govinfo:USCOURTS-flsd-1_25-cv-24798-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 

DAVID OPPENHEIMER, 
 
 Plaintiff, 
 
v. 
 
RAKONTUR LLC, et al., 
 
 Defendants. 
_________________________________/ 
 
ORDER DENYING MOTION TO DISMISS 
 
 THIS CAUSE comes before the Court on Defendants’ Motion to Dismiss (“Motion”), 
[ECF No. 10], filed on November 19, 2025. On December 19 , 2025, Plaintiff filed its Response 
in Opposition to Defendants’ Motion to Dismiss (“Response”), [ECF No. 20], and Defendant’s 
filed their Reply on January 16, 2026 (“Reply”), [ECF No. 27]. The Court having carefully 
reviewed the relevant pleadings, the record, and being otherwise fully advised, it is hereby 
 ORDERED AND ADJUDGED that Defendants’ Motion is DENIED as follows. 
BACKGROUND 
Plaintiff David Oppenheimer (“Oppenheimer”) brings this action against Defendants 
Rakontur LLC (“Rakontur”) and William Marcus Cohen a/k/a Billy Corben (“Cohen”) alleging 
“violations of exclusive rights under the Copyright Act, 17 U.S.C. §§ 106 and 1202, to copy and 
distribute Oppenheimer’s original copyright -protected Work of authorship after removal of his 
copyright management information (‘CMI’).” Complaint (“Compl.”), [ECF No. 1] ¶ 1. 
Plaintiff Oppenheimer is an independent travel, aerial, and concert photographer , who 
operates Performance Impressions LLC to sell prints and commercial licensing of his work, 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 1 of 10
Page 2 of 10 
 
which includes over 500 galleries of photos taken at various events and landmarks across the 
United States. Compl. ¶ 2. Defendant Rakontur is a movie production studio located in Miami 
Beach, Florida, which owned and operated the website https://www.rakontur.com . Compl. ¶ 3. 
Defendant Cohen is an American documentary film director who owned and operated the X 
account, https://x.com/BillyCorben, and the Instagram account, https://www.instagram.com/Bill
yCsorben/. Compl. ¶ 3. 
In 2019, Oppenheimer captured an aerial photograph of the International Links Melreese 
Country Club in Miami, Florida (the “Work”), adding CMI consisting of a copyright watermark 
in the bottom right corner reading “ © 2019 David Oppenheimer.” Compl. ¶¶ 13–14. 
Oppenheimer alleges that he has been the owner of the Work at all relevant times, and “ has 
complied in all respects with Title 17 U.S.C. § 102, et seq., and all other laws governing federal 
copyright applicable to the Work[.]” Compl. ¶¶ 15–16. Indeed, prior to its first publication, on 
May 7, 2019, he registered the copyright with the U.S. Copyright Office , and it is now “ on 
deposit with the U.S. Copyright Office, registered with the contents title 
‘International_Links_Melreese_Country_Club_golf_course_aerial_130.jpg’ and . . . assigned 
[group registration number] VAu 1-356-215[.]” Compl. ¶ 15; Ex. 1. 
Plaintiff alleges that Defendants copied the Work , removed its CMI, and then included it 
in a mini-documentary “video about a controversial proposed real estate development at the 
International Links Melreese Country Club.” Compl. ¶ ¶ 3, 17–18, 24, 27. The Work was 
subsequently displayed when that video was reported on by NBC Miami, CBS News, and the 
New York Times . Compl. ¶ 3. And Defendants’ wide distribution of the Work “was a 
deliberate part of their online video and social media campaign designed to influence public 
opinion and city government action regarding the redevelopment of Melreese Golf C ourse.” 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 2 of 10
Page 3 of 10 
 
Compl. ¶ 3. Specifically, the copying and distribution of the Work was “ for purposes of 
advertising and promoting their mini -documentary and campaign opposing the Melreese 
redevelopment.” Compl. ¶ 22. But Defendants have never been licensed to use the Work for 
any purpose nor given permission to remove its CMI. Compl. ¶¶ 17, 20, 24, 27. 
Plaintiff discovered the unauthorized use of his Work on January 28, 2023, when 
Defendant Cohen posted it to his X account . Compl. ¶ 19. At the time of discovery, the post 
had already generated significant engagement, amassing numerous comments, reposts, and likes. 
Compl. ¶ 19. Thereafter, on April 16, 2024 and May 17, 2024, Plaintiff alerted Defendants to 
their allegedly unlawful use of the Work, but Defendants “failed to engage in any efforts to 
resolve the matter.” Compl. ¶¶ 6, 25. 
 Plaintiff claims that “[w]hen Defendants copied and displayed the Work, Defendants 
removed Oppenheimer's CMI from the Work [and that] t hese acts were committed deliberately 
or with reckless disregard for Oppenheimer’s rights, and with the intent to induce, enable, 
facilitate, or conceal infringement of Oppenheimer’s copyright-protected Work.” Compl. ¶ 26. 
In furtherance of that claim and given that “the Work remains publicly accessible at several” 
websites, see Compl. ¶ 25, 1 Plaintiff filed the instant case against Defendants on October 17, 
2025, seeking injunctive relief and damages. See Compl., Prayer for Judgment. The Complaint 
specifically asserts two causes of action against Defendants : (1) copyright infringement; and (2) 
removal of copyright management information. See Compl. ¶¶ 28–42. 
LEGAL STANDARD 
To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient 
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 
 
