Big Run Studios Inc. v. AviaGames Inc.

Background

Big Run Studios Inc. and Skillz Platform Inc. asserted copyright-infringement claims against AviaGames Inc. Skillz operated an online gaming platform and owned copyright registrations for versions of its software development kit and related materials. Big Run developed Blackout Bingo, a game integrated into the Skillz Platform, and owned five copyright registrations for versions of that game.

The plaintiffs alleged that AviaGames, after becoming a Skillz customer, built a competing gaming platform and launched Bingo Clash, which they said copied Blackout Bingo. They also alleged that AviaGames’s platform infringed the Skillz Platform. The complaint sought equitable relief, actual damages, statutory damages, and attorneys’ fees.

Motion to Dismiss Statutory Damages and Attorneys’ Fees

AviaGames moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. AviaGames argued that the plaintiffs’ copyright registrations were not timely enough to support statutory damages and attorneys’ fees under the Copyright Act.

The Copyright Act generally requires registration before infringement begins, unless registration occurs within three months after the work’s first publication. The complaint alleged that the initial infringement occurred in or around July 2019 for the Skillz Platform and September 2020 for Blackout Bingo. The copyrights were registered in 2021. The court identified three registrations that were made within three months after first publication, but noted that each covered a later version of an earlier copyrighted work.

The plaintiffs argued that the later versions contained new elements that could support separate claims for statutory damages and attorneys’ fees. The court rejected that argument at the pleading stage because the complaint did not distinguish among the various copyrights, allege that AviaGames infringed new elements in the three timely registered works, or specifically allege violations of those works. The court treated the alleged infringement as a continuing series of infringements that began before registration.

The court therefore granted AviaGames’s motion to dismiss the plaintiffs’ claim for statutory damages and attorneys’ fees. The court stated that the plaintiffs might be able to cure the pleading problem by alleging more specific facts about the three timely registered copyrights. The ruling did not dismiss the entire copyright-infringement case.

Motion to Sever

AviaGames also moved to sever Skillz’s claims from Big Run’s claims into separate lawsuits. The court applied the rule allowing plaintiffs to join claims when they arise from the same transaction or series of transactions and share a common question of law or fact.

The court found that the claims arose from the same alleged conduct. According to the complaint, AviaGames allegedly copied the Skillz Platform, used that platform to launch knockoff games, and included Blackout Bingo among those games. The court also noted that Blackout Bingo integrated the Skillz Platform’s user interface, meaning users encountered both allegedly infringed works when playing the game. The court therefore denied AviaGames’s motion to sever.

Disposition

The motion to dismiss the claim for statutory damages and attorneys’ fees was granted, and the motion to sever was denied. The plaintiffs could file an amended complaint by February 24, 2022. The order stated that failure to amend or cure the identified deficiencies would result in dismissal of the plaintiffs’ claims with prejudice. The order also stated that the plaintiffs could not add new claims or parties without the court’s permission or the parties’ stipulation.