Case 2:22-cv-02552-JTF-cgc Document 7-1 Filed 02/03/23 Page 1 of 20 PageID 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
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`TERESA LA DART,
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`Plaintiff,
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`v.
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`TAYLOR SWIFT, TAYLOR
`SWIFT PRODUCTIONS, INC.,
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`Defendants.
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`Case No. 2:22-cv-02552-JTF-cgc
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`DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
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`Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants Taylor Swift
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`and Taylor Swift Productions, Inc. (collectively, “Defendants”) move this Court for an Order
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`dismissing with prejudice Plaintiff Teresa La Dart’s Complaint containing a single count of
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`copyright infringement for failure to state a claim upon which relief can be granted. In support of
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`their Motion, Defendants state as follows.
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`INTRODUCTION
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`This is a lawsuit that never should have been filed, as it is legally and factually baseless.
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`Put simply, the elements Plaintiff Teresa La Dart claims were infringed are neither covered by her
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`copyright registration nor are they protectable under copyright law to begin with. Plaintiff claims
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`that Defendants’ work, Lover Deluxe Album Version 4—a book/diary accompanying Ms. Swift’s
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`2019 album titled Lover—infringes Plaintiff’s copyright in her book of poetry, titled Lover, by
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`allegedly copying Plaintiff’s book’s format, cover format, introduction page format, inner book
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`design, and back cover format. However, these allegedly-infringing elements, each a generic
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`design format, are not subject to copyright protection. Thus, Defendants could not possibly have
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`infringed Plaintiff’s copyright. Even if these elements were protectible under the Copyright Act,
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`Plaintiff’s copyright registration does not cover them and she does not have any rights to assert in
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`those allegedly-infringing elements. These flaws are incurable, and no amendment or attempt to
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`plead around these deficiencies can save Plaintiff’s claim.
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`Further, even if the elements Plaintiff asserts were protectible (they are not), and Plaintiff
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`had a copyright covering them (she does not), Plaintiff has not and cannot plead a plausible claim
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`of access by Defendants to Plaintiff’s work or substantial similarity between the two works—both
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`required elements of the Sixth Circuit’s test to establish unlawful copying. Indeed, Plaintiff has
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`not identified a single instance where her book of poetry was available for Defendants to see and
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`has not alleged that Defendants had any awareness of or access to her work prior to this lawsuit.
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`Moreover, a comparison of the two at-issue works shows that there is no substantial similarity
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`between them. Essentially, all Plaintiff has done in her Complaint is recite the elements of a claim
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`for copyright infringement without any factual or legal bases to support them. This is woefully
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`insufficient to adequately plead a cause of action and this case should be dismissed with prejudice.
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`FACTUAL BACKGROUND1
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`La Dart is the author and copyright claimant of her book of poetry, titled Lover (the “TLD
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`Work”). Compl. ¶ 1. The TLD Work is a compilation of poems written by Plaintiff with pictures
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`from Plaintiff’s life scattered throughout. See Exhibit A (scan of entire TLD Work).2 The TLD
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`1 While Defendants deny many of the allegations in the Complaint, for purposes of this Motion only, non-
`conclusory factual allegations are taken as true.
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` Plaintiff attached limited excerpts of the TLD Work and Swift Work to her Complaint. See Dkt. 1-3. For
`completeness, and because the intervening pages are pertinent to this Motion, Defendants have attached
`scans of the entirety of the TLD Work and Swift Work at Exhibits A and B, respectively. This Court may
`consider documents referred to in the Complaint, documents central to the Complaint, “public records,
`matters of which a court may take judicial notice, and letter decisions of governmental agencies.” Taylor v.
`Victoria’s Secret Stores, Inc., No. 10-cv-2334, 2011 WL 13097641, at *3 (W.D. Tenn. Sept. 29, 2011)
`(citations omitted).
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`2
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`Work was published by AuthorHouse on January 12, 2010, and received copyright registration on
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`February 5, 2010, under registration number TX0007143843. Compl. ¶¶ 1, 2. The TLD Work is
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`registered as a literary work with the authorship being “text,” and accordingly, Plaintiff’s copyright
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`registration is limited solely to the text of her book. See Dkt. 1-2. Plaintiff alleges that Ms. Swift’s
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`Lover Deluxe Album Version 4 (the “Swift Work”) infringes the TLD Work. However, Plaintiff
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`does not allege Defendants copied any of the text in the TLD Work. See Compl. ¶¶ 8–9. Rather,
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`Plaintiff alleges Defendants copied the TLD Work’s format, including its cover format,
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`introduction page format, inner book design, and back cover format, amounting to an “overall
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`impression” of substantial similarity. Id.
