17-1957-cv Yamashita v. Scholastic Inc.
United States Court of Appeals FOR THE SECOND CIRCUIT ______________
August Term, 2017
(Argued: February 2, 2018 Decided: August 28, 2019)
Docket No. 17‐1957‐cv ______________
MICHAEL YAMASHITA, MICHAEL YAMASHITA, INC.,
Plaintiffs‐Appellants,
–v.–
SCHOLASTIC INC.,
Defendant‐Appellee.* ______________
B e f o r e:
POOLER, SACK, and CARNEY, Circuit Judges.
______________
Plaintiffs‐Appellants Michael Yamashita, a professional photographer and sole owner of Michael Yamashita, Inc., and Michael Yamashita, Inc. (collectively, “Yamashita”), appeal from a judgment entered in the United States District Court for the Southern District of New York (Forrest, J.) in favor of Defendant‐Appellee Scholastic Inc., a textbook publisher, finding Yamashita’s statement of claims for copyright infringement insufficient under Fed. R. Civ. P. 12(b)(6). Yamashita argues that the District Court erred in: (1) dismissing his one‐count Complaint for infringement, which
* The Clerk of Court is directed to amend the docket caption to conform to the above. alleged that Scholastic exceeded the limitations of the licenses that it purchased for Yamashita’s photographs from Corbis Corporation, a stock photography agency; (2) ruling that Yamashita’s proposed amendments did not cure the Complaint’s defects and therefore denying leave to amend as futile; and (3) denying Yamashita leave to add to his Complaint four new, common‐law claims. We address Yamashita’s first two arguments in this Opinion, and the third in an accompanying summary order. We AFFIRM the District Court’s judgment.
AFFIRMED. ______________
MAURICE HARMON (Christopher Seidman, Gregory N. Albright, on the brief), Harmon Seidman Bruss & Kerr, LLC, Grand Junction, CO, for Plaintiffs‐Appellants Michael Yamashita and Michael Yamashita, Inc.
EDWARD H. ROSENTHAL (Craig B. Whitney, on the brief), Frankfurt Kurnit Klein & Selz, P.C., New York, NY, for Defendant‐Appellee Scholastic Inc. ______________
PER CURIAM:
Plaintiffs‐Appellants Michael Yamashita, a professional photographer and sole
owner of Michael Yamashita, Inc., and Michael Yamashita, Inc. (collectively,
“Yamashita”1), appeal from a judgment entered in the United States District Court for
1Although some of the transactions we describe took place in the context of Michael Yamashita’s corporation as well as or in place of him personally, for ease of reading we refer to both the individual and his corporation throughout this Opinion using the personal pronouns “he,” “his,” and “him.” We note any difference where required.
2 the Southern District of New York (Forrest, J.) in favor of Defendant‐Appellee Scholastic
Inc. (“Scholastic”), an international publisher of children’s books and textbooks. In 2016,
Yamashita sued Scholastic for copyright infringement, claiming that Scholastic
exceeded the use limits set in the licenses to Yamashita’s works that Scholastic
purchased from Corbis Corporation (“Corbis”), a stock photography agency that
Yamashita had authorized to license his works. The Complaint did not specify the use
limits imposed by the Corbis license nor did it allege how Scholastic breached those
limits. The District Court dismissed the Complaint for failure to state a claim and
denied leave to amend on futility grounds.
On appeal, Yamashita argues primarily that the District Court erred by: (1)
finding the Complaint insufficient; (2) ruling that his Proposed Amended Complaint
did not cure the defects in the Complaint that the Court identified; and (3) denying him
leave to plead four new, common‐law claims. We address the first two of these
arguments in this Opinion, and the third in an accompanying summary order.
For the reasons set forth below, we AFFIRM the District Court’s judgment.
BACKGROUND2
Michael Yamashita is a professional photographer and the sole owner of Michael
Yamashita, Inc. In an agreement entered into sometime before 2000, Yamashita
authorized Corbis, a stock photography agency, to grant limited licenses for use of
2As we must on reviewing a Rule 12(b)(6) dismissal, we accept as true the facts as stated in the Complaint and the Proposed Amended Complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016).
