Fabric Selection, Inc. v. NNW Import, Inc. et al

Filing 117

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: RE PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT 71 , ; DEFENDANT NNW IMPORTS MOTION FOR SUMMARY JUDGMENT 81 , DEFENDANT STYLES FOR LESS MOTION FOR SUMMARY JUDGMENT 85 ; DEFENDANT SUPERLINES MOTION FOR SUMMARY JUDGMENT 88 .The Court DENIES plaintiffs and defendants motions for summary judgment. Court Reporter: Laura Ellias. (lc). Modified on 2/27/2018 (lc).

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Present: The Honorable

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Laura Elias
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

Andrew Jablon

Miles Prince
Frank Lee

Proceedings:

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY
JUDGMENT (Dkt. 71, filed October 16, 2017)
DEFENDANT NNW IMPORT’S MOTION FOR SUMMARY
JUDGMENT (Dkt. 81, filed October 20, 2017)
DEFENDANT STYLES FOR LESS’ MOTION FOR SUMMARY
JUDGMENT (Dkt. 85, filed October 20, 2017)
DEFENDANT SUPERLINE’S MOTION FOR SUMMARY
JUDGMENT (Dkt. 88, filed October 20, 2017)

I.

INTRODUCTION

On November 16, 2016, plaintiff Fabric Selection, Inc. filed the instant action
against defendants NNW Import, Inc. (“NNW”), Lifo, Inc., Superline, Inc., Lady Monkey
Apparel, Inc., Eve Yun Design Corporation, Zulily, LLC, Styles for Less, Inc. (“Styles”),
and Does 1–10, inclusive.1 Dkt. 1 (“Compl.”). Plaintiff alleges claims for (1) copyright
infringement and (2) contributory copyright infringement. In sum, plaintiff asserts that it

1

For purposes of the instant motions for summary judgment, NNW, Superline, and
Styles are collectively referred to as “defendants.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

registered an original print design with the United States Copyright Office, and that
during the last three years, defendants have infringed upon plaintiff’s copyright.
On December 13, 2016, Styles and Superline filed answers to the Complaint.
Dkts. 16 (“Styles Answer”), 18 (“Superline Answer”). On December 15, 2016, NNW
filed an answer to the Complaint. Dkt. 22 (“NNW Answer”). On January 11, 2017,
plaintiff filed a Notice of Settlement as to Zulily and Eve Yun. Dkt. 37.
On December 28, 2016, plaintiff requested that the Clerk enter default judgment
against the two remaining defendants who failed to appear: Lifo and Lady Monkey.
Dkts. 29, 30. On January 3, 2017, the Clerk entered default against Lifo and Lady
Monkey pursuant to Federal Rule of Civil Procedure 55(a). Dkts. 33, 34. On July 17,
2017, plaintiff filed a motion for entry of default judgment against Lifo and Lady
Monkey. Dkt. 52. On August 21, 2017, the Court denied plaintiff’s request for default
judgment, concluding that there was a risk of incongruent results if default judgment
were entered as to defaulting defendants Lifo and Lady Monkey while non-defaulting
parties NNW, Styles, and Superline remained active participants in the litigation.
On October 16, 2017, plaintiff filed a motion for partial summary judgment as to
liability and willful infringement against NNW, Styles, and Superline. Dkt. 71 (“Fabric
MSJ”). Plaintiff simultaneously filed a request for judicial notice of copyright
registration documents, dkt. 72 (“RJN”), along with a statement of uncontroverted facts
and conclusions of law, dkt. 75 (“PSUF”). On October 23, 2017, NNW, Styles, and
Superline jointly filed an opposition, dkt. 92, (“Joint Opp’n”), and jointly submitted a
statement of genuine disputes of fact, dkt. 93 (“DGDF”). On November 6, 2017, plaintiff
filed a reply. Dkt. 108 (“Fabric Reply”).
On October 20, 2017, NNW filed a motion for summary judgment, dkt. 81, and
submitted a statement of uncontroverted facts and conclusions of law, dkt. 82 (“NNW
SUF”). On the same day, Styles filed a motion for summary judgment, dkt. 85, and
submitted a statement of uncontroverted facts and conclusions of law, dkt. 86 (“Styles
SUF”). Similarly, Superline filed a motion for summary judgment, dkt. 88, and
submitted a statement of uncontroverted facts and conclusions of law on the same day,
dkt. 89 (“Superline SUF”). Plaintiff filed an omnibus opposition on October 30, 2017.
Dkt. 96 (“Fabric Opp’n”). On the same day, plaintiff filed three statements of genuine

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

disputes of fact in response to defendants’ three cross-motions for summary judgment.
Dkts. 99, 100, 101. On November 6, 2017, defendants jointly filed a reply. Dkt. 109
(“Joint Reply”).
On October 30, 2017, plaintiff filed five evidentiary objections to declarations
submitted in support of defendants’ cross motions. Dkts. 102, 103, 104, 105, 106. On
November 6, 2017, NNW also filed evidentiary objections. Dkt. 110.
On November 6, 2017, Styles filed a Chapter 11 Bankruptcy Petition, and the
following day Styles filed a notice of automatic stay before this Court. Dkt. 111. On
November 14, 2017, the Court continued all dates in this action for ninety days and
continued the instant motions for summary judgment to February 26, 2018. Dkt. 115.
On February 1, 2018, plaintiff filed notice of a United States Bankruptcy Court’s
decision approving a modification to the automatic stay and allowing plaintiff to proceed
in the instant action against Styles to final judgment. Dkt. 116.
The Court held a hearing on February 26, 2018. Having carefully considered the
parties’ arguments, the Court finds and concludes as follows.
II.

