Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 1 of 11 Page ID #:2299
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`CALDWELL LESLIE & PROCTOR, PC
`ROBYN C. CROWTHER, State Bar No. 193840
` crowther@caldwell-leslie.com
`CRAIG H. BESSENGER, State Bar No. 245787
` bessenger@caldwell-leslie.com
`725 South Figueroa Street, 31st Floor
`Los Angeles, California 90017-5524
`Telephone: (213) 629-9040
`Facsimile: (213) 629-9022
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`Attorneys for EVOX Productions LLC
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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`CALDWELL
`LESLIE &
`PROCTOR
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`EVOX PRODUCTIONS LLC, a
`Delaware limited liability company,
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`Plaintiff,
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`v.
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`KAYAK SOFTWARE
`CORPORATION, a Delaware
`corporation; and DOES 1-10,,
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`Defendants.
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`KAYAK SOFTWARE
`CORPORATION, a Delaware
`corporation,
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`Counterclaimant,
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`v.
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`EVOX PRODUCTIONS LLC., a
`Delaware limited liability company,
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`Counterdefendant.
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` Case No. CV15-05053-PSG (AGR)
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`NOTICE OF MOTION AND
`MOTION OF EVOX
`PRODUCTIONS LLC FOR
`SUMMARY JUDGMENT;
`MEMORANDUM OF POINTS AND
`AUTHORITIES
`
`[Statement of Uncontroverted Facts
`and Conclusions of Law; Declarations
`and Exhibits in Support Thereof of
`Barry Thompson and Craig H.
`Bessenger; [Proposed] Order;
`Request for Judicial Notice; and
`[Proposed] Order Re Request for
`Judicial Notice filed concurrently
`herewith]
`
`
`The Honorable Philip S. Gutierrez
`
` January 9, 2017
`Date:
` 1:30 p.m.
`Time:
`Crtrm.: 880
`
`Trial Date:
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`
`
`January 31, 2017
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`
`
`

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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 2 of 11 Page ID #:2300
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`TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
`PLEASE TAKE NOTICE that on January 9, 2017, at 1:30 p.m., or as soon
`thereafter as this matter may be heard, in the courtroom of the Honorable Philip S.
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`Gutierrez, located in the United States Courthouse, 111 North Hill Street, Los
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`Angeles, CA 90012, EVOX Productions LLC (“EVOX”) will and hereby does
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`move this Court for Summary Judgment.
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`This Motion is brought pursuant to Federal Rule of Civil Procedure 56 on the
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`following grounds:
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`EVOX is entitled to judgment as a matter of law on Defendant and
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`Counterclaimant KAYAK Software Corporation’s (“KAYAK”) Fourth
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`Counterclaim to Declare Invalid EVOX’s Asserted Copyrights because the
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`undisputed evidence demonstrates that EVOX holds valid copyrights in the
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`Photographs at issue in this case, and KAYAK has failed to adduce any evidence
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`sufficient to create a genuine issue of fact on this claim.
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`This Motion is based on this Notice of Motion, the accompanying
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`Memorandum of Points and Authorities, the Declarations of Barry Thompson and
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`Craig H. Bessenger, the Statement of Uncontroverted Facts and Conclusions of
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`Law, the Request for Judicial Notice filed concurrently herewith, all of the pleadings
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`and other documents on file in this case, all other matters of which the Court may
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`take judicial notice, and any further argument or evidence that may be received by
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`the Court at the hearing.
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`LESLIE &
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 3 of 11 Page ID #:2301
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`Pursuant to Local Rule 7-3, counsel for EVOX met and conferred with
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`counsel for KAYAK regarding this Motion on November 2, 2016. The parties were
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`unable to resolve the issues presented in this Motion. See Declaration of Craig H.
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`Bessenger, ¶ 2.
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`DATED: November 8, 2016
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`CALDWELL LESLIE & PROCTOR, PC
`ROBYN C. CROWTHER
`CRAIG H. BESSENGER
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`By
`
`/s/ Robyn C. Crowther
`ROBYN C. CROWTHER
`Attorneys for EVOX Productions LLC
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 4 of 11 Page ID #:2302
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`TABLE OF CONTENTS
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`Page
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`MEMORANDUM OF POINTS AND AUTHORITIES ............................................. 1
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`I.