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`Taylor Swift released her seventh studio album titled Lover on August 23, 2019. In
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`conjunction with the Lover album release, Defendants released four versions of the Lover Deluxe
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`Album. See, e.g., TAYLOR SWIFT STORE, https://store.taylorswift.com/pages/deluxe-us (last visited
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`February 3, 2023). Together, all four versions contain 120 pages (30 unique pages in each version)
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`of Ms. Swift’s personal diary entries from over the years. In addition to different diary entries,
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`each version also has different photographs of Ms. Swift, organized in a collage format before and
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`after the diary entries; different photographs used and placed beside the foreword; and different
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`color themes used for the inner cover and introduction pages (pastel pink, purple, green, or blue).
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`All four versions have the same front and back cover formats, same foreword, and same title font
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`and placement throughout the works.3 Plaintiff has limited her copyright claim only to Version 4
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`of the Lover Deluxe Album. See Compl.; see also Dkt. 1-3.
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`Ms. Swift is the author and copyright claimant of the Swift Work. The Swift Work consists
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`of a foreword that Ms. Swift wrote, 30 unique pages of Ms. Swift’s scanned entries from her
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`3 Defendants are happy to provide copies of the four versions to the Court upon request.
`3
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`personal diary over several years, pictures that Ms. Swift drew, and photographs from Ms. Swift’s
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`past. Exhibit B (scan of entire Swift Work). The Swift Work also includes several blank pages for
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`the owner of that copy to write their own diary entries and a CD of the Lover album. See Ex. B.
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`The Swift Work received copyright registration on September 3, 2019, under registration number
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`SR0000856458. Exhibit C. The Swift Work is registered as a “unit of publication containing
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`collective work(s) and other component element(s),” and accordingly, Defendants’ copyright
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`registration of the Swift Work protects the included sound recordings, photographs, front and back
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`cover photographs, liner notes, and compilation of content. See Ex. C.
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`LEGAL STANDARD
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`A Rule 12(b)(6) motion permits Defendants “to test whether, as a matter of law, the
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`plaintiff is entitled to legal relief even if everything alleged in the complaint is true.” Campbell v.
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`Nationstar Mortg., 611 Fed. App’x 288, 291 (6th Cir. 2015). Plaintiff must plead “more than labels
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`and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
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`Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Siefert v. Hamilton Cnty., 951 F.3d 753,
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`759 (6th Cir. 2020) (noting that factual allegations cannot “merely recite the elements of a cause
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`of action”). Rather, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
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`a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
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`Twombly, 550 U.S. at 570). “The complaint will be found plausible on its face only 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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`defendant is liable for the misconduct alleged.’” Griham v. City of Memphis, No. 2:21-cv-02506,
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`2022 WL 989175, at *1 (W.D. Tenn. Mar. 31, 2022) (citing Iqbal, 556 U.S. at 678). “The Sixth
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`Circuit Court of Appeals has recognized that “[c]opyright infringement . . . lends itself readily to
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`abusive litigation . . . . Therefore, greater particularity in pleading, through showing ‘plausible
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`grounds,’ is required.” Taylor v. Victoria’s Secret Stores, Inc., No. 10-2334, 2011 WL 13097641,
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`at *3 (W.D. Tenn. Sept. 29, 2011) (citing Nat’l Bus. Dev. Servs., Inc. v. American Credit Educ. &
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`Consulting, Inc., 299 Fed. Appx. 509, 512 (6th Cir. 2008)). Plaintiff has not met this standard.
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`Plaintiff’s Complaint, even taken as true, fails to establish a legal claim that is plausible on its face,
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`and consequently, dismissal is required. See Twombly, 550 at 570; Iqbal, 556 U.S. at 678.
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`ARGUMENT
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`I. The Court Should Dismiss Plaintiff’s Copyright Infringement Claim with Prejudice
`Under Rule 12(b)(6) Because Plaintiff Failed to Plead a Plausible Infringement Claim
`Under the Copyright Act and No Amendment Will Fix these Fatal Flaws.
