NEMAN BROTHERS ASSOC INC v. BURLINGTON STORES INC (2019)

MEMORANDUM **

In this copyright infringement case involving fabric designs, Neman Brothers & Associates, Inc. (“Neman”) appeals the district court’s grant of summary judgment in favor of defendants Burlington Stores, Inc. and One Step Up, Ltd. We review de novo a district court’s grant of summary judgment. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). “[S]ummary judgment is appropriate if the court can conclude, after viewing the evidence and drawing inferences in a manner most favorable to the non-moving party, that no reasonable juror could find substantial similarity of ideas and expression.” Narell v. Freeman, 872 F.2d 907, 909–10 (9th Cir. 1989).

A plaintiff must show unlawful appropriation in order to establish copyright infringement. See Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018). A plaintiff can do so by showing that the alleged infringing work is substantially similar to the copyrighted work under both the “extrinsic test” and “intrinsic test.” Id. at 1118. “The extrinsic test assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression.” Id.

The district court properly concluded that no reasonable juror could find that the designs are substantially similar under the extrinsic test.¹ While there are some objective similarities between the fabric designs at issue, the similarities are not substantial. Indeed, the defendants submitted an expert report opining that the designs were not substantially similar, and Neman failed to controvert this evidence.

Neman’s remaining arguments in support of reversal are unavailing. Neman argues that the district court erred by failing to apply the “inverse ratio rule.” But that rule is not applicable in proving unlawful appropriation, which is the only issue before us. See Rentmeester, 883 F.3d at 1124.

For the first time on appeal, Neman argues that we should apply the “fragmented literal similarity” test to determine whether the designs are substantially similar. We do not address this argument because Neman waived it. See Tibble v. Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016) (“[A]n issue will generally be deemed waived on appeal if the argument was not raised sufficiently for the trial court to rule on it.” (quoting In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) ) ). Further, Neman fails to show that the general waiver rule should not apply here.

AFFIRMED.

FOOTNOTES

1.   We do not reach the issue of whether the designs are substantially similar under the intrinsic test because “a plaintiff who cannot satisfy the extrinsic test necessarily loses on summary judgment.” Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994).