3 Yamashita’s photographs to interested publishers. Corbis, acting under its own
agreements with Scholastic (the world’s largest publisher and distributor of children’s
books), granted such licenses to Scholastic. Corbis is not a party to this suit.
1. Original Complaint and transfer to the Southern District of New York
In June 2016, Yamashita sued Scholastic in the United States District Court for the
District of New Jersey, alleging that the publisher infringed his copyright in
82 photographs by exceeding the terms of the corresponding limited licenses purchased
through Corbis. Yamashita listed the photographs that were the subject of the suit (the
“Photographs”) and some related information in a spreadsheet attached as Exhibit 1 to
his Complaint.3
Exhibit 1 displayed the following information for each Photograph: (a) a
“thumbnail” copy of the image; (b) an “Image ID” number; (c) a brief description of the
image;4 (d) the image’s copyright registration number and registration date; (e) the
number and date of the invoice that Corbis issued to Scholastic capturing the related
license; and (f) the imprint within Scholastic for which the publisher had purchased the
related license. In addition, the Exhibit 1 spreadsheet included a column labelled
3The spreadsheet contains 119 rows, each corresponding to an invoice issued by Corbis to Scholastic. Several rows appear to reference one and the same photograph, compare J.A. at 17 (Row 1), with id. (Row 3), but in general, each row appears to be assigned to a single image.
4E.g., J.A. at 17 (Row 1: “Lobby at the Guggenheim Museum”); id. (Row 2: “Beekeeper at Work”); id. (Row 5: “Kendo Students at Practice”).
4 “Publication” and another column labelled “License Limits.” With two exceptions,5 the
columns provided for “Publication” and “License Limits” contained no data.
In his Complaint, Yamashita alleged “[u]pon information and belief” that “the
licenses granted Scholastic were expressly limited by number of copies, distribution
area, language, duration, and/or media.” J.A. at 12, ¶ 11. Scholastic “exceeded the
licenses” that it purchased, Yamashita alleged, and “infringed Yamashita’s copyrights
in the Photographs in various ways,” including (in Yamashita’s words) by:
a. printing more copies of the Photographs than authorized; b. distributing publications containing the Photographs outside the authorized distribution area; c. publishing the Photographs in electronic, ancillary, or derivative publications without permission; d. publishing the Photographs in international editions and foreign publications without permission; and/or e. publishing the Photographs beyond the specified time limits. Id. ¶ 13. According to Yamashita, “at the time Scholastic represented to Corbis that it
needed specified, limited licenses to use the Photographs in particular publications,
Scholastic often knew its actual uses would exceed the rights it was requesting and
paying for.” Id. ¶ 12. Yamashita asserted that “Scholastic alone knows of [its] wholly
unauthorized uses,” and that Scholastic did “not share[] this knowledge with
Yamashita.” Id. at 13, ¶¶ 14–15. The Complaint also identified eight other lawsuits in
5Rows 16 and 80—both citing licenses for a photograph of “Astronaut Ellison Onizuka”— identify the publication in which the photograph appears (“SSS Hawaii” and “Hawaii (SSS)(PBK)”) as well as the applicable license limits (20,000 and 25,000, respectively).
5 which Scholastic in recent years “has been sued for copyright infringement in
furtherance of its under‐licensing practices.” Id. ¶ 16. As a remedy, Yamashita sought
both injunctive relief and damages.
Scholastic moved to dismiss the Complaint under Federal Rule of Civil
Procedure Rule 12(b)(6) or, in the alternative, to transfer venue to the Southern District
of New York. Yamashita opposed both. The United States District Court for the District
of New Jersey (Chesler, J.) granted the motion to transfer, concluding that, inter alia, the
suit fell within a valid forum selection clause contained in certain Preferred Vendor
Agreements (“PVAs”) between Corbis and Scholastic that governed their licensing
relationship. It also ruled that Yamashita was bound by the PVAs’ forum selection
clause—which designated the Southern District of New York for dispute resolution—
because Corbis acted as Yamashita’s agent when it entered into the PVAs. See Yamashita
v. Scholastic Inc., No. 16‐cv‐3839 (SRC), 2016 WL 6897781, at *2−3 (D.N.J. Nov. 21, 2016).