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`A. The Allegedly-Infringing Elements Are Not Protected Elements of Expression.
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`The elements Plaintiff claims are infringed are not protected elements of expression. This
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`is fatal to her claim. An actionable copyright infringement claim must establish that defendants
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`copied elements of a work that are original. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
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`U.S. 340, 361 (1991); Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003); Murray Hill Publ’ns,
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`Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 316 (6th Cir. 2004). Although for the
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`purposes of this Motion, Defendants do not contest that Plaintiff is the owner of the registered
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`copyright in the TLD Work, the “mere fact that a work is copyrighted does not mean that every
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`element of the work may be protected.” Feist Publ’ns, Inc., 499 U.S. at 348. Copyright protection
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`is afforded only to elements in a work that were “independently created by the author” and
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`“possess[] at least some minimal degree of creativity.” Kohus, 328 F.3d at 853. “In no case does
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`copyright protection for an original work of authorship extend to any idea, procedure, process,
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`system, method of operation, concept, principle, or discovery, regardless of the form in which it is
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`described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). The Sixth Circuit
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`and the Register of Copyrights have both made it clear that the “format, book design, and the
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`arrangement of material on the printed page . . . cannot constitute the subject of copyright
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`registration because they are merely ‘ideas or concepts’ and therefore not subject to copyright.”
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`Journal Commc’ns, Inc. v. Sabo, No. 3:07-00605, 2008 WL 821524, at *4 (M.D. Tenn. Mar. 26,
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`2008); see U.S. COPYRIGHT OFF., COMPENDIUM OF U.S. COPYRIGHT OFF. PRACS. § 707.3 (3d ed.
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`2021) (“The overall format or layout of a book or other printed publication cannot be registered
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`with the U.S. Copyright Office.”); U.S. COPYRIGHT OFF., CIRCULAR 33: WORKS NOT PROTECTED
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`BY COPYRIGHT (2021) [hereinafter CIRCULAR 33], https://www.copyright.gov/circs/circ33.pdf
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`(“[T]he Office will not accept a claim to copyright in ‘format’ or ‘layout’ . . . of a book, page, [or]
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`book cover . . . because it is a template for expression.”). The U.S. Copyright Office further
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`explains which elements are encompassed within a book design or format and are thus not
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`protectible elements under the Copyright Act.
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`Book design includes all of the physical or visual attributes of a book or printed
`publication, such as the choice of style and size of typeface, leading (i.e., the space
`between lines of type), the placement of the folio (i.e., page numbers), the
`arrangement of type on the pages, or the placement, spacing, and juxtaposition of
`textual and illustrative matter in the work. The copyright law does not protect these
`elements because they fall within the realm of uncopyrightable ideas. Deciding how
`and where to place content in a book or printed publication is merely a process
`or technique, regardless of the number of decisions involved. The fact that “a work
`is distinctive, unique or pleasing in appearance, and embodies certain ideas of
`contrast or coloring does not necessarily afford a basis for copyright protection.”
`Registration of Claims to Copyright: Notice of Termination of Proposed
`Rulemaking Regarding Registration of Claims to Copyright in the Graphic
`Elements involved in the Design of Books and Other Printed Publications, 46 Fed.
`Reg. 30,651, 30,652 (June 10, 1981).
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`COMPENDIUM (THIRD) § 707.3 (emphasis added). As a result, before a court even gets to a
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`substantive comparison of alleged similarities between two works, it must “first identify and
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`eliminate those elements that are unoriginal and therefore unprotected.” Kohus, 328 F.3d at 853.
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`Plaintiff alleges that the Swift Work includes substantially the same (1) book format (a
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`combination of written and pictorial components memorializing past years); (2) inner book design
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`(“interspersed photographs and writings throughout”); (3) cover format and title page format
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`(showing the author photographed in a “downward pose” and color scheme of “pastel pinks and
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`blues” with the same title “Lover” placed in the center top third of the title page); (4) back cover
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`format (including a photograph of the author in an “upward pose” with the same color scheme of
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`pastel blues and pinks); and (5) introduction page format (styling the work’s title in cursive,
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`including a photograph of the author in a “nature setting and turned to the right” and a foreword
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`consisting of “substantially similar greetings and wishes for the reader”). Compl. ¶ 8. None of
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`these allegedly-infringing elements are protectible under the Copyright Act.
