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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

RICHARD SOUTHALL, ) 

 ) 

 Plaintiff, ) No. 1:20-cv-03223 

 ) 

 v. ) 

 ) Judge Edmond E. Chang 

FORCE PARTNERS, LLC, ) 

 ) 

Defendants. ) 

MEMORANDUM OPINION AND ORDER

This case arises from the alleged appropriation of a copyrighted photograph. 

Richard Southall has sued Force Partners, LLC, alleging copyright infringement under 17 U.S.C. § 101 et seq., and alteration of copyright management information in 

violation of the Digital Millennium Copyright Act (commonly referred to as DMCA), 

17 U.S.C. § 1202. R. 1, Compl. ¶¶ 17–18, 20.1 Force Partners now moves to dismiss 

the Complaint, arguing that Southall has failed to adequately state a claim. Fed. R. 

Civ. P. 12(b)(6); R. 20. For the reasons discussed below, the motion is denied in part 

and granted in part. 

I. Background

For the purposes of this motion, the Court accepts as true the allegations in 

the complaint and draws reasonable inferences in Southall’s favor. See Gomez v. 

Randle, 680 F.3d 859, 864 (7th Cir. 2012). 

1This Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. 

§ 1338. Citations to the record are “R.” followed by the docket entry number and, if needed, a 

page or paragraph number. 

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Southall is a commercial photographer with over 25 years of experience in the 

industry, specializing in architectural and interior photography. Compl. ¶ 1. On July 

1, 2013, Southall captured the photograph, which has the file name “_DSC4315,” depicting the inside of a restaurant bar. Id. ¶ 7; see R. 1-3, Compl., Exh. 1. Around four 

weeks later, on July 29, 2013, Southall posted the photograph to his professional website. Compl. ¶¶ 7–8; R. 1-4, Compl., Exh. 2, Southall’s Website. Although not alleged 

in the Complaint, Southall asserts that the online display referred to copyright protection. R. 22, Pl.’s Resp. at 3. Specifically, attached to Southall’s response brief is a 

screenshot from his website, displaying the credit line, “All images – copyright Richard Southall” below a series of photographs. R. 22-2, Pl. Resp., Exh. 2, Southall CMI. 

Almost six years later, in May 2019, Southall received a federal copyright registration 

for the photograph. Compl. ¶ 9. It was assigned Registration Number VA2-154-695. 

Id. 

Force Partners is a company that specializes in lighting and lighting control. 

Compl. ¶ 2. Beginning in around November 2017 (so around 18 months before the 

2019 federal copyright’s issuance), Force Partners posted the photograph to its website, www.forcechicago.com, without Southall’s permission. Id. ¶ 10; R. 1-6, Compl., 

Exh. 4, Force Partners Website. Force Partners displayed the photograph on its “Location” page, as a full-page, full-bleed2 header image. Compl. ¶ 12 (citing the Force 

Partners Website exhibit). The photograph is covered by a whitish, transparent layer 

2A “full-bleed” image runs across an entire page without any margins or borders on 

its edges. 

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overlaid with two logos in the upper-left corner and also some text in various spots. 

See Force Partners Website. 

Southall filed a two-count complaint against Force Partners in June 2020. 

Count 1 alleges that Force Partners infringed Southall’s copyright under the Copyright Act, 17 U.S.C § 101 et seq., by reproducing and distributing the photograph on 

Force Partners’ website. Id. ¶ 17. On that claim, Southall seeks actual and statutory 

damages for copyright infringement, 17 U.S.C. § 504, and attorney’s fees, 17 U.S.C. 

§ 505.3 Id. ¶¶ 19, 21. Count 2 alleges that Force Partners violated the Digital Millennium Copyright Act, 17 U.S.C. §§ 1202(a)(1), (b)(1), by displaying the photograph on 

its website after removing its copyright management information. Id. ¶ 20. 

Force Partners now moves to dismiss both claims and, short of that, to bar 

Southall from seeking statutory damages and attorney’s fees under Count 1. R. 20, 

Def. Mot. Dismiss at 7. 

II. Legal Standard 

Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only 

include “a short and plain statement of the claim showing that the pleader is entitled 

to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell 

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (cleaned up).4 The Seventh Circuit 

3Although Southall does not explicitly allege entitlement to § 505 attorney’s fees under Count 1, he does request it in the Prayer for Relief.

