Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 1 of 8 Page ID #:124
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`Case No. 2:13-cv-06152-ODW(FFMx)
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`ORDER GRANTING MOTION FOR
`DEFAULT JUDGMENT [19]
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`UNICOLORS, INC.,
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`Plaintiff,
`v.
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`MANGEL STORES CORP.; SUSIE’S
`DEALS; RAINBOW SHOPS, INC.; CITI
`TRENDS, INC.; DOES 1–10, inclusive,
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`Defendants.
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`I.
`INTRODUCTION
`Plaintiff Unicolors, Inc. alleges that Defendant Susie’s Deals infringed
`Unicolor’s copyrighted GT 1058 fabric pattern. Despite being duly served, Susie’s
`Deals has failed to answer or otherwise respond to the Complaint. The Clerk entered
`default, and Unicolors moved for default judgment. The Court finds that the accused
`pattern and GT 1058 are substantially similar sufficient to constitute copyright
`infringement and thus GRANTS Unicolor’s Motion for Default Judgment.1
`II. FACTUAL BACKGROUND
`Unicolors is a California corporation and textile converter that has compiled a
`library of copyrighted textile patterns. (Nader Decl. ¶¶ 3–4.) One of the copyrights
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`1 After carefully considering the papers filed with respect to this Motion, the Court deems the matter
`appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 2 of 8 Page ID #:125
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`Unicolors owns is a textile pattern internally titled GT 1058. (Id. ¶ 7; see also Ex. 2.)
`On October 27, 2009, Unicolors received United States Copyright Office Certificate
`of Registration number VA 1-712-891 for GT 1058. (Id. Ex. 1.)
`Unicolors believes that Susie’s Deals is a garment retailer incorporated in
`California. (Compl. ¶ 6.) At some point, Unicolors discovered that Susie’s Deals was
`selling garments with a design similar to that of GT 1058 (the “accused pattern”).
`(Nader Decl. ¶ 8.) Unicolors also alleges that Susie’s Deals created, sold,
`manufactured, caused to be manufactured, imported, and distributed fabric infringing
`upon Unicolors’s GT 1058 registered copyright. (Compl. ¶ 15.) Unicolors purchased
`at least one shirt from Susie’s Deals with the accused pattern on April 30, 2012.
`(Nader Decl. Ex. 2.) Unicolors has not licensed GT 1058 to Susie’s Deals. (Id. ¶ 9.)
`Due to Susie’s Deal’s failure to participate in the litigation, Unicolors does not know
`from where the alleged infringing products originated. (Id. ¶ 9.)
`On August 21, 2013, Unicolors filed suit against, among others, Susie’s Deals,
`alleging claims for direct and vicarious or contributory copyright infringement of
`GT 1058. (ECF No. 1.) Unicolors served Susie’s Deals on September 6, 2013. (ECF
`No. 8.) On October 28, 2013, the Clerk of Court entered default against Susie’s
`Deals. (ECF No. 13.) Unicolors then moved for default judgment. As of the date of
`this Order, the Court has received no answer or other response from Susie’s Deals.
`III. LEGAL STANDARD
`Federal Rule of Civil Procedure 55(b) authorizes a district court to grant default
`judgment after the Clerk enters default under Rule 55(a). Local Rule 55-1 requires
`that the movant submit a declaration establishing (1) when and against which party
`default was entered; (2) identification of the pleading to which default was entered;
`(3) whether the defaulting party is a minor, incompetent person, or active
`servicemember; and (4) that the defaulting party was properly served with notice.
`A district court has discretion whether to enter a default judgment. Aldabe v.
`Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Upon default, the defendant’s liability
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 3 of 8 Page ID #:126
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`generally is conclusively established, and the well-pleaded factual allegations in the
`complaint are accepted as true. Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–
`19 (9th Cir. 1987) (per curiam) (citing Geddes v. United Fin. Grp., 559 F.2d 557, 560
`(9th Cir. 1977)).
`In exercising its discretion, a court must consider several factors, including
`(1) the possibility of prejudice to plaintiff; (2) the merits of plaintiff’s substantive
`claim; (3) the sufficiency of the complaint; (4) the sum of money at stake; (5) the
`possibility of a dispute concerning material facts; (6) whether the defendant’s default
`was due to excusable neglect; and (7) the strong policy underlying the Federal Rules
`of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470,
`1471–72 (9th Cir. 1986).
