Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 1 of 22 Page ID #:892
`
`O
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`CV 18-06543-RSWL-AGR
`
`ORDER re: Defendants’
`Motion for Summary
`Judgment [63]
`
`)))))))))))))))))))
`
`ROMEX TEXTILES, INC., a
`California Corporation,
`
`
`
`
`
`v.
`
`Plaintiff,
`
`HK WORLDWIDE, LLC, d/b/a
`HOT KISS, a New York
`Limited Liability Company;
`APOLLO APPAREL NY, LLC, a
`New York Limited Liability
`Company; ROSS STORES, INC.,
`a Delaware Corporation; R&R
`GOLDMAN ASSOCIATES, INC.,
`d/b/a DISCOVERY CLOTHING
`COMPANY, an Illinois
`Corporation; SPECIALTY
`RETAILERS, INC., a Texas
`Corporation; BEALL’S OUTLET
`STORES, INC., a Florida
`Corporation; and DOES 1-10,
`inclusive,
`
`
`
`Defendants.
`
`Plaintiff Romex Textiles, Inc. (“Plaintiff”) brings
`
`this copyright infringement Action against Defendants
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`
`O
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`CV 18-06543-RSWL-AGR
`
`ORDER re: Defendants’
`Motion for Summary
`Judgment [63]
`
`)))))))))))))))))))
`
`ROMEX TEXTILES, INC., a
`California Corporation,
`
`
`
`
`
`v.
`
`Plaintiff,
`
`HK WORLDWIDE, LLC, d/b/a
`HOT KISS, a New York
`Limited Liability Company;
`APOLLO APPAREL NY, LLC, a
`New York Limited Liability
`Company; ROSS STORES, INC.,
`a Delaware Corporation; R&R
`GOLDMAN ASSOCIATES, INC.,
`d/b/a DISCOVERY CLOTHING
`COMPANY, an Illinois
`Corporation; SPECIALTY
`RETAILERS, INC., a Texas
`Corporation; BEALL’S OUTLET
`STORES, INC., a Florida
`Corporation; and DOES 1-10,
`inclusive,
`
`
`
`Defendants.
`
`Plaintiff Romex Textiles, Inc. (“Plaintiff”) brings
`
`this copyright infringement Action against Defendants
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 2 of 22 Page ID #:893
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`Apollo Apparel NY, LLC; Ross Stores, Inc.; R&R Goldman
`
`Associates, Inc., d/b/a Discovery Clothing Company;
`
`Specialty Retailers, Inc.; Beall’s Outlet Stores, Inc.;
`
`and Does 1 through 10 (collectively, “Defendants”).1
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`Am. Compl., ECF No. 46. Currently before the Court is
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`Defendants’ Motion for Summary Judgment (“Motion”)
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`[63]. Having reviewed all papers submitted pertaining
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`to this Motion, the Court NOW FINDS AND RULES AS
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`FOLLOWS: the Court DENIES Defendants’ Motion.
`
`A.
`
`Factual Background
`
`I. BACKGROUND
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`Plaintiff is a California corporation. Am. Compl.
`
`¶ 4. Defendants are a series of corporations domiciled
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`in New York, Delaware, Illinois, Texas, and Florida.
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`Id. ¶¶ 6-10. Plaintiff is the owner and author of a
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`two-dimensional artwork (the “Subject Design”) called
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`“AE_T1697" under the title of work “AE Design Studio 3-
`
`31-2014". Decl. of Shawn Binafard (“Binafard Decl.”)
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`ISO Pl.’s Opp’n ¶ 4, ECF No. 67-1. On March 31, 2014,
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`Plaintiff was granted a copyright for the Subject
`
`Design, with Registration No. VA 1-903-180. Pl.’s
`
`Opp’n, Ex. A (“Subject Design Registration”), ECF No.
`
`67-3. The Subject Design is a floral design, which is
`
`depicted below. Defs.’ Mot. for Summ. J. (“Mot.”), Ex.
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`1 Plaintiff initially included HK Worldwide, LLC as a
`Defendant in this Action. HK Worldwide, LLC was dismissed
`without prejudice by stipulation on March 25, 2019. ECF No. 53.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 3 of 22 Page ID #:894
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`B (the “Subject Design”), ECF No. 67-4.