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`II.
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`INTRODUCTION ............................................................................................. 1
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`FACTUAL BACKGROUND ........................................................................... 2
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`III.
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`SUMMARY JUDGMENT STANDARD ......................................................... 4
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`IV. EVOX HOLDS VALID COPYRIGHTS IN THE IMAGES AT ISSUE ......... 4
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`V.
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`
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`CONCLUSION ................................................................................................. 6
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 5 of 11 Page ID #:2303
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`
`
`Cases
`
`TABLE OF AUTHORITIES
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` Page(s)
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ............................................................................................... 4
`
`Entertainment Research Grp., Inc. v. Genesis Creative Grp., Inc.,
`122 F.3d 1211 (9th Cir. 1997) ................................................................................ 5
`
`Ets-Hokin v. Skyy Spirits, Inc.,
`225 F.3d 1068 (9th Cir. 2000) ............................................................................ 4, 5
`
`EVOX Productions, LLC v. California Rent-A-Car,
`Case No. CV-15-8046-MWF, ECF No. 51 (C.D. Cal. July 26, 2016) .............. 1, 5
`
`Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc.,
`210 F.3d 1099 (9th Cir. 2000) ................................................................................ 4
`
`Satava v. Lowry,
`323 F.3d 805 (9th Cir. 2003) .................................................................................. 1
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`Statutes and Rules
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`17 U.S.C. § 410(c) .................................................................................................... 4-5
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`Fed. R. Civ. Proc. 56(a) ............................................................................................... 4
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`L.R. 56-1 ...................................................................................................................... 2
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 6 of 11 Page ID #:2304
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`I.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`Plaintiff EVOX Productions LLC (“EVOX”) filed this copyright infringement
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`action against Defendant KAYAK Software Corporation (“KAYAK”) after
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`discovering that KAYAK was using EVOX’s copyrighted photographs (the
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`“Photographs”) without permission on KAYAK’s mobile applications. In response,
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`KAYAK has claimed that EVOX’s Photographs are somehow not even subject to
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`copyright protection, and it seeks an order from the Court so declaring.
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`KAYAK makes this outlandish claim despite the undisputed fact that EVOX
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`holds copyright certificates for all of the Photographs at issue, which grant a
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`presumption of originality and copyrightability. KAYAK has no answer for the
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`overwhelming legal precedent concluding that virtually any photograph, let alone
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`painstaking works such as those created by EVOX, is subject to at least “thin”
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`copyright protection preventing exact copying, which is what KAYAK did here to
`nearly 3,000 of EVOX’s photographs.1 Indeed, another court in the Central District
`of California recently concluded that EVOX’s photographs are subject to copyright
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`protection. See EVOX Productions, LLC v. California Rent-A-Car, Case No. CV-
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`15-8046-MWF (RAOx), ECF No. 51 (C.D. Cal. July 26, 2016) (“Defendants have
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`neither rebutted the presumed validity of [EVOX’s] copyright registrations nor
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`demonstrated the existence of any genuine issues of material fact that would
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`preclude summary judgment.”).
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`Accordingly, EVOX’s motion for summary judgment on KAYAK’s Fourth
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`Counterclaim To Declare Invalid EVOX’s Asserted Copyrights should be granted
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`and judgment entered in favor of EVOX on this claim.
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`1 When a work embodies the minimum of creativity necessary for copyright, it is
`said to have “thin” copyright protection that protects against “virtually identical
`copying.” See, e.g., Satava v. Lowry, 323 F.3d 805, 810-12 (9th Cir. 2003).
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 7 of 11 Page ID #:2305
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`II.
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`FACTUAL BACKGROUND
`EVOX is a 20-year-old company that specializes in creating high-quality,
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`digital images and photographs of substantially all automotive makes and models in
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`the United States since model year 2000. Complaint (“Compl.”), ECF No. 1, ¶¶ 5,
`13; Answer (“Answ.”), ECF No. 19, ¶¶ 5, 13.2 EVOX owns the copyrights in more
`than one million digital images and photographs, and created and maintains a
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`comprehensive Automotive Image Library of over 6,000 different car makes and
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`models. Compl., ¶¶ 5, 14; Answ., ¶¶ 5, 14. EVOX is widely recognized in the
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`industry for both the quality of its automotive images and the breadth of its image
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`library, and it licenses its copyrighted photographs to a wide variety of companies,
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`websites, and mobile application developers. Compl., ¶ 5, Answ., ¶¶ 5, 14.
