Meridian Textiles v. Topson Downs of California , 605 F. App'x 671 ( 2015 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MERIDIAN TEXTILES, INC., a California No. 12-57190
Corporation,
D.C. No. 2:11-cv-08351-RGK-
Plaintiff - Appellant, AGR
v.
MEMORANDUM*
TOPSON DOWNS OF CALIFORNIA,
INC., a California 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 May 8, 2015
Pasadena, California
Before: BEA and FRIEDLAND, Circuit Judges and RICE,** District Judge.
Appellant Meridian Textiles, Inc. appeals from the district court’s sua sponte
entry of summary judgment in favor of Appellees. We have jurisdiction under 28
U.S.C. § 1291, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
The district court held that Meridian’s copyright in its zebra design,
registration number S1479, was invalid because the only differences between
Meridian’s design and prior art zebra stripe designs were “in the thickness of the
lines and orientation of the pattern.” But there is no evidence that Meridian
copied its zebra design from prior art, and the district court may not say as a matter
of law that “the differences in the placement of geometric shapes should be
regarded as trivial.” N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1035
(9th Cir. 1992). The district court therefore erred in holding the copyright to the
zebra design invalid. See id. at 1033 (“All that is needed to satisfy both the
Constitution and the statute is that the author contributed something more than a
merely trivial variation, something recognizably his own.” (citation and internal
quotation marks omitted)). We decline to affirm the district court on the
alternative ground that there is no substantial similarity between Meridian’s zebra
design and Appellee’s zebra design. Reasonable jurors could differ on whether
the designs are substantially similar to each other. Cavalier v. Random House,
Inc., 297 F.3d 815, 822 (9th Cir. 2002).
The district court held that Meridian has a valid copyright in its animal print
design, registration number I03879, but entered summary judgment sua sponte for
2
Appellees on infringement because the district court did not find substantial
similarities in protectable elements between Meridian’s design and Appellees’
design. But there are objective similarities between the two designs such that,
drawing all inferences in Meridian’s favor, a rational jury could find that
Appellees’ design is substantially similar to Meridian’s. Because reasonable
jurors could differ on the issue of substantial similarity, summary judgment was
improper. Id.1
The district court held that Meridian has a valid copyright in its burnout and
lace designs,2 registration numbers I03703 and S2088, but entered summary
judgment sua sponte for Appellees on infringement because the district court did
1
To the extent Appellees ask us to hold that Meridian’s animal print design is not
entitled to copyright protection because it was copied from another source, that
argument was not raised before the district court and is waived on appeal. United
States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005). Nor did
Appellees otherwise offer sufficient evidence in the district court to rebut the
presumption that Meridian’s animal print design copyright is valid. N. Coast, 972
F.2d at 1033.
2
To the extent Appellees ask us to hold that Meridian’s lace design is not entitled
to copyright protection because of inaccuracies in the copyright registration, that
argument was not raised before the district court and is waived on appeal. Flores-
Montano, 424 F.3d at 1047. Appellees did not offer sufficient evidence in the
district court to rebut the presumption that Meridian’s lace design and burnout
design copyrights are valid. N. Coast, 972 F.2d at 1033.
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not find substantial similarities between Meridian’s and Appellees’ designs. The
district court did not provide notice to Meridian that it was considering entering
summary judgment sua sponte for Appellees, and in its ruling, the court considered
only properly authenticated photographs submitted by Meridian and did not
provide Meridian an opportunity to authenticate its other proposed exhibits,
including physical exhibits. This was error. See Fed. R. Civ. P. 56(f); Cool Fuel,
Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982) (holding that sua sponte
summary judgment is permissible only if “it is made to appear from all the records,
files, affidavits and documents presented that there is no genuine dispute
respecting a material fact essential to the proof of movant’s case”).
For the foregoing reasons, the district court’s sua sponte grant of summary
judgment to Appellees is REVERSED.3
3
Meridian’s opposed motion to transmit physical exhibits to this court under
Circuit Rule 27-14 is DENIED.
4