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`Plaintiff alleges that Defendants manufactured,
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`purchased, sold, or marketed two garments (the “Accused
`
`Designs”) which infringe the Subject Design. The two
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`allegedly infringing garments are depicted below, and
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`entitled Version 1 and Version 2, respectively.
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`Version 1
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 4 of 22 Page ID #:895
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`Version 2
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`
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`Mot., Ex. C (“Accused Designs”), ECF No. 63-5.
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`Defendants deny that they infringed the Subject Design,
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`and bring this Motion alleging that they are entitled
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`to judgment as a matter of law because the Subject
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`Design and Accused Designs are not substantially
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`similar. See generally Mot.
`
`B.
`
`Procedural Background
`
`Plaintiff filed its Complaint [1] on July 30, 2018
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`and then filed its Amended Complaint [46] on March 6,
`
`2019. Defendants timely filed their Answers to the
`
`Amended Complaint [55-59], denying Plaintiff’s
`
`allegations and asserting affirmative defenses,
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`including lack of substantial similarity between the
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`Subject Design and Accused Designs.
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`On May 28, 2019, Defendants filed the instant
`
`Motion for Summary Judgment [63], alleging that the
`
`Subject Design and Accused Designs are not
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 5 of 22 Page ID #:896
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`substantially similar. Plaintiff filed its Opposition
`
`on June 4, 2019 [67]. Defendants filed their Reply
`
`[68] on June 10, 2019. Plaintiff then filed a Sur-
`
`Reply [69] in support of its Opposition, in which
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`Plaintiff filed evidentiary objections to Defendants’
`
`Reply, responses to Defendants’ evidentiary objections,
`
`and a Statement of Controverted Facts. Defendants
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`filed an Objection to Plaintiff’s Sur-Reply on June 17,
`
`2019 [70].
`
`A.
`
`Legal Standard
`
`II. DISCUSSION
`
`Summary judgment should be granted “if the movant
`
`shows that there is no genuine dispute as to any
`
`material fact and the movant is entitled to judgment as
`
`a matter of law.” Fed. R. Civ. P. 56(a). A fact is
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`“material” for purposes of summary judgment if it might
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`affect the outcome of the suit, and a “genuine” issue
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`exists if the evidence is such that a reasonable fact-
`
`finder could return a verdict for the nonmovant.
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 244, 248
`
`(1986). The evidence, and any inferences based on
`
`underlying facts, must be viewed in the light most
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`favorable to the nonmovant. Twentieth Century-Fox Film
`
`Corp. v. MCA, Inc., 715 F.2d 1327, 1328-29 (9th Cir.
`
`1983). In ruling on a motion for summary judgment, the
`
`court’s function is not to weigh the evidence, but only
`
`to determine if a genuine issue of material fact
`
`exists. Anderson, 477 U.S. at 255.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 6 of 22 Page ID #:897
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`Where the nonmovant bears the burden of proof at
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`trial, the movant need only prove that there is no
`
`evidence to support the nonmovant’s case. In re Oracle
`
`Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010).
`
`If the movant satisfies this burden, the burden then
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`shifts to the nonmovant to produce admissible evidence
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`showing a triable issue of fact. Id.; Nissan Fire &
`
`Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03
`
`(9th Cir. 2000); see also Cleveland v. Policy Mgmt.
`
`Sys. Corp., 526 U.S. 795, 805–06 (1999)(quoting Celotex
`
`Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
`
`B.
`
`Analysis
`
`1.
`
`Objections
`
`a.
`
`Plaintiff’s Objections
`
`Plaintiff filed several evidentiary objections to
`
`the Declarations of Edward Alfaks and Philip A. Byler.
`
`See Pl.’s Evid. Objs., ECF Nos. 67:9-10. The Court
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`does not rely on the objected-to evidence, and thus the
`
`Court DENIES as MOOT Plaintiff’s objections.
`
`b.
`
`Defendants’ Objections
`
`Defendants object to Exhibits D and E to the
`
`Declaration of Chan Yong Jeong—which contain side-by-
`
`side comparisons of specific flowers in the Subject
`
`Design and Accused Designs—on the grounds that the
`
`Exhibits are misleading since they are “black and white
`
`unclear presentations of small aspects of the larger
`
`designs at issue that do not show the larger designs.”
