Introduction

When defendants move to dismiss a case under Federal Rule of Civil Procedure (FRCP) 12(b)(6), the court generally may consider only the material contained in the pleading. If a party presents—and a court considers—matters outside the pleading, the Federal Rules require the court to convert the motion into one for summary judgment. Upon conversion, the parties are permitted to supply the court with “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials.” Furthermore—and perhaps more importantly—if the parties do not have adequate information at this point in the process, the court may “allow time to obtain affidavits or declarations or to take discovery,” thus opening up the door to greatly increased time and expense.

There are, however, exceptions to the general rule prohibiting the inclusion of any outside materials. FRCP 10(c) states that a “statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.” Thus, the Supreme Court has held that when considering a motion to dismiss, courts should examine “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice,” in addition to the complaint in its entirety.

The Seventh Circuit recently decided two cases that dealt with incorporation of a “written instrument” into a pleading. The first of these cases is Brownmark Films, LLC v Comedy Partners, in which the court faced the issue of whether the defendant could incorporate two audiovisual works by reference to aid in showing that the alleged copyright infringement was a parody. The court noted that while several district courts had permitted the incorporation of such works by reference, no court of appeals had so held. Instead of ruling on the issue itself, and in light of the fact that the parties had not briefed the question, the Seventh Circuit bypassed the issue by converting the motion to dismiss into a motion for summary judgment and finding for the defendants.

In the second case, Bogie v Rosenberg, the Seventh Circuit was again asked to decide whether it could consider, on a motion to dismiss, an audiovisual work attached to a complaint. This time, the suit involved claims for invasion of privacy and misappropriation of image. The court referred back to its decision in Brownmark, but instead of making a similar move and converting the motion into one for summary judgment, it held that because it made sense to attach the video here, it would permit the attachment. The court gave only a few sentences of analysis and did not attempt to define what a “written instrument” is or how audiovisual works fit into this category.

Resolving the question of whether an audiovisual work can be considered a “written instrument” that may be attached or incorporated into complaints would have a great impact on the disposition of cases that rely on these materials. While the change from a motion to dismiss to a motion for summary judgment did not seem to be of much significance in Brownmark, this is the exception rather than the rule. In many cases, a court will not have all the necessary materials to decide a motion for summary judgment at the pleading stage and will permit discovery to take place before ruling. This can lead to greatly increased costs and even the settlement of suits that may in fact be frivolous. If, however, a court can consider videos that manifest copyright infringement, libel, or invasions of privacy on a motion to dismiss, at least some cases can be decided at an earlier point and the pleadings stage will increase in importance.

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