Peterman v. Republican National Committee

Filing 19

ORDER granting in part and denying in part 7 Motion to Dismiss for Failure to State a Claim. Defendant's Motion to Dismiss Count I is DENIED and Defendant's Motion to Dismiss Count II is GRANTED. Signed by Judge Dana L. Christensen on 3/19/2018. (ASG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ERIKA PETERMAN,

MAR 19 2018
Clerk, U.S District Court
District Of Montana
Missoula

CV 17-66--M-DLC

Plaintiff,
vs.

ORDER

REPUBLICAN NATIONAL
COMMITTEE,
Defendant.

Before the Court is Defendant Republican National Committee's ("RNC")
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant
argues that this case should be dismissed because: (1) RNC's use of Plaintiffs
photograph constituted a fair use under federal copyright law; (2) Plaintiff has
failed to state a claim for intentional interference with prospective economic
advantage; and (3) Plaintiffs state law claim for intentional interference with
economic advantage is preempted by federal copyright law. For the reasons
explained below, the Court grants the motion in part and denies the motion in part.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Erika Peterman ("Peterman") is a photographer and is the author
and owner of the copyright in Peterman's photograph ("Work"). Defendant RNC
is a U.S. political organization responsible for developing and promoting the
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Republican political platform, as well as coordinating fundraising and election
strategy. RNC previously campaigned on behalf of Montana U.S. Representative
Greg Gianforte in Montana's Special Election to fill its lone Congressional seat in
the U.S House of Representatives in 2017.
On March 18, 2017, Peterman contracted with the Montana Democratic
Party to take photographs at the annual Mansfield-Metcalf Dinner in Helena,
Montana. She was asked to take photographs of Democratic Candidate Rob Quist
("Quist") who was the focus of the event. The Work depicts Quist, wearing a
cattleman's hat from behind, with three bright lights in the distance. On March 21,
2017, Peterman edited and sent her photographs to the Montana Democratic Party
and gave limited license to the Montana Democratic Party and Quist's campaign to
use the Work. Peterman filed for registration of her Work with the U.S. Copyright
Office on May 12, 2017.
On May 9, 2017, Peterman was notified that RNC had sent out mass direct
mailings using her Work to negatively depict Quist. The image on the RNC mailer
is a direct copy of Peterman' s Work, altered with a treble clef inserted over the
bottom left of the image and the text, "For Montana Conservatives, Liberal Rob
Quist Can't Hit the Right Note." The back of the mailers contained standard
political advertisement disclaimer language that they were paid for by RNC and
were not authorized by any candidate or candidate's committee.
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On May 16, 201 7, Peterman filed her Complaint against RNC alleging
copyright infringement and intentional interference with economic advantage
based on RNC copying, using, and distributing her Work. (Doc. 1.) On September
9, 2017, RNC filed a Motion to Dismiss for Failure to State a Claim, arguing that
its use of the Work constituted a fair use under federal copyright law and that
Peterman failed to state a claim for intentional interference with economic
advantage. (Doc. 7.) Additionally, RNC argued that Peterman's state law claim
for intentional interference with economic advantage was preempted by federal
copyright law. (Id.)

LEGAL STANDARD
Rule 12(b)(6) motions test the legal sufficiency of a pleading. Fed. R. Civ.
P. 12(b)(6). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must
contain "a short and plain statement of the claim showing that the pleader is
entitled to relief." "To survive a motion to dismiss, a complaint must contain
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 At/. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the
court can draw a "reasonable inference" from the facts alleged that the defendant is
liable for the misconduct alleged. Id. These facts need not be overly specific, but
they must "give the defendant fair notice of what the ... claim is and the grounds
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upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
(quoting Twombly, 550 U.S. at 555).
Under Rule 12(b)(6), the court is generally limited to the allegations of the
complaint, "which are accepted as true and construed in the light most favorable to
the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
Nonetheless, a court may dismiss a complaint if it lacks a cognizable legal theory.

SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F .3d 780, 783
(9th Cir. 1996). Dismissal for failure to state a claim is proper only "if it appears
beyond doubt" that the non-moving party "can prove no set of facts which would
entitle him to relief." Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir.
2007) (internal quotation marks and citation omitted).
The "assertion of fair use may be considered on a motion to dismiss, which
requires the court to consider all allegations to be true, in a manner substantially
similar to consideration of the same issue on a motion for summary judgment,
where no material facts are in dispute." See Leadsinger, Inc. v. BMG Music

Publ'g, 512 F.3d 522, 530 (9th Cir. 2008). Fair use doctrine "presents a mixed
question of law and fact" that "requires a case-by-case determination whether a
particular use is fair." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
539, 560 (1985). However, "[i]f there are no genuine issues of material fact, or if,
even after resolving all issues in favor of the opposing party, a reasonable trier of
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fact can reach only one conclusion, a court may conclude as a matter of law
whether the challenged use qualifies as fair use of the copyrighted work."' Hustler
Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986).

While a plaintiff must plead facts sufficient to prove a justiciable cause of action, it
is not necessary to plead facts that disprove fair use to survive a Rule 12(b)(6)
motion to dismiss. See Garner v. Higgins, 2015 WL 574352, at *3 (W.D. Va. Feb.
11, 2015).
DISCUSSION
I.

Copyright Infringement
Peterman claims that RNC violated 17 U.S.C. § 106 by infringing her

protected copyright in her Work. (Doc. 1at5-7.) RNC seeks dismissal of
Peterman's copyright infringement claim on the basis of fair use. (Doc. 8 at 4.) To
state a claim for copyright infringement, a plaintiff must allege: ( 1) ownership of a
valid copyright, and (2) copying of a protectable expression by the defendant.
Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987). Under Section 501 of the

Copyright Act, "[t]he legal or beneficial owner of an exclusive right under a
copyright is entitled, subject to the requirements of section 411, to institute an
action for any infringement of that particular right committed while he or she is the
owner of it." 17 U.S.C. § 501(b).

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The Copyright Act provides that the "fair use of a copyrighted work,
including such use by reproduction in copies or phonorecords or by any other
means specified for that section, for purposes such as criticism, comment, news
report, teaching (including multiple copies for classroom use), scholarship, or
research, is not an infringement of copyright." 17 U.S.C. § 107. When
determining whether a use constitutes a "fair use," the Copyright Act directs courts
to consider: ( 1) the purpose and character of the use, including whether such use is
of a commercial nature or for nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion of the work used
in relation to the work as a whole; and (4) the effect of the use on the potential
market for or value of the work. Id.
Fair use "permits the use of copyrighted works without the copyright
owner's consent under certain situations. The defense encourages and allows the
development of new ideas ... thus providing a necessary counterbalance to the
copyright law's goal of protecting creators' work product." Perfect JO, Inc. v.

Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007). As an affirmative
defense, fair use "presumes that unauthorized copying has occurred, and is instead
aimed at whether the defendant's use was fair." Monge v. Maya Magazine,

Inc., 688 F.3d 1164, 1170 (9th Cir. 2012). The factors are "not to be simplified
with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-6-

by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)
(citations omitted).
It is undisputed by the parties that Peterman is the owner of a valid copyright
to the Work. Therefore, the issue is whether RNC's use of the Work was a fair use
of Peterman' s copyrighted expression.

a.

Purpose and Character of the Use

In evaluating the purpose and character of use, the Ninth Circuit looks to
"whether and to what extent the new work is 'transformative."' Perfect 10, 508
F.3d at 1163 (citing Campbell, 510 U.S. at 579). A work is "transformative" when
it does not "merely supersede the objects of the original creation" but instead "adds
something new, with a further purpose or different character, altering the first with
new expression, meaning, or message." Id. at 1164. A use is transformative "only
where a defendant changes a plaintiffs copyrighted work or uses the plaintiffs
copyrighted work in a different context such that the plaintiffs work is
transformed into a new creation." Wall Data Inc. v. L.A. County Sheriff's

Dep't, 447 F.3d 769, 778 (9th Cir. 2006).
A work's separate purpose "by itself, does not necessarily create new
aesthetics or a new work that alter[ s] the first [work] with new expression,
meaning or message." Monge, 688 F.3d at 1176 (quoting Infinity Broad. Corp. v.

Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)) (citations omitted). A "difference in
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purpose is not quite the same thing as transformation, and Campbell instructs that
transformativeness is the critical inquiry under this factor." Id. However, making
an exact copy of a protected work may be transformative provided "the copy
serves a different function than the original work." Perfect 10, 508 F.3d at
1165; See also Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19 (9th Cir.
2002) (finding transformative use where the original purpose of the copied images
was aesthetic, while the new purpose was to improve access to information).
In Monge v. Maya Magazine, Inc., a magazine published six of the
plaintiffs' wedding photographs by reproducing them on the cover and in a twopage spread with various bylines printed upon and around them. 688 F .3d at
1169-70. The Ninth Circuit found that such use "did not transform the photos into
a new work, as in Campbell, or incorporate the photos as part of a broader work[.]"
Id. at 1176. Instead, the Ninth Circuit held the magazine "left the inherent

character of the images unchanged" and that such "wholesale copying sprinkled
with written commentary ... was at best minimally transformative" for a finding
of fair use. Id.
The purpose and character of the use of the Work by RNC in a political
mailing does not favor a finding of fair use at this stage since the Work's purpose
remains a disputed issue of fact and RNC's use was, at best, minimally
transformative. As alleged in the Complaint, RNC copied the whole of the visual
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Work and merely added a few lines of text that were critical of Quist, stating "For
Montana Conservatives, Liberal Rob Quist Can't Hit the Right Note" in the lowerleft quadrant. (Doc. 1-3 at 1.) Absent the inclusion of a treble clef attached to the
commentary, the entirety of the visual aspects of the Work remain unaltered in
RNC's use.
There is no basis in the pleadings for determining the existence and extent of
any purpose or transformation of the Work at this stage. RNC added commentary,
which may have altered the Work with new expression. Thus, RNC's use would
establish a new purpose or new function. However, Peterman's purpose for the
Work is not plain on the face of the pleadings and has yet to be developed. RNC
alleges the purpose and function of the Work based on the Montana Democratic
Party's use of the Work and not Peterman's use of the Work. Therefore, the
purpose of the Work remains a disputed issue of fact for a finding of fair use.
Further, the character ofRNC's use appears to be minimally transformative.
The Work was not altered from Peterman' s original photograph, and instead
similar to Monge, where the Ninth Circuit found "wholesale copying sprinkled
with written commentary ... at best minimally transformative," RNC left the
inherent character of the image unchanged and only included short written
commentary. Additionally, as Monge illustrates, RNC's separate purpose or
function for the Work of criticizing Quist by itself does not necessarily create a
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new work that alters the Work's expression. Separate purpose is not the same
thing as transformation, which is the critical inquiry at this juncture. Therefore,
because the Work's purpose remains a disputed issue of fact and the transformative
character of the use appears marginal, the purpose and character of the use factor
weighs against a finding of fair use at this stage.
b.

Nature of the Copyrighted Work

In determining the nature of the copyrighted work, courts recognize that
"creative works are 'closer to the core of intended copyright protection' than
informational and functional works." Mattel, Inc. v. Walking Mountain Prods.,
353 F.3d 792, 800 (9th Cir. 2003) (quoting Campbell, 510 U.S. at 586). Courts
generally assess whether the original work is more creative or factual in nature and
whether it was published at the time of the alleged infringement. See Harper &
Row, 471 U.S. at 563-64. "The scope of fair use is greater when 'informational' as

opposed to more 'creative' works are involved." Hustler, 796 F.2d at 115354; see also Harper & Row, 471 U.S. at 563 ("The law generally recognizes a
greater need to disseminate factual works than works of fiction or fantasy.").
Depiction of newsworthy events are "informational and factual" and more likely to
be the subject of fair use. See Los Angeles News Serv. v. KCAL-TV Channel 9, 108
F.3d 1119, 1122 (9th Cir. 1997) (finding that video footage of police beating an

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individual weighed in favor of fair use for the nature of the copyrighted work
factor because of its newsworthiness).
Here, it is clear the nature of the Work as represented in the Complaint is a
published photograph by Peterman artistically depicting Quist. The photograph
includes elements in its framing that are not factual in nature. Instead, the Work
creatively and visually develops a portrait of Quist and his candidacy, including the
balance of the photograph, the illuminated cowboy hat atop Quist' s head, the three
stage lights in the distance, and the dark background employed. (Doc. 1-3 at 1.)
Given the inclusion of these visual elements, the Work is "closer to the core of
intended copyright protection" because it is more closely aligned to an artistic
portrait rather than an informational or functional work, despite it being taken at a
political event. Consequently, the nature of the copyrighted work factor weighs
against a finding of fair use at this interval.

c.