BACKGROUND

The following facts are not meaningfully disputed and are set forth for purposes of
background. Unless otherwise noted, the court references only facts that are
uncontroverted and as to which evidentiary objections have been overruled.
A.

Plaintiff’s “Subject Design”

Plaintiff is a Los Angeles-based designer and distributor of fabric bearing original
textile designs. PSUF no. 1; Dkt. 97, Declaration of Sean Javahari in Support of
Plaintiff’s Omnibus Opposition (“Javahari Opp’n Decl.”) ¶ 2. In 2013, plaintiff’s inhouse design team created a geometric design that was internally designated as SE30382
(the “Subject Design”). PSUF nos. 2–4; Javahari Opp’n Decl. & Exs. B, C.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

SE30382 – Subject Design
Plaintiff contends that the Subject Design is part of the “Carden Collection” that was
submitted to the Copyright Office and registered on March 13, 2013 as a single work as
part of an unpublished collection.2 PSUF no. 5; PSUF no. 6; Javahari Opp’n Decl. ¶¶ 5,
6 & Ex. B. Defendants dispute the contention that plaintiff owns a valid copyright
registration with respect to the Subject Design, and argue that plaintiff’s own evidence
creates a dispute as to whether the Carden Collection was initially published as a valid
single work. DGDF at no. 5; Dkt. 73, Declaration of Sean Javahari (Javahari Decl.) &
Ex. D.

2

The exhibits offered by plaintiff in its request for judicial notice are true and
correct copies of the copyright deposit for the Carden Collection from the United States
Copyright Office and a registration certificate for the Carden Collection. RJN at 2 &
Exs. A, B. Federal Rule of Evidence 201(b) provides that “a judicially noticed fact must
be one not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned.” Under Fed. R.
Evid. 201, a court may take judicial notice of “matters of public record.” Mack v. South
Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Because these are publicly
available records, the Court takes judicial notice of these documents.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Shortly after March 13, 2013, plaintiff made fabric bearing the Subject Design
available for customers to purchase, both online and in its showrooms. PSUF no. 11;
Javahari Opp’n Decl. ¶ 7. Upon request, plaintiff offered samples of the Subject Design
to its customers and prospective customers. PSUF no. 12; Javahari Opp’n Decl. ¶ 8.
Plaintiff sold 36,000 yards of fabric bearing the Subject Design to more than two dozen
customers located throughout the country. PSUF no. 13; Javahari Opp’n Decl. ¶ 9 & Ex.
D.
In the course of implementing its ordinary procedures for policing its copyrights,
plaintiff saw garments bearing a geometric design, the “Accused Design,” for sale at
Styles. PSUF no. 16; Javahari Decl. ¶ 10. Upon inspection, the garments bearing the
Accused Design contained registration number 131226, a registration number that is
assigned to NNW. PSUF no. 17; Dkt. 74, Declaration of Stacey N. Knox (“Knox Decl.”)
¶ 7. NNW had initially sold the garments bearing the Accused Design to Superline on
November 24, 2015. PSUF no. 20; Knox Decl. ¶ 4 & Ex. G. In turn, Superline sold
these garments to Styles on November 24, 2015, and to Lifo in December 2015. PSUF
no. 21; Knox Decl. ¶ 4 & Ex. G. Styles sold these garments to consumers from
December 2015 through July 2016. PSUF no. 22; Knox Decl. ¶ 4 & Ex. H.

Defendants’ Garment – Accused Design
Defendants did not create the Accused Design. PSUF no. 7; Knox Decl. ¶ 2 & Ex.
A at 5, Ex. B at 12–13, Ex. C at 21–22. The parties dispute whether the Accused Design
is a “direct copy” of the Subject Design that has had its vertical dimensions reduced by

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

69 percent, and whether unique geometric motifs appear in the Accused Design that do
not appear in the Subject Design. PSUF no. 10; DGDF no. 10; Superline SUF no. 1; Lee
Decl. ¶ 4. The parties also disagree as to whether defendants conceded in their discovery
responses and depositions that the designs are substantially similar. Defendants contend
that they were presented with a “deceptive comparison” where defendants were shown
two images of the Subject Design and were misled to believe that one of the images was
actually a depiction of the Accused Design.3 DGDF no. 8; Dkt. 91, Declaration of Frank
N. Lee (“Lee Decl.”) ¶¶ 2–7; Dkt. 90, Declaration of Jenny Kim (“Kim Decl.”) ¶ 7; Dkt.
87, Declaration of Douglas Pereira (“Pereira Decl.”) ¶ 7; Dkt. 83, Declaration of Miles L.
Prince (“Prince Decl.”) ¶ 4; Dkt. 84, Declaration of Jiacheng Wu (“Wu Decl.”) ¶ 12.
B.

