Sachiko Muromura v. Rubin Postaer and Associates et al

Filing 22

ORDER by Judge Dean D. Pregerson: Defendants Motion to Dismiss is GRANTED 12 . Any amended complaint shall be filed within fourteen days of the date of this order. (lc). Modified on 5/31/2013 .(lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SACHIKO MUROMURA,

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Plaintiff,

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

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Case No. CV 12-09263 DDP (AGRx)

ORDER GRANTING DEFENDANTS’ MOTION
TO DISMISS

[Dkt. No. 12]

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Presently before the court is Defendants’ Motion to Dismiss.

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Having considered the submissions of the parties, the court grantS

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the motion and adopts the following order.

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I.

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Background
Plaintiff Sachiko Muromura creates artistic works using a

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magnetic fluid (“ferrofluid”).

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ferrofluid sculptures, takes photographs and videos of the

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sculptures, and often projects images of the sculptures onto a

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screen.

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audiovisual work entitled “Protrude Flow, 2001,” which Plaintiff

(Id.)

(Complaint ¶ 8.) Plaintiff makes

Among Plaintiff’s artistic creations is an

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registered with the United States Copyright Office.

(Id. ¶¶ 1,

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10.)

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displayed at a computer graphics exhibition in Los Angeles in 2001.

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(Id. ¶ 10.)

The Protrude Flow, 2001 video and stills from the movie were

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Defendant Rubin Postaer and Associates (“RPA”) is an

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advertising agency that does work for Defendant American Honda

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Motor Company (“Honda”).

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asked Plaintiff if any of her ferrofluid artworks were available

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for a multi-city tour highlighting Honda’s use of ferrofluids in

(Id. ¶¶ 2, 11.)

In 2009, an RPA employee

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its vehicles.

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her website, which included images and video of Protrude Flow,

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2001.

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available works, and paid Plaintiff a $10,000 rental fee.

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12.)

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(Id.)

(Id. ¶ 11.)

Plaintiff provided RPA with a link to

RPA ultimately rented one of Plaintiff’s two
(Id. ¶

In October 2010, people familiar with Plaintiff’s work

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informed her that a division of Honda was using images of her

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ferrofluid art in its advertisements.

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Plaintiff that her works were not featured in the ads, but offered

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Plaintiff a $10,000 “creative consultant fee.”

(Id. ¶¶ 13-15.)

RPA assured

(Id. ¶ 16.)

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Plaintiff filed a copyright complaint against RPA and Honda,

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alleging that RPA “reproduc[ed] images or series of images copied

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from or derived from Protrude Flow, 2001 in the United States.”1

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(Id. ¶ 20.)

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Defendants now move to dismiss the Complaint.

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The Complaint alleges that both RPA and Honda directly
infringed and asserts additional claims for inducement of
infringement, contributory infringement, and vicarious infringement
against Honda alone.
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II.

Legal Standard
A complaint will survive a motion to dismiss when it contains

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“sufficient factual matter, accepted as true, to state a claim to

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relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

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662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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570 (2007)).

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“accept as true all allegations of material fact and must construe

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those facts in the light most favorable to the plaintiff.” Resnick

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v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000).

When considering a Rule 12(b)(6) motion, a court must

Although a complaint

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need not include “detailed factual allegations,” it must offer

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“more than an unadorned, the-defendant-unlawfully-harmed-me

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accusation.”

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allegations that are no more than a statement of a legal conclusion

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“are not entitled to the assumption of truth.” Id. at 679.

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other words, a pleading that merely offers “labels and

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conclusions,” a “formulaic recitation of the elements,” or “naked

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assertions” will not be sufficient to state a claim upon which

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relief can be granted.

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quotation marks omitted).

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Iqbal, 556 U.S. at 678.

Conclusory allegations or

In

Id. at 678 (citations and internal

“When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly

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give rise to an entitlement of relief.” Id. at 679.

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must allege “plausible grounds to infer” that their claims rise

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“above the speculative level.” Twombly, 550 U.S. at 555.

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“Determining whether a complaint states a plausible claim for

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relief” is a “context-specific task that requires the reviewing

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court to draw on its judicial experience and common sense.”

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556 U.S. at 679.
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Plaintiffs

Iqbal,

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III. Discussion
To state a claim for copyright infringement, a Plaintiff must

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allege “(1) ownership of a valid copyright, and (2) copying of

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constituent elements of the work that are original.”

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Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

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satisfy the copying prong, a copyright plaintiff must also allege

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that the works are substantially similar in their protected

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elements.

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(C.D. Cal. 2011).

Feist Pubs.,
To

Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083, 1098
Though Plaintiff argues that this standard

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applies only on summary judgment, courts in this circuit regularly

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apply these requirements at the pleading stage.

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F.Supp.2d at 1098; Lafarga v. Lowrider Arte Magazine, No. SACV 11-

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1501 DOC, 2012 WL 3667441 at *3 (C.D. Cal. Aug. 24, 2012); Minden

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Pictures, Inc. v. Pearson Education, Inc., No. C 11-05385 WHA, 2012

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WL 1595081 at *2 (N.D. Cal. May 4, 2012); Fractional Villas, Inc.

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v. Tahoe Clubhouse, No. 08cv1396-IEG, 2009 WL 160932 at *2 (S.D.

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Cal. Jan. 22, 2009).

See, e.g., 788

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It is unclear to the court whether Plaintiff, like the

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plaintiff in Fractional Villas, alleges that Defendants made an

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exact copy of Protrude Flow, 2001.

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suggest.

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artwork “contains images or a series of images that are

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substantially similar to the Internet and television

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advertisements.” (Opp. at 11.)

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Defendant RPA “would not have chosen to express ferrofluid in the

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way that it did except for the fact that RPA had accessed

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[Plaintiff]’s work and deliberately chose to copy her expression.

Plaintiff does not appear to so

In her opposition papers, Plaintiff argues that the

The complaint itself alleges that

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The . . . appropriation of those protected elements is actionable.”

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(Compl. ¶ 17.)

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Nowhere, however, does Plaintiff identify the protectable

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elements to which she refers.

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attach any pictorial or audio visual examples of either Protrude

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Flow, 2001 or the allegedly infringing advertisements, and does not

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describe any elements other than the mere use of ferrofluid.

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idea alone, however, is not copyrightable.

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45.

The complaint does not include or

An

Feist, 499 U.S. at 344-

“[E]lements of expression that necessarily follow from an

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idea, or expressions that are as a practical matter, indispensable

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or at least standard in the treatment of an idea are [also] not

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protected.”

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983, 988 (9th Cir. 2009) (internal quotation and alteration

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omitted); see also Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.

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2003) (“Similarly, expressions that are standard, stock, or common

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to a particular subject matter or medium are not protectable under

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copyright law.”) (emphasis added).

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Dream Games of Arizona, Inc. v. PV Onsite, 561 F.3d

Absent identification of any specific expressive elements in

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either Plaintiff’s artwork or RPA’s allegedly infringing

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advertisements, Plaintiff cannot possibly establish that the two

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works are extrinsically substantially similar.

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F.Supp.2d at 1098 (“The extrinsic test is an objective comparison

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of specific expressive elements.”).

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therefore, does not adequately state a copying claim, and must be

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dismissed.

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See Wild, 788

Plaintiff’s complaint,

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IV.

Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss is

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GRANTED.

Any amended complaint shall be filed within fourteen days

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of the date of this order.

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IT IS SO ORDERED.

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Dated: May 31, 2013
DEAN D. PREGERSON
United States District Judge

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