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`EVOX and KAYAK entered into an Images License Agreement (“the
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`Agreement”) on March 18, 2014, which granted KAYAK a “nonexclusive,
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`revocable, nontransferable, non-assignable limited license (the ‘License’) . . . to use
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`the Licensed Materials within the Scope of Use, and for the payment of Fees and
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`subject to all terms and conditions of this Agreement.” L.R. 56-1 Statement of
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`Uncontroverted Facts (“SUF”), No. 1.
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`In Schedule 1 of the Agreement, “Rights and Scope of Use” is delineated as:
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`“Portal Website Use: (a) Use in a research application on a single Portal Website;
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`(b) Use as Accent Graphics on a single Portal Website. The Licensee’s Rights and
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`Scope of Use are further defined in the Agreement, Schedules and Appendices.” Id.
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`The term “Portal” is defined as “a website other than an OEM website or a
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`Dealership website.” Id. Under “Additional Limitations,” the Agreement states that
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`2 In its Answer, KAYAK denied the allegations in Paragraph 5 of the Complaint
`based solely on a lack of knowledge or information, and not because of any dispute
`as to the substance of the allegation. Regardless, the facts cited to in this paragraph
`provide only context for the Motion for Summary Judgment, the outcome of which
`is not dependent on these facts.
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 8 of 11 Page ID #:2306
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`“[n]o license is granted to use the Licensed Materials in any manner in any present
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`or future format except for uses and formats expressly permitted by the definition of
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`Scope of Use in this Agreement.” Id.
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`After entering into the Agreement with KAYAK, EVOX subsequently
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`discovered that KAYAK was distributing, displaying, and possibly reproducing
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`EVOX’s copyrighted Photographs on KAYAK’s mobile applications (in addition to
`using the Photographs on KAYAK’s website).3 SUF No. 2. EVOX contacted
`KAYAK and informed it that the Agreement did not permit KAYAK to use the
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`copyrighted Photographs on its mobile applications. Id. The parties were unable to
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`resolve their dispute informally, and EVOX filed this action on July 2, 2015,
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`alleging claims for copyright infringement and violations of the Digital Millennium
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`Copyright Act (“DMCA”) in the form of removal of copyright management
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`information from EVOX’s Photographs. SUF No. 3.
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`At the time of filing, EVOX had identified at least 952 of its copyrighted
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`Photographs that KAYAK had used on its mobile applications. SUF No. 4. Through
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`the discovery process, KAYAK has since admitted that at least 2,910 of EVOX’s
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`Photographs were accessed by its mobile applications and copied to users’ mobile
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`devices. SUF No. 5. EVOX has copyright certificates for each of these
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`Photographs. SUF No. 4.
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`On December 3, 2015, KAYAK answered EVOX’s complaint and also filed
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`four counterclaims, including a claim seeking a declaration that EVOX’s asserted
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`copyrights are invalid, uncopyrightable, and unenforceable. Answ.; Counterclaims,
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`ECF No. 20. Through this motion, EVOX seeks summary judgment on KAYAK’s
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`Fourth Counterclaim To Declare Invalid EVOX’s Asserted Copyrights.
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`3 KAYAK offers mobile applications for different operating systems, such as
`Android and Apple’s iOS. See https://www.kayak.com/mobile.
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 9 of 11 Page ID #:2307
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`III. SUMMARY JUDGMENT STANDARD
`Summary judgment is proper when “there is no genuine dispute as to any
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`material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. Proc. 56(a). “A moving party without the ultimate burden of persuasion at trial
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`. . . has both the initial burden of production and the ultimate burden of persuasion
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`on a motion for summary judgment. In order to carry its burden of production, the
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`moving party must either produce evidence negating an essential element of the
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`nonmoving party’s claim or defense or show that the nonmoving party does not
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`have enough evidence of an essential element to carry its ultimate burden of
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`persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d
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`1099, 1102 (9th Cir. 2000) (citation omitted).
