Case: 1:19-cv-02386 Document #: 29 Filed: 02/04/20 Page 1 of 13 PageID #:237
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`KEITH F. BELL, Ph.D.,
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`Plaintiff,
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`Case No. 19-cv-2386
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`Judge Robert M. Dow, Jr.
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`v.
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`CHICAGO CUBS BASEBALL CLUB,
`LLC and JOSHUA LIFRAK,
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`Plaintiff Keith F. Bell, Ph.D. (“Plaintiff”) brings suit against Defendants the Chicago Cubs
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`Baseball Club (the “Cubs”) and Joshua Lifrak (“Lifrak”) (collectively, “Defendants”) for
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`copyright infringement. Currently before the Court is Defendants’ motion to dismiss the
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`governing amended complaint. See [21]. For the following reasons, Defendants’ motion to
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`dismiss [21] is granted in part and denied in part. The claim for contributory copyright
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`infringement and the claim for direct copyright infringement as to the Cubs only are dismissed.
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`The claim for vicarious copyright infringement and the claim for direct copyright infringement
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`against Lifrak will be allowed to proceed. This case is set for status hearing on February 20, 2020
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`at 9:00 a.m.
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`I.
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`
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`Background1
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`According to the amended complaint, Plaintiff is an accomplished athlete and coach and
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`“an internationally-recognized sports psychology and performance consultant” who has worked
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`with hundreds of sports teams and spoken at “national and international coaching symposia.” [18]
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`1 For purposes of Defendants’ motion to dismiss, the Court assumes as true all well-pled allegations set
`forth in Plaintiff’s amended complaint. See [18]; Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th
`Cir. 2017).
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`Case: 1:19-cv-02386 Document #: 29 Filed: 02/04/20 Page 2 of 13 PageID #:237
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`at 2-3. Plaintiff has also “authored and had published 10 books and over 80 articles relating to
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`sports psychology and sports performance” and written columns for various sports periodicals. Id.
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`at 3. At issue in this case is Plaintiff’s book entitled “Winning Isn’t Normal.” Id. Plaintiff wrote
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`the book in 1981 and it was first published in 1982. According to Plaintiff, “[t]he book has enjoyed
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`substantial acclaim, distribution, and publicity.” Id. Plaintiff is the sole author of the book and
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`continues to own all rights in the work.
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`Plaintiff holds a copyright registration for “Winning Isn’t Normal,” which was issued by
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`the U.S. Copyright Office on September 21, 1989 (registration number TX-0002-6726-44). Since
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`Plaintiff published the book, “he has and continues to promote, distribute, offer for sale, and sell
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`numerous copies of the work.” [18] at 3. As part of these efforts, Plaintiff creates, markets, and
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`sells works derivative of “Winning Isn’t Normal,” such as posters and t-shirts that display the
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`following passage from the book, which Plaintiff labels the “WIN Passage”:
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`Winning isn’t normal. That doesn’t mean there’s anything wrong with winning. It
`just isn’t the norm. It’s highly unusual.
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`Every race only has one winner. No matter how many people are entered (not to
`mention all those w o [sic] tried and failed to make cuts), only one person (or one
`relay) wins each event.
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`Winning is unusual. As such, it requires unusual action.
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`In order to win, you must do extraordinary things. You can’t just be one of the
`crowd. The crowd doesn’t win. You have to be willing to stand out and act
`differently.
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`Your actions need to reflect unusual values and priorities. You have to value
`success more than others do. You have to want it more. (Now, take note! Wanting
`it more is a decision you make and act upon - not some inherent quality or burning
`inner drive or inspiration!) And you have to make that value a priority.
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`You can’t train like everyone else. You have to train more and train better.
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`You can’t talk like everyone else. You can’t think like everyone else. You can’t be
`too willing to join the crowd, to do what is expected, to act in a socially accepted
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`2
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`manner, to do what’s “in.” You need to be willing to stand out in the crowd and
`consistently take exceptional action. If you want to win, you need to accept the risks
`and perhaps the loneliness ... because winning isn’t normal!!
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`[18-2] at 2. According to Plaintiff, the WIN Passage is viewed by him “and others as the heart of
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`[his] literary work” “Winning Isn’t Normal.” Id. at 4. Plaintiff obtained a separate copyright
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`registration for the WIN Passage (registration no. TX 8-503-571).