1 See also Compl. ¶ 3 (listing the URLs at which the Work has been displayed). 
 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 3 of 10
Page 4 of 10 
 
v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 
(2007)). When reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept as 
true all factual allegations contained in the complaint, and the plaintiff s receive the benefit of all 
favorable inferences that can be drawn from the facts alleged. See Chaparro v. Carnival Corp., 
693 F.3d 1333, 1337 (11th Cir. 2012); Iqbal, 556 U.S. at 678. 
A court considering a Rule 12(b)(6) motion is generally limited to the facts contained in 
the complaint and attached exhibits —but may also consider documents referred to in the 
complaint that are central to the claim and whose authenticity is undisputed. See Wilchombe v. 
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). While the court is required to accept as 
true all allegations contained in the complaint, courts “are not bound to accept as true a legal 
conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. 
“Dismissal pursuant to Rule 12(b)(6) is not appropriate unless it appears beyond doubt that the 
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 
Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (citation and quotation omitted). 
ANALYSIS 
Defendants request that the Court dismiss the Complaint in its entirety on the grounds 
that the alleged copyright infringement was a fair use. See generally Mot. Plaintiff responds 
that this affirmative defense should not be considered at this juncture given that “fair use is not 
apparent on the face of the Complaint” , that a number of allegations in the Complaint “preclude 
a finding of fair use as a matter of law”, and that “the Court lacks a developed factual record 
concerning the purpose and character of the use.” Resp. at 4–5. Accordingly, the question 
before the Court is whether Defendants’ fair use defense is ripe for determination. 
Affirmative defenses including fair use are “generally not properly raised at the motion to 
dismiss stage. ” Kobi Karp Architecture & Interior Design, Inc. v. O ’Donnell Dannwolf & 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 4 of 10
Page 5 of 10 
 
Partners Architects, Inc. , No. 19- 24588, 2020 WL 4287005, at * 2 (S.D. Fla. July 27, 2020) 
(citing Quiller v. Barclays Am./Credit, Inc ., 727 F.2d 1067, 1069 (11th Cir. 1984) ( noting that 
“the existence of an affirmative defense will [generally] not support a motion to dismiss”) ). 
However, “[a] n affirmative defense may be raised in a Rule 12(b)(6) motion to dismiss for 
failure to state a claim, [] only if the defense is apparent on the face of the complaint .” Hudson 
Drydocks Inc. v. Wyatt Yachts Inc., 760 F.2d 1144, 1146 n.3 (11th Cir. 1985) ; see also LeFrere 
v. Quezada, 582 F.3d 1260, 1263 (11t h Cir. 2009) (“If the complaint contains a claim that is 
facially subject to an affirmative defense, that claim may be dismissed under Rule 12(b)(6).” 
(citation omitted)). 
Given that the fair use affirmative defense implicates “mixed question[s] of law and 
fact[,]” see Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985), courts in 
this District routinely find that consideration of a fair use defense is premature at the m otion to 
dismiss stage. See Katz v. Chevaldina, 900 F. Supp. 2d 1314, 1316– 1317 (S.D. Fla. 2012) 
(acknowledging the “general rule that fair use defenses are not ripe for determination before the 
summary judgment stage ” and holding th at the fair use determination “ is more appropriately 
resolved after the complaint has been answered and parties have evaluated any need for 
discovery.”); Miller v. Suriel Grp., Inc., No. 19- 24936, 2020 WL 6122246, at * 2 (S.D. Fla. July 
22, 2020) (“Because a court may not make factual determinations in evaluating a motion to 
dismiss, and in light of the court ’s narrow inquir y at this stage and limited access to all 
potentially relevant and material facts needed to undertake the analysis, disposition of 
Defendant’s fair use defense is inappropriate at this juncture.” (internal quotations omitted)) ; 
Kobi Karp Architecture & Interior Design, Inc ., 2020 WL 4287005, at *2 ( holding that “[t]he 
Court cannot determine that the Defendants’ submission of the drawings to the HPB constitutes 
fair use at this stage of the litigation .”); Bell v. Alexander, No. 21-24301, 2022 WL 22824862, at 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 5 of 10
Page 6 of 10 
 