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`IV. DISCUSSION
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`A. Notice
`Unicolors served Susie’s Deals with process on September 6, 2013, in the
`manner prescribed in California Code of Civil Procedure section 415.20. That section
`provides that a summons may be served by leaving the summons at a party’s office
`with someone apparently in charge and then thereafter mailing a copy of the summons
`via first-class mail. Unicolors’s process server left the summons with a woman
`apparently in charge at Susie’s Deals on September 6, 2013, and then mailed a copy of
`the summons on September 10, 2013. The Court therefore finds that Unicolors
`complied with Code of Civil Procedure section 415.20.
`B. Copyright-infringement liability
`Unicolors first alleges that Susie’s Deals committed direct infringement of
`Unicolor’s GT 1058 registered copyright. To state a copyright-infringement claim,
`the plaintiff must allege “(1) ownership of a valid copyright, and (2) copying of
`constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel.
`Serv. Co. Inc., 499 U.S. 340, 361 (1991).
`/ / /
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 4 of 8 Page ID #:127
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`Unicolors alleges that “it is apparent that that the elements, composition, color
`variations, arrangement, layout, and appearance” of GT 1058 and the accused pattern
`are substantially similar. (Compl. ¶ 16.) Unicolors also alleges that Susie’s Deals had
`access to GT 1058 via Unicolors’s showroom and design library, illegally distributed
`copies of GT 1058, legitimate copies of GT 1058 in the marketplace, and Unicolors’s
`strike-offs and samples. (Id. ¶ 23.) Further, Unicolors contends that Susie’s Deals
`committed contributory and vicarious infringement by inducing, participating in,
`aiding and abetting, and profiting from the illegal production and distribution of
`products infringing upon GT 1058 and having the right and ability to supervise
`infringing conduct. (Id. ¶¶ 31–32.)
`The Court finds that Unicolors has a valid, registered copyright in GT 1058.
`First, a copyright registration is prima facie evidence of a valid copyright. 17 U.S.C.
`§ 411(b)(1). Unicolors submitted its copyright registration for GT 1058, which the
`United States Copyright Office granted on October 27, 2009. (Nader Decl. Ex. 1.)
`Second, GT 1058 appears to portray copyrightable subject matter. While
`clothes themselves are functional and thus not subject to copyright, fabric designs are
`considered “writings” and thus copyrightable under 17 U.S.C. § 102(a). Knitwaves,
`Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995). Unicolors has not
`claimed a copyright in any particular garment or other functional item but rather in GT
`1058’s two-dimensional pattern. Further, while Unicolors’s does not and cannot own
`a copyright in GT 1058’s colors or geometric elements themselves, 37 C.F.R.
`§ 202.1(a), it does have a copyright in the way its author has “selected, coordinated,
`and arranged” the colors, shapes, and GT 1058’s other design elements. See
`Knitwaves, 71 F.3d at 1004 (holding that a valid fabric copyright covers more than
`just the “specific pattern” of work).
`When a plaintiff does not have direct evidence of copying, the plaintiff must
`establish both the defendant’s access to the copyrighted work and substantial
`similarity between the registered and accused works. Funky Films, Inc. v. Time
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 5 of 8 Page ID #:128
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`Warner Entm’t Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006). At this default-
`judgment stage, Unicolors’s allegations that Susie’s Deals had access to GT 1058 via
`several legitimate and illegal avenues suffice to establish the access element. See L.A.
`Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846–47 (9th Cir. 2012) (noting
`that the plaintiff must allege access either through a chain of events linking the two
`works or widespread dissemination of plaintiff’s work); (Compl. ¶ 23).
`In assessing substantial similarity, the Ninth Circuit employs a two-part test.
`Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990). The plaintiff must show a
`substantial similarity of the work’s “general ideas” under the extrinsic test and
`substantial similarity of the “protectable expression” under the intrinsic test. Id. The
`Court finds that Susie’s Deal’s unlicensed sale or other distribution of the accused
`pattern satisfies both elements.
`The extrinsic test entails “an objective comparison of specific expressive
`elements.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). A
`court must consider various elements in determining whether a fabric pattern infringes
`upon a registered design, including the subject matter, shapes, colors, materials, and
`arrangement of the representations. L.A. Printex Indus., 676 F.3d at 849.