4This Opinion uses (cleaned up) to indicate that internal quotation marks, alterations, 

and citations have been omitted from quotations. See Jack Metzler, Cleaning Up Quotations, 

18 Journal of Appellate Practice and Process 143 (2017). 

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has explained that this rule “reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a claim’ rather than on technicalities that 

might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580 (7th Cir. 2009) 

(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). 

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to 

state a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police 

of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain 

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 

at 570). These allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The allegations are entitled to the assumption 

of truth as long as they are factual in nature, rather than mere legal conclusions. 

Iqbal, 556 U.S. at 678–79. 

III. Analysis 

A. Copyright Infringement 

In attacking the Complaint, Force Partners first challenges the sufficiency of 

Southall’s allegations on the copyright’s validity. Specifically, Force Partners contends that Southall failed to adequately allege that “_DSC4315” is the actual photograph at issue. See Def.’s Mot. Dismiss at 3–4. According to Force Partners, Southall 

never alleged that the photograph was part of the deposited materials submitted with 

the ’695 Copyright . See id. at 3. This is a classic example of a defendant who demands 

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too much of a complaint and, at the same time, a plaintiff who could have easily 

avoided the issue in the first place. 

To adequately state a claim for copyright infringement, a plaintiff must allege 

facts setting forth (1) ownership of a valid copyright in a work; and (2) the unauthorized copying of elements of the work that are original. Feist Publ’ns, Inc. v. Rural Tel. 

Serv. Co., 499 U.S. 340, 361 (1991). That is all. After alleging that the photograph 

was part of a federal copyright registration, Southall did not have to submit evidence 

of that allegation, nor get into nit-picky allegations like whether the photograph was 

indeed part of the deposited materials. See Hurst v. Hantke, 634 F.3d 409, 411 (7th 

Cir. 2011) (noting that the Federal Rules of Civil Procedure do not “require a plaintiff 

to attach evidence to his complaint”); see also Ino, Inc. v. Needle & Threads of West 

Palm Beach, Inc., 2020 WL 7343037, at *4 (E.D.N.Y. Dec.14, 2020) (holding that a 

plaintiff is not required to attach copies of registration certificates or provide registration numbers to survive a motion to dismiss). Southall alleged that he took the 

photograph, Compl. ¶ 7; he holds a copyright registration on it, id. ¶ 15; and Force 

Partners used the photograph on its commercial website without his consent, id. 

¶¶ 10–13. Nothing more is needed. Sure, Southall could have avoided this challenge 

by doing what he did in submitting his response brief, namely, attaching an exhibit 

showing that the photograph is the Title of Work for the ’695 Copyright. R. 22-1, Pl.’s 

Resp., Exh. 1, Source Code. But even without the exhibit, the Complaint adequately 

alleges copyright infringement. 

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Next, Force Partners argues that Southall’s copyright is not entitled to a presumption of validity because he failed to obtain copyright registration within five 

years of the photograph’s publication, which was back on July 19, 2013. See Def.’s 

Mot. Dismiss at 3. The dispute here is over whether the statutory presumption of 

validity is triggered: 

In any judicial proceedings the certificate of a registration made before or 

within five years after first publication of the work shall constitute prima facie 

evidence of the validity of the copyright and of the facts stated in the certificate. 

The evidentiary weight to be accorded to the certificate of a registration made 

thereafter shall be within the discretion of the court. 

17 U.S.C. § 410(c). The last sentence is crucial here: Section 410(c) confers discretion 

on the court on how to treat a certificate obtained five years after publication. In other 

words, the statute mandates a presumption of validity for pre-five-year certificates, 

but the statute does not forbid a presumption of validity for post-five-year certificates.

Post-five-year certificates are still eligible to qualify as prima facie evidence of a valid 

copyright. Yurman Design, Inc. v. Golden Treasure Imps., Inc., 275 F. Supp. 2d 506, 

515–16 (S.D.N.Y. 2003) (holding that late registrations can be considered prima facie 

evidence of valid copyright); Telerate Sys., Inc. v. Caro, 689 F. Supp. 221, 227 n. 7 

(S.D.N.Y. 1988) (explaining “[e]ven if the certificate were ... issued more than five 

years after the actual date of first publication, the court would be inclined to give the 

certificate the weight of prima facie evidence, as permitted under Section 410(c).”). In 

any event, the strength of the presumption is not a matter that should be resolved at 

the pleading stage. The parties must develop facts in discovery before the certificate’s 

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evidentiary weight can be presented to the Court for decision. The copyright-infringement claim survives. 

