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Paula Shepard v. Jane Miler

December 14, 2010

PAULA SHEPARD,
PLAINTIFF,
v.
JANE MILER, AN INDIVIDUAL, CAREER PRESS, INC., NEW PAGE BOOKS, AND DOES 1-100. DEFENDANTS.



MEMORANDUM AND ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS AND SPECIAL MOTION TO STRIKE

Plaintiff Paula Shepard brought this action against defendants Jane Miller,*fn1 Career Press, Inc., and New Page Books,*fn2 alleging copyright infringement and related state law claims. Presently before the court are defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and special motion to strike plaintiff's state law claims pursuant to California's anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, California Civil Procedure Code § 425.16.

I. Factual and Procedural Background Defendant Miller is a licensed psychotherapist.

(Compl. ¶ 13.) In 2009, she began writing a book about the use of dogs to treat psychiatric disabilities. (Id.) Miller contacted plaintiff, who has experience using and training psychiatric service dogs ("PSDs"), hoping to feature plaintiff in the book. (Id. ¶¶ 12-13.) Plaintiff agreed, and provided information about her personal experiences using a PSD. (Id. ¶ 14.) Because of plaintiff's practical experience in training PSDs, Miller allegedly asked plaintiff for her help in drafting those portions of the book relating to PSD training and interaction. (Id. ¶ 15.) Plaintiff alleges that she "explicitly told Miller that she . . . expected to be compensated for these additional efforts," and Miller assured plaintiff that she would be compensated by: "(a) receiving attribution in the book for her work, (b) receiving some financial compensation from sales of the book, and (c) being included in speaking engagements in connection with the book . . . ." (Id. ¶ 16.) The two then communicated by e-mail and telephone regarding the book throughout early 2009. (Id. ¶ 17.)

As the book neared completion, plaintiff allegedly sought to formalize their agreement, which defendants refused to do. (Id.) Instead, defendants advised plaintiff that: "All references to you, your experiences and any writing you did will be removed from the book." (Id. ¶ 18.) The book, entitled "Healing Companions," was published in 2010. (Id. ¶ 19.) Plaintiff alleges that she owns the copyright registration for her "Work" and that portions of the Work were published in "Healing Companions." (Id. ¶¶ 29, 32.)

Plaintiff filed this suit on July 16, 2010 (Docket No. 1), alleging claims for (1) fraud; (2) copyright infringement; (3) common law misappropriation; and (4) violations of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200-17210. Defendants now move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and to strike the state law claims under California Civil Procedure Code section 425.16.

II. Discussion

A. Motion for Judgment on the Pleadings "After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). A Rule 12(c) motion may ask for judgment on the basis of plaintiff's "[f]ailure to state a claim upon which relief can be granted." Id. 12(h)(2)(B). Such a motion is essentially equivalent to a Rule 12(b)(6) motion to dismiss, so a district court may "dispos[e] of the motion by dismissal rather than judgment."*fn3 Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 311 F. Supp. 2d 898, 902-03 (S.D. Cal. 2004).

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that the pleading standard rests on two principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. While showing an entitlement to relief "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. If the pleadings "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).*fn4

Sprint Telephony PCS, L.P. v. Cnty. of San Diego, 311 F. Supp. 2d 898, 902-03 (S.D. Cal. 2004).

Copyright Infringement Claim against All Defendants To establish copyright infringement, a plaintiff must show (1) ownership of a valid copyright in the allegedly infringed material and (2) copying of protected expression by defendants. Triad Sys. Corp. v. Se. Express Co., 64 F.3d 1330, 1335 (9th Cir. 1995), overruled on other grounds by Cunningham v. Hamilton Cnty., Ohio, 527 U.S. 198 (1999).

A copyright registration certificate is prima facie evidence of copyright ownership. See 17 U.S.C. § 410(c) ("In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate."). While plaintiff has failed to attach a registration certificate, she alleges that she owns a copyright registration. (See Compl. ¶¶ 18, 29.) This may or may not be sufficient to allege copyright ownership. See Vargas v. Pfizer, Inc., 418 F. Supp. 2d 369, 373 (S.D.N.Y. 2005) (dismissing with leave to amend for failure to attach certificate of registration). However, defendants have not contested the issue, so for purposes of this motion, the court assumes that plaintiff has sufficiently alleged ownership.

As to the second element, copying of a protected expression, defendants contend that most of plaintiff's Work that appears in "Healing Companions" actually originated in early drafts that Miller e-mailed to plaintiff, and is thus not eligible for protection. (See Defs.' Mem. of P. & A. in Supp. of Mot. for J. on the Pleadings at 9:1-16:27.) However, the court cannot look to the e-mails, which are not subject to judicial notice, on a motion for judgment on the pleadings, and thus the court must consider only the similarity of the Work and the book.

"Copying may be shown by circumstantial evidence of access and substantial similarity of both the general ideas and expression between the copyrighted work and the allegedly infringing work."*fn5 Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir. 1994). Substantial similarity refers to similarity of expression, not merely similarity of ideas or concepts. See 17 U.S.C. § 102(b).

The degree of word-for-word similarity between the works here places the infringement claim in the class of cases referred to by Nimmer as "fragmented literal similarity." 4 Nimmer on Copyright § 13.03[A][2] at 13-53. "Fragmented literal similarity exists where the defendant copies a portion of the plaintiff's work exactly or nearly exactly, without appropriating the work's overall essence or structure." Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004). "Because the degree of similarity is high in such cases," the court should consider "whether the copying goes to trivial or substantial elements," which is measured by "considering the qualitative and quantitative significance of the copied portion in relation to the plaintiff's work as a whole."*fn6 Id.

In considering the qualitative and quantitative significance of the copied portion of plaintiff's Work, the court cannot conclude on the pleadings alone that there is not substantial similarity between the works. Large portions from three out of just over nine pages constituting the Work are copied in the book with only slight modifications. (See Defs.' Supplemental Req. for Judicial Notice Ex. A ("Healing Companions") (Docket No. 22).) Plaintiff's Work contains two main sections: her personal story of interactions with her PSD and her advice on training PSDs. A majority of the latter is found in Chapter Four of "Healing Companions." (Defs.' Req. for Judicial Notice Ex. A (Docket No. 10).) The court is not equipped to determine the qualitative importance of the section on training to the ...


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