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1 2 3 4 5 6 7 8 9 10 11 ESTEVAN ORIOL, an individual, 12 13 v. Plaintiff, Case No.: CV 13-05088-R-MAN Hon. Manuel L. Real ORDER GRANTING DEFENDANTS MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6) AND DEFENDANTS REQUEST FOR JUDICIAL NOTICE Date: Time: Courtroom: October 28, 2013 10:00 a.m. 8, 2nd Fl., Spring St. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

14 H & M HENNES & MAURITZ L.P., a New York Limited Partnership, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28

Date Complaint Filed: July 16, 2013 Discovery Cutoff: None Trial Date: None

[PROPOSED] ORDER GRANTING MOTION TO DISMISS

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TO THE DISTRICT COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: On October 28, 2013, the Motion of Defendant H&M Hennes & Mauritz L.P. (H&M) to dismiss the Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure came on regularly for hearing, in Courtroom 8 of this Court, the Honorable Judge Manuel L. Real, presiding. After full consideration of the pleadings, the moving, opposition, and reply papers, and the argument of counsel, for the reasons set forth below, the Court: GRANTS H&Ms request to dismiss Plaintiffs cause of action for accounting, with prejudice; GRANTS H&Ms request to dismiss statutory damages, with prejudice; and GRANTS H&Ms request to dismiss Plaintiffs cause of action for copyright infringement. Plaintiff has until November 7, 2103 to amend the Complaint. To successfully plead a copyright infringement claim, in addition to pleading

17 ownership of the copyright, the plaintiff must establish: (1) the defendants access 18 to the copyrighted work, and (2) substantial similarity between the copyrighted 19 work and the allegedly infringing material. Berkic v. Crichton, 761 F. 3d 1289, 20 1291-92 (9th Cir. 1985). 21 To be well pled, a complaint must contain sufficient factual matter, accepted 22 as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 23 556 U. S. 662, 667-78, 129 S. Ct. 1937 (2009) (Iqbal) quoting Bell Atl. Corp v. 24 Twombly, 550 U. S. 544, 557, 127 S. Ct. 1955 (2007) (Twombly) . Mere legal 25 conclusions may not be accepted as true and do not establish a plausible claim for 26 relief. Iqbal, 556 U. S. at 677-78. A court must not accept naked assertion[s] 27 devoid of further factual enhancement. Id., quoting Twombly, 550 U. S. at 557. 28
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To meet the pleading requirement, Plaintiff is required to plead the sources of the alleged similarity between his work and the defendants work. Apple Computer, Inc. v. Microsoft Corp., 35 F. 3d 1435, 1443 (9th Cir. 2002) (Apple); Funky Films, Inc. v. Time Warner Entmt, Inc. 462 F. 3d 1072, 1072 (9th Cir 2006). Any allegations of similarity must be of protected elements, not unprotectible elements or ideas in the public domain. Bissoon-Dath v. Sony Comp. Entmt America Inc., 694 F. Supp. 2d 1071, 1079 (N. D. Cal. 2010), affd and adopted by 653 F. 3d 898 (9th Cir. 2011) (published without opinion). The extrinsic test compares only the concrete, protectable elements of the

10 works. The burden is on the Plaintiff to identify the source(s) of the alleged 11 similarity between his work and the defendants work. Apple Computer, 35 F. 3d 12 at 1443 (emphasis in original); Funky Films, 462 F. 3d at 1072. 13 Here, since Plaintiff , inter alia, fails to identify the protectable elements of 14 his work, fails to allege the sources of alleged similarity between his work and 15 H&Ms T-Shirt; and relies on legal conclusions to alleged the two works are 16 substantially similar, H&Ms request for dismissal is granted. 17 The Copyright Act prohibits an award of statutory damages, costs, and 18 attorneys fees if the allegedly infringing activity began before the copyright is 19 registered: 20 21 22 23 24 [N]o award of statutory damages or of attorneys fees, as provided by sections 504 and 505, shall be made for . . . any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after first publication of the work.

25 17 U. S. C. 412(2). 26 The Complaint alleges that Plaintiffs Image was first published in 1998. 27 Compl. 11. Plaintiff admits that Plaintiffs Image was not registered within three 28 months of publication. Id. at 17.
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Plaintiff also alleges that that purported infringement occurred in or about May 2013, which is prior to Plaintiffs Image registration date of June 7, 2013. Id. at 22. Accordingly, pursuant to Section 412(2), Plaintiff has failed to state a claim for costs, statutory damages, and attorneys fees. H&Ms motion to dismiss the foregoing prayer is granted with prejudice.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED: That H&Ms Motion to Dismiss for failure to state a claim is GRANTED. Specifically, H&Ms request to dismiss Plaintiffs cause of action for accounting is

10 GRANTED with prejudice; H&Ms request to dismiss pursuant to Section 412(2), 11 is GRANTED with prejudice; and H&Ms request to dismiss Plaintiffs cause of 12 action for copyright infringement is GRANTED. Plaintiff shall have until 13 November 7, 2013 to amend the copyright cause of action. 14 15 16 Dated: NOV. 4, 2013 17 18 19 20 21 22 23 24 25 26 27 28
[PROPOSED] ORDER GRANTING MOTION TO DISMISS
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Hon. Manuel L. Real UNITED STATES DISTRICT JUDGE