Having decided to transfer the case, the court declined to rule on the merits of the
motion to dismiss. See id. at *1.
2. The motion to dismiss
In the Southern District of New York, Scholastic renewed its motion and the
court dismissed the case. See generally Yamashita v. Scholastic, Inc., No. 16‐cv‐9201 (KBF),
2017 WL 74738 (S.D.N.Y. Jan. 5, 2017) (Forrest, J.). Invoking the copyright infringement
standard set forth in Kelly v. L.L. Cool J, 145 F.R.D. 32 (S.D.N.Y. 1992), aff’d 23 F.3d 398
(2d Cir. 1994) (Table), the District Court ruled that the Complaint “[did] not plead
sufficient facts to support its claims beyond mere speculation,” and thus that the
pleading both ran afoul of Federal Rule of Civil Procedure 8 and failed to satisfy the
6 plausibility standards for pleading established in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Yamashita, 2017 WL 74738, at *1−2.
In particular, the court faulted Yamashita’s Complaint for its “speculat[ion]
about ‘various ways’ defendant[] might have infringed” his copyrights and its failure to
“name a single instance of infringement or [to] allege facts to establish a timeframe for
when such an infringement might have occurred.” Id. at *1 (quoting J.A. at 12, Compl.
¶ 13). In the District Court’s view, the Complaint did not “give the defendant fair notice
of what the claim is and the grounds upon which it rests,” id. (alteration omitted)
(quoting Twombly, 550 U.S. at 555). The court further found the Complaint inadequate
because it “contain[ed] so few factual allegations it is nothing more than a fishing
expedition,” id. at *2. The court therefore granted Scholastic’s motion to dismiss and did
so with prejudice.
3. Proposed Amended Complaint and ruling on motion for reconsideration
On Yamashita’s subsequent motions, the court denied both reconsideration and
leave to file a Proposed Amended Complaint (“PAC”), ruling that the PAC failed to
cure the original Complaint’s deficiencies. Indeed, the PAC was largely identical to the
Complaint, providing the same information about the parties, jurisdiction, and venue,
and the same allegations charging “Copyright infringement against Scholastic.” The
PAC contained several additions and modifications to the Complaint’s statement of the
copyright infringement claim, however. Yamashita attached to the PAC copies of three
images of his Photographs as they appeared in Scholastic publications. See J.A. at 310,
¶ 15 (Exhibits 2 through 4). With respect to one specific image, identified in Row 80 of
Exhibit 1, the PAC included additional information about Scholastic’s use of the image
7 in one of its publications. Yamashita contends that the three new exhibits to the PAC,
Exhibits 2 through 4, established Scholastic’s use of the relevant image after the
expiration of the relevant license. See id. at 310–11, ¶ 16. And, unlike the original
Complaint, the PAC also asserted four common‐law causes of action: “Breach of
contract/specific performance”; “Bailment/breach of duties of bailee”; “Conversion”;
and “Accounting.” Id. at 312–18, ¶¶ 25–65.
In the PAC, Yamashita casts Scholastic’s alleged infringement as a “‘commit‐the‐
perfect‐crime’ approach’” to copyright infringement. J.A. at 308, ¶ 2. Thus, he alleged
that Scholastic: “obtains access to a professional photographer’s high‐resolution
photographs in connection with licenses”; “secures licenses with unrealistically low
limits because that costs Scholastic less”; “use[s] the photographs beyond the limits of
the licenses”; “is able to conceal its infringements because the licensor does not know if
and when Scholastic exceeds any particular license’s limits”; “refuses to disclose
information about its usages of the photographs—information that is uniquely within
Scholastic’s control”; and “argues in court that infringements claims pleaded ‘upon
information and belief’ . . . must be dismissed because details known only to Scholastic
are not included in the complaint.” J.A. at 308, ¶ 2. The Complaint, too, contained these
allegations but presented them less emphatically as providing Yamashita’s justification
for the lack of particularity in pleading the alleged breaches. Compare id., with id. at 12–
13, ¶¶ 12−15.