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`Plaintiff also owns the domain winningisntnormal.com, which points to a website where
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`Plaintiff offers the book and derivative works for sale. Further, Plaintiff obtained a trademark
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`registration for “Winning Isn’t Normal” for “[p]rinted matter, namely, non-fiction publications,
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`*** books, booklets, pamphlets, articles, manuals and posters in the field of sports, fitness, and
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`competitive performance and psychology” (registration no. 4,630,749). [18] at 5. Plaintiff alleges
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`that the mark “Winning Isn’t Normal” “has become widely associated” with him and his printed
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`materials and related goods and that the mark “is indicative to consumers that printed material and
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`related items bearing” the mark “originate from or are affiliated with, sponsored, or approved” by
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`Plaintiff. Id.
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`This case involves Defendant Lifrak’s “retweet” of the WIN passage on Twitter. Lifrak is
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`employed by the Cubs as the director of its Mental Skills Program. Lifrak’s job responsibilities
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`“include issues that generally fall within sports psychology.” [18] at 5. At the time relevant to
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`this action, Lifrak maintained an active Twitter account and had more than 1,000 “followers.”
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`Around May 2016, Lifrak allegedly posted an exact copy of the WIN passage on his Twitter
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`account. The print-out from Lifrak’s Twitter account, which Plaintiff attached as Exhibit C to the
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`amended complaint, shows that Lifrak’s tweet was a “retweet” of a tweet from Moawad
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`3
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`Consulting. [18-3].2 The printout shows that the tweet did not attribute the WIN passage to
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`Plaintiff. See id. Lifrak’s retweet was “liked” at least 14 times and “retweeted” at least 9 times.
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`[18] at 7. According to Plaintiff, Lifrak’s retweet “was an act of copying by Defendants under
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`applicable law *** because actual copies of ‘Winning Isn’t Normal’ were made, which existed on
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`servers, devices, and computer systems owned or controlled by Defendants.” Id. at 6-7.
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`According to Plaintiff, the Cubs are responsible for Lifrak’s Twitter activity. Plaintiff
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`alleges that Lifrak maintains the Twitter account “in the course and scope of his employment with
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`[the] Cubs and his followers include many players and coaches” within the Cubs organization.
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`[18] at 6. Plaintiff further alleges that at all relevant times, the Cubs “possessed the right and
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`ability to supervise [Lifrak’s] infringing activity,” had “a direct financial interest in [Lifrak’s]
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`infringing activities,” and can and should have “exercised its right and ability to supervise the
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`activities” of Lifrak on Twitter. Id. Plaintiff elaborates that the Cubs “knew that individuals
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`associated with its organization” follow Lifrak on Twitter and that Lifrak’s infringing behavior
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`“concerned the same subject matter that *** Lifrak is paid to work on as part of his employment”
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`with the Cubs. Id. Plaintiff alleges on information and belief that the Cubs knowingly “induced,
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`caused, and materially contributed to” Lifrak’s allegedly infringing activity, because the Cubs
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`“know[] about, encourage[], and contribute[] to the exact activity *** that is at issue in this case.”
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`Id. In addition, Plaintiff alleges, “Defendants’ infringements of [his] copyrighted works were
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`commercial in nature as they were meant to publicize and promote Defendants, and to carry out
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`the purposes of Defendant Lifrak’s job with Defendant Cubs for which he is compensated because
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`he brings economic benefit to Defendant Cubs and himself.” Id. at 7. Plaintiff further alleges that
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`2 According to Defendant, Plaintiff also sued Moawad for copyright infringement for the original tweet;
`that case was eventually settled. See [22] at 7 (citing Bell v. Moawad Group LLC, et al., No. 17-cv-02109
`(D. Ariz. 2018)).
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`4
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`“Defendants’ infringement profoundly effects the market for [his] work because people will not
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`have to purchase his book and his other materials that incorporate the WIN passage on his web
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`site.” Id.
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`Based on these allegations, Plaintiff asserts three claims: (1) a claim for direct copyright
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`infringement against both Defendants; (2) a claim for vicarious copyright infringement against the
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`Cubs; and (3) a claim for contributory copyright infringement against the Cubs. Currently before
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`the Court is Defendants’ motion to dismiss the amended complaint for failure to state a claim.