Defendant’s Businesses and Copyright Policies

NNW is a Los Angeles-based apparel distributor, which imports garments that it
sells to retailers and wholesalers. PSUF no. 31; Knox Decl. ¶ 5 & Ex. J. NNW is merely
a trading company and has never manufactured garments, designed garments, received or
reviewed fabric designs or samples, or visited design studios or fabric showrooms. NNW
SUF no. 7; Wu Decl. ¶ 2.
NNW’s manager is Jiacheng Wu. PSUF no. 32; Knox Decl. ¶ 3 & Ex. D. In order
for NNW to purchase garments in China and sell them for resale in Los Angeles, Wu’s
mother—who lives in China and is not an employee or otherwise paid by NNW—goes to
a market in China to locate certain goods for purchase. PSUF no. 33; Knox Decl. ¶ 3 &
Ex. D; NNW SUF no. 8; Wu Decl. ¶¶ 3–5. Prior to recent copyright litigation, NNW did
not require vendors at the Chinese market to prove their ownership of garment designs in
writing before purchase garments; however, Wu’s mother ensured through
representations and reassurances that the designs were developed by or for the various
vendors. PSUF no. 36; Knox Decl. ¶ 3 & Ex. D at 40–43; DGDF Wu Decl. ¶¶ 6–8, 15.

3

Plaintiff remarks in its Reply that “the referenced confusion was the result of a
miscommunication between Mr. Javaheri and the design department working at his
direction.” Fabric Reply at 8.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Superline is a Los Angeles-based garment wholesaler that acquires and sells
garments to retailers and other distributors. PSUF no. 39; Knox Decl. ¶ 6 & Ex. K;
Superline SUF no. 4; Kim Decl. ¶ 2. Superline purchases strictly finished goods and
does not participate in goods design or manufacturing. Superline SUF no. 5; Kim Decl. ¶
2. In November 2015, Superline purchased 1,520 garments bearing the Accused Design
from NNW; thereafter, Superline resold the units to two retail store customers. Superline
SUF no. 7; Kim Decl. ¶ 5. Superline did not ask for proof of the artwork registration
regarding the Accused Design. Knox Decl. & Ex. E. Instead, Superline ensures through
signed vendor agreements—as it did with NNW—that the goods for sale comply with all
applicable laws, including federal law, and that the vendor will indemnify Superline in
the event of costs or liabilities due to “legal matters.” Kim Decl. ¶¶ 3, 4 & Ex. A.
Superline relied upon these vendor agreements that the goods would pose no legal
problems for Superline if resold in the United States. Superline SUF no. 10; Kim Decl. ¶
3.
Styles is a Los Angeles-based retailer in the business of selling goods to
consumers. PSUF no. 43; Knox Decl. ¶¶ 3, 6 & Exs. K, F. Styles purchases finished
goods and does not participate in goods design or manufacturing. Styles SUF nos. 5, 6;
Pereira Decl. ¶¶ 2, 9. In addition, Styles has never reviewed fabric designs or samples,
never visited design studios or fabric showrooms, never knowingly viewed a single
design by plaintiff, and was not aware of plaintiff until a July 22, 2016 cease and desist
letter regarding the Accused Design. Styles SUF no. 6; Pereira Decl. ¶¶ 2, 9.
The buyers for Styles visit various vendors, primarily in the Los Angeles area, to
view products offered for sale. Id. The buyers do not ask for any information about the
source of the design on goods, PSUF no. 45; Knox Decl. ¶ 3 & Ex. F at 71–73, 73–74,
and Styles admittedly “doesn’t care” about the source of its designs, PSUF no. 46; Knox
Decl. ¶ 3 & Ex. F at 74. Yet Styles’ purchases are all subject to the terms and conditions
of its purchase order, which contains a section entitled “Non-Violation of Law” that
specifically references the vendor’s warranty of non-infringement of “any valid patent or
trademark.” DGDF no. 46; Pereira Decl. ¶ 3 & Ex. A. Styles relied on these purchase
orders to confirm that purchased goods would not pose legal problems for Styles if resold

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

in the United States. Styles SUF no. 10; Pereira Decl. ¶ 3.4 Prior to sale, Styles did not
investigate the source of the Accused Design and did not have policies in place to
investigate the source of designs prior to acquiring them for sale. PSUF no. 47; Knox
Decl. ¶ 3 & Ex. F at 80, 81. Pereira, the president of Styles, testified that requiring its
vendors to prove documentation of ownership of designs would be cumbersome and
costly. Knox Decl. ¶ 3 & Ex. F at 75–78.
III.

LEGAL STANDARD

Summary judgment is appropriate where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The moving party bears the initial burden of identifying relevant portions of the
record that demonstrate the absence of a fact or facts necessary for one or more essential
elements of each claim upon which the moving party seeks judgment. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its initial burden, the opposing party must then set out
specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Fed. R. Civ. P. 56(c), (e). The
nonmoving party must not simply rely on the pleadings and must do more than make
“conclusory allegations [in] an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for
the moving party if the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Id. at 322; see also Abromson v. Am. Pac. Corp., 114
F.3d 898, 902 (9th Cir. 1997).

