Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`OREGON CATHOLIC PRESS, an Oregon
`nonprofit corporation,
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`Plaintiff,
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`v.
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`VINCE AMBROSETTI, TRUSTEE OF
`VINCE AMBROSETTI MINISTRIES aka
`INTERNATIONAL LITURGY PUBLICATIONS,
`a 501(c)(3) trust; LAMB PUBLICATIONS, LLC,
`a Tennessee limited liability company; VINCE
`AMBROSETTI, an individual; and DOES 1–10,
`inclusive,
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`No. 3:16-cv-00651-HZ
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`OPINION & ORDER
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`Defendants.
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`Leonard D. DuBoff
`The DuBoff Law Group, PC
`6665 SW Hampton Street, Suite 200
`Portland, OR 97223-8357
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`OPINION & ORDER - 1
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`Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 2 of 12
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`Attorney for Plaintiff
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`Parna A. Mehrabani
`Lane Powell PC
`601 SW Second Avenue, Suite 2100
`Portland, Oregon 97204-3158
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`Barry I. Slotnick
`Loeb & Loeb LLP
`345 Park Avenue
`New York, New York 10154
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`Brittany A. Schaffer
`Loeb & Loeb LLP
`1906 Acklen Avenue
`Nashville, Tennessee 37212
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`Attorneys for Defendants
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`HERNÁNDEZ, District Judge:
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`Plaintiff, Oregon Catholic Press (“OCP”), brings its claims for copyright infringement
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`under 17 U.S.C. § 501–13. Defendants are: International Liturgy Publications (“ILP”); Lamb
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`Publications, LLC (“Lamb”); the president of ILP Vince Ambrosetti as an individual; and
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`unnamed individuals Does 1–10. OCP and ILP had multiple agreements whereby OCP granted
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`licenses to ILP to reprint certain songs. OCP’s claims fall into two categories. First are OCP’s
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`claims that relate to ILP’s publication of OCP material in an allegedly unauthorized second
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`edition of the Saint Augustine Hymnal (hereinafter “Hymnal Claims”). The second category is
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`OCP’s claims that ILP published two songs—“Glorious God” and “Bright As the Sun”—without
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`licenses in the book “You Are Holy” (hereinafter “Songbook Claims”). OCP is also suing Lamb
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`and Ambrosetti for their roles in the alleged copyright infringement under theories of
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`OPINION & ORDER - 2
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`Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 3 of 12
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`contributory and vicarious liability. Defendants now move to dismiss Plaintiff’s claims on
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`several grounds discussed below.
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`Defendants’ motion to dismiss is granted in part. The motion is denied regarding the
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`Hymnal Claims. The motion is denied with respect to the song “Bright As the Sun.” The motion
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`is denied with respect to OCP’s claims against Lamb and Ambrosetti. The motion is granted with
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`respect to the song “Glorious God” and the Court also grants OCP’s request for leave to amend
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`its complaint on this claim.
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`BACKGROUND
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`The following facts come from the Amended Complaint and documents referred to or
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`relied upon in the Amended Complaint. OCP and ILP publish and sell hymnals and song books
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`to Catholic parishes. Am. Compl. ¶¶ 4–6, 11–14, 28, ECF No. 23. On May 14, 2009, OCP and
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`ILP entered into an agreement (“2009 Agreement”) whereby OCP licensed certain songs to ILP
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`to be published in the Saint Augustine Hymnal (“Hymnal”). Am. Compl. ¶ 11, Ex. C, at 6. The
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`2009 Agreement enumerated 75 OCP songs. Am. Compl. Ex. C, at 9–13. ILP published a “first
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`edition” of the Hymnal in 2010. Am. Compl. ¶ 13.
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`Subsequently, the parties amended the 2009 Agreement on November 27, 2011 to permit
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`ILP to publish “new editions” of the Hymnal (“2009/2011 Agreement”). Am. Compl. Ex. C, at
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`14–15. The 2009/2011 Agreement also extended the term of the license for a period of five years
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`from September 27, 2011 to November 26, 2016. Id. Plaintiff contends that the 2009 Agreement
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`was amended for the purpose of including a revised “Order of the Mass” at the beginning of the
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`Hymnal pursuant to decision by the Bishops Committee on Divine Worship of the U.S.
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`Conference of Catholic Bishops. Am. Compl. ¶ 13.
