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United States Court of Appeals, Ninth Circuit.

URBAN TEXTILE, INC., a California Corporation, Plaintiff-Appellant, v. RUE 21, INC.; Mark-Edwards Apparel, Inc., Defendants-Appellees.

No. 17-56749

Decided: March 21, 2019

Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,** District Judge. Chan Yong Jeong, Esquire, Jeong & Likens, Law Corporation, Los Angeles, CA, for Plaintiff - Appellant Adam J. Thurston, Esquire, Drinker Biddle & Reath, LLP, Los Angeles, CA, for Defendants - Appellees


Plaintiff Urban Textile, Inc. (“Urban”) appeals from the district court's order granting partial summary judgment to defendants Mark Edwards Apparel, Inc. and Rue 21, Inc. on Urban's copyright infringement claim for eleven fabric designs. Because the parties are familiar with the facts, they will not be recounted here. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review a grant of partial summary judgment de novo. Geurin v. Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002). The district court did not err in concluding that Urban published the subject designs prior to registering them with the Copyright Office as unpublished works. The district court relied on an evidentiary presumption imposed against Urban as a discovery sanction, which deemed established that Urban had placed copies of each of the subject designs in its “Look Books” that were made available to potential customers for the purpose of soliciting purchases of fabric bearing the subject designs. Urban has not challenged the district court's imposition of the presumption.

The district court properly concluded that the inclusion of the subject designs in Urban's Look Books constituted “publication” under the Copyright Act. See 17 U.S.C. § 101 (“publication” includes “[t]he offering to distribute copies ․ to a group of persons for purposes of further distribution”); United States Copyright Office, Compendium of U.S. Copyright Office Practices § 1906.1 (3d ed. 2017) (“[P]ublication occurs when one or more copies ․ are offered to a wholesaler, a retailer ․ or similar intermediaries for the purpose of distributing the work to the public,” and when, for example, “fabric, carpet, or wallpaper samples are offered to sales representatives for the purpose of selling those works to wholesalers and retailers.”).


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