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`II.
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`Legal Standard
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`A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. For purposes of
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`a motion to dismiss under Rule 12(b)(6), the Court “‘accept[s] as true all of the well-pleaded facts
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`in the complaint and draw all reasonable inferences in favor of the plaintiff.’” Calderon-Ramirez,
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`877 F.3d at 275 (quoting Kubiak v. City of Chicago, 810 F.3d 476, 480-81 (7th Cir. 2016)). To
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`survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s complaint must allege facts which,
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`when taken as true, “‘plausibly suggest that the plaintiff has a right to relief, raising that possibility
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`above a speculative level.’” Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th
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`Cir. 2016) (quoting EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)). The
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`Court reads the amended complaint and assesses its plausibility as a whole. See Atkins v. City of
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`Chicago, 631 F.3d 823, 832 (7th Cir. 2011). In addition, it is proper for the Court to “consider, in
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`addition to the allegations set forth in the complaint itself, documents that are attached to the
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`complaint, documents that are central to the complaint and are referred to in it, and information
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`that is properly subject to judicial notice.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir.
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`2013) (citing Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir.2012)); see also Fed. R.
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`Civ. P. 10(c).
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`5
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`III. Analysis
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`A.
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`Direct Copyright Infringement
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`Count I of the amended complaint alleges a claim for copyright infringement against
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`“Defendants.” [18] at 8-9. “To establish copyright infringement, a plaintiff must prove two
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`elements: ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work
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`that are original.’” Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1099 (7th Cir.
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`2017) (quoting JCW Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 914 (7th Cir. 2007)).
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`In their motion to dismiss, Defendants do not challenge Plaintiff’s allegation that he holds
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`valid copyrights to “Winning Isn’t Normal” and the WIN passage. Instead, their motion to dismiss
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`focusing on the “copying” element of Plaintiff’s copyright claim. To the extent that Plaintiff
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`intends to bring his direct copyright infringement claim against the Cubs, that claim is dismissed
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`because the amended complaint does not allege any facts suggesting that “the Cubs” themselves
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`created a copy of Plaintiff’s WIN passage. Instead, the amended complaint alleges that Lifrak
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`created the copy by “retweeting” the Moawad tweet.
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`Whether Lifrak himself created a “copy” is a more difficult question which, ultimately, this
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`Court is unable to resolve at this early stage of the case. Defendants argue that, pursuant to the
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`standard set out in Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012), and its progeny, “a
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`new copy is created only when a third party stores the infringing material on its own servers.”
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`[22] at 10; see Flava Works, 689 F.3d at 762 (holding that defendant’s electronic linking of users
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`of its website to the plaintiff’s copyrighted videos could not support a claim for copyright
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`infringement because the defendant did not actually create a new copy of the material on its
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`servers, but merely linked to material hosted on third-party servers, albeit deceptively). By
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`contrast, Defendants contend, “a mere link or direction back (like a retweet) to the original source
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`6
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`of a pre-existing post is not a new copy and, therefore, does not give rise to an independent
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`infringement claim.” Id. (citing Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, 2014 WL
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`3368893, *5 (N.D. Ill. July 8, 2014) (holding that because defendant’s website linked to—but
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`never downloaded—plaintiff’s copyrighted photo onto its own servers, the site “did not copy the
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`photo,” and its owner could not be liable for infringement)). Defendants argue that a retweet
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`cannot, as a matter of law, generate an “actionable copy” of copyrighted material, because “[t]he
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`instructions, storage, management, and reflection back to the original tweet all were governed
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`exclusively by Twitter and took place exclusively on Twitter’s servers.” [22] at 11.
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`Assuming without deciding that Defendants’ statement of the governing legal standard is
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`correct, the Court nonetheless cannot resolve this issue on a motion to dismiss because it rests on
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`facts that are not alleged in—and are contrary to—the governing amended complaint. According
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`to the amended complaint, Lifrak’s act of retweeting the Moawad tweet resulted in “actual copies
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`of ‘Winning Isn’t Normal’ [to be] made, which existed on servers, devices, and computer systems
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`owned or controlled by Defendants.” [18] at 6-7. Plaintiff’s allegations may very well be wrong
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`as a factual matter, but at this stage of the case, the Court cannot simply rely on Defendants’
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`technological explanation of Twitter to dismiss Plaintiff’s claim. Defendants contend that the
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`Court may also take judicial notice of information contained on various Twitter-operated web
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`pages explaining how a “retweet” works. See [22] at 11, n.4 (citing Anderson v. Simon, 217 F.3d
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`472, 475 (7th Cir. 2000)). It is not clear that these web-based explanations constitute “public
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`records” of which it is appropriate to take judicial notice. See, e.g., Parungao v. Community Health
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`Systems, Inc., 858 F.3d 452, 457 (7th Cir. 2017) (noting that even matters of public record cannot
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`be judicially noticed unless “the accuracy of those documents reasonably cannot be questioned”).