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`OPINION & ORDER - 3
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`Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 4 of 12
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`On February 3, 2014, the parties entered into another agreement (“2014 Agreement”)
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`whereby OCP licensed up to 10 songs to be chosen by ILP to be published in any ILP
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`publication. Am. Compl. ¶ 14, Ex. C, at 1. In July of 2014, Ambrosetti sent a letter on behalf of
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`ILP stating that it intended to publish certain OCP songs in a new edition of the Hymnal. Am.
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`Compl. ¶ 15. OCP wrote back stating that the 2009/2011 Agreement did not permit ILP to
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`reprint OCP materials in a second edition of the Hymnal. Id. ¶ 16. ILP replied that if OCP did
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`not agree to the proposed song list then ILP would proceed with publication and only publish
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`songs licensed to it under the 2009/2011 Agreement. Id. ¶ 17. OCP reiterated that it did not
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`authorize the publication of the second edition of the Hymnal. Id. ¶ 18. ILP proceeded with
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`publication of the second edition of the Hymnal which included 74 OCP songs covered by the
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`parties’ Agreements. Id. ¶ 20.
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`With respect to the Songbook Claims, OCP alleges that around June 15, 2010, it granted
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`licenses to ILP to reprint certain songs including “Bright As the Sun” in certain publications
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`including “Living World, Living Song, Living Faith” (“Living World”). Am. Compl. ¶ 12, Ex.
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`C, at 23–25. In 2014, ILP published the songbook “You Are Holy” which included 12 OCP
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`songs. Am. Compl. ¶ 19. OCP alleges that ILP did not have a license to publish the songs
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`“Bright As the Sun” and “Glorious God” in “You Are Holy.” Id. Defendants contends that OCP
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`agreed to overlook the error regarding “Glorious God” and that its use of “Bright As the Sun”
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`was proper because “You Are Holy” is merely “Living World” retitled. Mot. Dismiss 6, 10–14,
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`ECF No. 29.
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`STANDARDS
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`To survive a motion to dismiss, a complaint “must contain sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face[,]” meaning “when the
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`plaintiff pleads factual content that allows the court to draw the reasonable inference that the
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`OPINION & ORDER - 4
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`Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 5 of 12
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`defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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`(internal quotation marks omitted). Additionally, “only a complaint that states a plausible claim
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`for relief survives a motion to dismiss.” Id. at 679. A complaint must contain “well-pleaded
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`facts” which “permit the court to infer more than the mere possibility of misconduct.” Id. at 679.
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`In evaluating the sufficiency of a complaint’s factual allegations, the court must accept all
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`material facts alleged in the complaint as true and construe them in the light most favorable to
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`the non-moving party. Wilson v. Hewlett–Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012).
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`“Factual allegations must be enough to raise a right to relief above the speculative level on the
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`assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Bell Atl.
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`Corp. v. Twombly, 550 U.S. 544, 555 (2007). (citations and footnote omitted). However, the
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`court need not accept unsupported conclusory allegations as truthful. Holden v. Hagopian, 978
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`F.2d 1115, 1121 (9th Cir. 1992). A motion to dismiss under Rule 12(b)(6) will be granted if a
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`plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.
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`at 555.
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`DISCUSSION
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`OCP alleges two claims of direct copyright infringement against ILP. First, the Hymnal
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`Claims include OCP’s allegations that ILP exceeded the scope of its licenses under the
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`2009/2011 Agreement by publishing an unauthorized second edition of the Hymnal. OCP’s
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`position is that the 2009/2011 Agreement permitted ILP to republish the original version of the
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`Hymnal with the addition of the “Order of Mass.” ILP disagrees with that restriction and
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`contends that the second edition was permitted by the plain language of the 2009/2011
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`Agreement. Second, the Songbook Claims include OCP’s allegations that ILP published the
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`OPINION & ORDER - 5
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`songs “Glorious God” and “Bright As the Sun” in the songbook “You Are Holy” without a
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`license. ILP argues that: “Glorious God” was not registered; OCP granted ILP an implied license
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`to use “Glorious God”; OCP waived its right to bring copyright infringement claims against ILP;
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`and ILP had a valid license to publish “Bright As the Sun” in “You Are Holy.”