The District Court rejected Yamashita’s post‐dismissal motions in a brief hand‐
written order. In addition to denying reconsideration, the court rejected Yamashita’s
request to amend his copyright infringement claim (except as to the Row‐80 image),
8 ruling that amendment would be futile because “plaintiff has shown not a single fact
supportive of an infringement claim with regard to any of those images.” SPA at 4. The
court also denied Yamashita leave to add the proposed common‐law claims to his
Complaint, reasoning that each “depend[s] on a series of generic PVAs to which
plaintiff is not a party,” and that “[t]o bring such claims might well require joinder of
Corb[i]s.” Id. The court further wrote that “[i]t [was] also unclear and not ple[]d that
Scholastic has breached its obligations to Corb[i]s.” Id. Accordingly, the court ordered
Yamashita to file a revised amended complaint that would contain only Yamashita’s
claim relating to the Row‐80 image.
Yamashita did as ordered; Scholastic answered; and the parties then stipulated to
a Rule 41 dismissal with prejudice of the Row‐80 infringement claim, whereupon the
court then entered judgment dismissing the case as to the Row‐80 infringement claim
and otherwise in favor of Scholastic.
Yamashita timely appealed.
DISCUSSION
Broadly speaking, Yamashita asserts that the District Court erred in three ways.
First, he argues that the Complaint as pleaded sufficed to state a claim for copyright
infringement. Second, he contends that the court erred in denying him leave to file the
PAC and to amend his infringement claim as to all but the Row‐80 image. Third, he
maintains that the court abused its discretion in denying him leave to plead the four
additional, common‐law claims.
9 We focus here on the adequacy of Yamashita’s copyright infringement pleadings
and address the court’s denial of leave to add the proposed common‐law claims in a
related summary order issued concurrently with this Opinion.
1. The sufficiency of the Complaint’s copyright infringement pleading
Yamashita’s one‐count Complaint alleged 119 instances of copyright
infringement. Because the court dismissed the Complaint under Federal Rule of Civil
Procedure 12(b)(6), our review is de novo, “accepting all of the complaint’s factual
allegations as true and drawing all reasonable inferences in the plaintiffs’ favor.” Giunta
v. Dingman, 893 F.3d 73, 78–79 (2d Cir. 2018).
In addition to the factual allegations contained in Yamashita’s Complaint, we
may consider documents—such as Exhibit 1—that he attaches to and relies on in the
Complaint. See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230‐31 (2d Cir. 2016). To
survive a Rule 12(b)(6) challenge, “the complaint’s ‘[f]actual allegations must be enough
to raise a right to relief above the speculative level.’” Nielsen v. AECOM Tech. Corp., 762
F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555). When the well‐pleaded
facts “do not permit the court to infer more than the mere possibility of misconduct,”
the court must grant a motion to dismiss. Iqbal, 556 U.S. at 679; see also id. at 678 (“Where
a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief.” (internal
quotation marks omitted)).
10 The parties have framed their dispute about the Complaint’s sufficiency around
the question whether the District Court erred by adopting the following four‐part
definition of an adequate copyright infringement claim, provided by the only copyright
case cited in its merits order: “1) which specific original works are the subject of the
copyright claim, 2) that plaintiff owns the copyrights in those works, 3) that the
copyrights have been registered in accordance with the statute, and 4) by what acts
during what time the defendant infringed the copyright.” Kelly, 145 F.R.D. at 36.
Pointing to Supreme Court precedent identifying only two elements of copyright‐
infringement—“(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original,” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499
U.S. 340, 361 (1991), Yamashita urges that his Complaint was sufficient notwithstanding
its failure to provide details as to other elements.
We think that, under our Circuit’s governing law, the correct disposition here
turns not on whether there are two or four elements of a generic copyright infringement
claim, but instead on the implications of the fact, acknowledged in Yamashita’s
Complaint, that Scholastic procured licenses to copy the Photographs. Whether
Yamashita’s Complaint was sufficient to withstand Scholastic’s motion is determined
by our answer to the question whether, in pleading copyright infringement, a plaintiff
who has authorized the licensed use of its work to the alleged infringer must allege
with specificity facts concerning the limits and asserted breaches of the licenses by the
alleged infringer.
