MEMORANDUM & ORDER Plaintiff ID Tech LLC is an online retailer. It sells jewelry under the name “Frost NYC” at www.frostnyc.com. Plaintiff filed this action against defendants Toggle Web Media LLC and Moshe Priyev, who operate a competing, and allegedly similar, website. ID Tech alleges that Toggle Web’s site infringes Plaintiff’s copyrights, in violation of 17 U.S.C. §501. Defendants have moved to dismiss Plaintiff’s complaint for failure to state a claim. The problem with Plaintiff’s Amended Complaint is the pronounced mismatch between the copying that Plaintiff alleges, on the one hand, and the nature of its copyrights, on the other. As discussed in detail below, the Amended Complaint alleges infringement of Plaintiff’s website — the combination and arrangement of text and photographs contained therein. But ID Tech has alleged that it owns two copyright registrations, neither of which protects such a compilation; instead, they protect the photographs and text contained on the website. ID Tech is likely to face an insurmountable hurdle in this case regardless of whether it is pursuing a claim of infringement for the underlying photos and text or for the compilation thereof. The problems with the former type of claim include, among other issues, that the photos and text on Toggle Web’s site are not, at least insofar as is apparent from the attachments to ID Tech’s complaint, identical to the photos and text on ID Tech’s site; and to the extent ID Tech is complaining of substantial similarity, rather than outright copying, its photos and text are insufficiently original to merit actionable protection. If, on the other hand, ID Tech were to pursue its current claim — that the defendants infringed its website — it may run headlong into the potential problems that (a) it does not hold a copyright registration protecting the website itself, and (b) it is unclear that such material may be copyrighted at all. Thus, even if the Court grants leave to amend the complaint yet again, such amendment is likely to be futile. Nevertheless, in an abundance of caution, I dismiss ID Tech’s amended complaint without prejudice, to afford it one more opportunity to plead a viable theory of infringement. I. Background The following recitation is taken from the Amended Complaint. ID Tech and Toggle are both “custom” jewelry retailers. Id.
2, 17.1 Priyev is Toggle’s managing member. Id. 11. ID Tech filed this suit in December 2020 (along with another plaintiff who later withdrew voluntarily). It initially alleged copyright infringement and unfair competition. Compl.
