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Defendant argues that Plaintiff fails to properly plead the elements of a work made for hire. However, while the certificates of registration note that the artwork was a work made for hire, they list Plaintiff as the owner of the copyright. Therefore, Plaintiff is not relying on the work-made-for-hire doctrine to establish ownership of the copyrights. Because Plaintiff's certificates of registration are "prima facie evidence of ownership," Defendant "bear[s] the burden of proof on the work-for-hire issue, which suggests that summary judgment is the proper procedural posture for ruling on that issue.

Dep't of Corr. July 8, internal citation omitted. Accordingly, any work-made-for-hire argument is premature at this stage.

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Copying may be established by demonstrating 1 "that the [defendant] had access to plaintiff's copyrighted work" and 2 "that the works at issue are substantially similar in their protected elements. Random House, Inc. Proof of access requires a plaintiff to show only "that the defendant had an opportunity to view or to copy plaintiff's work.

McDonald's Corp. There must be a reasonable possibility of viewing the plaintiff's work — not a bare possibility. In its Complaint, Plaintiff alleged that Defendant had access to the Subject Designs via Plaintiff's design library and the authorized or unauthorized reproductions of the Subject Designs that were in the possession of vendors.

This allegation establishes a reasonable possibility of access, and Plaintiff has therefore sufficiently alleged access. Defendant does not argue that the two works the Subject Designs and the garments for sale on Defendant's website are not substantially similar.

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Regardless, Plaintiff attached to the Complaint examples of Defendant's garments that allegedly bear the Subject Designs. These examples, when compared with the pictures of the Subject Designs, show that the works are substantially similar, if not identical, and therefore sufficient to survive a motion to dismiss. See Minx Int'l, U. Defendant argues that Plaintiff does not plead with specificity which of Defendant's products infringe which of Plaintiff's copyrights.

However, this is simply not the case.


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Plaintiff has included the certificates of registration for each of the Subject Designs and a corresponding picture of each Subject Design. Then, Plaintiff also included photographs from Defendant's website showing garments bearing the Subject Designs that Defendant offered for sale. Thus, Defendant is on notice of which of its garments infringe Plaintiff's copyrights. Even if Plaintiff failed to plead this, "such specificity is not required at this stage of the litigation. Hewlett Packard Enter. July 22, Finally, despite Defendant's argument to the contrary, Plaintiff need not allege when the allegedly infringing conduct occurred because that fact is solely within Defendant's possession.

See Friedman v. Live Nation Merch. Even though the alleged infringement occurred on a "single, publicly accessible website," see Wright v. Buzzfeed, Inc.

The Oracle of Yalan

Plaintiff is therefore unable to determine the exact dates of infringement. Further, even assuming Defendant's website did include a discernable date of publication, Plaintiff does not need to set forth the exact dates of infringement at this stage of the litigation. See Leopona, Inc. UK Cycling Events, Ltd. CRSM, U. June 6, Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case. Listed below are those cases in which this Featured Case is cited.

Click on the case name to see the full text of the citing case. Email Print Comments 0. The PDF format is a popular format for electronics books. All platforms are able to gain access and read PDF formatting.

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