Robert W. Olson, Jr., v. G. Austin Sperry et al

Filing 51

ORDER DENYING DEFENDANTS MOTIONS TO DISMISS 37 , 40 by Judge Otis D. Wright, II. (lc). Modified on 2/26/2015 (lc).

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United States District Court
Central District of California

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ROBERT W. OLSON, JR., a Professional

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Case No. 2:14-CV-07901-ODW(AS)

Corporation,
ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS [37, 40]

Plaintiff,

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v.

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G. AUSTIN SPERRY, STEVEN A.

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FIRSHEIN DMD, a Professional

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Corporation, and STEVEN A. FIRSHEIN,
Defendants.

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I.

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INTRODUCTION

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This suit arises out of the alleged copyright infringement of a form contract

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designed for buying and selling dental practices. Plaintiff Robert W. Olson Jr., a

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professional corporation (“Olson PC”), alleges that at least five of its registered

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copyrights were infringed by Defendants G. Austin Sperry, Dr. Steven A. Firshein,

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and Dr. Firshein’s dental practice. (ECF No. 1 [“Compl.”].) Pending before the Court

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are two nearly identical Motions to Dismiss—one filed by Mr. Sperry (ECF No. 37),

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and the other by Dr. Firshein and his dental practice (ECF No. 40). For the reasons

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discussed below, the Court DENIES both Motions. 1

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II.

FACTUAL BACKGROUND

Olson PC specializes in the buying, selling, and merging of dental practices.

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(Compl. ¶ 10.)

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customized” form contracts which are allegedly specific to the dental industry. (Id.

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¶ 11.) Olson PC allegedly owns registered copyrights for at least five of these form

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contracts. (Id. ¶ 12.)
In February 2014, Olson PC represented a buyer seeking to purchase Dr.

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Olson PC and its sole shareholder, Robert Olson, use “highly

Firshein’s dental practice.

(Id. ¶ 13.) Mr. Sperry represented Dr. Firshein and his

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dental practice during the negotiations. (Id.) The parties used one of Olson PC’s form

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contracts during the course of negotiations, and at one point Mr. Olson allegedly sent

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Mr. Sperry a Microsoft Word version of the form contract. (Id.) The parties never

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reached a deal and went their separate ways. (Id. ¶ 17.) Mr. Sperry then allegedly

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negotiated the sale of Dr. Firshein’s dental practice to a third party using one or more

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of Olson PC’s form contracts from the previously failed negotiations. (Id. ¶ 18.)

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Olson PC filed the Complaint on October 10, 2014, bringing two claims for copyright

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infringement against Mr. Sperry, Dr. Firshein, and Dr. Firshein’s dental practice. (See

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Compl.)
III.

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LEGAL STANDARD

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Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may move to

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dismiss an action for failure to allege “enough facts to state a claim to relief that is

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plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks

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for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v.

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After carefully considering the papers filed related to the Motions, the Court deems the matter
appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
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Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). For purposes of ruling on

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a Rule 12(b)(6) motion, the Court “accept[s] factual allegations in the complaint as

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true and construe[s] the pleading in the light most favorable to the non-moving party.”

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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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The Court is not required to “assume the truth of legal conclusions merely

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because they are cast in the form of factual allegations.” Fayer v. Vaughn, 649 F.3d

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1061, 1064 (9th Cir. 2011) (internal quotation marks and citations omitted). Mere

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“conclusory allegations of law and unwarranted inferences are insufficient to defeat a

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motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004) (internal

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quotation marks and citations omitted). “If a complaint is accompanied by attached

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documents, the court is not limited by the allegations contained in the complaint.

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These documents are part of the complaint and may be considered in determining

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whether the plaintiff can prove any set of facts in support of the claim.” Durning v.

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First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (internal citations omitted).

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The Court may consider contracts incorporated in a complaint without converting a

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motion to dismiss into a summary judgment hearing. United States v. Ritchie, 342

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F.3d 903, 907–08 (9th Cir. 2003).
IV.

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DISCUSSION

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Mr. Sperry filed his Motion to Dismiss on January 21, 2015, and Dr. Firshein

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filed his Motion to Dismiss on January 30, 2015. (ECF Nos. 37, 40.) The only

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material difference between the word-for-word Motions is an additional argument in

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Dr. Firshein’s Motion regarding direct infringement.2 The Court will thus address Mr.

