NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
URBAN TEXTILE, INC., a California No. 17-56749
Corporation,
D.C. No.
Plaintiff-Appellant, 2:14-cv-08285-ODW-FFM
v.
MEMORANDUM*
RUE 21, INC.; MARK-EDWARDS
APPAREL, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted March 5, 2019**
Pasadena, California
Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District
Judge.
Plaintiff Urban Textile, Inc. (“Urban”) appeals from the district court’s order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
granting partial summary judgment to defendants Mark Edwards Apparel, Inc. and
Rue 21, Inc. on Urban’s copyright infringement claim for eleven fabric designs.
Because the parties are familiar with the facts, they will not be recounted here. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We review a grant of partial summary judgment de novo. Geurin v. Winston
Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002). The district court did not err in
concluding that Urban published the subject designs prior to registering them with
the Copyright Office as unpublished works. The district court relied on an
evidentiary presumption imposed against Urban as a discovery sanction, which
deemed established that Urban had placed copies of each of the subject designs in
its “Look Books” that were made available to potential customers for the purpose
of soliciting purchases of fabric bearing the subject designs. Urban has not
challenged the district court’s imposition of the presumption.
The district court properly concluded that the inclusion of the subject
designs in Urban’s Look Books constituted “publication” under the Copyright Act.
See 17 U.S.C. § 101 (“publication” includes “[t]he offering to distribute copies . . .
to a group of persons for purposes of further distribution”); United States
Copyright Office, Compendium of U.S. Copyright Office Practices § 1906.1 (3d
ed. 2017) (“[P]ublication occurs when one or more copies . . . are offered to a
wholesaler, a retailer . . . or similar intermediaries for the purpose of distributing
2 17-56749
the work to the public,” and when, for example, “fabric, carpet, or wallpaper
samples are offered to sales representatives for the purpose of selling those works
to wholesalers and retailers.”).
AFFIRMED.
3 17-56749