Amount and Substantiality of Portion Used

In assessing the amount and substantiality of portion used, courts consider
not only "the quantity of the materials used" but also "their quality and
importance." Campbell, 510 U.S. at 587. While "wholesale copying does not
preclude fair use per se," copying an entire work "militates against a finding of fair
use." Worldwide Church ofGodv. Philadelphia Church of God, Inc., 227 F.3d
1110, 1118 (9th Cir. 2000) (quoting Hustler, 796 F.2d at 1155). Similarly, "the
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fact that a substantial portion of the infringing work was copied verbatim is
evidence of the qualitative value of the copied material, both to the originator and
to the plagiarist who seeks to profit from marketing someone else's copyrighted
expression." Harper & Row, 471 U.S. at 565.
If the subsequent user of the work "copies only as much as is necessary for

his or her intended use, then this factor will not weigh against him or her." Kelly,
336 F.3d at 820-21. Accordingly, the use of an entire image may be reasonable if
it serves the defendant's intended purpose. See Perfect 10, 508 F.3d at 1167-68
(finding use of entire image necessary to facilitate use of search engine favored
neither party on amount and substantiality of portion used); Kelly, 336 F.3d at 821.
Here, RNC copied the entirety of Peterman's Work quantitatively and
qualitatively for use in its political mailers. A side-by-side comparison of the
Work and RNC's mailer shows that RNC attempted to qualitatively retain the
whole of the visual aspects of the Work in order to comment on Quist's musical
background as it applied to his political career. The mailer reproduces the original
balance of the photograph, the illuminated cowboy hat atop Quist' s head, the three
stage lights in the distance, and a dark background to juxtapose its commentary
with the appearance that Quist is giving a musical performance. (Doc. 1-3 at 1.)
The only alteration present from the original Work is RNC's inclusion of a treble
clef attached to its commentary. (Id.)
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Consequently, both the amount and substantiality of the Work RNC used for
its political mailers either weighs neutrally or against a finding of fair use. RNC
used substantially all the Work quantitatively as the entirety of the Work was
copied. Further, the qualitative aspects of the Work were maintained in RNC's use
for its intended purpose to criticize Quist's political career in conjunction with his
musical background. Given that the whole of the Work was precisely maintained
quantitatively and qualitatively for RNC's use and intended purpose, this factor
weighs against a finding of fair use.

d.

Effect on the Market

In evaluating the effect on the market of a use, courts consider "whether the

infringing use: (1) tends to diminish or prejudice the potential sale of the work; (2)
tends to interfere with the marketability of the work; or (3) fulfills the demand for
the original work." Hustler, 796 F.2d at 1155-56 (internal quotation marks and
citations omitted). The "market for potential derivative uses includes only those
that creators of original works would in general develop or license others to
develop." Campbell, 510 U.S. at 592. The more transformative the new work, the
less likely the new work's use will affect the market for the original work. See

Kelly, 336 F.3d at 821. Where the use "does not substitute for the original and
serves a 'different market function,' such factor weighs in favor of fair use."

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Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013) (quoting Campbell,
510 U.S. at 591).
There is no basis in the pleadings for determining the market effect of
RNC's use of the Work as it remains a disputed issue of fact. Construing the
pleadings in favor of Peterman, it is uncertain whether the use of the Work in a
political mailing criticizing Quist is likely to diminish the potential sale of the
Work, interfere with the marketability of the Work, or fulfill the demand for the
Work. The only evidence available in the pleadings about the market for the Work
was that Peterman was contacted by the Montana Democratic Party to create the
Work, that Peterman gave limited license to the Work to the Montana Democratic
Party and the Quist campaign, and that RNC used the Work in a political mailer.
(Doc. 1 at 4.)
RNC's use of the Work may have potentially prejudiced further derivative
use of the Work by Peterman, however such evidence is not available on the face
of the pleadings. Likewise, though RNC' s use would not likely substitute for the
Work, and may have served a different market function, there is no plain evidence
in the pleadings to determine what effect RNC's use had on the Work. Finally, as
the transformative purpose and character of the use remains a disputed issue of fact
in the analysis above, it is additionally premature to determine what effect RNC's