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`But even if they were, none of the sources cited by Defendants address the question of whether
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`someone who retweets an original tweet might somehow also store the underlying copyrighted
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`material on his or her own server. See [22] at 12. Although the Court must deny Defendants’
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`motion to dismiss the copyright infringement claim against Lifrak, if and when Defendants
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`generate a factual record to support their contention that judgment in their favor as a matter of law
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`is appropriate, they may move for summary judgment at any time.
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`B.
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`Contributary Copyright Infringement
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`Count III of the amended complaint alleges a claim for contributory copyright infringement
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`against the Cubs. “‘Liability for contributory infringement will be imposed when a defendant,
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`with knowledge of the infringing activity, induces, causes or materially contributes to the
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`infringing conduct of another.’” Myers v. Harold, 279 F. Supp. 3d 778, 796 (N.D. Ill. 2017)
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`(quoting Marobie–FL, Inc. v. Nat’l Ass’n of Fire Equip. Distributors, 983 F. Supp. 1167, 1178
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`(N.D. Ill. 1997)).
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`Defendants argue that Plaintiff’s claim for contributory copyright infringement must be
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`dismissed because, among other reasons, Plaintiff fails to allege any facts that plausibly suggest
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`that the Cubs had any “knowledge of” Lifrak’s allegedly “infringing activity.” Myers, 279 F.
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`Supp. 3d at 796. The Court agrees. “The knowledge element for contributory copyright
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`infringement is met in those cases where a party has been notified of specific infringing uses of its
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`technology and fails to act to prevent future such infringing uses, or willfully blinds itself to such
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`infringing uses.” Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 886 (N.D. Ill.
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`2005); see also Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 929 (2005)
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`(“One infringes contributorily by intentionally inducing or encouraging direct infringement[.]”
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`(emphasis added)). The amended complaint contains no facts from which it could plausibly be
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`inferred that the Cubs knew that Lifrak was infringing Plaintiff’s copyright, yet failed to act to stop
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`the infringement or willfully blinded themselves to the infringement. The print-out of Lifrak’s
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`retweet (which is attached as an exhibit to the amended complaint) shows that Moawad
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`Consulting’s tweet does not attribute the WIN passage to Plaintiff. Therefore there is no apparent
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`way that the Cubs (or Lifrak, for that matter) would have known that Lifrak’s retweet infringed
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`Plaintiff’s copyright. Plaintiff does not allege, for instance, that he notified the Cubs (or Lifrak)
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`that they were using his copyrighted material without permission and Defendants refused to take
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`the retweet down. Therefore, Defendants’ motion to dismiss the claim for contributory copyright
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`infringement is granted. See Monotype Imagine, 376 F. Supp. 2d at 886-87 (holding that even if
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`distributors of font software established that competitor’s licensees had engaged in acts of
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`infringement of distributors’ software, they did not show that competitor knew its licensees were
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`using its font technology to do so, as required for competitor’s liability for contributory copyright
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`infringement).
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`C.
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`Vicarious Liability for Copyright Infringement
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`Count II of the amended complaint alleges a claim for vicarious liability for copyright
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`infringement against the Cubs. “To prevail on a claim for vicarious copyright infringement, a
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`plaintiff must establish that ‘the defendant has (1) the right and ability to supervise the infringing
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`conduct and (2) a direct financial interest in the infringing activity.’” GC2 Inc. v. Int’l Game Tech.