B. Statutory Damages and Attorneys’ Fees 

Force Partners also moves to bar Southall’s requests for statutory damages 

under 17 U.S.C. § 504, as well as attorney’s fees under 17 U.S.C. § 505. Def.’s Mot. 

Dismiss at 4–5. It is atypical to deploy a dismissal motion to knock out a form of 

damages or to challenge a plea for attorneys’ fees. But if a statute sets certain requirements for damages, then a Rule 12(b)(6) motion can target a request for a particular form damages if the complaint fails to adequately plead facts necessary to 

support that form of damages. See Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 

974–75 (9th Cir. 2010) (comparing Rule 12(f) and 12(b)(6) and holding that dismissing 

parts of a claim, including damages, is appropriate under 12(b)(6)). 

Here, Section 412 of the Copyright Act provides that a plaintiff is not entitled 

to statutory damages or to receive attorney’s fees if certain conditions are met based 

on the timing of the copyright registration relative to the infringement. No statutory 

damages or attorney’s fees are available if: 

(1) any infringement of copyright in an unpublished work commenced before 

the effective date of its registration; or 

(2) any infringement of copyright commenced after first publication of the work 

and before the effective date of its registration, unless such registration is 

made within three months after the first publication of the work. 

17 U.S.C. § 412. An override to those bars applies (that is, statutory damages and 

fees are available) if the copyright owner registers the work within one month after 

learning of the infringement. Id.

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Here, Southall published the photograph on July 29, 2013. Compl. ¶ 8. The 

Complaint alleges that Force Partners’ infringement commenced around November 

1, 2017, id. ¶ 10, and that the photograph was registered on May 27, 2019, id. ¶ 9. So 

the alleged infringement commenced around 18 months before the copyright was registered. This relative timing—the registration happened long after the infringement 

started—obviously triggers the bars on statutory damages and attorney’s fees in Section 412. Southall does not otherwise argue that an exception applies (such as initiating the registration within one month after learning of the infringement), and indeed Southall now disclaims, in his response brief, any plea for statutory damages 

under Count 1. Pl.’s Resp. at 3. So Southall’s prayer for statutory damages as a form 

of relief for copyright infringement is dismissed with prejudice. 

In contrast to statutory damages, on attorney’s fees, Southall does not outright 

disclaim an eventual request for fees. Under § 505, a court may award reasonable 

attorney’s fees to the “prevailing party” in a copyright-infringement action. 17 U.S.C. 

§ 505. Because discovery might reveal that Southall learned of the infringement less 

than one month before registering the copyright, the request for attorney’s fees under 

§ 505 survives for now. 

C. Copyright Management Information 

Moving on to the DMCA claim, remember that Southall alleges that Force 

Partners, without permission, intentionally removed copyright management information before using the photograph on its website. Compl. ¶ 20. Force Partners argues that Southall (i) fails to identify the copyright management information at issue; 

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and (ii) fails to plausibly allege that Force Partners intentionally removed the information or knew that it was removed. Def.’s Mot. Dismiss at 5–6. These arguments 

are rejected. 

Under the DMCA, it is unlawful to remove or alter copyright management information knowing (or having reasonable grounds to know) that doing so will “induce, 

enable, facilitate, or conceal an infringement” without the authority of the copyright 

owner. 17 U.S.C. § 1202(b). Generally speaking, copyright management information 

is information about a work’s copyright—such as the work’s title, author, copyright 

owner, the terms and conditions for use of the work, and identifying numbers or symbols—and is displayed on copies of the work. See 17 U.S.C. § 1202(c). 

