Laura Larson v. Warner Bros Entertainment, Inc, et al
Filed (ECF) Appellees DC Comics and Warner Bros. Entertainment, Inc. in 11-55863, Appellants DC Comics and Warner Bros. Entertainment, Inc. in 11-56034 reply to response (). Date of service: 04/12/2012.  [11-55863, 11-56034] (DP)
Appeal Nos. 11-55863, 11-56034
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA SIEGEL LARSON,
Plaintiff, Counterclaim-Defendant, Appellant, and Cross-Appellee,
WARNER BROS. ENTERTAINMENT INC. AND DC COMICS,
Defendants, Counterclaimants, Appellees, and Cross-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
THE HONORABLE OTIS D. WRIGHT II, JUDGE
CASE NO. CV-04-8400 ODW (RZX)
REPLY IN SUPPORT OF MOTION BY CROSS-APPELLANTS AND
APPELLEES WARNER BROS. ENTERTAINMENT INC. AND DC COMICS
FOR LEAVE TO LODGE AN ORIGINAL
DETECTIVE COMICS #15 IN THE APPELLATE RECORD
JONATHAN D. HACKER
O’MELVENY & MYERS LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Telephone: (202) 383-5300
PATRICK T. PERKINS
PERKINS LAW OFFICE, P.C.
1711 Route 9D
Cold Spring, New York 10516
Telephone: (845) 265-2820
DANIEL M. PETROCELLI
MATTHEW T. KLINE
CASSANDRA L. SETO
O’MELVENY & MYERS LLP
1999 Avenue of the Stars, 7th Floor
Los Angeles, California 90067
Telephone: (310) 553-6700
Facsimile: (310) 246-6779
Attorneys for Warner Bros. Entertainment Inc. and DC Comics
DC’s motion to lodge should be granted because Larson does not and cannot
dispute that the original Detective Comics #15 comic book that DC asks the Court
to consider is self-authenticating and thus it is subject to judicial notice under this
Court’s established case law.1 Avoiding this issue, Larson instead makes several
arguments as to why the Court should not consider the Superman “Promotional
Announcement” published in Detective Comics #15. None has merit.
1. Larson asserts that the “scope” of copyrightable elements in the
Announcement is not before this Court on this Rule 54(b) appeal. Opp. at 1.
While Larson waived any right to challenge the district court’s Announcement
rulings by failing to raise them in her opening brief, see Gausvik v. Perez, 392 F.3d
1006, 1008 n.1 (9th Cir. 2004), those rulings are surely before this Court, assuming
it rules that it has jurisdiction to hear Larson’s First Claim in this case. Larson’s
First Claim requests a declaration concerning the parties’ “respective rights and
obligations with respect to [copyright termination notices served by Larson] and
the copyright interests thereby recaptured.” ER-338-39 ¶¶ 53-55. Adjudication of
that claim requires determining the extent to which Larson’s recaptured rights (if
any) are diminished by the Announcements, which feature the first appearance and
See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010)
(judicial notice warranted where “neither party disputes the authenticity” of
evidence); Valdivia v. Schwarzenegger, 599 F.3d 984, 994 (9th Cir. 2010) (same);
Von Saher v. Norton Simon Museum of Art, 592 F.3d 954, 960 (9th Cir. 2010)
(taking judicial notice of magazine articles); Fitzgerald v. Penthouse Intern., Ltd.,
525 F. Supp. 585, 595 n.41 (D. Md. 1981) (same).
publication of Superman. DC Merits Br. at 40-41 (Docket No. 31-1); DC’s Mot. to
Dismiss Appeal at 11-17 (Docket No. 5-1). While DC contends this scope
question must first fully be decided by the district court—and the failure to decide
that question means Larson’s appeal is premature—if the Court is going to hear
Larson’s appeal on her First Claim, then it can and should hear DC’s cross-appeal
on that claim, which challenges the district court’s erroneous statements about
what elements were visible in the Announcements. DC Merits Br. at 80-86.2
2. Larson next asserts the Court cannot take judicial notice of Detective
Comics #15 because it is not a “legal principle.” Opp. at 3. She bases this
argument on an overly-narrow reading of U.S. v. Rivero, 532 F.2d 450, 458 (5th
Cir. 1976). Rivero articulated the general rule that an appellate court may take
judicial notice of any matter “for the purpose of affirming or showing the
impropriety of a decision below.” 532 F.2d at 458. While Rivero involved taking
judicial notice of a statute, the court placed no restrictions on the applicability of its
holding, and the same rule has been relied on by appellate courts to take judicial
notice of relevant and informative evidence.
