FILED
NOT FOR PUBLICATION
SEP 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALIBU TEXTILES, INC., a New York No. 14-56635
corporation,
D.C. No.
Plaintiff-Appellant, 2:14-cv-04054-R-MAN
v.
MEMORANDUM*
LABEL LANE INTERNATIONAL, INC.,
a California corporation, and ENTRY,
INC., dba ALT B., a California
corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted September 1, 2016
Pasadena, California
Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.
The district court erred by granting the defendants’ motion to dismiss with
prejudice. Although Malibu did not plead sufficient facts to state a claim for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 4
copyright infringement, the district court abused its discretion by denying Malibu
the opportunity to amend its complaint. Dismissal with prejudice is appropriate
only if the complaint “could not be saved by any amendment.” Leadsinger, Inc. v.
BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Here, that is not the case.
To state a claim for copyright infringement, Malibu had to allege facts
plausibly showing that the defendants copied the protected elements in Malibu’s
work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). A
plaintiff may satisfy this element by showing either that the two works in question
are strikingly similar, or by showing that they are substantially similar and that the
defendant had access to the plaintiff’s work. Id. at 481, 485. In the absence of
direct evidence of access, a plaintiff can show that a chain of events linked the
protected work to the defendant, or that the work had been widely disseminated.
Id. at 482. Malibu’s complaint did not adequately allege copying of a protected
work under any of these theories.
However, Malibu potentially could have amended its complaint to cure this
deficiency in several ways. To allege striking or substantial similarity, Malibu
could have described the pattern’s protectible elements—such as the selection,
coordination, and arrangement of flowers, leaves, and branches—and identified
those same elements in the defendants’ patterns, perhaps with reference to photos
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showing a side-by-side comparison of the works. See L.A. Printex Indus., Inc. v.
Aeropostale, Inc., 676 F.3d 841, 850 (9th Cir. 2012). Although Malibu’s first
amended complaint described the arrangement of elements that was allegedly
incorporated into defendants’ product, and alleged that the layout and arrangement
of the two products were substantially similar or virtually identical, the complaint
did not provide photos that clearly showed these similarities and did not describe
the arrangement of the elements with sufficient specificity. And to allege access,
Malibu could have pleaded facts showing a chain of events that linked the
protected pattern with the allegedly infringing patterns, or provided sales figures
accompanied by dates and geographic distribution information plausibly showing
access via widespread dissemination. Because these allegations could cure the
complaint’s deficiencies, the district court’s conclusion that amendment would be
futile was incorrect.
The district court also relied incorrectly on Satava v. Lowry, 323 F.3d 805,
813 (9th Cir. 2003), in holding that Malibu failed to allege that any protectible
elements were substantially similar in both works. Stylized fabric designs
featuring floral elements are entitled to broad copyright protection under L.A.
Printex, 676 F.3d at 850 n.4, 851. Even if some of the elements in Malibu’s
pattern were not protectible on their own, copyright protection extends to the
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“[o]riginal selection, coordination, and arrangement of unprotectible elements.”
Id. at 849. The district court should have considered these aspects of the pattern in
its analysis of protected elements.
REVERSED and REMANDED.