348). 9 Here, Kousnsky claimed copyright infringeme nt, not breach of contract, and he sought 10 remedies available in copyright: damages base d on the unauthorized use of his artwork and 11 injunctive relief. However, Kousnsky’s complaint lacked the facts required to state a plausible 12 claim: he did not identify the artwork Pyramid alle gedly altered or how it was altered, and he only 13 conclusorily asserted that Pyramid ignored his ri ght to approve the work that was sold. Kousnsky 14 should be permitted to amend his complaint to include this detail. See, e.g. , Oliver Schs., Inc. v. 15 Foley , 930 F.2d 248, 252 (2d Cir. 1991) (“[P]ermission to amend to state a claim should be freely 16 granted.”). If he does, discovery may reveal “whether contractual understandings were breached; 17 whether these breaches were of conditions or covenant s; if the latter, whether the breaches were of 18 sufficient importance to justify rescission or forfeiture” of the Agreement. Bassett , 204 F.3d at 19
356 n.14. 20 Further, the Agreement does not insulate Py ramid from copyright liability after the 21 three-year Agreement term ended. Kousnsky’s complaint alleged that, after the termination of 225 the Agreement, Pyramid continued to “create” and sell his work. As alleged, that claim was not 1 plausible: Kousnsky did not articulate how or when Pyramid “created” and sold his work. See, 2

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) 3 (“[A well-pleaded copyright infringement claim requires a plaintiff to allege, inter alia ,] by what 4 acts during what time the defendant infringed the copyright.”). However, with more detail, 5 Kousnsky may be able to a ssert a copyright infringement claim. So, the district court should also 6 permit Kousnsky to amend his complaint to replead his claim that Pyramid continued selling his 7 work after the Agreement term ended. See Oliver Schs. , 930 F.2d at 252. 8 Finally, Kousnsky’s claims against Amazon.Com, Inc., Art.Com, Inc., and eBay Inc. (the 9 latter of which he did not serv e) were correctly dismissed. His only allegation against these 10 defendants was that Amazon did not take “corrective action” or properly deal with the complaints 11 he made about Pyramid’s conduct. He failed to identify any duty these defendants owed to him or 12 any conduct that infringed on his copyright. Cf. Johnson , 569 F.3d at 44 (“In order to succeed on 13 [his Due Process] claim, Johnson first must esta blish that he had a c onstitutionally protected 14 property interest in his UNICOR job assignment.”). 15 We have considered all of Kousnsky’s rema ining arguments and find them to be without 16 merit. Accordingly, we AFFIRM the judgment insofar as it dismissed claims against 17 Amazon.Com, Inc., Art.Com, Inc., and eBay Inc., but REMAND for the district court to amend its 18 judgment to reflect that the dismissal of Kous nsky’s copyright infringement claims against 19 Pyramid was without prejudice to amendment of the complaint. 20
FOR THE COURT: 21 Catherine O = Hagan Wolfe, Clerk 22