To take two examples, in McKay v. U.S., 516 F.3d 848, 849 n.2 (10th Cir.
2008), plaintiff brought suit to enforce his right to obtain special use permits to
drill for oil and gas on land he had sold to the government. Although the deed
Indeed, DC’s cross-appeal on its First Counterclaim presents the same issue.
Id. at 40.
transferring the land at issue was not in the record below, the circuit court took
judicial notice of it “to inform [its] general understanding of the case.” Id.
Two weeks ago, this Court applied the same principle to take judicial notice
of documentary evidence in Charles v. Felker, 2012 WL 1065488, at *2 (9th Cir.
Mar. 30, 2012); see Circuit Rule 36-3; FED. R. APP. P. 32.1. There, defendant
claimed the trial court erred by not conducting a comparative juror analysis in
denying his claim of discrimination in the prosecutor’s use of peremptory
challenges. On appeal, defendant sought to introduce the juror questionnaires used
in voir dire to demonstrate that the prosecutor’s stated reasons for his challenges
were pretextual. Charles, 2012 WL 1065488, at *2. This Court took judicial
notice of the questionnaires even though they were not in the record because they
were “highly relevant.” Id.
Under these cases—as well as several others Larson’s opposition declined to
address—this Court can and should take judicial notice of Detective Comics #15.3
3. Larson last argues the merits of DC’s cross-appeal, asserting that the
district court’s ruling on the content of the Announcements issue was proper and it
Larson’s claim that Rivero was DC’s “sole authority” for this Court’s taking
judicial notice of non-record evidence on appeal is false. Opp. at 3. DC cited
several other cases to which Larson has no answer. See supra at 1 n.1; Mot. at 1
(citing, e.g., Daniels-Hall, 629 F.3d at 998 (taking judicial notice of list of
approved vendors on school district’s website); Hotel Employees & Rest.
Employees Union, Local 100 v. City of New York Dep’t of Parks & Recreation,
311 F.3d 534, 540 n.1 (2d Cir. 2002) (taking judicial notice of book about the
construction of the Lincoln Center)).
considered all the evidence it needed to consider in issuing its sua sponte ruling.
These merits arguments can and should be deferred to the merits stage of this
appeal, but to address them briefly:
• DC did not submit an original Announcement in its summary judgment
papers below because the only question before the district court was
whether the Announcements fell outside the statutory time limit of
Larson’s copyright termination notices. DC Merits Br. at 80-81. As
Larson herself asserted below, “The Question Of What Literary Elements
Are Actually Contained In The Ad [Is] A Genuine Issue Of Material
Fact” that could not be decided on summary judgment. SER-356-57.
The district court thus erred in ruling sua sponte as to the copyrightable
contents of the Announcements. See Cool Fuel, Inc. v. Connett, 685 F.2d
309, 312 (9th Cir. 1982); DC Merits Br. at 80-86.4
Larson’s two cited cases (Opp. at 2) do not validate this erroneously
premature ruling. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551,
1556 n. 3 (9th Cir. 1991), did not involve a sua sponte ruling—the court ruled on
certain preliminary questions “[it] was required to answer” before addressing the
issue on summary judgment, and the parties were “clearly advised” of the issues on
summary judgment. Similarly, in Portsmouth Square, Inc. v. Shareholders
Protective Comm., 770 F.2d 866, 869-70 (9th Cir. 1985), the district court “made
clear from the outset” that it would rule on an issue and “considered all the
evidence” that the plaintiff “planned to present….” Here, the district court gave no
notice it would rule on the scope question, and denied DC an opportunity to
present an original Announcement or any of the other evidence, expert testimony,
and argument DC had developed for trial. DC Merits Br. at 81-82.
• Larson also incorrectly asserts that the district court reviewed a legible
version of the Promotional Announcements because DC filed a motion
for reconsideration attaching an enlarged, high-resolution copy. Opp. at
2. The district court, in fact, declined to consider this blown-up version
or any other version, stating “the salient point is not how those
announcements may have looked if blown up, but rather as they appeared
to readers in the comic book itself.” SER-2. That is exactly the version
of the comic book that DC presently seeks to lodge with this Court—the
very comic book readers would have seen in 1938, and not the “low
quality photocopies” that the district court complained about. SER-2.
Given that the district court made rulings concerning the elements visible in
the Promotional Announcement, it would make little sense for this Court to review
those rulings without the benefit of the actual Announcement—the authenticity of
which is not disputed. DC’s motion should be granted.
Dated: April 12, 2012
O’MELVENY & MYERS LLP
By: /s/ Daniel M. Petrocelli
Daniel M. Petrocelli
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