We have recognized previously that authorization to copy copyrighted
material—i.e., through possession of an applicable license—is generally viewed as an
11 affirmative defense to a claim of copyright infringement, and is a defense that the
alleged infringer must plead and prove. See Bourne v. Walt Disney Co., 68 F.3d 621, 630–
31 (2d Cir. 1995) (noting that the possession of a license by the alleged infringer is an
affirmative defense); see also Spinelli v. Nat’l Football League, 903 F.3d 185, 199 (2d Cir.
2018) (observing that, where plaintiffs allege that defendants used copyrighted
photographs without license to do so, the defendant bears the burden of proving the
existence of the license); Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a party
must affirmatively state any. . . affirmative defense, including: . . . license . . . .”). In
Bourne, we thus emphasized that “in cases where only the scope of the licenses is at
issue, the copyright owner bears the burden of proving that the defendant’s copying
was unauthorized.” 68 F.3d at 631. See also Graham v. James, 144 F.3d 229, 236 (2d Cir.
1998) (holding that when “the contested issue is the scope of a license, rather than the
existence of one, the copyright owner bears the burden of proving that the defendant’s
copying was unauthorized under the license.”). This rule carries intuitive appeal
because “[c]opyright disputes involving only the scope of the alleged infringer’s license
present the court with a question that essentially is one of contract: whether the parties’
license agreement encompasses the defendant’s activities.” Bourne, 68 F.3d at 631.
Applying these principles in the context of initial pleadings, when the existence of
a license is not in question, a copyright holder must plausibly allege that the defendant
exceeded particular terms of the license. Although Yamashita stands in this suit not as a
party to the contract that set the limits now allegedly breached, and more as a
beneficiary of that contract, the Corbis‐Scholastic license still sets the terms that provide
the foundation for Yamashita’s Complaint.
12 Scholastic’s purchase of licenses for each of the Photographs is undisputed, as we
have said, so Scholastic was entitled to some copying. Rather, the gravamen of
Yamashita’s copyright‐infringement claim as originally pleaded is that Scholastic (1)
“represented to Corbis that it needed specified, limited licenses to use the Photographs
in particular publications,” and then (2) “exceeded the licenses and infringed Yamashita’s
copyrights in the Photographs.” J.A. at 12, ¶¶ 12, 13 (emphasis added). The Complaint
alleges that it did so by using them in greater numbers than it had a right to, possibly in
publications distributed outside the geographic boundaries of the license, and possibly
after expiration of the licenses, among other ways. J.A. at 12, ¶ 13.
But the Complaint failed to identify any specific license limitations as having
been breached for any specific Photograph, except the Row‐80 image, as to which the
claim was settled and dismissed with prejudice,6 and possibly, as noted, the Row‐16
image.7 Instead, it offers a laundry list of license limitations that might have been
imposed and that might have been violated as to the numerous Photographs. Each of the
“various ways” in which Scholastic allegedly “infringed Yamashita’s copyrights”
would give rise to an actionable claim for a given Photograph, however, only if paired
with a license limitation that was included in the license covering that Photograph.
J.A. at 12, ¶ 13. Absent at least a modicum of such additional factual allegations,
6Yamashita alleged that, although Scholastic’s license for the Row‐80 image expired on February 23, 2013, it continued to use the image thereafter. J.A. at 310–11, ¶ 16.
7As a marginal adjustment, we note that, as the table does for the image listed in Row 80, Row 16 displays numerical license limits. Yamashita does not offer any specific argument that the District Court erred in dismissing the claim related to the Row‐16 image, however. Accordingly, we treat as forfeited any such argument.
13 Yamashita’s Complaint is fairly characterized as no more than a collection of
speculative claims based on suspicion alone. Such a complaint for infringement neither
complies with Rule 8 nor states a plausible claim for relief. Accordingly, we are
compelled to agree with the District Court that the Complaint does not survive
Scholastic’s motion to dismiss. See Iqbal, 556 U.S. at 678–79.
