The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Judge
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION AND DENYING DEFENDANTS' MOTION IN THE ALTERNATIVE TO CERTIFY THE ISSUES FOR INTERLOCUTORY APPEAL
Defendants MGA Entertainment, Inc. and Issac Larian (collectively "MGA" and "Defendants") move for reconsideration of the Court's Order of October 31, 2006, denying MGA's motion for summary judgment on Plaintiff Art Attacks Ink, LLC's ("Art Attacks") claims for copyright, trademark and trade dress infringement, and move in the alternative to certify the issues for interlocutory appeal. For the reasons herein, the Court DENIES the motion for reconsideration and additionally, DENIES the motion to certify for interlocutory appeal.
In the first quarter of 2006, MGA brought motions for summary judgment on Art Attacks Ink, LLC's copyright, trademark and trade dress infringement claims and on Art Attacks' defamation claims. After considering the parties' briefs and oral arguments, the Court denied the motions on the copyright, trade dress and defamation claims. With respect to trademark, the Court granted-in-part MGA's motion as to no infringement of the marks "BRAT" and "BRATS" and denied-in-part the motion as to no infringement of Art Attacks' "SPOILED BRAT" mark.
The instant motion for reconsideration contends that the Court 's rulings constitute clear error on three points pertaining to copyright infringement: access, defects in copyright registration and the application of the intrinsic test for substantial similarity. MGA's motion also argues that the Court's ruling was in error on the issue of secondary meaning as it pertains to the trademark claim. Finally, MGA moves in the alternative that the Court certify these issues for interlocutory appeal. The parties fully briefed the issues and the Court considered the instant motions on the papers.
"[T]he interlocutory orders and rulings made pre-trial by a district judge are subject to modification by the district judge at any time prior to final judgment." Amarel v. Connell, 102 F.3d 1494, 1515 (9th Cir. 1996);Fed. R. Civ. P. 54(b); see also Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d 1119, 1124 (9th Cir. 2005) (recognizing "the well-established rule that a district judge always has power to modify or to overturn an interlocutory order or decision while it remains interlocutory"). A district court may reconsider a previous interlocutory decision where it "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). However, a court should generally leave a previous decision undisturbed absent a showing that it either represented clear error or would work a manifest injustice. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988).
1. Copyright infringement - Access
The Court's Order on MGA's motion for summary judgment (hereinafter "Order") analyzed access under the prevailing Ninth Circuit standard that access requires "an opportunity to view or copy plaintiff's work." See e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). The opportunity to view or copy must be a reasonable one, not simply a bare possibility based on "mere speculation or conjecture." Id. An inference of access, however, may be predicated based on wide dissemination of a work. Id. Applying these standards, the Court found that Art Attacks' had met its burden to defeat summary judgment because there remained a reasonable possibility that MGA viewed Art Attacks' website, given the prevalence of web access in general. MGA now argues that the Court committed clear error when it found that there was a possibility of access based on this standard, because Art Attacks had not demonstrated that anyone at MGA had ever visited the website.
Access based on wide dissemination of a work is a circumstantial argument. Three Boys Music., 212 F.3d at 482. It is based simply on the reasonable opportunity for a party to have seen the work, not proof that the party in question actually viewed the work. See id. see also Reece v. Island Treasures Art Gallery, Inc., 2006 WL 3804685 at *5 (D. Haw. 2006) (circumstantial evidence of access shown through wide dissemination of photograph sold in stores and published in magazines and newspapers); ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2nd Cir. 1983) (popularity of a song in the United States and England for a span of 5-7 weeks was sufficient to create a possibility of access).
While MGA now offers examples where courts have not found dissemination of a work to be sufficient for access, the Court does not find these persuasive in the instant case. The consideration of access is closely tied to the facts, and as the Ninth Circuit has explained, "[a]t times, distinguishing a 'bare' possibility from a 'reasonable' possibility will present a close question." Three Boys Music, 212 F.3d at 482 (quoting 4 Nimmer, § 13.02[A], at 13-20). The evidence the Court considered at summary judgment taken in a light most favorable to the non-moving party, Art Attacks, was sufficient to raise a genuine issue of facts as to whether there was a ...