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`“Plaintiffs must satisfy two requirements to present a prima facie case of direct
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`[copyright] infringement: (1) they must show ownership of the allegedly infringed material and
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`(2) they must demonstrate that the alleged infringers violate at least one exclusive right granted
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`to copyright holders under 17 U.S.C. § 106.” A&M Records, Inc. v. Napster, Inc., 239 F.3d
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`1004, 1013 (9th Cir. 2001). A “copyright owner who grants a nonexclusive license to use his
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`copyrighted material waives his right to sue the licensee for copyright infringement and can sue
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`only for breach of contract. If, however, a license is limited in scope and the licensee acts outside
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`the scope, the licensor can bring an action for copyright infringement.” Sun Microsystems, Inc.
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`v. Microsoft Corp., 188 F.3d 1115, 1121 (9th Cir. 1999) (quotations and citations omitted).
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`I.
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`HYMNAL CLAIMS
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`The Court denies Defendants’ motion to dismiss OCP’s Hymnal Claims. Every OCP
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`song that was published in the second edition of the Hymnal appears to be covered by the
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`licenses in the parties’ Agreements.1 Schaffer Decl. Ex. E; Am. Compl. Ex. C, at 9–13.
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`Notwithstanding the valid licenses, OCP contends that ILP exceeded the scope of the 2009/2011
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`1 The Court declines the invitation to consider documents outside of the pleadings which would require converting
`this motion to dismiss into a motion for summary judgment. Fed. R. Civ. P. 12(d). The Court did consider
`Defendants’ Exhibit E (the table of contents to the second edition of the Hymnal) but it excluded Exhibit F (Nudo
`email). Schaffer Decl. Exs. E, F. The district court “may consider a document the authenticity of which is not
`contested, and upon which the plaintiff's complaint necessarily relies.” Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th
`Cir. 1998), as amended (July 28, 1998). First, the Court finds that Plaintiff’s Amended Complaint, specifically the
`Hymnal Claims, necessarily rely upon the contents of the second edition of the Hymnal. Am. Compl. ¶¶ 13, 15–18,
`20–21. Further, even if OCP questions the authenticity of the table of contents in Exhibit E, Defendants submitted
`hard copies of the first and second editions of the Hymnal. Def. Reply Exs. 1, 2, ECF No. 33. Second, the Court
`agrees with OCP that the Nudo Email should not be considered for purposes of this motion. The authenticity of the
`email is disputed and OCP did not rely on the email in the Amended Complaint. For these reasons, Defendants’
`arguments regarding implied license and express waiver, which rely on the Nudo email, fail.
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`OPINION & ORDER - 6
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`Case 3:16-cv-00651-HZ Document 34 Filed 11/01/16 Page 7 of 12
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`Agreement by publishing the copyrighted work in an unauthorized second edition of the Hymnal.
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`Am. Compl. ¶ 16. The parties dispute the meaning and interchangeability of the terms “versions”
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`and “editions” used in the 2009/2011 Agreement. OCP contends that this interchangeable use of
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`“versions and “editions” renders the agreement “ambiguous regarding whether the license
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`permits a second edition of the hymnal.” Pl. Opp’n to Mot. Dismiss 3, ECF No. 31. Defendants
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`argue that the 2011 Addendum did not restrict subsequent editions only to material from the first
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`edition with the addition of “Order of Mass.” Def. Reply 5.
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`The 2009 Agreement states: “These OCP songs may be reprinted only in the hard-cover
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`and soft-cover versions of the Hymnal. This license does not extend to accompaniment
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`editions.” Am. Compl. Ex. C, at 6 (emphasis added). The 2011 Addendum states: “New editions
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`of the St. Augustine Hymnal that will include an Order of Mass at the front of the edition shall be
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`covered by this Agreement and royalties shall be paid as specified in this Agreement for these
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`editions.” Id. at 14 (emphasis added).
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`Defendants ask the Court to construe the meaning of “versions” and “editions” in their
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`favor. In other words, the Court is being asked to reach the merits of the case well beyond what
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`the scope of what a 12(b)(6) motion allows. Such a determination would be inappropriate at this
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`juncture. Rather, when taking all of the material allegations from the complaint as true, the Court
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`construes them in the light most favorable to the nonmoving party. “A complaint should not be
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`dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of
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`the claim that would entitle the plaintiff to relief.” Am. Family Ass'n, Inc. v. City & Cty. of San
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`Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002).
