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The U. S. District Court for the Southern District of New York denied a Rule 12(b)(6) motion to dismiss direct infringement claims by owners of celebrity photographs against operators of fan websites. BWP Media USA Inc. v. Hollywood Fan Sites LLC, 14-CV-121. District Judge J. Paul Oetken acknowledged: “Initially, the simple assertion that Defendants own websites and that Plaintiffs' photographs appear on those websites is insufficient to plead volitional infringement [required for direct infringement] by Defendants.” District Judge Oetken added, “It is unclear in this [2d C]ircuit whether conduct short of the actual infringement itself can give rise to direct liability.' But the district judge found: “[T]he complaint states that Defendants themselves reproduced the photographs and created thumbnail images ' the acts by which the alleged infringement took place. The complaint is short on certain details regarding the infringement, but assuming the truth of its allegations, Plaintiffs have asserted that Defendants engaged in volitional acts that constitute direct infringement of the Plaintiffs' right of distribution.” The court allowed the BWP Media plaintiffs to proceed on their claims of contributory and direct infringement, too. But Judge Oetken dismissed allegations brought under the federal Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. '1962. “The complaint provides no concrete information on the group's organization or hierarchy,” the judge observed. “Nor is there information from which it could be concluded that Defendants function as a unit or that they shared a common purpose, in the absence of any mention of the roles each Defendant played and the actions they took.”

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