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`Book format and inner book design. The TLD Work’s book format and inner book design
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`are not protectible ideas. On the contrary, these are merely common concepts for a literary work
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`that are not copyrightable. Sabo, 2008 WL 821524, at *4; COMPENDIUM (THIRD) § 707.3. Non-
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`dramatic literary works of all kinds—children’s books, memoirs, autobiographies, cookbooks,
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`non-fiction books, and many others—will frequently use a combination of written and pictorial
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`components interspersed throughout the work. The idea of how to organize a literary work is not
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`protectible expression; it is an uncopyrightable idea. COMPENDIUM (THIRD) § 707.3 (“Deciding
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`how and where to place content in a book or printed publication is merely a process or technique,
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`regardless of the number of decisions involved.”).
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`Cover format, title page format, and back cover format. The TLD Work’s cover, title
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`page, and back cover formats are, individually and collectively, not unique or original enough to
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`amount to protectible expression. See COMPENDIUM (THIRD) § 707.3; CIRCULAR 33. Collectively,
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`these arrangements of material on the front and back covers creating the layout of the page are not
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`copyrightable because they are merely templates of expression, as clearly explained in the
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`Copyright Act and by the Copyright Office, Register of Copyrights, and Sixth Circuit courts. See,
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`e.g., Sabo, 2008 WL 821524, at *4; COMPENDIUM (THIRD) § 707.3; CIRCULAR 33. Individually,
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`these elements are also not protectible. First, Plaintiff has no exclusivity or protection in the title
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`Lover. “Words and short phrases such as names, titles, and slogans” are not subject to federal
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`copyright protection. 37 C.F.R. § 202.1(a); COMPENDIUM (THIRD) § 313.4(C) (explaining that
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`titles are not copyrightable because they contain de minimus amount of authorship and providing
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`“the title or subtitle of a work of authorship” as an example of what cannot receive copyright
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`registration); ShoLodge, Inc. v. Travelers Indem. Co., 168 F.3d 256, 259 (6th Cir. 1999) (noting
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`that the title, a name used to identify a literary or artistic work, is not copyrightable). Second, the
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`placement of a book’s title in the top third and center of the page just after the cover is standard
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`practice for literary works of all types, and is a common concept that is not copyrightable. See
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`COMPENDIUM (THIRD) § 707.3 (“[T]he arrangement of type on the pages or . . . [d]eciding how
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`and where to place content in a book . . . [are] not protect[ible] [ ] elements.”). The common use
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`of cursive fonts (different cursive fonts) and pink backgrounds (different shades of pink) on the
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`TLD Work’s cover and back cover is similarly not unique or creative enough to be protectible
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`expression; mere variations or selected pairings of colors, such as using pink and blue for the
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`background of a cover and/or back cover page, are not copyrightable. See 17 U.S.C. § 102(b);
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`COMPENDIUM (THIRD) § 313.4(K) (“The Office cannot register a claim to copyright in color in and
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`of itself or a system for matching pairs and sets of colors. Likewise, the Office cannot register
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`mere variations in coloring, regardless of whether the variations are made by hand, by computer,
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`or any other process.”); 37 C.F.R. § 202.1(a). Third, typeface or mere variations of typeface are
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`also not protected by copyright law. See 17 U.S.C. § 102(b); COMPENDIUM (THIRD) § 313.3(D)
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`(“Typeface includes typefonts . . . .”); H.R. REP. NO. 94-1476, at 55 (1976) (Congress addressed
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`this issue in the 1976 Act and decided that typeface is not copyrightable). Fourth, the alleged
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`similar “downward pose” in the cover photo and “upward pose” in the back cover photo are not
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`sufficiently creative or unique to be protectible or exclusive to one party. See NOCO Co. v.