To state a valid § 1202 claim for removal of copyright management information, 

a plaintiff must identify the information at issue to provide the defendant with a basis 

to understand the nature of the claim. See Design Basics, LLC v. WK Olson Architects, 

Inc., 2018 WL 3629309, at *4 (N.D. Ill. July 23, 2018). Here, Southall alleges that 

Force Partners removed the information from the photograph, but does not allege 

what the information was. Compl. ¶ 20. In his response brief, however, Southall attaches a screenshot of his website, which displays the credit line “All images – copyright Richard Southall.” Southall CMI. Again, Southall could have avoided this issue 

by alleging the copyright management information in the Complaint or attaching the 

screenshot to the Complaint in the first place. Rather than senselessly require an 

amended complaint, however, the Court will consider the attachment. At least the 

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Complaint does explicitly refer to Southall’s website. Compl. ¶ 8.Nor does Force Partners contest the authenticity of the attachment. See Def.’s Repl. at 4–5. 

Force Partners nonetheless argues that Southall fails to adequately plead a 

factual connection between the copyright management information and the photograph. Def.’s Repl. at 5. In support of its argument, Force Partners cites Alan Ross 

Mach. Corp. v. Machinio Corp., 2018 WL 6018603 (N.D. Ill. Nov. 16, 2018). There, the 

copyright owner alleged that the defendant had removed copyright management information from photographs and listings, which were published on the owner’s website. Id. at *1. The court dismissed the DMCA claim because the information at issue 

stated that the website’s pages are copyrighted, and “websites generally do not claim 

ownership or authorship over an image just because the image appears on the website.” Id. at *2 (cleaned up). In contrast, here Southall’s proffered copyright-credit line 

explicitly covers “all images” in the series, including the photograph. Southall CMI. 

So Southall has plausibly alleged that the copyright management information was 

conveyed in connection with the photograph. See Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, 999 F. Supp. 2d 1098, 1102 (N.D. Ill. 2014) (holding that the credit 

line “Photography: Don Levey, Don Levey Studio” on the back of a record album 

raised the plausible inference that the notice referred to an authorship of the photo 

on the cover of the album); Agence France Presse v. Morel, 769 F. Supp. 2d 295, 305 

(S.D.N.Y. 2011) (holding that it was “‘implausible’ that a viewer of [plaintiff’s] photos 

[on website] would not understand the designations [of the plaintiff’s name] appearing next to the images to refer to authorship”). 

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Force Partners advance another argument against the DMCA claim, arguing 

that the Complaint failed to adequately plead that Force Partners removed the information or that Force Partners used the photograph with knowledge of its removal. 

Def.’s Mot. Dismiss at 6. Again, Force Partners is basically demanding evidence at 

the pleading stage. Southall has adequately alleged that Force Partners removed the 

information from the photograph and then posted the photograph to Force Partners’ 

website. Paragraph 20 is the key allegation here: “Defendant, without permission or 

consent of Plaintiff, knowingly and with the intent to conceal infringement, intentionally removed the copyright management information from Plaintiff’s Copyrighted 

Photograph before displaying Copyrighted Photograph on Defendant’s commercial 

website.” Compl. ¶ 20. And Exhibit 2 to Southall’s response brief depicts what the 

information says and where it is located. Southall CMI. This gives rise to the reasonable inference that Force Partners visited Southall’s website, saw the credit line covering the photograph, and used the photograph on its own website without the credit 

line. Yes, Southall will have to prove that allegation at the summary judgment stage 

and trial (if the case gets that far), but for now, he has pleaded enough to state a claim 

under the DMCA. 

IV. Conclusion 

Force Partners’ motion to dismiss is denied for the most part and granted in 

part. The motion is denied as to the copyright-infringement claim (Count 1), the 

DMCA claim (Count 2), and the request for attorney’s fees under 17 U.S.C. § 505. The 

motion is granted as to the request for statutory damages for Count 1under 17 U.S.C. 

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§ 504; the dismissal is with prejudice because Southall disclaims that he is seeking 

that form of damages for copyright infringement. Force Partners shall answer the 

Complaint (no need to address the dismissed statutory-damages prayer) by September 15, 2021. The parties shall file a proposed discovery schedule (using the template 

at R. 6-1) by September 16, 2021, in advance of the tracking status hearing of September 24, 2021. The Court will review the report and set the discovery schedule. 

ENTERED: 

 s/Edmond E. Chang 

 Honorable Edmond E. Chang 

 United States District Judge 

DATE: August 31, 2021 

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