Intellectual Property | Copyright Infringement | Technology | Software

Copyright pleading tips to avoid Rule 12(b) motions to dismiss

Dec 27th, 2017 | By | Category: Copyright Litigation

Copyright Case Brief: Clifton v. Houghton Mifflin Harcourt Publ’g Co., 152 F. Supp. 3d 1221 (N.D. Cal. 2015) – Avoiding conclusory allegations in your complaint.

federal court litigation tips


The professional photographers allegations “made on information and belief” met the plausibility standard because his general allegations put the publishing company on notice of how it infringed the copyrights, which is enough to survive a 12(b)(6) motion.


Plaintiff Carr Clifton is a professional photographer known for his dramatic landscape photography makes his living licensing his photographs to book publishers. At the center of this case are 30 photographs that Mr. Clifton licensed to Houghton Mifflin Harcourt Publishing Company (“Houghton”) to be used  in particular educational publications.

The licenses were expressly limited by number of copies, distribution area, language, duration, and/or media. Mr. Clifton alleges “[u]pon information and belief”  that shortly after granting the limited license,  Houghton infringed the copyright in his photographs by exceeding the scope of the license by:

(1) printing more copies than authorized;

(2) distributing outside of the authorized distribution area;

(3) publishing the photographs in electronic, ancillary, or derivative publications without permission;

(4) publishing the photographs in international editions and foreign publications without permission;


(5) publishing beyond specified time limits.

Houghton filed a motion to dismiss under FRCP 12(b)(6), challenging the “copying” element of a copyright infringement claim. The motion argued that Mr. Clifton alleged conclusory allegations because he did not allege specific facts, such as “which photographs were printed, when they were printed, how many copies were printed, or where the photographs were distributed”.

In sum, Houghton contends in its motion to dismiss that Mr. Clifton’s infringement-related allegations, made “on information and belief” are conclusory and lacking factual support.


Whether a complaint that pleads facts based “on information and belief” meets the Twombly and Iqbal plausibility standard to survive a motion to dismiss under 12(b)(6)?

Rule of Law

In a copyright case, the plausibility standard is met when factual allegations are made “upon information and belief” where

(1) “the facts are peculiarly within the possession and control of the defendant,”


(2) “where the belief is based on factual information that makes the inference of culpability plausible.”


Absent Ninth Circuit precedent, the Court analyzed the issue of whether allegations made “on information and belief” in a copyright case are sufficient to survive a motion to dismiss based on the Second Circuit case Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir.2010). In that case, the Second Circuit held that in a copyright case, the Twombly and Iqbal plausibility standard allows factual allegations made “upon information and belief” where

(1) “the facts are peculiarly within the possession and control of the defendant,”


(2) “where the belief is based on factual information that makes the inference of culpability plausible.”  

Adopting this approach, the Court in this case held Mr. Clifton alleged what he can, based on the information he has, and the additional facts needed to substantiate his “information and belief” allegations are peculiarly within the possession and control of Houghton. In support of its holding, the Court looked to the complaint where Mr. Clifton alleged that:

(1) he entered into license agreements with Houghton allowing them to publish 30 of his copyrighted photos,

(2) those licenses all contained limitations regarding number of times, how, and where Houghton could publish them,


(3) Houghton exceeded those license by exceeding those limitations.

Thus, the Court explained these allegations gave Houghton notice about HOW it infringed the copyrights. The Court also cited voluminous case law that denied motions to dismiss in the book publishing context where plaintiffs have alleged the same allegations Mr. Clifton has plead in his complaint. In response, Houghton argued that before filing suit that it was Mr. Clifton’s job to investigate more thoroughly in order to plead more specific evidence. However, the Court rejected that argument because it was not his burden at the pleadings stage of litigation and the plausibility standard does not require Mr. Clifton to do so in order to survive a motion to dismiss.

General Tips to Survive a Motion to Dismiss

The case cited above, Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) explains the need to be as specific as possible when drafting allegations in a complaint, but notes that there is some flexibility in this standard:

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct allegedId., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully 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.’


The Court denied Houghton’s Motion to Dismiss because Mr. Clifton’s allegations met the plausibility standard under Twomby and Iqbal despite allegations in the complaint being made “in information and belief.” 

Attorney Steve Tip: The main takeaway from this case is to be as precise and specific about the facts of a case as possible when filing a federal court lawsuit.  If you are just making blanket conclusory allegations you may draw a motion to dismiss and the judge could dismiss your case if you are not making enough factual allegations.  That being said, sometimes you do not know all the facts and in that event, pleading on “information and belief” may be sufficient to overcome a motion to dismiss if the judge can draw reasonable inferences from the four corners of the complaint tending to indicate Defendant has acted illegally to infringe.

Contact our Intellectual Property Law Firm

If you are involved in federal court litigation, either as a Plaintiff or a Defendant, we can help.  We have substantial federal court experience and significant experience in the area of copyright infringement law.  Call us at (877) 276-5084.

Parts of this blog written by Ms. Jennifer Cooper, law student at Loyola Marymount Law School.


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