4

Plaintiff’s objections to paragraph three of Pereira’s Declaration are overruled. It
is not hearsay for Pereira to discuss Styles’ reliance on its vendors’ representations
contained in the purchase orders, as the vendors’ representations are not offered for the
truth of the matters asserted. Nor does Pereira appear to lack foundation or personal
knowledge to attest to whether his company, Styles, relied on the vendors’
representations contained in the purchase orders. Plaintiff’s objections are without merit.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

In light of the facts presented by the nonmoving party, along with any undisputed
facts, the Court must decide whether the moving party is entitled to judgment as a matter
of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 &
n.3 (9th Cir. 1987). When deciding a motion for summary judgment, “the inferences to
be drawn from the underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (citation omitted); Valley Nat’l Bank of Ariz. v. A.E. Rouse & Co., 121
F.3d 1332, 1335 (9th Cir. 1997). Summary judgment for the moving party is proper
when a rational trier of fact would not be able to find for the nonmoving party on the
claims at issue. See Matsushita, 475 U.S. at 587.
IV.

ANALYSIS
A.

Plaintiff’s Motion for Partial Summary Judgment

Plaintiff moves for summary judgment on the following issues: (1) plaintiff is the
owner of a legally valid copyright in the Subject Design; (2) the Accused Design on
defendants’ garments is substantially similar to the Subject Design; (3) defendants’ had
access to the Subject Design; (4) defendants infringed the Subject Design through their
distribution, purchase, and sale of garments bearing the Accused Design; (5) plaintiff is
entitled to elect statutory damages; and (6) each defendant’s infringement was willful.
Fabric MSJ at 9.
1.

Plaintiff’s Ownership of a Legally Valid Copyright

Plaintiff argues that its March 13, 2013 registration certificate for the Carden
Collection constitutes prima facie evidence of the validity of its copyright in the Subject
Design. Fabric MSJ at 17 (citing Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345
F.3d 1140, 1144 (9th Cir. 2003)).
“Ownership of the copyright is ... always a threshold question.” Topolos v.
Caldewey, 698 F.2d 991, 994 (9th Cir. 1983). The ownership element of a copyright
“breaks down into the following constituent parts: (1) authorship, and (2) copyrightability
of the subject matter.” Classic Concepts, Inc. v. Linen Source, Inc., Nos. 04–CV–8088
GPS, 04–CV–8457 GPS, 2006 WL 4756377, at *1 (C.D. Cal. Apr. 27, 2006) (citing 4

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.01[A] (2005)). A
registration certificate constitutes prima facie evidence of the “validity of the copyright
and the facts stated in the certificate.” 17 U.S.C. § 410(c) 2011). Here, plaintiff contends
that the Subject Design is part of the Carden Collection, which was submitted to the
Copyright Office and registered as a single work as part of an unpublished collection.
PSUF no. 5. The Court finds that the judicially-noticed copy of the March 13, 2013
United States Copyright Office registration certificate sufficiently demonstrates that
plaintiff holds a registration certificate for the Carden Collection, which includes the
Subject Design. PSUF no. 4; Javahari Opp’n Decl. & Exs. B, C. Accordingly, plaintiff
has established a rebuttable presumption that it owns a valid copyright in the Subject
Design.
Defendants have the burden to rebut the presumption that plaintiff owns a valid
copyright. Entertainment Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d
1211, 1217 (9th Cir. 1997). To rebut this presumption, defendants argue that plaintiff
does not have a valid single work registration because plaintiff’s sales report for the
Carden Collection suggests that sales occurred as early as 2005, nearly eight years prior
to the Collection’s registration, in apparent contravention of a requirement that published
works must be published together to qualify for single work registration. Joint Opp’n at 3
(citing 37 C.F.R. § 202.3(b)(4)(i)(A)).
37 C.F.R. section 202.3(b)(4) sets forth the following requirements for registering
a collection as a single work:
(i) For the purpose of registration on a single application and upon payment of a single
registration fee, the following shall be considered a single work:
(A) In the case of published works: all copyrightable elements that are otherwise
recognizable as self-contained works, that are included in a single unit of
publication, and in which the copyright claimant is the same; and
(B) In the case of unpublished works: all copyrightable elements that are otherwise
recognizable as self-contained works, and are combined in a single unpublished
“collection.” For these purposes, a combination of such elements shall be
considered a “collection” if:

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

(1) The elements are assembled in an orderly form;
(2) The combined elements bear a single title identifying the collection as a
whole;
(3) The copyright claimant in all of the elements, and in the collection as a
whole, is the same; and
(4) All of the elements are by the same author, or, if they are by different
authors, at least one of the authors has contributed copyrightable authorship to
each element.
Registration of an unpublished “collection” extends to each copyrightable element in
the collection and to the authorship, if any, involved in selecting and assembling the
collection.
37 C.F.R. § 202.3(b)(4) (emphasis added).
Accordingly, a necessary element of a single work, published-collection copyright
is that all works included in the registration are self-contained works that are “included in
a single unit of publication.” C.F.R. § 202.3(b)(4)(i)(A). Although there is no
controlling authority directly interpreting the “single unit of publication” requirement, the
Copyright Act defines the term “publication” as “the distribution of copies or
phoneorecords of a work to the public by sale or other transfer of ownership, or by rental,
lease, or lending ….” Unicolors, Inc. v. Macy’s, Inc., No. 15-CV-00661-AB (EX), 2016
WL 6562063, at *4 (C.D. Cal. Feb. 4, 2016) (citing Olander Enterprises, Inc. v. Spencer
Gifts, LLC, 812 F. Supp. 2d 1070, 1076 (C.D. Cal. 2011)); 17 U.S.C. § 101. Thus, a
group of published works must be published together in order to qualify as a “single unit
of publication” for a single work registration. Olander Enterprises, 812 F. Supp. 2d at
1076.
For unpublished works contained in single work registration, there is no
requirement that the collection be sold, distributed, or offered for sale concurrently. See
C.F.R. § 202.3(b)(4)(i)(B); United Fabrics Int’l, Inc. v. C & J Wear, Inc., 630 F.3d 1255,
1259 (9th Cir. 2011). Though defendants argue that plaintiff’s Carden Collection is a

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

published collection subject to the requirements set forth in section 202.3(b)(4)(i)(A),
plaintiff asserts that the Carden Collection is registered as a single work as part of an
unpublished collection. PSUF no. 6. Thus, the relevant consideration is whether
defendants demonstrate that plaintiff’s Carden Collection fails to satisfy the requirements
provided in section 202.3(b)(4)(i)(B), which apply to unpublished collections.
Nothing in the record suggests that the works in the Carden Collection were not
assembled in orderly form, were not organized by a single title, were not subject to the
same copyright claimant, or did not share the same author as section 202.3(b)(4)(i)(B)
requires. Yet, in its guidance regarding section 202.3(b)(4)(i)(B), the United States
Copyright Office states that in order for an applicant to register multiple unpublished
works, “all of the copyrightable elements that are otherwise recognizable as selfcontained works must be unpublished.” U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices § 101 (3d Ed. 2014), 1106.1 (citing 37 C.F.R. §
202.3(b)(4)(i)(B)) (emphasis added); see Gold Value Int’l Textile, Inc. v. Sanctuary
Clothing, LLC, No. LACV1600339-JAK-FFMX, 2017 WL 3477746, at *3 (C.D. Cal.
May 12, 2017) (“The Copyright Office will not accept a registration as valid of a
published work included in an unpublished collection.”) Accordingly, to obtain a single
work, unpublished-collection copyright registration, it appears that an applicant’s subject
works must be unpublished prior to registration.
Here, the Court observes that plaintiff’s sales report, attached to the Javaheri
Declaration as Exhibit D and identified as a “true and correct copy of a sales report
showing the earliest date of sale for each of the works in the Carden Collection,” appears
to suggest that sales of these works occurred as early as June 28, 2005. See Javaheri
Decl. & Ex. D. In particular, the sales report suggests that sales of works from the
Carden Collection occurred on eleven separate occasions prior to the Collection’s March
13, 2013 copyright registration date. Plaintiff argues that this interpretation of the sales
report is incorrect, as these pre-March 2013 entries merely reflect fabric sample
transactions that were provided after March 13, 2013, and that any entry prior to March
13, 2013 is simply a “placeholder date from an old transaction that far precedes any
current sales activity.” Fabric Reply at 6 (citing Javaheri Decl. ¶ 9). Although plaintiff’s
explanation is plausible, the Court cannot conclude as a matter of law that the pre-March
2013 dates in the sales report are merely “placeholder dates” that do not reflect actual

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

sales, particularly when the Court is obligated to view all inferences in the light most
favorable to defendants, the party opposing the instant motion.5
Moreover, a copyright holder must secure a registration certificate within five
years after first publication in order for the certificate to constitute prima facie evidence
of both the validity of the copyright and the facts stated in the certificate. See Cosmetic
Ideas, Inc. v. IAC/Interactivecorp., 606 F.3d 612, 619 (9th Cir. 2010); 17 U.S.C. §
410(c). In light of plaintiff’s sales report that, on its face, suggests Carden Collection
sales occurring nearly eight years prior to its March 2013 copyright registration date, a
triable issue of material fact exists regarding whether plaintiff has established ownership
of a valid single work registration for the Subject Design.6 The Court therefore DENIES
plaintiff’s motion for summary judgment as to its ownership of a valid single work
registration for the Subject Design.
2.

Substantially Similar Design

Assuming arguendo that plaintiff owns a valid single work registration for the
Subject Design, plaintiff next argues that the Accused Design is substantially similar to
the Subject Design because a comparison of the designs reveals “objective and irrefutable

