Bean v. Houghton Mifflin Harcourt Publishing Co.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TOM BEAN, No. 13-16977
Plaintiff - Appellant, D.C. No. 3:11-cv-08030-PGR
And
MEMORANDUM*
DENNIS KUNKEL MICROSCOPY,
INC.,
Plaintiff,
v.
PEARSON EDUCATION, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Submitted October 10, 2014**
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Tom Bean appeals from the district court’s May 17, 2011 dismissal of
certain of his copyright infringement claims against Pearson Education. The
district court held that Bean had not alleged he met 17 U.S.C. § 411(a)’s pre-suit
copyright registration requirement as to photographs contained in compilations,
because the registration applications for the compilations did not contain the
necessary information under 17 U.S.C. § 409 to individually register the images.
We have jurisdiction pursuant to 28 U.S.C. § 1291, Cosmetic Ideas, Inc. v.
IAC/Interactivecorp, 606 F.3d 612, 614 (9th Cir. 2010), and we VACATE the
dismissal order and REMAND for further proceedings.
We recently held in a similar case, Alaska Stock, LLC v. Houghton Mifflin
Harcourt Publishing Company, that the registration of a compilation of
photographs also registers the individual photographs within the compilation
where, as here, the registrant follows Copyright Office practice and does not
include the title and author of each individual photograph on the registration
application. 747 F.3d 673, 685 (9th Cir. 2014).
In Alaska Stock, we further disapproved of the district court’s decision in
Bean v. Houghton Mifflin Harcourt Publishing Company, CV 10-8034-PCT-DGC,
2010 WL 3168624 (D. Ariz. August 10, 2010), the same decision relied upon and
adopted by the district court in this case. 747 F.3d at 684 n.50. Accordingly, we
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hold that the district court erred in dismissing Bean’s action under Federal Rule of
Civil Procedure 12(b)(6) on the ground that his photographs were not individually
registered.
VACATED and REMANDED.
Costs awarded to Appellant.