`An objective comparison of GT 1058 and the accused pattern reveals a
`substantial similarity between the two patterns. GT 1058 contains blue/violet, purple,
`green, and brown rectangular bars arranged directly adjacent to each other in a
`horizontal fashion. The colors range in saturization from muted hues to stronger
`colors, all set against a near-black background. The bar design almost appears to be
`dripping, as each bar is juxtaposed at different lengths from the adjacent
`bars. See Figure 1.
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 6 of 8 Page ID #:129
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`Figure 1
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`The accused pattern includes the same color, range of saturization, arrangement,
`background hue and contrast, and offset design. The photographs provided to the
`Court reveal that the accused pattern may include more deeply saturized colors, i.e.,
`the colors appear brighter. But “it is not necessary that [the accused] design be
`‘virtually identical’ to infringe.” Id. at 851 (noting that stylized fabric designs are
`entitled to “broad” protection). The objective elements between the two works—
`including their general colors schemes—are in all other respects virtually identical.
`The alleged infringement also satisfies the Ninth Circuit’s intrinsic test. This
`test gauges whether “the total concept and feel of the two works is substantially
`similar” in the eyes of an ordinary, reasonable person. Berkic v. Crichton, 761 F.2d
`1289, 1292 (9th Cir. 1985). A quick view of both patterns reveals that the “concept
`and feel” are essentially the same.
`The Court therefore finds that Susie’s Deals has infringed upon Unicolors’s
`valid copyright in GT 1058.
`C.
`Statutory damages
`Without the aid of discovery, Susie’s Deals requests statutory damages under
`the Copyright Act. Under 17 U.S.C. § 504(c)(1), the court may award between $750
`and $30,000. In exercising its “wide discretion,” the court must consider the nature of
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 7 of 8 Page ID #:130
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`the copyright and the circumstances of the infringement. F.W. Woolworth Co. v.
`Contemporary Arts, 344 U.S. 228, 232 (1952); L.A. News Serv. v. Reuters Television
`Int’l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998). An award of statutory damages serves
`both compensatory and punitive purposes. Id.
`Unicolors requests $30,000 in statutory damages in order to compensate it for
`Susie’s Deal’s infringement and deter others like Defendant from committing similar
`infringement in the future.
`The Court is mindful that Unicolors is presented with a situation where it
`cannot adequately assess the extent of Susie’s Deals infringement, including
`Defendant’s total sales dollars and units sold of the accused pattern. Unicolors also
`cannot establish the extent of the distribution network from which the shirt bearing the
`accused pattern originated.
`But the only evidence of infringement Unicolors presented is the sale of one
`shirt at a discrete retail location. Congress has set a spectrum of statutory damages
`from $750 to $30,000 upon which the Court must place Susie’s Deal’s conduct while
`also considering compensatory and punitive goals. It is likely impossible to place an
`exact dollar figure on each act of infringement, but the Court finds that Susie’s Deals
`infringement falls toward the lower end of the spectrum. Bearing in mind the punitive
`goal of § 504, the Court adjusts the damage award slightly upward. The Court
`accordingly awards Unicolors $5,000.00 in statutory damages.
`D. Costs and attorneys’ fees
`Under 17 U.S.C. § 505, the district court may also award costs and reasonable
`attorneys’ fees. Unicolors seeks $205 in costs and $1,700 in attorneys’ fees.
`The Central District Local Rules provide a schedule for an attorneys’-fees
`award in default judgments. L.R. 55-3. The court may award a greater amount if the
`court determines that that amount is reasonable. Id.
`The schedule provides that, for a $5,000 default-judgment award, the plaintiff is
`entitled to $300 plus 10 percent of the amount over $1,000. See L.R. 55-3. Here, that
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`Case 2:13-cv-06152-ODW-FFM Document 25 Filed 11/25/13 Page 8 of 8 Page ID #:131
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`calculation yields $700 in attorneys’ fees. Since Unicolors has not presented any
`supporting documentation regarding its attorneys’ fees or otherwise supported its
`request for a greater fee amount, the Court awards $700.00 in reasonable attorneys’
`fees as well as $205.00 in costs.
`V. CONCLUSION
`For the reasons discussed above, the Court GRANTS Unicolors’s Motion for
`Default Judgment and awards Unicolors a total amount of $5,905.00. (ECF No. 19.)
`A default judgment will issue.
`IT IS SO ORDERED.
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`November 25, 2013
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` ____________________________________
` OTIS D. WRIGHT, II
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` UNITED STATES DISTRICT JUDGE
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