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`In this case, Plaintiff alleges that ILP exceeded the scope its licenses under the 2009/2011
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`Agreement by publishing OCP songs in an unauthorized second edition of the Hymnal. When
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`OPINION & ORDER - 7
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`construing the language of the 2009/2011 Agreement in the light most favorable to OCP, the
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`Court finds that Plaintiff has pled sufficient facts to support the inference that ILP exceeded the
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`scope of its licenses and engaged in copyright infringement.
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`II.
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`SONGBOOK CLAIMS
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`OCP alleges that ILP published “Glorious God” and “Bright As the Sun” in the songbook
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`“You Are Holy” without valid licenses. ILP moves to dismiss the Songbook Claim regarding
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`“Glorious God” on several grounds. ILP also claims that it had a valid license to publish “Bright
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`As the Sun” under the 2010 Agreement which permitted publication in the book “Living World”
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`allegedly retitled “You Are Holy.”
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`A. “Glorious God”
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`Defendants’ motion to dismiss OCP’s Songbook Claim regarding the song “Glorious
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`God” is granted. The Court also grants Plaintiff’s request to amend its complaint to include
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`allegations that the copyrighted work is “registered.” Copyright registration is a precondition of
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`filing a copyright infringement action. 17 U.S.C. § 411(a); Reed Elsevier, Inc. v. Muchnick, 559
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`U.S. 154, 166–67 (2010). The Ninth Circuit follow the “application approach” to determining
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`registration which holds that “receipt by the Copyright Office of a complete application satisfies
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`the registration requirement of § 411(a).” Cosmetic Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d
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`612, 621 (9th Cir. 2010).
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`Here, OCP failed to allege that “Glorious God” was registered in its Amended
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`Complaint. Defendants pointed out this deficiency in the Amended Complaint; in response, OCP
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`claims that it has submitted an application of registration. The Court grants OCP leave to amend
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`its complaint to include allegations that it has submitted an application for registration of
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`“Glorious God.”
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`OPINION & ORDER - 8
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`B. “Bright As the Sun”
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`Defendants’ motion to dismiss OCP’s Songbook Claim regarding the song “Bright As the
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`Sun” is denied. When taking the allegations on the face of the Complaint as true and in the light
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`most favorable to the nonmoving party, OCP has alleged a plausible claim of copyright
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`infringement against ILP for its publication of “Bright As the Sun” in “You Are Holy.”
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`Defendants’ request for additional discovery on the issue is inappropriate at this juncture and
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`well beyond the scope of a motion to dismiss. “Judgment on the pleadings is limited to material
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`included in the pleadings.” Yakima Valley Mem'l Hosp. v. Washington State Dep't of Health,
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`654 F.3d 919, 925 n.6 (9th Cir. 2011).
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`In the June 15, 2010 Agreement, OCP granted ILP the license to reprint “Bright As the
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`Sun” in certain publications including “Living World.” Am. Compl. Exs. B, C, at 23–25. ILP
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`subsequently published the song in a songbook titled “You Are Holy,” claiming that only the
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`title of the publication changed and “[i]n all other respects, ILP comported with the terms of the
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`June 15, 2010 License.” Def. Mot. Dismiss. 13. OCP contends that “You Are Holy” is not the
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`same work as “Living World” and the Court must construe the facts in the light most favorable
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`to the nonmoving party. OCP licensed “Bright As the Sun” to ILP to be printed in a publication
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`titled “Living World” and instead, ILP printed the work in a publication titled “You Are Holy.”
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`OCP has alleged a cognizable copyright infringement claim and alleged sufficient facts allowing
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`the Court to draw the reasonable inference that ILP is liable to OCP. Therefore, Defendants’
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`motion to dismiss this claim is denied.
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`III.
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`CLAIMS AGAINST LAMB AND AMBROSETTI
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`OCP claims that Lamb, who publishes for and is owned by ILP, is liable for its role in
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`ILP’s alleged direct copyright infringement. OCP also claims that Ambrosetti, the President and
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`OPINION & ORDER - 9
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`publisher of ILP, is personally liable for playing a controlling role in the alleged direct
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`infringement and deriving a direct financial benefit from it.
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`A party may be vicariously or contributorily liable for the direct copyright infringement
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`of a third party. First, vicarious liability requires that the party: “(1) has the right and ability to
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`control [ILP’s] putatively infringing activity and (2) derives a direct financial benefit from [its]
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`activity.” MDY Indus., LLC v. Blizzard Entm't, Inc., 629 F.3d 928, 938 (9th Cir. 2010).