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`Shenzhen Dingjiang Tech. Co., No. 1:21-cv-1483, 2022 WL 80363, at *2–3 (N.D. Ohio Jan. 7,
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`2022) (noting that a photographer cannot “copyright the pose itself and thereby prevent others
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`from photographing a person in the same pose”); Rentmeester v. Nike, Inc., 883 F.3d 1111, 1119–
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`20 (9th Cir. 2018), overruled on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069
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`(9th Cir. 2020) (en banc) (holding that photographs are usually granted a thin copyright, not in the
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`pose itself, but “for the way the pose is expressed in his photograph, a product of not just the pose
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`but also the camera angle, timing, and shutter speed”). Notably, Plaintiff does not allege
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`infringement of the photographs themselves, just the inclusion of photographs with an allegedly-
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`similar pose on the pages. Including a photo on the front and/or back cover of a book is a formatting
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`idea typical of literary works and is not protected under copyright law. See COMPENDIUM (THIRD)
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`§ 707.3 (explaining that decision on “how and where to place content in a book” or “the placement,
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`spacing, and juxtaposition of textual and illustrative matter in the work[,]” such as the inclusion of
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`a photograph on the cover, are not protected by copyright law “because they fall within the realm
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`of uncopyrightable ideas”).
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`Introduction page format. The TLD Work’s introduction page format is also, collectively
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`and individually, not protectible under copyright law. Collectively, an overwhelming majority of
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`literary works include an introduction page with this exact, standard format: title, photograph of
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`the author, and a foreword or author’s note. See Bounce Exchange, Inc. v. Zeux Enterprise Ltd.,
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`No. 15CV3268, 2015 WL 8579023, at *3 (S.D.N.Y. Dec. 9, 2015) (noting that there are several
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`common formats in literary works, for example, “the name of a book’s author appears typically on
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`both the cover and several pages inside the book.”). This layout is no different than the cover page
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`and back cover page layouts, and similarly is not copyrightable.
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`Individually, these elements are also not protectible. A literary work will often include an
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`author’s note or foreword in the beginning of the work. See id. Setting both photographs in “nature”
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`with the subject “turned to the right” is not creative or original enough to receive copyright
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`protection. See Rentmeester, Inc., 883 F.3d at 1119–20 (“The individual elements that comprise a
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`photograph can be viewed . . . as the equivalent of unprotectable ‘facts’ that anyone may use to
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`create new works. . . . [A] photographer’s . . . thin copyright . . . is limited to the particular
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`selection and arrangement of the . . . photo’s otherwise unprotected elements[,] . . . not any of the
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`individual elements standing alone.”). Regardless, Plaintiff does not allege infringement of the
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`photograph, just inclusion of a photograph beside the foreword, with a subject set in nature and
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`turned to the right (again, all elements that are entirely common and are not protectible). Thus,
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`Defendants’ allegedly-infringing foreword is a commonplace element that follows naturally in
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`literary works of all kinds and is not protectible. See ACT, Inc. v. Worldwide Interactive Network,
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`No. 3:18-cv-186, 2020 WL 12574239, at *7 (E.D. Tenn. Mar. 10, 2020) (copyright protection does
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`not extend to “elements that follow naturally from the work’s theme, rather than from the author’s
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`creativity or elements that are dictated by external factors”) (quoting Kohus v. Mariol, 328 F.3d
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`848, 856 (6th Cir. 2003)); COMPENDIUM (THIRD) § 313.3(B). The primary and common purpose
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`of a foreword is to greet and express well wishes to the reader and explain the purpose of the work,
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`and there are only a limited number of ways to present those sentiments. Thus, the allegedly similar
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`content in the two forewords—providing background on the author’s past, explaining the
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`inspiration for the work, and expressing well wishes to the reader—is not protectible because it is
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`“dictated to some degree by the functional considerations inherent in conveying the desired
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`information” about the work. Sabo, 2008 WL 821524, at *4. These generic, broad alleged
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`similarities are not unique or original enough to establish a plausible claim for copyright
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`infringement.
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`In sum, the allegedly-infringing elements Plaintiff asserts are not copyrightable in any
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`circumstance. “Because the[se] [elements are] not subject to copyright protection, Defendant[s]
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`did not infringe Plaintiff’s copyright” and Plaintiff’s claim must be dismissed with prejudice.
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`Taylor, 2011 WL 13097641, at *6; see Moses v. YouTube, Inc., No. 12-2822, 2013 WL 12095139,
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`at *6–7 (W.D. Tenn. Sept. 23, 2013), R. & R. adopted by 2014 WL 549205 (W.D. Tenn. Feb. 11,
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`2014) (granting defendant’s motion to dismiss where plaintiff “d[id] not sufficiently plead the
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`copying of constituent elements of her work that are original”).
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`B. Plaintiff Does Not Have Rights in the Allegedly-Infringing Elements She Asserts.
