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Foss v. Brewery

United States District Court, D. Massachusetts

March 19, 2019

CYNTHIA FOSS d/b/a HUNTER FOSS DESIGN, Plaintiff,
v.
SPENCER BREWERY, ST. JOSEPH'S ABBEY, RUGGLES MEDIA, NORTHEASTERN UNIVERSITY, CUP OF JULIE SHOW, and BIG EASTERN EXPOSITION, Defendants.

          MEMORANDUM OF DECISION AND ORDER

          TIMOTHY S. HILLMAN DISTRICT JUDGE.

         Background

         Cynthia Foss (“Foss” or “Plaintiff”), proceeding pro se[1], has filed a Complaint against Spencer Brewery (“Spencer Brewery”), St. Joseph Abbey (“St. Joseph's”), Ruggles Media, Northeastern University, Cup of Julie (“Cup of Julie”), and the Big Eastern Exposition (“The Big E”) alleging claims for copyright infringement, tortious interference with business relations, defamation and violation of the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A. This Memorandum and Order of Decision addresses Defendant Eastern States Exposition's Motion To Dismiss (with prejudice) (Docket No. 8)[2]. For the reasons set forth below, that motion is granted.

         Discussion

         Standard of Review

         The Big E and Cup of Julie have filed a motion pursuant to Fed.R.Civ.P. 12(b)(6) seeking dismissal of Foss's claims on the grounds that her allegations fail to state a claim upon which relief may be granted. On a Rule 12(b)(6) motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (internal citations omitted). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations and original alterations omitted). “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

         Factual Allegations

         Foss is the Principal Operator, of Hunter Foss Design, a Massachusetts sole proprietorship since1999, with a principal place of business in Worcester, Massachusetts.[3] She is the original graphic artist of all photographic-illustrative works at issue, commissioned by Spencer Brewery and St. Joseph's, and as an independent service provider, designer/publisher, who created original artwork for them based on concept photography taken of the Abbey Refectory, in Spencer Massachusetts, on a monastic enclosure that is normally closed off to public viewing.

         Foss and Spencer Brewery entered into a written contract for services, executed by the parties on July 27, 2016 (“Contract”). The Contract allegedly provided that Foss would be compensated by Spencer Brewery for each and every additional use, reproduction, modification, performance, distribution or sale of Foss's copyrighted work, hereinafter, referred to as the “Refectory Long Stain Glass Wall.”

         Foss alleges that she satisfied the terms of the Contract by creating the Refectory Long Stained Glass Wall for Spencer Brewery. The first sale of the work the Refectory Long Stained Glass Wall occurred on September 13, 2016. Spencer Brewery had the right to display the work for the agreed upon price on this one occasion. Foss as the creator of the Refectory Long Stained Glass Wall and as such established and retained all intellectual property rights beginning on September 13, 2016 and continuing as per her copyright protection under Federal Law. Foss alleges that Spencer Brewery willfully and knowingly infringed upon her copyright protection.[4]

         The Big E operates and is incorporated in Massachusetts as a commercial vendor primarily in West Springfield, Massachusetts. Cup of Julie is a Big E licensed social media show. Under the terms of the Contract, Spencer Brewery purchased the use and display of Foss's copyrighted works for two shows at the Big E in September of 2016. Spencer Brewery is alleged to have breached the Contract by using and modifying the Refectory Long Stained Glass Wall beginning on September 29, 2016. More specifically, Spencer Brewery breached the Contract in September 2016 and March 2017 by modifying the Refectory Long Stained Glass Wall without permission of Foss. Additionally, Spencer Brewery breached the Contract by using the Refectory Long Stained Glass Wall in an electronic display without compensating Foss or seeking her required permission under the Contract repeatedly from September of 2016 until the present.[5]

         Foss, once becoming aware of the unauthorized use of her work by The Big E, contacted The Big E, in writing, on March 1, 2017, and made demand that The Big E cease and desist their infringement and pay her for all use of her work. Foss alleges that both Spencer Brewery and The Big E tortuously interfered with her business relations by infringing on her exclusive use of the Refectory Long Stained Glass Wall, and by failing to mitigate damages once said infringement and interference with her contractually and statutorily protected intellectual property rights and business interests was brought to their attention by her beginning on or about March 1, 2017 and continuing until present day. Foss further alleges that The Big E infringed upon her constitutionally created individual property rights by profiting from the displaying and performance of her work, the Refectory Long Stained Glass Wall, in September of 2016 and September of 2017 without authorization from, or compensation to, her. More specifically, Foss alleges that as a commercial vendor, The Big E had a duty of care to enforce licensing and intellectual property rights of its vendees and assigns and breached that duty by allowing the unauthorized use of her protected works and by publishing on electronic media via the Cup of Julie show on social media and such breach caused her to lose her exclusive right to control the additional publications of her work.

         Foss further alleges that on September 29, 2016, Cup of Julie and The Big E infringed upon the intellectual property rights of the Plaintiff, by electronically copying to video tape, twenty-three clips of her work and publishing her work on Facebook and subsequently YouTube. She further alleges that these Defendants modified her work, the Refectory Long Stained Glass Wall without permission from or compensation to her.

         Foss also claims that Spencer Brewery, the Big E, and Cup of Julie defamed her with published false claims detrimental to her in writing (constituting libel), and verbally (constituting slander), on or about September 29, 2016, March 31, 2017 and June 6, 2018, causing ...


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