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`Second, a party may be contributorily liable for another party’s alleged copyright
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`infringement for intentionally inducing or encouraging the direct infringement. Id. at 937–38.
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`“[O]ne who, with knowledge of the infringing activity, induces, causes or materially contributes
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`to the infringing misconduct of another, may be held liable as a ‘contributory’ infringer[.]”
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`Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1171 (9th Cir. 2007) (quoting Gershwin
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`Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir.1971)).
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`A. Lamb Publications, LLC.
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`The Court denies Defendants’ request to dismiss OCP’s claims that Lamb is liable for
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`ILP’s alleged copyright infringement.
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`OCP alleges that Lamb “[w]ith knowledge of the infringement . . . materially contributed
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`to the infringing of others.” Am. Compl. ¶ 29. Plaintiff further alleges that Lamb published and
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`distributed the second edition of the Hymnal and the songbook “You Are Holy;” both of which
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`contain OCP songs that ILP allegedly did not have licenses to reprint. Id. ¶ 27–30. The Amended
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`Complaint contains sufficient factual allegations to support the reasonable inference that Lamb
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`knowingly included unlicensed songs in books that it published and distributed. Therefore, the
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`Court denies Defendants’ motion to dismiss OCP’s claims against Lamb.
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`B. Vince Ambrosetti
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`OPINION & ORDER - 10
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`The Court denies Defendants’ motion to dismiss OCP’s claims against Ambrosetti. The
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`Court finds that OCP has alleged sufficient factual content in its complaint to support a plausible
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`claim for relief: vicarious liability for direct copyright infringement.
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`As discussed above, to be held vicariously liable for copyright infringement the
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`defending party must: (1) have the right and ability to control the infringing activity; and (2)
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`derive a direct financial benefit from said activity. In other words one “infringes vicariously by
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`profiting from direct infringement while declining to exercise a right to stop or limit it.” Metro-
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`Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (citation omitted). To
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`prevail under this theory, OCP must “establish that the defendant exercises the requisite control
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`over the direct infringer and that the defendant derives a direct financial benefit from the direct
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`infringement.” Perfect 10, Inc., 508 F.3d at 1173. For purposes of the “control” element, “a
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`defendant exercises control over a direct infringer when he has both a legal right to stop or limit
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`the directly infringing conduct, as well as the practical ability to do so.” Id.
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`Here, OCP has alleged that Ambrosetti, as president and publisher of ILP, had access to
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`the contracts between the parties and that he derived a direct financial benefit from the Hymnal
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`and “You Are Holy.” Am. Compl. ¶¶ 38–39. Further, OCP alleges that Ambrosetti wrote the
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`letter identifying the OCP songs that ILP planned to reprint in the Hymnal. Id. OCP has alleged
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`sufficient facts to support the conclusion that Ambrosetti had both the right and ability to control
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`the infringing activity. Indeed, as the president of ILP, the Court can infer that he derived direct
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`financial benefits from the sale of the Hymnal and You Are Holy. Therefore, the Court finds that
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`when construing the facts in the light most favorable to the non-moving party, Plaintiff has
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`alleged sufficient facts to demonstrate that Ambrosetti may be vicariously liable for ILP’s
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`alleged copyright infringement.
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`OPINION & ORDER - 11
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`Moreover, while there may be other grounds for dismissing claims against Ambrosetti
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`and Lamb, Defendants only argued that ILP is not directly liable therefore Ambrosetti and Lamb
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`cannot be secondarily liable. As discussed above, the Court has denied Defendants’ motion to
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`dismiss at least some of OCP’s claims against ILP. Because claims of direct copyright
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`infringement against ILP survive Defendants’ motion to dismiss, Defendants’ argument on this
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`ground is unavailing.
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`ORDER
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`Defendants’ motion to dismiss is hereby granted in part for the reasons discussed above.
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`The motion is: denied with respect to the Hymnal Claims; granted with respect to the Songbook
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`Claim regarding “Glorious God”; denied with respect to the Songbook Claim regarding “Bright
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`As the Sun.” The motion is denied with respect to OCP’s claims against Lamb and Ambrosetti.
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`Plaintiff’s request for leave to amend its complaint to include allegations that it has submitted an
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`application for registration of “Glorious God” is granted.
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`Dated this day of ______________________, 2014.
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`MARCO A. HERNÁNDEZ
`United States District Judge
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`OPINION & ORDER - 12
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