Acmet, Inc. v. the Wet Seal, Inc. , 677 F. App'x 304 ( 2017 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    FEB 15 2017
    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ACMET, INC., a California Corporation,           No.    15-55928
    Plaintiff-Appellant,               D.C. No.
    2:14-cv-00048-TJH-AJW
    v.
    THE WET SEAL, INC., a Delaware                   MEMORANDUM*
    Corporation; et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Terry J. Hatter, District Judge, Presiding
    Argued and Submitted February 8, 2017
    Pasadena, California
    Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.
    Acmet, Inc., appeals from the district court’s denial of its motion for
    summary judgment and sua sponte entry of summary judgment in favor of
    defendants. We have jurisdiction under 28 U.S.C. § 1291 and review the district
    court’s order de novo. See Albino v. Baca, 
    747 F.3d 1162
    , 1168 (9th Cir. 2014)
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    (en banc). We affirm the district court’s denial of Acmet’s motion for summary
    judgment and reverse the sua sponte entry of summary judgment in defendants’
    favor. See Buckingham v. United States, 
    998 F.2d 735
    , 742 (9th Cir. 1993).
    “To establish copyright infringement, a plaintiff must prove two elements:
    ‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the
    work that are original.’” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 
    676 F.3d 841
    , 846 (9th Cir. 2012) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
    
    499 U.S. 340
    , 361 (1991)). The district court ruled that defendants failed to rebut
    the presumption of a valid copyright arising from Acmet’s copyright registration
    certificate for the design in question, Registration No. VA 1-862-161. For
    purposes of this appeal, defendants concede that Acmet owns a valid copyright.
    The district court ruled that Acmet failed to prove copying.
    “[D]irect evidence of copying is not available in most cases . . . .” 
    Id. (quoting Smith
    v. Jackson, 
    84 F.3d 1213
    , 1218 (9th Cir. 1996)). “Absent direct
    evidence of copying, proof of infringement involves fact-based showings that the
    defendant had ‘access’ to the plaintiff’s work and that the two works are
    ‘substantially similar.’” Three Boys Music Corp. v. Bolton, 
    212 F.3d 477
    , 481 (9th
    Cir. 2000) (quoting 
    Smith, 84 F.3d at 1218
    ). “Proof of striking similarity is an
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    alternative means of proving ‘copying’ where proof of access is absent.” Baxter v.
    MCA, Inc., 
    812 F.2d 421
    , 424 n.2 (9th Cir. 1987).
    1.     Here, reasonable jurors could differ on whether Acmet’s and
    defendants’ designs are strikingly similar. See Cavalier v. Random House, Inc.,
    
    297 F.3d 815
    , 822 (9th Cir. 2002). There are objective similarities between
    protectable elements of the designs. See L.A. 
    Printex, 676 F.3d at 850
    (“Because
    there is ‘a wide range of expression’ for selecting, coordinating, and arranging
    floral elements in stylized fabric designs, ‘copyright protection is broad and a work
    will infringe if it’s substantially similar to the copyrighted work.’” (quoting Mattel,
    Inc. v. MGA Entm't, Inc., 
    616 F.3d 904
    , 913–14 (9th Cir. 2010))). The designs
    have the same number of triangles arranged in the same pattern with the same size
    ratios. The designs all have a top border that is arranged in the same way. The
    only differences in the designs are the colors, the bottom border, and the addition
    of an extra line in two of defendants’ designs.
    2.     There is also evidence from which reasonable jurors could draw an
    inference that defendants had access to Acmet’s design. See Anderson v. Liberty
    Lobby, Inc., 
    477 U.S. 242
    , 255 (1986); Art Attacks Ink, LLC v. MGA Entm’t Inc.,
    
    581 F.3d 1138
    , 1143–44 (9th Cir. 2009). Defendant Tony Kim was the president
    and owner of both the company that Acmet hired to print its design (Design by
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    Nature) and the company that sold allegedly infringing fabric to retailers (Fashion
    Life). Fashion Life ordered garments bearing the allegedly infringing designs from
    a Chinese vendor within three months of Acmet’s disclosing its design to Design
    by Nature.
    A jury reasonably could resolve these issues in favor of either party, making
    summary judgment inappropriate. See L.A. 
    Printex, 676 F.3d at 846
    .
    AFFIRMED IN PART AND REVERSED IN PART, AND
    REMANDED. The parties shall bear their own costs on appeal.
    4