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Muromura v. Rubin Postaer and Associates

United States District Court, C.D. California

April 15, 2015

RUBIN POSTAER AND ASSOCIATES, a California corporation; AMERICAN HONDA MOTOR CO., INC., a Delaware corporation, Defendants.


DEAN D. PREGERSON, District Judge.

Presently before the court is Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint. Having considered the submissions of the parties and heard oral argument, the court grants the motion and adopts the following order.

I. Background

As discussed in this court's prior orders, Plaintiff Sachiko Muromura creates artistic works using a magnetic fluid ("ferrofluid"). (Second Amended Complaint ("SAC") ¶ 15.) Muromura makes ferrofluid sculptures, takes photographs and videos of the sculptures, and often projects images of the sculptures onto a screen. (Id.) Among Muromura's artistic creations is an audiovisual work entitled "Protrude Flow" which she created in collaboration with Plaintiff Minako Takeno.[1] (Id. ¶ 16.) Muromura subsequently created and copyrighted an audiovisual work entitled "Protrude Flow, 2001." (Id. ¶¶ 17-18.) The work does not readily lend itself to written description, but generally depicts ferrofluid forming a series of shapes and patterns in response to magnets. The "Protrude Flow, 2001" video, and still images from the movie, were displayed at a computer graphics exhibition in Los Angeles in 2001. (Id. ¶ 17.)

Defendant Rubin Postaer and Associates ("RPA") is an advertising agency that did work for Defendant American Honda Motor Company ("Honda"). (SAC ¶ 19.) In 2009, an RPA employee asked Muromura (hereinafter, "Plaintiff") if any of her ferrofluid artworks were available for a multi-city tour highlighting Honda's use of ferrofluids in its vehicles. (Id.) Plaintiff provided RPA with a link to her website, which included images and video of "Protrude Flow, 2001." (Id.) RPA ultimately rented one of Plaintiff's two available works and paid Plaintiff a $10, 000 rental fee. (Id. ¶ 20.)

In March 2010, people familiar with Plaintiff's work informed her that a division of Honda was using images of her ferrofluid art in its advertisements. (SAC ¶ 21.) RPA assured Plaintiff that her works were not featured in the ads, but offered Plaintiff a $10, 000 "creative consultant fee." (Id. ¶ 24.) Plaintiff then filed this copyright infringement action against RPA and Honda. This court granted Defendants' motions to dismiss both the original and First Amended Complaint, both times with leave to amend. Defendants now move to dismiss the Second Amended Complaint.

II. Legal Standard

A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes , 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations, " it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. In other words, a pleading that merely offers "labels and conclusions, " a "formulaic recitation of the elements, " or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678 (citations and internal quotation marks omitted). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly , 550 U.S. at 555. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679.

III. Discussion

A Plaintiff bringing a copyright infringement claim must adequately allege "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Pubs., Inc. v. Rural Tel. Serv. Co., Inc. , 499 U.S. 340, 361 (1991). To satisfy the copying prong, a copyright plaintiff must also allege that the works are substantially similar in their protected elements. Wild v. NBC Universal, Inc. , 788 F.Supp.2d 1083, 1098 (C.D. Cal. 2011). The key issue in this case, at this stage, is whether the elements Defendants allegedly copied are protectable in the first instance.

To determine whether works are substantially similar, courts in this circuit apply a two-part analysis comprised of an objective "extrinsic test" and a subjective "intrinsic" test. Cavalier v. Random House, Inc. , 297 F.3d 815, 822 (9th Cir. 2002). The intrinsic test is left to the jury. Id. at 484. In conducting the extrinsic test, courts must make an objective comparison of specific expressive elements. Cavalier , 297 F.3d at 822. Such a comparison may require an "analytical dissection" of a particular work. Three Boys Music Corp. v. Bolton , 212 F.3d 477, 485 (9th Cir. 2000). As the Ninth Circuit has acknowledged, "the extrinsic test provides an awkward framework to apply to copyrighted work like music or art objects...." Swirsky v. Carey , 376 F.3d 841, 848 (9th Cir. 2004). Nevertheless, the test is applicable to such works. Id.