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`PLC, 255 F. Supp. 3d 812, 824 (N.D. Ill. 2017) (quoting Perfect 10, Inc. v. Giganews, Inc., 847
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`F.3d 657, 673 (9th Cir. 2017)). “Unlike contributory liability, one can be liable for vicarious
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`copyright infringement even without knowledge of the infringement.” In re Aimster Copyright
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`Litigation, 252 F. Supp. 2d 634, 654 (N.D. Ill. 2002); see also Metro-Goldwyn-Mayer Studios, 545
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`U.S. at 931 n.9 (explaining that the vicarious liability theory “allows imposition of liability when
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`the defendant profits directly from the infringement and has a right and ability to supervise the
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`direct infringer, even if the defendant initially lacks knowledge of the infringement”).
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`In their motion to dismiss, Defendants challenge the sufficiency of Plaintiff’s pleading as
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`to both the supervision element and the direct financial interest element of the vicarious liability
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`claim. At this stage, the Court is not persuaded by either argument and therefore will allow
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`Plaintiff’s claim for vicarious liability for copyright infringement to proceed. With that said, the
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`Court is skeptical that Plaintiff will be able to prove the second element of the claim.
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`Concerning the supervision element, Defendants argue that “Plaintiff has not pleaded any
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`facts establishing that the Chicago Cubs maintains the right to police or restrict Lifrak’s personal
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`social-media presence, or that it otherwise regulates the content of his Twitter feed in any way.”
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`[22] at 17. But the amended complaint alleges just that: “At all relevant times, Defendant Cubs
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`possessed the right and ability to supervise, control, or stop the infringing conduct described herein
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`as it occurred over the course of Defendant Lifrak’s use of his social media accounts in association
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`with Defendant Cubs.” [18] at 9, ¶ 48. Taking Plaintiff’s allegations as true, as the Court must
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`for purposes of a motion to dismiss, Plaintiff has adequately alleged that the Cubs have “the right
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`and ability to supervise and control” Lifrak’s alleged infringement. GC2, 255 F. Supp. 3d at 824;
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`see also Porter v. Combs, 105 F. Supp. 3d 872, 879 (N.D. Ill. 2015) (logo designer’s allegations
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`that owner of lacrosse club had supervisory authority over club’s infringing activities was
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`sufficient to survive motion to dismiss; plaintiff not required to plead specific facts concerning
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`“extent and nature” of defendant’s supervisory authority).
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`The Court now turns to the “financial interest” element of Plaintiff’s claim. For purposes
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`of a vicarious copyright infringement claim, “a financial benefit exists where there is evidence of
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`a direct financial gain or that the ‘availability of infringing material acts as a draw for customers.’”
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`GC2, 255 F. Supp. 3d at 825 (quoting Ellison v. Robertson, 357 F.3d 1072, 1078 (9th Cir. 2004))
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`(emphasis added). The second type of financial interest exists “where the availability of an
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`infringing work is a contributing factor in a consumer’s decision to purchase a product or service.”
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`Id. Importantly, “[t]he size of the ‘draw’ relative to a defendant’s overall business is immaterial.’”
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`Id. (citing Perfect 10, 847 F.3d at 673). “Under either method of proof, ‘[t]he essential aspect of
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`the ‘direct financial benefit’ inquiry is whether there is a causal relationship between the infringing
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`activity and any financial benefit a defendant reaps, regardless of how substantial the benefit is in
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`proportion to a defendant’s overall profits.’” Id. (quoting Ellison, 357 F.3d at 1079); see also
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`Flava Works, Inc. v. Clavio, 2012 WL 2459146, at *4 (N.D. Ill. June 27, 2012).
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`Defendants argue that the amended complaint does not identify “any financial benefit
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`inuring to the Chicago Cubs as a result of Lifrak’s tweet.” [22] at 18. However, Plaintiff alleges
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`in ¶ 49 of the amended complaint that “Defendant Cubs had a direct and financial interest in
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`Defendant Lifrak’s infringing activity, including without limitation receiving the benefit of
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`Defendant Lifrak’s social media audience and the promotional engagement generated thereform
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`[sic] based on Defendant Lifrak’s social media activity.” [18] at 9. In other words, Plaintiff’s
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`theory appears to be that all of Lifrak’s tweets increase the exposure of the Cubs and encourage
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`Lifrak’s followers to buy services and products from the Cubs, such as tickets to baseball games
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`or Cubs-licensed apparel and other items. Defendants question the plausibility of this theory,
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`arguing that “the retweet in question [did not] contain any overt advertising or even mention the
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`Chicago Cubs.” [22] at 18-19. However, the print-out from Lifrak’s Twitter account shows that
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`Lifrak identifies himself as “Director of The Mental Skills Program of the Chicago Cubs,” and
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`uses a photo of the Cubs’ sign at Wrigley Field as the banner for his Twitter page. Therefore, it is
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`not wholly implausible to presume that Lifrak’s Twitter activity is intended to promote the Cubs.