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`Even if the allegedly-infringing elements were protected elements of expression (as
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`explained above, they are not), Plaintiff’s claim would still fail because Plaintiff does not have
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`copyright protection in the elements of the TLD Work she claims are infringed. To proceed with
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`a copyright infringement claim, Plaintiff must first establish that she owns a valid copyright in the
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`work. See Feist Publ’ns, Inc., 499 U.S. at 361; Kohus, 328 F.3d at 853; Murray Hill Publ’ns, Inc.,
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`361 F.3d at 316. However, copyrights are not a one-size-fits all endeavor; copyrights can be
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`obtained in, and thus protect, various elements of a work. See, e.g., Bridgeport Music, Inc. v. Still
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`N the Water Publ’g, 327 F.3d 472, 475 n.3 (6th Cir. 2003) (explaining that a song can be registered
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`as a sound recording or a musical composition, and that the scope of each registration is limited to
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`the recorded performance of the song or the music and lyrics embodied); Zomba Enters. v.
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`Panorama Records, Inc., 491 F.3d 574, 578 n.1 (6th Cir. 2007) (explaining that a song can also be
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`registered as a literary work, with the scope of the registration limited to the song’s lyrics). Thus,
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`for Plaintiff to assert a supportable claim here, she must establish that the scope of her copyright
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`covers the elements she claims are infringed by the Swift Work. Plaintiff has failed to do so.
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`Plaintiff alleges that she is the owner of a registered copyright in the TLD Work and has
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`provided her Certificate of Registration. Compl. ¶¶ 1–2; Dkt. 1-2. For the purposes of this Motion,
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`Defendants do not contest Plaintiff’s allegation that she is the owner of a registered copyright in
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`the TLD Work. However, Plaintiff’s allegation that, in her view, the scope of that copyright
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`“includes the entirety of the book, including all design and textual elements thereof” (Compl. ¶ 3),
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`is demonstrably wrong. Plaintiff’s Certificate of Registration is for a literary work, or a “TX” (text)
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`copyright, claiming authorship in the text alone. Dkt. 1-2. A copyright in a literary work is limited
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`solely to the specific textual content in the book and does not include the book’s design or format.
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`See COMPENDIUM (THIRD) § 707.3 (“The overall format or layout of a book or other printed
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`publication cannot be registered with the U.S. Copyright Office[] . . . because they fall within the
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`realm of uncopyrightable ideas.”); CIRCULAR 33 (“[T]he Office will not accept a claim to copyright
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`in ‘format’ or ‘layout’ . . . of a book, page, [or] book cover . . . because it is a template for
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`expression.”); see also supra Section I.A. Plaintiff, therefore, may only assert her rights in the
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`TLD Work’s text. Nowhere in the Complaint does Plaintiff allege Defendants copied the text of
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`the TLD Work. In fact, as explained above, each of the allegedly-infringing elements in Plaintiff’s
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`Complaint fall within the U.S. Copyright Office’s book design and format definition. Thus,
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`Plaintiff has no rights in the allegedly-infringing elements and cannot state a claim for copyright
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`infringement by Defendants.
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`While it is true that a particular layout of a cover, such as a magazine cover, can receive
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`copyright protection in certain instances, the cover must be registered as a graphic work to protect
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`the layout or design, and the author must have “combined and arranged common forms to create a
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`unique graphic design and layout” that rises above the mere combination of unprotectible
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`formatting choices. Reader’s Digest Assoc., Inc. v. Conservative Digest, Inc., 821 F.2d 800, 806
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`Case 2:22-cv-02552-JTF-cgc Document 7-1 Filed 02/03/23 Page 13 of 20 PageID 36
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`(D.C. Cir. 1987), abrogated on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
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`Only then may “the distinctive arrangement and layout . . . [be] entitled to protection as a graphic
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`work.” Id. Even assuming the allegedly-infringed elements of the TLD Work could be considered
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`a “unique graphic design and layout” (as detailed above, they are not), Plaintiff does not have a
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`graphic design copyright in the overall design or format of the TLD Work, or in its cover, back
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`cover, or introduction page. Instead, Plaintiff registered the TLD Work as a literary work. See Dkt.
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`1-2. Without copyright registration in the TLD Work’s design and format as a graphic design,
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`Plaintiff is barred from bringing a copyright infringement action against Defendants in the
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`infringement of the TLD Work’s design and format. See, e.g., Fourth Estate Public Benefit Corp.