Resisting this conclusion, Yamashita points to district court decisions denying
motions to dismiss in cases that are, Yamashita asserts, “just like this one.” Appellants’
Br. at 33, 49; see also Appellants’ Rule 28(j) Letter, Doc. No. 61 (Feb. 5, 2018). The
complaints he cites, however, contained at least some more detailed factual allegations,
or attached additional documents supporting the infringement claims, making them
less entirely speculative than Yamashita’s, in our view. See, e.g., Lefkowitz v. McGraw‐
Hill, 23 F. Supp. 3d 344, 348‐49 (S.D.N.Y. 2014) (noting that plaintiff identified a number
of license limits that the defendant allegedly exceeded); Frerck v. Pearson Educ., Inc.,
No. 11‐cv‐5319, 2012 WL 1280771, at *1 (N.D. Ill. Apr. 16, 2012) (describing plaintiff’s
allegations that he directly licensed photographs to defendant publisher and that, for
some photographs, defendant used them without any license). We express no opinion
as to whether those cases were correctly decided. We decide only that the speculative,
indefinite allegations made in this case as to all photographs but that identified in Row
80 were insufficient to state a claim in light of Circuit precedent requiring a plaintiff to
allege infringement with some specificity when the defendant’s possession of a license
is undisputed.
We are similarly unpersuaded by Yamashita’s argument that to require that
copyright plaintiffs allege in detail the operative license limitations conflicts with our
14 decision in Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010). In Arista, as
Yamashita observes, we rejected the proposition that Twombly “imposed a heightened
standard that requires a complaint to include specific evidence, factual allegations in
addition to those required by Rule 8, and declarations from the persons who collected
the evidence.” Id. at 119. But Yamashita misapprehends the import of Arista for his case:
we do not fault him for failing to provide detailed documentation for each alleged
instance of infringement, but rather for his failure to allege even the applicable
limitations in Scholastic’s individual licenses so that it (and the court) can understand
how Scholastic is alleged to have exceeded those licenses.
Moreover, his Complaint is qualitatively different in two ways from that of the
copyright holder in Arista: first, the latter’s allegations were more specific as to the
nature of the allegedly infringing acts, enabling the defendant to respond; and second,
the Arista court and the plaintiff were faced with an unidentified infringer, not just
unidentified infringing uses. Id. at 121. Here, by contrast, Yamashita names Scholastic
and admits, as it must, that the publisher was licensed to use the Photographs. Its
Complaint offers little else other than a list of the Photographs at issue and a conclusory
charge that the licenses were exceeded. To require more flesh on the bones of an
infringement complaint against a license user aligns both with our decision in Bourne
and the strictures of Rule 8.
We take this position with some sympathy, still, for Yamashita. It appears that he
has no access, through his agent Corbis or otherwise, to information confirming or
rebutting the extent of Scholastic’s use of the images. Yet he feels there are grounds for
believing that Scholastic has made unpermitted uses of at least some of his
15 Photographs. His predicament underscores the precarious position that freelance
commercial photographers occupy vis‐à‐vis their agents and publishers. There may be
few ways to hold large publishers that operate internationally accountable for their
usage of licensed copyrighted works. For this reason, Yamashita has launched what the
District Court termed a “fishing expedition,” “trawling” for infringement, trying to
place on Scholastic directly the burden of reporting and justifying its uses, and omitting
Corbis from the picture. Yamashita, 2017 WL 747738, at *2. But to sustain such a
complaint that alleges nothing but suspicions of infringement where a license has been
granted is to invite transformation of the courts into an audit bureau for copyright
licensing, an administrative function that we are hardly designed to serve.
Yamashita is correct that Scholastic should be able to detail its uses of his images
and to pair those uses with the license limits that were imposed between it and Corbis,
demonstrating either its compliance or exposing its noncompliance with the applicable
licenses. But Yamashita does not explain why he is unaware of or cannot access the
terms of the licenses executed by Corbis on his behalf. That, at least, would give him the
first part of his infringement case: what limits on use were imposed as to each image. It
would still put him to the burden of finding instances of actual infringement on which
he could build a case against Scholastic, for even with the actual limits known, mere
suspicion of overuse is not enough under Bourne to sustain a complaint, or to avoid the
audit bureau scenario described above.