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use had on the potential market for the Work. Accordingly, a finding of fair use on
the market effect of the use is premature on this factor.
Having weighed each of the fair use factors, and resolving all issues in favor
of Peterman under the allegations in the Complaint, the Court finds that disputed
issues of material fact remain on whether RNC's use of Peterman's Work
constituted a fair use. Thus, RNC's Motion to Dismiss on Count I is denied.
II.

Intentional Interference with Prospective Economic Advantage
RNC next seeks dismissal of Peterman's intentional interference with

prospective economic advantage claim. Peterman asserts that RNC's use of the
Work for a use opposite than intended has caused Peterman damages and
interfered with Peterman' s prospective economic advantage and business relations.
(Doc. 1 at 9.) To state a claim for intentional interference with prospective
economic advantage, a plaintiff must adequately plead that the defendant's acts:

"(1) are intentional and willful; (2) are calculated to cause damage to the plaintiffs
business; (3) are done with the unlawful purpose of causing damage or loss,
without right or justifiable cause on the part of the actor; and (4) result in actual
damages or loss." Victory Ins. Co. v. Montana State Fund, 344 P.3d 977, 980
(Mont. 2015) (citing Maloney v. Home and Inv. Ctr., Inc., 994 P.2d 1124, 1132
(Mont. 2000)).

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The Copyright Act preempts state laws that regulate in the area of copyright.
17 U.S.C. § 30l(a). "All legal or equitable rights that are equivalent to any of the
exclusive rights within the general scope of copyright as specified by Section 106 .
. . are governed exclusively by this title .... [N]o person is entitled to any such
right or equivalent right in any such work under the common law or statutes of any
State." Id.; see Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 760 (9th Cir. 2015)
("[T]he [exclusive] rights protected under the Copyright Act include the rights of
reproduction, preparation of derivative works, distribution, and display.")
(quoting Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th Cir. 2005)).
"Copyright preemption is both explicit and broad: 17 U.S.C. § 301(a) prohibits
state-law protection for any right equivalent to those in the Copyright Act."
Media.net Advert. FZ-LLC v. NetSeer, Inc., 156 F.Supp.3d 1052, 1069 (N.D. Cal.

2016) (quoting G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Serv., Inc., 958
F.2d 896, 904 (9th Cir. 1992)).
In determining whether a state law claim is preempted by the Copyright Act,
the Ninth Circuit considers: (1) whether the content of the protected right falls
within the subject matter of copyright; and (2) whether the right asserted under
state law is "equivalent to the exclusive rights contained in Section 106 of the
Copyright Act." Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1150
(9th Cir. 2008). "Copyright law does not preempt state laws with respect to
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'activities violating legal or equitable rights that are not equivalent to any of the
exclusive rights within the general scope of copyright as specified by Section
106."' Id. (quoting 17 U.S.C. § 301(b)(3)).
In evaluating a plaintiffs state law claims, to the extent they "rely solely on
defendant's use of copyrighted material-that is, the reproduction, performance,
distribution, or display of the work-the claims are preempted." Sweet People
Apparel, Inc. v. Louis Grp., Inc., 2013 WL 12131735, at *6 (C.D. Cal. Jan. 31,
2013). Section 301(a) reflects a Congressional intent "that state-law claims which
come within the subject matter of copyright law and which protect rights
equivalent to any of the exclusive rights within the scope of federal copyright law .
. . should be litigated only as federal copyright claims." Id. (citing Firoozye v.
Earth/ink Network, 153 F. Supp. 2d 1115, 1122 (N.D. Cal. 2001).
To avoid preemption, the state law claim must include "an 'extra element'
that makes the right asserted qualitatively different from those protected under the
Copyright Act[.]" Altera Corp., 424 F.3d at 1089 (emphasis added). The "extra
element" must effectively change the claim "so that it is qualitatively different
from a copyright infringement claim." Summit Mach. Tool Mfg. Corp. v. Victor
CNC Sys., Inc., 7 F.3d 1434, 1440 (9th Cir. 1993) (citations omitted); see also
Aagardv. Palomar Builders, Inc., 344 F. Supp. 2d 1211, 1219 (E.D. Cal.
2004) (rejecting that loss of business from sale of plaintiffs copyrighted work was
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an additional element to intentional interference with prospective economic
relations claim because "federal copyright laws already protect the exclusive right
of distribution.").
Whether federal copyright law preempts a state law claim "therefore
depends on whether the asserted right is qualitatively different than those protected
by the Copyright Act." Media.net, 156 F. Supp. 3d at 1070. The Second Circuit
provides persuasive authority that the rights protected by the Copyright Act are
synonymous to those asserted in state law claims involving tortious interference
because "[i]n both cases, it is the act of unauthorized publication which causes the
violation. The enjoyment of benefits from derivative use is so intimately bound up
with the right itself that it could not possibly be deemed a separate element."

Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 201 (2d Cir.
1983), rev'd on other grounds, 471 U.S. 539 (1985). Thus, to survive preemption,
the "state claim must have an extra element which changes the nature of
action." Laws v. Sony Music Entm 't, Inc., 448 F.3d 1134, 1144 (9th Cir. 2006)
(quoting Del Madera Props. v. Rhodes & Gardner, 820 F.2d 973, 977 (9th Cir.
1987)) (emphasis added).
Peterman's intentional interference with prospective economic advantage
claim is preempted under federal copyright law as it asserts rights under state law
that are derivative of her copyright infringement claim. Under the Ninth Circuit's
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framework in Sybersound, Peterman's state claim is preempted because the content
of the asserted right under state law falls within the subject matter of copyright,
and the right asserted under state law is equivalent to the exclusive rights contained
in federal copyright law. Peterman's claim is supported solely on RNC's alleged
infringing use of the Work, a work protected by federal copyright law. Further, the
state law claim's strict reliance on the infringing use of Peterman's Work as
support for the action is equivalent to the exclusive rights granted under federal
copyright law. Peterman's state law claim is therefore preempted because of its
dependence on RNC's use of the Work, a claim already secured by federal
copyright law.
Further, Peterman's intentional interference with prospective economic
advantage claim is predicated on RNC's unauthorized use of her Work in violation
of her copyright, and as a result, is not "qualitatively different" from Peterman's
copyright infringement claim. Peterman potentially claims an "extra element" as
the potential loss of business as a result ofRNC's use of the Work during a time
when the Work had special and increased value. However, Peterman's claim does
not assert an extra element that fundamentally changes the nature of her claim to
distinguish it from her copyright infringement claim because it relies on the
unauthorized use of her Work as support. (Doc. 1 at 9.) Like the tortious
interference claim presented in Harper, Peterman's intentional interference with
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prospective economic advantage claim alleges a violation of essentially the same
exclusive rights provided for by federal copyright law. The Copyright Act already
protects the exclusive right of distribution. Consequently, Peterman's state law
claim is preempted.
Peterman has not identified an independent theory of interference with
economic advantage apart from RNC's unauthorized use of the Work that would
allow her to plead it outside of federal copyright law. The Complaint does not
contain any specific facts regarding any economic advantage Peterman had that
was damaged by RNC's use of the Work outside of the alleged infringement.
(Doc. 1 at 9.) Further, the Complaint fails to include facts suggesting that it was
plausible that RNC's actions were calculated to cause damage to Peterman's
photography business or that RNC's actions resulted in actual damage or loss to
state a claim for intentional interference with prospective economic advantage.
(Id.) To any extent Peterman's claim is not preempted by federal copyright law,

Peterman has additionally failed to state a claim for relief. Thus, RNC's Motion to
Dismiss on Count II is granted.
Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss for
Failure to State a Claim (Doc. 7) is GRANTED IN PART and DENIED IN PART.
Defendant's Motion to Dismiss Count I is DENIED and Defendant's Motion to
Dismiss Count II is GRANTED.
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DATED this

I q~ay of March, 20

.

Dana L. Christensen, Chief Judge
United States District Court

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