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NOT FOR PUBLICATION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. 14-56203
corporation,
D.C. No. 2:14-cv-01018-R-E
Plaintiff-Appellant,
v. MEMORANDUM*
H&M HENNES & MAURITZ, L.P., a
New York limited partnership,
Defendant-Appellee.
MALIBU TEXTILES, INC., a New York No. 14-56253
corporation,
D.C. No. 2:14-cv-01018-R-E
Plaintiff-Appellee,
v.
H&M HENNES & MAURITZ, L.P., a
New York limited partnership,
Defendant-Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 4
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.
1. The district court erred by granting H&M’s motion to dismiss with
prejudice. Although Malibu did not plead sufficient facts to state a claim for
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 first had to allege facts
plausibly showing ownership of a valid copyright. See Sid & Marty Krofft
Television v. McDonald’s Corp., 562 F.2d 1157, 1162 (9th Cir. 1977). The district
court held that Malibu failed to plausibly allege ownership because it did not
include a copyright registration number in its complaint. Assuming for the sake of
argument that the registration number must be pleaded in the complaint, Malibu’s
failure to do so cannot be deemed fatal. Malibu could of course have amended the
complaint to include the copyright registration number.
Page 3 of 4
Malibu next had to allege facts plausibly showing that H&M 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 H&M’s garment, perhaps with reference to photos 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). To allege access, Malibu
could have pleaded facts showing a chain of events that linked the pattern with
H&M, or provided sales figures accompanied by dates and geographic distribution
information plausibly showing access via widespread dissemination. Because
Page 4 of 4
these allegations could cure the complaint’s deficiencies, the district court’s
conclusion that amendment would be futile was incorrect.
2. We affirm the district court’s denial of H&M’s motion for attorney’s
fees. Because H&M is no longer a prevailing party at this stage of the litigation, it
is not eligible for attorney’s fees under 17 U.S.C. § 505. See Electro Source, LLC
v. Brandess-Kalt-Aetna Group, Inc., 458 F.3d 931, 941 (9th Cir. 2006).
AFFIRMED in part, REVERSED in part, and REMANDED.
The parties shall bear their own costs on appeal.