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Sperry and Dr. Firshein’s legal arguments together. The principal argument in both

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Motions is that Olson PC’s form contracts “are not entitled to copyright protection.”

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A.

Originality of a Compilation Literary Work

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The Copyright Act of 1976 provides that a “compilation” is “a work formed by

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the collection and assembling of preexisting materials or of data that are selected,

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Sperry and Firshein are represented by the same law firm.
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coordinated, or arranged in such a way that the resulting work as a whole constitutes

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an original work of authorship.”

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compilations of facts may be copyrightable even though the facts themselves are not

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entitled to copyright protection. 17 U.S.C. §§ 102–03; Feist Publ’ns, Inc. v. Rural

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Tel. Serv. Co., 499 U.S. 340, 344 (1991). “The mere fact that a work is copyrighted

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does not mean that every element of the work may be protected. Originality remains

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the sine qua non of copyright; accordingly, copyright protection may extend only to

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those components of a work that are original to the author.” Feist, 499 U.S. at 348;

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L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012). A

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work is “original” when it “possesses at least some minimal degree of creativity” and

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was “independently created by the author (as opposed to copied from other works).”

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Feist, 499 U.S. at 345.

17 U.S.C. § 101.

It is well established that

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The question of originality in copyright law “is one of fact, not of law; one that

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may not be disposed of upon a motion to dismiss, but which must be established by

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proof.” Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850, 851 (9th Cir.

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1938); Vargas v. Pfizer, Inc., 418 F. Supp. 2d 369, 373 (S.D.N.Y 2005) (“Typically,

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when the originality of a copyrighted work is at issue, it becomes a question of fact for

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the jury to resolve.”); Signo Trading Intern. Ltd. v. Gordon, 535 F. Supp. 362, 364

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(N.D. Cal. 1981) (“the issue of originality is often a question of fact”); Lambert Corp.

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v. LBJC Inc., No. 13-00778-CAS, 2014 WL 2737913, at *4 (C.D. Cal. June 16, 2014)

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(“Thus, due to the existence of conflicting evidence on the issue of originality, the

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Court finds that this issue is not suitable for resolution at the summary judgment

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stage.”); Robert Kubicek Architects & Assocs., Inc. v. Bosley, No. 11-02112-PHX,

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2012 WL 6554396, at *2 (D. Ariz. Dec. 14, 2012) (“Whether individual components

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of a work are sufficiently original to be protected is a question of fact.”).

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B.

Defendants’ Originality Argument

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In their Motions to Dismiss, Defendants conflate subject matter and originality.

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Defendants correctly argue that “[w]hether a subject matter is copyrightable is a

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question of law” and appropriate for Rule 12(b)(6) adjudication.

(MTD at 4.)

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Defendants then spend the rest of their briefs arguing that Olson PC’s “documents

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lack the originality necessary for copyright protection.” (MTD at 8.)
There is no dispute that Olson PC’s form contracts are compilation works—a

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subject matter already approved for copyright protection.

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Originality, however, is not a question of law and cannot be determined at the

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Rule(12)(b) stage.

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contracts are original, and therefore it has stated a claim to relief which is plausible on

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its face. See Twombly, 550 U.S. at 570.

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C.

Dezendorf, 99 F.2d at 851.

See 17 U.S.C. § 103.

Olson PC alleged that its form

Dr. Firshein’s Direct Liability Argument

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Dr. Firshein’s Motion to Dismiss contains one unique argument regarding the

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liability for his dental practice and himself. He argues that he “cannot possibly be

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liable for direct infringement as [he] did not copy or alter Plaintiff’s Documents in any

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manner.” (MTD at 13.) Olson PC’s Complaint plainly alleges that “Firshein PC and

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Dr. Firshein copied the copyrighted Contracts.” (Compl. ¶ 20.) This is clearly a

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factual dispute. For the purposes of a Rule 12(b)(6) motion, the Court must “accept

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factual allegations in the complaint as true.” Manzarek, 519 F.3d at 1031. The Court

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therefore rejects Dr. Firshein’s arguments regarding direct liability.

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V.

CONCLUSION

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All of Defendants’ arguments involve questions of fact and not law. The Court

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cannot adjudicate such matters in a Rule 12(b)(6) motion. Accordingly, Mr. Sperry’s

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Motion to Dismiss (ECF No. 37) is DENIED and Dr. Firshein and his dental

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practice’s Motion to Dismiss (ECF No. 40) is also DENIED.

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IT IS SO ORDERED.

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February 26, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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