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`At the same time, Plaintiff may find it difficult to marshal any actual evidence that Lifrak’s single
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`retweet of the WIN passage resulted in a direct financial gain to the Cubs or actually drew
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`customers to the Cubs. See, e.g., Monotype Imaging, Inc. v. Bitstream, Inc., 2005 WL 936882, at
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`*7 (N.D. Ill. Apr. 21, 2005) (granting summary judgment for defendant on plaintiff’s vicarious
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`copyright infringement claim, where plaintiffs failed to come forward with “any evidence
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`demonstrating” that defendant’s allegedly infringing use of plaintiff’s software acted as “a
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`‘tremendous draw’” for defendant’s customers). But for purposes of Defendants’ motion to
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`dismiss, Plaintiff’s allegations are sufficient—though just barely—to allow the contributory
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`copyright infringement claim to proceed. See Porter, 105 F. Supp. 3d at 879 (explaining that to
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`survive a motion to dismiss, plaintiff was not required to plead “specific financial gains” earned
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`by owner of lacrosse club due to club’s infringing use of plaintiff’s logo on apparel, merchandise
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`and team equipment).
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`D. Willful and Intentional Conduct
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`The amended complaint alleges that Defendants’ copying of the WIN passage “was done
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`willfully and intentionally in violation of federal copyright law, with knowledge that no agreement
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`had been reached with Plaintiff regarding such copying, and with knowledge that neither a license
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`nor an assignment had been granted to Defendants allowing them to copy or use the Infringed
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`Works.” [18] at 8. Defendants argue that any allegations of willfulness should be dismissed
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`because “Plaintiff has not even alleged that Lifrak, much less the Chicago Cubs, knew (and if so,
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`how) that the Moawad Tweet contained copyrighted material.” [22] at 19. Plaintiff responds that
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`willfulness is not a required element of any of his claims and, therefore, this is not a proper ground
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`for a motion to dismiss. Rather, Plaintiff explains, allegations of willfulness go “to the question
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`of whether [Plaintiff] is entitled to increased damages pursuant to 17 U.S.C. § 504(c)(2).” [27] at
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`12
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`16. In reply, Defendants assert that “[w]hile it is true that Plaintiff need not prove his claim now,
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`he must still adequately allege ‘the additional intent element’ required for claims of willful
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`infringement.” [28] at 11 (citing Design Basics, LLC v. WK Olson Architects, Inc., 2018 WL
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`3629309, at *4 n.6 (N.D. Ill. July 31, 2018)).
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`Plaintiff is correct that his claims are not subject to dismissal under Rule 12(b)(6) based on
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`a lack of factual detail supporting his allegation that Defendants infringed his trademarks
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`knowingly and willfully. Nonetheless, the Court agrees with Defendants that there is nothing in
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`the amended complaint to suggest that either Defendant had any idea that the Moawad tweet
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`contained copyrighted material. Further, the Court is skeptical that Defendant will ever be able to
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`establish knowledge or willfulness, given that the Moawad tweet did not attribute the WIN quote
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`to Plaintiff. While this is not a basis for dismissing the complaint, it is certainly something for
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`Plaintiff to keep in mind in considering how much of his own resources to sink into this case, as
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`he will need evidentiary support for any claim to more than the $200 minimum statutory damages
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`available under 17 U.S.C. § 504(c)(2).
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`IV. Conclusion
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`For these reasons, Defendants’ motion to dismiss [21] is granted in part and denied in part.
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`The claim for contributory copyright infringement and the claim for direct copyright infringement
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`as to the Cubs only are dismissed. The claim for vicarious copyright infringement and the claim
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`for direct copyright infringement against Lifrak will be allowed to proceed. This case is set for
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`status hearing on February 20, 2020 at 9:00 a.m.
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`Dated: February 4, 2020
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`13
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`____________________________
`Robert M. Dow, Jr.
`United States District Judge
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