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`v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019) (clarifying that a person is barred from bringing a
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`copyright infringement suit until the Copyright Office grants (or denies) copyright registration in
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`the allegedly-infringing elements or work). Because Plaintiff’s copyright in the literary work does
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`not include the allegedly-infringing elements she asserts, Plaintiff’s copyright infringement claim
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`must be dismissed with prejudice.
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`C. Even If the Allegedly-Infringing Elements Are Somehow Protected, Plaintiff
`Failed to Plausibly Plead Copying and Has Failed to State a Claim.
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`Even assuming arguendo that Plaintiff could overcome the foregoing fatal flaws in her
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`copyright claim, her claim would still fail for failure to adequately allege copying. To state a claim
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`for copyright infringement, Plaintiff must show copying of protected elements of the work either
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`through direct or indirect evidence. See, e.g., Murray Hill Publ’ns, Inc., 361 F.3d at 316. “‘Direct
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`evidence of copying is rare,’ and may be established through ‘evidence such as party admissions,
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`witness accounts of the physical act of copying, and common errors in the works of plaintiffs and
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`the defendants.’” Enchant Christmas Light Maze & Mkt. Ltd. v. Glowco, LLC, 958 F.3d 532, 536
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`(6th Cir. 2020) (first quoting Parker v. Winwood, 938 F.3d 833, 836 (6th Cir. 2019); and then
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`Case 2:22-cv-02552-JTF-cgc Document 7-1 Filed 02/03/23 Page 14 of 20 PageID 37
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`
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`quoting Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999)). Here, Plaintiff does not allege any direct
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`evidence of copying. See generally Complaint. Accordingly, she must adequately allege indirect
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`evidence of copying. To do so in the Sixth Circuit, Plaintiff must show (1) access to the allegedly
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`infringed work by the defendants and (2) a substantial similarity between the two works from the
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`viewpoint of the ordinary observer. Stromback v. New Line Cinema, 384 F.3d 283, 294 (6th Cir.
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`2004). Plaintiff has failed to adequately allege either prong of that test.
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`1. Access
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`“Access requires the defendant’s seeing or having a reasonable opportunity to see
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`plaintiff’s work and thus having the opportunity to copy it.” Winfield Collection, Ltd. v. Gemmy
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`Indus., Corp., 147 Fed. Appx. 547, 553 (6th Cir. 2005); Halper v. Sony/ATV Music Publ’g, LLC,
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`No. 18-5915, 2019 WL 994524, at *2 (6th Cir. Feb. 15, 2019); Jones v. Blige, 558 F.3d 485, 491
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`(6th Cir. 2009). A bare possibility of access is insufficient and “[a]ccess may not be inferred
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`through mere speculation or conjecture.” Diffie, 177 F.3d at 506.
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`Plaintiff’s only allegation related to access is that the TLD Work was published in 2010
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`and made available on “various channels”, that “allow[ed] for repeated and long-term access” to
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`Defendants. Compl. ¶ 10. This conclusory, single allegation is woefully deficient and, if
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`permissible, would allow any plaintiff to allege an entirely unsubstantiated access claim. The mere
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`fact that a work has been published and is offered for purchase, with nothing more, is insufficient
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`to allow the Court to draw a reasonable inference that Defendants had access to the TLD Work.
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`See Halper, 2019 WL 994524, at *2 (holding that plaintiff failed to sufficiently allege access where
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`plaintiff claimed wide dissemination of his work but did not allege defendants were given the work
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`or had a reasonable opportunity to hear the work); Duncan v. New Line Cinema, Inc., No. 06-1163,
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`2008 WL 11414543, at *4 (W.D. Tenn. Mar. 18, 2008) (deciding that plaintiff did not sufficiently
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`allege access because plaintiff was “not able to provide any details or documentation of alleged
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`Case 2:22-cv-02552-JTF-cgc Document 7-1 Filed 02/03/23 Page 15 of 20 PageID 38
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`access”). Indeed, nowhere does Plaintiff allege circumstances where Defendants would have seen
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`or been given the TLD Work prior to the filing of this Complaint, nor does Plaintiff allege how or
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`where Defendants could have reasonably come across the TLD Work. Further, Plaintiff does n