*3 (S.D. Fla. Aug. 3, 2022) (“Upon review of the First Amended Complaint, the Court does not 
find that a fair use defense has been identified for full consideration at this stage.”). 
The Court’s review of Plaintiff’s Complaint and the mini documentary 2 compels the 
same result, as Plaintiff has not set forth a prima facie case involving fair use. Id . (“In this 
Circuit, unless a plaintiff adequately sets forth a prima facie case involving fair use in the 
complaint, a fair use defense is not deemed appropriate on a motion to dismiss.”). Pursuant to 17 
U.S.C. § 107, courts are required to consider the following factors in evaluating whether the 
alleged copyright infringement was fair use : “(1) the purpose and character of the use, including 
whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the 
nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation 
to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or 
value of the copyrighted work. Each of the four factors must have a holistic, qualitative, and 
individual analysis .” Id. (citing Cambridge Univ. Press v. Albert , 906 F.3d 1290, 1302 (11th 
Cir. 2018)). 
 
2 Defendants assert in their Motion that “courts ‘routinely’ use the incorporation-by-reference-doctrine to 
‘consider videos at the motion to dismiss stage when they are central to the plaintiff’s copyright 
infringement claims. ’” Mot. at 7 ( quoting Stebbins v. Alphabet Inc., No. 22- cv-00546, 2025 WL 
2233208, at *3 (N.D. Cal. July 2, 2025)). And they reply that because Plaintiff “fail[ed] to respond to this 
issue, [he] has conceded the point.” Reply at 2. 
 
Defendants are correct . Even if they hadn’t raised this point, a court can sua sponte consider a video 
referenced in a c omplaint if the requirements of incorporation -by-reference are met. See Garin v. 
Menegazzo, No. 21-23582, 2022 WL 1658831, at *7 (S.D. Fla. May 25, 2022) (citing Quinette v. Reed, 
805 F. App’ x 696, 700 (11th Cir. 2020) (“A document or thing is incorporated by reference into a 
complaint where (1) it is central to the plaintiff’s claim, (2) its contents were alleged in the complaint, and 
(3) no party questions those contents.”). 
 
Here, the requirements of incorporation-by-reference have been met and are not in dispute . Accordingly, 
the Court has reviewed the mini documentary . See Johnson v. City of Atlanta, 107 F.4th 1292, 130 0–01 
(11th Cir. 2024) (finding the requirements of the incorporation-by-reference doctrine met where the video 
clearly depicted events central to plaintiff’s claims and authenticity of the video was undisputed.). 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 6 of 10
Page 7 of 10 
 
Consideration of these factors underscores that Defendants’ fair use defense hinges on 
factual determinations, which the Court is unable to make at this stage. First, Plaintiff maintains 
that Defendants’ use of the copyrighted work was commercial in purpose and character. See 
generally Compl.; Resp. at 5–6. He specifically alleges that “Defendants committed the 
violations alleged in connection with their business for purposes of advertising and promoting 
their mini- documentary, increasing viewership, and influencing public response in the course 
and scope of their documentary and advocacy activities.” Compl. ¶ 5. Further, the infringement 
of the Work in the “mini -documentary and related promotional campaign . . . promoted his 
public persona, professional profile, and associated brand, yielding ancillary reputational and 
commercial benefits.” Compl. ¶ 3. 
Defendants counter that the purpose and character of the use was both transformative and 
noncommercial, and that the “educational purpose of the MiniDoc weighs heavily in favor of fair 
use.” See Mot. at 10- 11. Though this may be true, “ whether or not Defendant [s] sought 
financial gain . . . is unclear at this time.” Bell, 2022 WL 22824862, at *3. Defendants maintain 
that “Corben posted the MiniDoc on his personal Twitter and Instagram accounts, which are 
available to viewers for free, for purposes of ci vic engagement and political advocacy. ” Mot. at 
10. But the mere fact that individuals could access Defendants’ social media accounts free of 
charge does not preclude a finding that those accounts and the content posted on them could 
nevertheless be monetized through other means. Defendants’ argument that “[a] ny purported 
‘reputational benefit ’ []is too attenuated to be considered a ‘ commercial’ use” is equally 
unavailing. Reply at 4; Resp. at 10–11. While this may ultimately prove to be true, the cases to 
which they cite—Swatch Grp. Mgmt. Servs. Ltd. v. Bloomberg L.P., 756 F.3d 73 (2d Cir. 2014) 
and Katz v. Google Inc ., 802 F.3d 1178 (11th Cir. 2015) —were both decided at the summary 
judgment stage. The Court lacks the factual record at this stage of the litigation to determine 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 7 of 10
Page 8 of 10 
 