5

At the February 26, 2018 hearing, plaintiff’s counsel argued that in light of the
presumption that plaintiff has a valid copyright, defendants are required to actually rebut
this presumption and cannot merely point to plaintiff’s sales report and assert a triable
issue of material fact. Yet the Court observes that plaintiff’s interpretation confuses the
issue. While it is true that there is a rebuttable presumption of copyright validity, the
responding parties here raise a material issue of disputed fact regarding pre-2013 sales of
designs from the Carden collection, which tends to rebut the presumption of copyright
validity. Accordingly, in light of the applicable summary judgment standard, the Court
must construe all inferences in favor of defendants and concludes that defendants have
demonstrated a triable issue of material fact as to plaintiff’s ownership of a valid
copyright.
6
This conclusion is particularly warranted given plaintiff’s seeming admission
regarding the originality of the Subject Design that “at worst, a triable issue of fact exists
here.” Omnibus Opp’n at 21; see N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031,
1033 (9th Cir. 1992) (“Originality is the indispensable prerequisite for copyrightability.”)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

similarities” in addition to substantial similarity in the “total look and feel” of the two
designs.7 Fabric MSJ at 20–21.
In determining whether two works are “substantially similar” for the purposes of
copyright infringement, the Ninth Circuit “employ[s] a two-part analysis: an objective
extrinsic test and a subjective intrinsic test.” Swirsky v. Carey, 376 F.3d 841, 845 (9th
Cir. 2004). “The extrinsic test considers whether two works share a similarity of ideas
and expression as measured by external, objective criteria [and] . . . requires analytical
dissection of a work and expert testimony.” Id. (internal quotations omitted). “[T]he
subjective question whether works are intrinsically similar”––i.e, the subjective intrinsic
test––“must be left to the jury.” Id.8

7

The Court observes that in its discussion of substantial similarity, plaintiff
compares an image of the Subject Design with an image entitled “Defendant’s Design.”
However, the image entitled “Defendant’s Design” appears to be an image of the Subject
Design. See id. at 15, 21. Defendants remark that plaintiff’s pleadings comparing the
Subject Design with the Subject Design have not been withdrawn or amended, nor has a
declaration been filed by counsel explaining how this “miscommunication” made it past
Federal Rule of Civil Procedure 11’s requirement that factual contentions have adequate
evidentiary support. Joint Reply at 5. Defendants suggest that the Court require plaintiff
to pay defendants’ fees incurred in opposing plaintiff’s faulty motion under 28 U.S.C. §
1927 or Rule 11. Id. At this juncture, the Court reserves the issue of attorneys’ fees for
the conclusion of the case.
8
The intrinsic test measures “substantial similarity in expression . . . depending
upon the response of the ordinary reasonable person.” Brown Bag Software v. Symantec
Corp., 960 F.2d 1465, 1475 (9th Cir. 1992). Specifically, it “asks whether the ordinary
reasonable person would find the total concept and feel of the works to be substantially
similar.” Pasillas v. McDonald's Corp., 927 F.2d 440, 442 (9th Cir. 1991) (internal
quotations omitted).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Subject Design

Accused Design

With respect to the extrinsic test, plaintiff argues that the “clear similarities” between the
designs, “including the expression, position and arrangement of the original decorative
elements of the textile patterns,” satisfy the point-by-point analysis of the extrinsic test.
Fabric MSJ at 20–21. Plaintiff also contends that defendants admitted in discovery that
the designs are identical.9 Id. at 22.

9

In the Court’s tentative ruling, it noted that in light of plaintiff’s seemingly
misleading comparison between two images of the very same Subject Design, and in light
of defendants’ assertions that during discovery plaintiff presented defendants with the
“same deceptive comparison presented in the motion,” the Court could not determine
whether defendants conceded in their discovery responses that the two designs are
substantially similar or identical. See DGDF no. 8. At the February 26 hearing,
plaintiff’s counsel again asserted that Superline and Styles admitted that the two designs
were substantially similar in response to plaintiff’s Request for Admissions. Plaintiff
asserted that the images attached to these Request for Admissions properly compared the
Subject Design with the Accused Design, and thus, summary judgment for plaintiff is
warranted on the issue of substantial similarity. Nonetheless, the Court finds that
plaintiff “cannot successfully prove substantial similarity as a matter of law simply by
offering [Superline’s and Styles’] admissions” that the works are “indeed substantially
similar.” Classic Concepts, 2006 WL 4756377, *6. As analyzed below, plaintiff fails to
offer the requisite testimony under the extrinsic test regarding the similarity of the

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

In opposition, defendants argue that there are “25 unique elements that distinguish
the patterns,” and rely on the testimony of Superline’s and Styles’ counsel, Frank Lee, for
this proposition. Joint Opp’n at 5 (citing Lee Decl. ¶¶ 2–7). Plaintiff objects to Lee’s
testimony on the grounds that it lacks proper foundation and is improper opinion
testimony. Dkt. 104 at 2–4. Plaintiff further contends that Lee’s testimony is improper
insofar as the extrinsic test requires analytic dissection and expert testimony, and argues
that Lee is defense counsel—not an expert—and that his assertions should be given no
weight. Omnibus Reply at 8. Additionally, plaintiff asserts that it has properly submitted
expert testimony from Sean Javaheri, an officer of plaintiff who has 25 years of
experience in the garment and apparel industry, and who testifies that the two designs are
substantially similar. Id. at 8 (citing Javaheri Decl. ¶¶ 10–12).
In response, defendants contend that Lee’s testimony opines as to “plainly
observable differences between the patterns,” and that insofar as plaintiff argues that Lee
is an improper witness, plaintiff nonetheless “suggests its own officer”—Javaheri—
“serves as [its] expert witness on the issue.” Joint Reply at 9. Defendants further argue
that Lee’s testimony regarding the differences between the designs is admissible and
relevant, because regardless of whether expert testimony is required to prove substantial
similarity, there is no such requirement to disprove it. Id.
With respect to the adequacy of the parties’ purported expert witnesses, Federal
Rule of Evidence Rule 702 provides that
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or determine a fact in issue;
(b) the testimony is based on sufficient facts or data;

designs. Though the Court recognizes that, in the event of trial, Superline’s and Styles’
admissions will be admissible evidence regarding the issue of substantial similarity, at
this juncture their admissions are not sufficient to allow the Court to determine, as a
matter of law, that the designs are substantially similar.