`
`See Defs.’ Evid. Objs., ECF No. 68-7. First,
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 7 of 22 Page ID #:898
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`Defendants cite no authority for their position that
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`the Court is unable to analyze individual aspects of
`
`the designs, and as will be discussed further, case law
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`suggests otherwise. In any event, contrary to
`
`Defendants’ assertion, Exhibits D and E contain both
`
`zoomed-in images of certain flowers in the designs and
`
`larger images of the floral patterns as a whole.
`
`Second, the images depicted in Exhibits D and E are not
`
`black and white as Defendants contend. Nonetheless,
`
`the Court acknowledges that the coloring of the images
`
`in Exhibits D and E differ from the coloring of the
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`Subject Design as it is depicted in Plaintiff’s Swatch
`
`Sheet.2 However, the Court only relies on Exhibits D
`
`and E to evaluate the shape, shading, and structure of
`
`the flowers, not their color. As such, the Court
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`DENIES Defendants’ Evidentiary Objections.
`
`Defendants also object to Plaintiff’s Sur-Reply
`
`papers, in which Plaintiff responded to Defendants’
`
`evidentiary objections, asserted new evidentiary
`
`objections to evidence presented in Defendants’ Reply,
`
`and filed a Statement of Disputed Facts. See ECF No.
`
`70. The Court does not rely on Plaintiff’s Sur-Reply
`
`papers, and thus the Court DENIES as MOOT Defendants’
`
`Objection to them.
`
`2.
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`Analysis
`
`To establish copyright infringement, Plaintiff must
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`2 Plaintiff’s Swatch Sheet of the Subject Design is attached
`to Defendants’ Motion as Exhibit B. See ECF No. 63-4.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 8 of 22 Page ID #:899
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`prove “(1) ownership of a valid copyright, and (2)
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`copying of constituent elements of the work that are
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`original.” Feist Publ’ns, Inc. v. Rural Tel. Servs.
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`Co., 499 U.S. 340, 361 (1991). To satisfy the copying
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`element, Plaintiff must show either “(1) that the two
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`works in question are strikingly similar, or (2) that
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`the works are substantially similar and that Defendants
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`had access to the Subject [Design].” Malibu Textiles,
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`Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 952 (9th
`
`Cir. 2019)(quotations omitted). Defendants move for
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`summary judgment on the basis that there is no
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`substantial similarity of the Subject Design and
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`Defendants’ designs.
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`a.
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`Ownership of Valid Copyright
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`“A certificate from the U.S. Register of Copyrights
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`‘constitutes prima facie evidence of the validity of
`
`the copyright.’” Desire, LLC v. Manna Textiles, Inc.,
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`No. CV 16-4295-DMG (JEMx), 2017 WL 5635009, at *6 (C.D.
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`Cal. Aug. 18, 2017)(quoting 17 U.S.C. § 410(c)).
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`Plaintiff’s design was registered with the United
`
`States Copyright Office, and thus validity of the
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`copyright is presumed. See Subject Design
`
`Registration. To overcome this presumption, the burden
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`shifts to Defendants to “rebut the facts set forth in
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`the copyright certificate.” Id. (quoting United
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`Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255,
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 9 of 22 Page ID #:900
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`1257 (9th Cir. 2011)). Defendants fail to do so,3 and
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`in any event, assert that their Motion for Summary
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`Judgment is “based solely on the lack of substantial
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`similarity between the allegedly copyrighted design and
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`the allegedly infringing design . . . .” Defs.’ Reply
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`5:15-17, ECF No. 68. Thus, the Court turns to the
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`copying element, and evaluates the similarity of the
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`designs.
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`b.
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`Copying by Defendants
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`“Summary Judgment is not highly favored on
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`questions of substantial similarity in copyright
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`cases.” L.A. Printex Industries, Inc. v. Aeropostale,
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`Inc., 676 F.3d 841, 848 (9th Cir. 2012). “Where
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`reasonable minds could differ on the issue of
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`substantial similarity . . . summary judgment is
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`improper.” Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th
`
`Cir. 1990).