whether consideration of the commercial and reputational benefits conferred to Defendants is 
warranted or whether such benefits are too attenuated. Accordingly, the first factor is 
inconclusive. 
Second, “courts consider the nature of the copyrighted work and whether the work is 
factual or creative.” Bell , 2022 WL 22824862, at *4. Defendants aver that “[p]hotographs that 
are created for non -artistic purposes have generally been found to be factual works ” and that 
“there is nothing particularly artistic about the [Work as it] is simply an aerial shot of the 
Melreese golf course.” Mot. at 11–12. But Pla intiff responds that “ [t]his characterization 
ignores the creative choices inherent in professional photography [including] the angle, framing, 
lighting conditions, time of day, and composition of the photograph” and that “[t]he factual 
nature of a photograph’s subject matter does not strip the photograph of copyright protection.” 
Resp. at 7–8. Thus, “[a]t this stage, there is a clear disagreement about whether Plaintiff’s work 
is informational or creative”, which cuts against deciding fair use at this juncture. Bell , 2022 
WL 22824862, at *4. 
Next, “[t]he third fair use factor examines whether the amount and substantiality of the 
portion used was reasonable in relation to the copyrighted work as a whole.” Lagassey v. Roy , 
No. 14-14303, 2017 WL 1397410, at *7 (S.D. Fla. Jan. 31, 2017). Defendants believe this factor 
is neutral as Corben used the entire Photo for only two seconds to display the Melreese site . 
Mot. at 12 (citing Mizioznikov v. Forte , No. 16-61616, 2017 WL 5642383, at *6 (S.D. Fla. Mar. 
27, 2017) (“[B]ecause the photograph is not meaningfully divisible, the third factor weighs 
neither for no [r] against fair use .” (internal quotations and citations omitted)) ). But Plaintiff 
points to caselaw holding that the greater the portion of the copyrighted work taken, the less 
likely the use qualifies as fair. Resp. at 8–9. And Plaintiff also criticizes “Defendants[’] attempt 
to minimize their infringement” , noting that “[t] he relevant question is not what portion of 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 8 of 10
Page 9 of 10 
 
Defendants’ work contains copyrighted material, but rather how much of Plaintiff ’s copyrighted 
work was taken.” Res p. at 9 (quoting Harper & Row Publishers, Inc., 471 U.S. at 564–65 
(analyzing “the amount and substantiality of the portion used in relation to the copyrighted 
work”). Thus, this factor is either neutral or weighs in Plaintiff’s favor. 
Finally, as t o the fourth factor, effect of the use on the potential market for the work, 
Plaintiff alleges that he “has suffered and will continue to suffer monetary damages, irreparable 
injury to his business, reputation, and goodwill, and dilution in the marketplace [.]” Compl. ¶ 35. 
Plaintiff points to specific URLs of news media outlets that “reported on the infringing video 
Defendants produced and distributed . . . [in order] to show Defendants’ wide distribution and 
impact.” Compl. ¶ 3. While Defendants aver that “[t]here is no reason to believe that the 
MiniDoc, a completely different form of media, has usurped the market for the Photo[,]” see 
Mot. at 13, “because fair use is an affirmative defense, it is not Plaintiff’s burden to show the 
market damage, but instead, Defendant’s burden to establish fair use basis.” Bell, 2022 WL 
22824862, at *4. 
In sum, the fair use factors are all either inconclusive or weigh in Plaintiff’s favor . 
Contrary to what Defendants suggest, the facts on record are not “sufficient to evaluate each of 
the [fair use] statutory factors .” Mot. at 7 (quoting Harper & Row Publishers, Inc., 471 U.S. at 
560). The Court is therefore unable to determine whether inclusion of the Work in Defendants’ 
mini-documentary constitutes fair use . Accordingl y, because this affirmative defense will 
benefit from further factual development , Defendants are permitted to once again raise this 
defense at the summary judgment stage, with the benefit of a complete record. 3Lions Publ ’g, 
Inc. v. Interactive Media Corp., 389 F. Supp. 3d 1031, 1042 (M.D. Fla. 2019) (“[Defendant] may 
raise its fair use defense again at the summary judgment stage.”). 
 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 9 of 10
Page 10 of 10 
 
CONCLUSION 
For the foregoing reasons, Defendants ’ Motion, [ECF No. 10 ], is DENIED. Defendants 
shall file an answer to Plaintiff ’s Complaint, [ECF No. 1], within fourteen (14) days of the date 
of this Order. 
DONE AND ORDERED in Miami, Florida, this 12th day of June, 2026. 
 
 
 RODOLFO A. RUIZ II 
 UNITED STATES DISTRICT JUDGE 
Case 1:25-cv-24798-RAR Document 31 Entered on FLSD Docket 06/12/2026 Page 10 of 10

Passage view · GavelSight