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`If “a moving party carries its burden of production, the nonmoving party must
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`produce evidence to support its claim or defense. If the nonmoving party fails to
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`produce enough evidence to create a genuine issue of material fact, the moving party
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`wins the motion for summary judgment.” Id. at 1103. Only genuine disputes—
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`where the evidence is such that a reasonable jury could return a verdict for the non-
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`moving party—will preclude the entry of summary judgment. Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 248 (1986).
`IV. EVOX HOLDS VALID COPYRIGHTS IN THE IMAGES AT ISSUE
`“[T]he idea that photography is art deserving protection reflects a
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`longstanding view of Anglo-American law.” Ets-Hokin v. Skyy Spirits, Inc., 225
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`F.3d 1068, 1074 (9th Cir. 2000). Consistent with that longstanding view, it is
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`undisputed that EVOX holds certificates of registration from the U.S. Copyright
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`Office for the 2,910 of its Photographs at issue in this case, each of which was made
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`before or within five years after first publication of the work. SUF No. 4.
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`Under the Copyright Act, “[i]n any judicial proceedings the certificate of a
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`registration made before or within five years after first publication of the work shall
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`constitute prima facie evidence of the validity of the copyright and of the facts stated
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 10 of 11 Page ID #:2308
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`in the certificate.” 17 U.S.C. § 410(c). Accordingly, “‘[a] certificate of copyright
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`registration . . . shifts to the defendant the burden to prove the invalidity of the
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`plaintiff’s copyrights.’” Ets-Hokin, 225 F.3d at 1075 (citations omitted) (certificate
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`of registration “entitled [the plaintiff] to a ‘rebuttable presumption of originality’
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`with respect to the photographs at issue”), quoting Entertainment Research Grp.,
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`Inc. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217 (9th Cir. 1997). “[T]o
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`overcome the presumption of validity, defendants must demonstrate why the
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`photographs are not copyrightable.” Id. at 1075-76 (Defendant failed to overcome
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`presumption of validity of photographs’ copyrights, “primarily because the degree
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`of originality required for copyrightability is minimal.”).
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`Here, KAYAK has not adduced affirmative evidence during the course of
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`discovery sufficient to overcome the presumption of originality to which EVOX is
`entitled by virtue of its copyright certificates.4 This is not a surprise, as another
`court in the Central District of California has held that EVOX’s photographs are
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`indeed original and subject to copyright protection, and granted summary judgment
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`in favor of EVOX on that basis. See EVOX Productions, LLC v. California Rent-A-
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`Car, Case No. CV-15-8046-MWF (RAOx), ECF No. 51 (C.D. Cal. July 26, 2016)
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`(“It is undisputed that the photographs are of Plaintiff’s independent creation.
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`Therefore, the Court examines only whether the Photographs possess ‘at least some
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`minimal degree of creativity.’ The Court concludes that binding Ninth Circuit
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`authority definitively answers this question in Plaintiff’s favor.”) (citation omitted).
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`4 EVOX expects KAYAK to rely heavily on an expert witness, Gary Elsner, who is
`admittedly not an expert in copyright law, and out-of-circuit and inapposite
`decisions, neither of which are sufficient to rebut the presumption of
`copyrightability. Unless and until KAYAK is able to present admissible evidence
`sufficient to rebut the presumption, EVOX’s copyright certificates are sufficient to
`establish copyrightability. Ets-Hokin, 225 F.3d at 1075 (certificate of registration
`created rebuttable presumption of originality regarding photographs at issue).
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`Case 2:15-cv-05053-PSG-AGR Document 53 Filed 11/08/16 Page 11 of 11 Page ID #:2309
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`Accordingly, EVOX is entitled to summary judgment on KAYAK’s Fourth
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`Counterclaim To Declare Invalid EVOX’s Asserted Copyrights.
`V. CONCLUSION
`Based on the foregoing, EVOX respectfully requests that the Court enter
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`summary judgment in favor of EVOX on KAYAK’s Fourth Counterclaim.
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`
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`DATED: November 8, 2016
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`CALDWELL LESLIE & PROCTOR, PC
`ROBYN C. CROWTHER
`CRAIG H. BESSENGER
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`By
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`/s/ Robyn C. Crowther
`ROBYN C. CROWTHER
`Attorneys for EVOX Productions LLC
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