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Page 16 of 21 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702 (a)-(d). In regards to Lee’s and Javaheri’s expert knowledge, neither
party has provided the Court with a resume or curriculum vitae demonstrating that either
individual has the relevant experience and specialized knowledge necessary to aid the
Court in determining whether substantial similarities exist between the designs. Instead,
Javaheri offers testimony that he has “over 25 years of experience in the fashion and
garment industry, and [he is] very familiar with the garment design and manufacturing
process.” Javaheri Opp’n Decl. ¶ 1. Moreover, Lee only offers his “personal
knowledge” of the facts. Lee Decl. ¶ 1. Accordingly, insofar as expert testimony is
required to aid the Court in its determination of whether summary judgment is warranted
as a matter of law, Lee and Javaheri appear to lack the requisite qualifications to engage
in an expert “analytical dissection” of the designs.
Not only has the Ninth Circuit remarked that the extrinsic test “requires analytical
dissection of a work and expert testimony,” Swirsky, 376 F.3d at 845, it has also
demonstrated “a certain disfavor for summary judgment on questions of substantial
similarity,” unless no reasonable jury could find that the works at issue are substantially
similar in idea and expression. Pasillas v. McDonald’s Corp., 927 F.2d 440, 442 (9th Cir.
1991). “Where reasonable minds could differ on the issue of substantial similarity,
however, summary judgment is improper.” Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th
Cir. 1990).
Here, because the relevant inquiry is whether there is substantial similarity with
any protected elements of the Subject Design, “it is essential to distinguish between the
protected and unprotected material in [] plaintiff’s work.” Swirsky, 376 F.3d 841.
Assuming arguendo that Javaheri and Lee adequately demonstrate specialized knowledge
and expert qualifications, Javaheri still fails to offer an “analytical dissection” of the
designs and instead offers his opinion that the “design on the Infringing Garment is a
direct copy of the Subject Design that has had its vertical dimensions reduced to 69%.”
Javaheri Decl. ¶ 11. Moreover, these observations are based on Exhibit F to Javaheri’s
Declaration, which—like plaintiff’s motion for summary judgment pleadings—appears to

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

compare two images of the Subject Design while representing that one image instead
depicts the Accused Design. See Javaheri Decl. ¶ 11 & Ex. F. In his second declaration,
submitted in support of plaintiff’s opposition to defendants’ summary judgment motions,
Javaheri remarks that the prior comparison involved a “miscommunication,” and submits
new testimony concerning the similarities between the designs. Javaheri Opp’n Decl. ¶
4–5. Javaheri then opines that “all of the elements on the design on the Infringing
Garment replicate elements of the Subject Design.” Id. ¶ 5 & Ex. G (emphasis added).
Upon reviewing Exhibit G and Javaheri’s comparison of the two designs, the Court
observes some nearly imperceptible variations between certain geometric motifs.
However, the Court also observes some distinct variations in both elemental design and
arrangement of certain motifs. Accordingly, the Court cannot conclude as a matter of law
that the numerous elements within the Accused Garment are “replications,” as Javaheri
opined, of the elements on the Subject Design.
Similarly, Lee’s “elemental analysis”—which concludes that there are twenty-five
unique geometric motifs between the designs and only seven shared geometric motifs that
are “ubiquitous in the world of design and art”—does little to aid the Court in
determining whether the two designs are substantially similar.10 See Lee Decl. ¶ 6–7.
Many of the geometric motifs that Lee argues “do not appear anywhere in plaintiff’s
design” are the very same geometric motifs that Javaheri contends are “replicated” from
the Subject Design. See Lee Decl. & Ex. D; Javaheri Opp’n Decl. & Ex. G. Although it
appears to the Court that certain geometric motifs in the Accused Design are
distinguishable from those in the Subject Design only by width of lines and width of
spacing, it also appears that the Accused Design has unique geometric motifs that do not
appear at all in the Subject Design. In light of these apparent differences and similarities
between the designs, and absent expert testimony, the Court finds that there is a genuine
dispute of material fact on substantial similarity. See L.A. Printex Indus., Inc. v.
Aeropostale, Inc., 676 F.3d 841, 851 (9th Cir. 2012). This conclusion is particularly
warranted due to the triable issue of material fact as to plaintiff’s ownership of a valid
copyright in the Subject Design.

10

Lee’s testimony is no more helpful with respect to defendant’s motions for
summary judgment on the issue of “striking similarity,” which is discussed below.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

Given the Court’s denial of summary judgment as to plaintiff’s ownership of a
valid copyright in the Subject Design and denial of summary judgment as to substantial
similarity between the designs, the Court hereby DENIES as moot plaintiff’s request for
summary judgment as to its right to elect statutory damages and as to the issues of
defendant’s access, infringement, and willfulness.
B.