And so, ultimately, we cannot accept Yamashita’s argument that we should
casually deem his entirely generic allegations of breach, pleaded “upon information and
belief,” sufficient simply because the facts regarding Scholastic’s actual use of the
16 licensed material are “peculiarly within [Scholastic’s] possession and control.”
Appellants’ Br. at 31. He must marshal more than unsubstantiated suspicions to gain
entitlement to broad‐ranging discovery of his agent’s licensee.
We acknowledge that in a similar suit brought by photographers against a
publisher, the Third Circuit has recently expressed disagreement with this approach,
albeit in a procedural context quite different from that before us. It declined to adopt the
pleading rule we enunciated in Bourne, explaining that “[t]he licenses obtained by [the
publisher] were not granted by the photographers directly . . . [a]nd the royalty
statements . . . lacked specific detail as to the scope of each license. . . [I]t [therefore]
stands to reason that the photographers may not be aware of each license issued, or the
scope of each license. Because they were not themselves directly privy to those licenses,
we cannot expect them to plead unauthorized use as part of a prima facie case.” In re
McGraw‐Hill Global Ed. Holdings LLC, 909 F.3d 48, 66 (3d Cir. 2018) (citing Muhammad‐
Ali v. Final Call, Inc., 832 F.3d 760‐61) (7th Cir. 2016)).
But this panel is not at liberty to relax the pleading requirements as we have
previously applied them. The gravamen of the Complaint is that Scholastic violated
Yamashita’s copyright by exceeding the use limits provided in the Corbis‐Scholastic
agreement. For the reasons set forth above, Yamashita’s generic Complaint specifying
neither limits set nor limits breached does not state a claim under Fed. R. Civ. P. 12(b)(6)
and is insufficient under Rule 8 as it does not (in the language of Rule 8) “show[] that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
17 2. Proposed Amended Complaint
As noted above, the District Court denied leave to amend the Complaint with
regard to Yamashita’s copyright claim—except insofar as it related to the Row‐80
image—because the proposed amendment would not cure the Complaint’s defects and
amendment was futile.
Ordinarily, we review a district court’s denial of leave to amend for abuse of
discretion. Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 224 (2d Cir. 2017). When,
however, the court denies leave to amend “based on an interpretation of law, such as
futility, . . . we review the legal conclusion de novo.” Id. (quoting Panther Partners Inc. v.
Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012)). Because Yamashita offered his
proposed amendments in an attempt to cure deficiencies that led to a Rule 12(b)(6)
dismissal, we “consider the proposed amendments along with the remainder of the
complaint, accepting as true all non‐conclusory factual allegations therein, and drawing
all reasonable inferences in the plaintiff’s favor.” Id. at 225 (citation, internal quotation
marks, and alterations omitted).
For the reasons described in Section 1, we need not linger long on Yamashita’s
suggestion that the PAC cured the defects in his copyright claim. First, the proposed
additions reflected in the PAC primarily relate to the Row‐80 image, for which the
District Court permitted amendment. The PAC’s attachments as Exhibits 3 and 4 of
copies of Scholastic publications containing two other images (appearing in Rows 10
and 85 of Exhibit 1) do not cure the deficiencies in Yamashita’s claims, because the PAC
does not allege which, if any, license limitations Scholastic breached by including those
images in those publications. See J.A. at 310, ¶ 15 (stating merely that, “[a]fter receiving
18 limited licenses from Corbis, Scholastic copied Yamashita’s Photographs in at least the
Scholastic publications shown in Exhibits 2 – 4”). Contrary to Yamashita’s view, his
ability to plead a plausible infringement claim as to a single image (in Row 80) does not
render his claim plausible as to all the images shown in the other 118 rows in Exhibit 1,
absent plausible allegations of a connection between Scholastic’s license for and use of
the Row‐80 image and its license for and use of the other images, or plausible,
nonconclusory allegations of a pattern and practice of under‐licensing and over‐use.
For these reasons, we identify no legal error in the District Court’s decision to
reject as futile Yamashita’s effort to amend this claim.
CONCLUSION
For the reasons set forth above and in the summary order that accompanies this
opinion, the District Court’s judgment is AFFIRMED.