USDC S.D. California, March 4, 2009

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The district court denied defendant Royal Caribbean Cruises’ 12(f) motion to strike plaintiff Jamison’s claim for statutory damages or attorneys’ fees under section 412 of the Copyright Act. Plaintiff Jamison alleged that he is the sole owner of the registered copyright for his original photograph titled “Dylan-fscarve.” A cropped version of the image was uploaded to wavetheplanet.com, which was later featured in advertisements by Royal Caribbean. Jamison alleged that he never consented to such usage.

Under the Federal Rules of Civil Procedure, a motion to strike pursuant to Rule 12(f) has a different standard than a motion to dismiss pursuant to Rule 12(b)(6). Under Rule 12(f), the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Motions to strike a pleading are disfavored and should be denied unless it can be shown that the challenged matter could have no possible bearing on the issues in the litigation. Courts often require a showing of prejudice by the moving party and views the pleadings in the light most favorable to the non-moving party.

Section 412 bars a copyright owner from recovering statutory damages or attorneys’ fees for copyright infringement if two conditions are met: (1) the copyright was registered more than three months after the work was first published, and (2) the infringing activity commenced after the date of first publication and before the effective date of registration of the work. The first act of infringement in a series of ongoing separate infringements commences one continuing infringement under Section 412(2).

The date of first publication was April 2, 2005, when the cropped version of “Dylan-fscarve” was uploaded to wavetheplanet.com. Thus, the date of registration, February 13, 2006, was beyond the three month grace period offered by section 412. However, Royal Caribbean did not assert that the claim for statutory damages was “redundant, immaterial, impertinent, or scandalous,” or that the claim for statutory damages “could have no possible bearing on the issues in the litigation.” Therefore, viewing the allegations in the light most favorable to plaintiff, the motion was denied.