Defendants’ Motions for Summary Judgment
1.

Whether the Designs are Strikingly Similar

Defendants request summary judgment that the Accused Design and the Subject
Design are not “strikingly similar” insofar as there are “no less than twenty-five distinct
motifs between the Subject Design and Accused Product.” NNW MSJ at 8; Superline
MSJ at 8; Styles MSJ at 8. Because the Court finds that triable issues of material fact
exist as to whether the Accused Design is substantially similar to the Subject Design, a
triable issue of material fact also exists as to the issue of striking similarity. See
Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017) (“In assessing
whether particular works are substantially similar, or strikingly similar, this Circuit
applies a two-part analysis: the extrinsic test and the intrinsic test.”) (emphasis added).
Thus, given that the same two-part analysis applies in determining questions of
substantial similarity and striking similarity, the Court DENIES defendants’ request for
summary judgment as to striking similarity.11

11

At oral argument, NNW’s counsel argued that in opposition to the motion for
summary judgment as to striking similarity, plaintiff failed to respond with any evidence
that the Accused Design could not possible have been the result of independent creation.
Accordingly, counsel argued that the Court must award summary judgment to defendants
on this issue. While the Court recognizes that the legal analysis regarding striking
similarity involves the question of whether the accused work could not possibly have
been the result of independent creation, Seals–McClellan v. Dreamworks, Inc., 120 Fed.
Appx. 3, 4 (9th Cir. 2004), it also notes that this inquiry is only part of the analysis.
Whether two works are strikingly similar turn on the very same test that the Court
discussed in relation to substantial similarity—namely, the extrinsic test, which the Court
addressed above. In light of the triable issues of material fact the Court identified

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Page 19 of 21 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

2.

The Originality of the Subject Design

NNW argues that because the Subject Design contains Aztec-style patterns that
have been used for millennia, it is afforded only “thin” protection against identical
copying. NNW MSJ at 14. Yet, as plaintiff observes, “a combination of unprotectable
elements may qualify for copyright protection.” Satava v. Lowry, 323 F.3d 805, 811 (9th
Cir. 2003) (emphasis in original). Of course, a combination of unprotectable elements “is
eligible for copyright protection only if those elements are numerous enough and their
selection and arrangement original enough that their combination constitutes an original
work of authorship.” Id. “If there’s only a narrow range of expression (for example,
there are only so many ways to paint a red bouncy ball on blank canvas), then copyright
protection is ‘thin’ . . . .” Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 914 (9th Cir.
2010). In such instances of “thin” copyright protection, “a work must be ‘virtually
identical’ to infringe.” Id. (citing Satava, 323 F.3d at 812) (glass-in-glass jellyfish
sculpture only entitled to thin protection against virtually identical copying due to the
narrow range of expression).
Beyond its own internet search that revealed “dozens of patterns no more similar to
the Accused Garment as the Subject Design,” NNW fails to provide expert testimony—or
any testimony at all—that the geometric motifs in the Subject Design are so generic and
are arranged in such a way that they deserve only “thin” copyright protection. Yet NNW
carries the burden of identifying relevant portions of the record that demonstrate the
absence of facts necessary for plaintiff to prove that it owns a valid copyright in the
Subject Design, subject to full copyright protection. See generally Celotex, 477 U.S. 317
at 323. In light of the absence of expert testimony on the issue of whether and to what
extent the Subject Design contains generic elements, the Court DENIES NNW’s request
for summary judgment as to the Subject Design’s originality.
3.

Defendants’ Access, Willfulness, and Innocence

Defendants request summary judgment on the issue of access to the Subject
Design, in addition to summary judgment as to defendants’ willfulness and innocence

regarding the extrinsic test, the Court similarly finds triable issues of material fact as to
striking similarity.

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Page 20 of 21 

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

Case No. 
Title 

CIVIL MINUTES – GENERAL
‘O’
2:16-cv-08558-CAS(MRWx)
Date February 26, 2018
FABRIC SELECTION, INC. v. NNW IMPORT, INC. ET AL.

with respect to infringement. Given the Court’s denial of summary judgment as to
plaintiff’s ownership of a valid copyright in the Subject Design, denial of summary
judgment as to substantial similarity and striking similarity between the designs, and
denial of summary judgment as to “thin protection,” the Court finds summary judgment
regarding the issues of access, willfulness, and innocence to be moot.12 Accordingly, the
Court DENIES as moot defendants’ request for summary judgment as to access to the
Subject Design and willfulness and innocence with respect to infringement.
V.

CONCLUSION

In accordance with foregoing, the Court DENIES plaintiff’s and defendants’
motions for summary judgment.
IT IS SO ORDERED.
00
Initials of Preparer

:

30

CMJ

12

At oral argument, defendants’ counsel again urged the Court to decide the issues of
willfulness and innocence. Counsel argued that until these issues are decided, the case
cannot be resolved. The Court declines to decide these issues for the reasons set forth in
this order. In any event, nothing precludes the Court from deciding these issues after trial
in response to a Rule 50 motion.

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