Neman Brothers & Assoc., Inc. v. Burlington Stores, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEMAN BROTHERS & ASSOC., INC., a No. 17-56239
California corporation,
D.C. No.
Plaintiff-Appellant, 2:16-cv-05824-RGK-SK
v.
MEMORANDUM*
BURLINGTON STORES, INC., a New
Jersey corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted March 6, 2019
Pasadena, California
Before: WARDLAW and BENNETT, Circuit Judges, and SESSIONS,** District
Judge.
In this copyright infringement case involving fabric designs, Neman
Brothers & Associates, Inc. (“Neman”) appeals the district court’s grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
summary judgment in favor of defendants Burlington Stores, Inc. and One Step
Up, Ltd. We review de novo a district court’s grant of summary judgment. L.A.
Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012).
“[S]ummary judgment is appropriate if the court can conclude, after viewing the
evidence and drawing inferences in a manner most favorable to the non-moving
party, that no reasonable juror could find substantial similarity of ideas and
expression.” Narell v. Freeman, 872 F.2d 907, 909–10 (9th Cir. 1989).
A plaintiff must show unlawful appropriation in order to establish copyright
infringement. See Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018).
A plaintiff can do so by showing that the alleged infringing work is substantially
similar to the copyrighted work under both the “extrinsic test” and “intrinsic test.”
Id. at 1118. “The extrinsic test assesses the objective similarities of the two works,
focusing only on the protectable elements of the plaintiff’s expression.” Id.
The district court properly concluded that no reasonable juror could find that
the designs are substantially similar under the extrinsic test.1 While there are some
objective similarities between the fabric designs at issue, the similarities are not
substantial. Indeed, the defendants submitted an expert report opining that the
1
We do not reach the issue of whether the designs are substantially similar under
the intrinsic test because “a plaintiff who cannot satisfy the extrinsic test
necessarily loses on summary judgment.” Kouf v. Walt Disney Pictures &
Television, 16 F.3d 1042, 1045 (9th Cir. 1994).
2
designs were not substantially similar, and Neman failed to controvert this
evidence.
Neman’s remaining arguments in support of reversal are unavailing. Neman
argues that the district court erred by failing to apply the “inverse ratio rule.” But
that rule is not applicable in proving unlawful appropriation, which is the only
issue before us. See Rentmeester, 883 F.3d at 1124.
For the first time on appeal, Neman argues that we should apply the
“fragmented literal similarity” test to determine whether the designs are
substantially similar. We do not address this argument because Neman waived it.
See Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016) (“[A]n issue will
generally be deemed waived on appeal if the argument was not raised sufficiently
for the trial court to rule on it.” (quoting In re Mercury Interactive Corp. Sec.
Litig., 618 F.3d 988, 992 (9th Cir. 2010))). Further, Neman fails to show that the
general waiver rule should not apply here.
AFFIRMED.
3