It is the plaintiff's burden to initially identify specific, objective elements. Three Boys , 212 F.3d at 485. The court's analytical dissection must, however, distinguish between protected and unprotected elements in the work. Swirsky , 376 F.3d at 845. "[W]hen applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity determination." Cavalier , 297 F.3d at 815. As explained in this court's prior orders, copyright protection does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery." 17 U.S.C. § 102(b). Therefore, "elements of expression that necessarily follow from an idea, or expressions that are as a practical matter, indispensable or at least standard in the treatment of an idea are [also] not protected." Dream Games of Arizona, Inc. v. PV Onsite , 561 F.3d 983, 988 (9th Cir. 2009) (internal quotation and alteration omitted); see also Satava v. Lowry , 323 F.3d 805, 810 (9th Cir. 2003) ("Similarly, expressions that are standard, stock, or common to a particular subject matter or medium are not protectable under copyright law.") (emphasis added); see also Swirsky , 376 F.3d at 850 ("[W]hen certain commonplace expressions are indispensable and naturally associated with the treatment of a given idea, those expressions are... not protected by copyright.").

In this vein, as the Satava court explained, objective facts are not copyrightable. Satava , 323 F.3d at 810. The court therefore held that a sculptor of jellyfish artworks could not copyright such naturally-dictated elements as bright colors, tentacles, vertical swimming orientation, clear glass representative of water, or other elements typical of jellyfish in nature. Id. at 811-12. While the court recognized that some artistic choices derived from nature, such as the particular curl of a jellyfish's tendril, might be entitled to some copyright protection, it explained that, given the limited range of possible expressions of curled tendrils, such an element would be entitled to only "thin" protection from only "virtually identical copying." Id. Even unprotectable elements, however, may gain some protection in combination with each other. Specific combinations of unprotectable elements may be copyrightable, provided that the elements combined "are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship." Id. at 810.

In this case, the court concluded that previous iterations of Plaintiffs' complaint impermissibly attempted to lay claim to fundamental properties of ferrofluid, such as its tendency to pool, flow, or react to the presence of a magnet. The court therefore found such elements to be either unprotectable or, at best, worthy of only thin protection.[2] Now, with their lengthier Second Amended Complaint, Plaintiffs include additional visual exhibits and additional, more detailed descriptions of the works and elements at issue.

Plaintiffs' Second Amended Complaint, however, continues to suffer from a lack of clarity regarding the protectable elements reflected in Plaintiffs' works. At a general level, Plaintiffs provide extensive lists of descriptors and elements characterizing their works, but at the same time allege that "[t]hese articulations of the objective manifestations of Plaintffs' expression are provided, without limitation, as examples to demonstrate sufficient objective similarities...." (SAC ¶ 34). With respect to specific photographs, Plaintiffs allege that "[s]ome of the objective manifestations of the creative expression that were copied by Defendants include the slope of the mountain [shape], the density of spikes on the mountain, the way the spikes protrude vertically..., the shape of the spikes, the horizon line..., the mood of the pieces... and the open air environment." (SAC ¶ 45.)

Such allegations, however, put the cart before the horse. Plaintiffs cannot merely allege that Defendants' works share certain elements with Plaintiffs' works.[3] The threshold question is whether any elements, or combinations of elements, are protectable in the first instance. Plaintiffs skip ahead to a description of "some" of the elements present in both works without first identifying any elements or particular combination of elements worthy of protection. Many of the individual expressions identified, such as "mood, " with no further elaboration, are not the type of objective elements that the extrinsic test requires.

Plaintiffs may not avoid their burden to identify protectable elements by alleging, as they do, that discovery will do so. (E.g., "Plaintiffs contend that discovery will support their claim that [a] hexagonal image of small vertical protrusions is copyrightable expression...." (SAC ¶ 62.)) Even if such descriptions were sufficient to adequately identify a protectable combination of elements, the SAC muddies the waters by alleging that the exhibits described are intended only "as a few examples that serve to demonstrate that Defendants (sic) works are extrinsically similar to Plaintiffs' work...." (SAC ¶ 56.) With such vague and qualified allegations, it is difficult for this court determine the set of elements, whether individually or as a combination, to which Plaintiffs stake a claim. Because Plaintiffs have failed to meet their burden to identify specific, objective, protectable elements, the SAC must be dismissed.

IV. Conclusion

For the reasons stated above, Defendants' Motions to Dismiss are GRANTED. The Second Amended Complaint is DISMISSED, with prejudice.


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