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`“In assessing whether particular works are
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`substantially similar, or strikingly similar, this
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`Circuit applies a two-part analysis: the extrinsic test
`
`and the intrinsic test.” Unicolors, Inc. v. Urban
`
`3 At most, Defendants argue that the idea of a flower design
`is not protectable and that standard aspects of a flower design
`are not protectible. However, even if the idea of floral designs
`and certain elements of floral designs are not protectable,
`Plaintiff’s “original selection, coordination, and arrangement of
`such elements is protectible.” L.A. Printex Industries, Inc.,
`676 F.3d at 850 (“Because there is a wide range of expression for
`selecting, coordinating, and arranging floral elements in
`stylized fabric designs, copyright protection is broad and a work
`will infringe if it’s substantially similar to the copyrighted
`work.”)(quotations omitted).
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 10 of 22 Page ID #:901
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`Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017).
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`“The extrinsic test requires plaintiffs to show overlap
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`of concrete elements based on objective criteria, while
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`the intrinsic test is subjective and asks whether the
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`ordinary, reasonable person would find the total
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`concept and feel of the works to be substantially
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`similar.” Id. (quotations omitted). While the Court
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`may determine whether Plaintiff has satisfied the
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`extrinsic test, “once th[at] objective threshold is
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`met, it is the role of the jury to make a nuanced
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`subjective determination under the intrinsic test.”
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`Id. at 987. Thus, the Court proceeds to apply the
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`extrinsic test.
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`i.
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`Identifying Protectable Elements
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`The first step in applying the extrinsic test is to
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`“distinguish protectible from unprotectible elements
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`[of a work] and ask only whether the protectible
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`elements in two works are substantially similar.” L.A.
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`Printex Industries, Inc., 676 F.3d at 850. While the
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`idea of a floral design or the natural appearance of
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`the flowers themselves is not protectable, Plaintiff’s
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`“[o]riginal selection, coordination, and arrangement”
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`of the flowers in the Subject Design is protectable
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`expression. Id. “After all, there are gazillions of
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`ways to combine petals, buds, stems, leaves, and colors
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`in floral designs on fabric.” Malibu Textiles., Inc.,
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`922 F.3d at 953.
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`///
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 11 of 22 Page ID #:902
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`ii. Comparing Similarities
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`Next, the Court compares the protectable elements
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`of the Subject Design to the Accused Designs “to assess
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`similarities in the objective details of the works.”
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`Id. (quotations omitted). “In comparing fabric
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`designs, we examine the similarities in their objective
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`details in appearance, including, but not limited to,
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`the subject matter, shapes, colors, materials, and
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`arrangement of the representations.” Id.
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`1.
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`Version 1
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 12 of 22 Page ID #:903
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`Plaintiff identifies five “elements” of
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`similarities between the flowers in the Subject Design
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`and the Accused Design Version 1. Defendants dispute
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`that the Court should consider these elements, arguing
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`that only the Subject Design as a whole is entitled to
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`copyright protection. While the protectable aspect of
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`the Subject Design is the selection, coordination, and
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`arrangement of the floral pattern, as opposed to the
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`individual flowers themselves, the unique expressions
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`in each flower are nonetheless relevant since they
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`contribute to the Subject Design as a whole. For this
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`reason, courts within the Ninth Circuit have compared
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`both individual flowers and the works as a whole in
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`determining substantial similarity. See, e.g., Desire,
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`LLC v. Manna Textiles, Inc., No. CV 16-4295-DMG (JEMx),
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`2017 WL 5635009, at *10 (C.D. Cal. Aug. 18,
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`2017)(“Before analyzing the Subject and Accused Designs
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`as a whole—i.e., considering the floral design and
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`pattern as a textile print, as opposed to the
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`individual flowers alone—the Court evaluates the
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`flowers individually under the extrinsic test.”).
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`Thus, the Court first compares the similarities amongst
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`the five elements identified by Plaintiff, and then
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`analyzes the works as a whole.
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`Element 1 highlights the largest red flower in each
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`design. As depicted below, both the Subject Design and
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`Accused Design contain the same three layers of petals,
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`with each petal layer blooming outward at the same
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 13 of 22 Page ID #:904
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`degree. Moreover, the shape and shading is nearly
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`identical in each of the flower’s petal layers. While
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`the colors of shading are darker in the Accused Design,
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`“a rational jury could find that these difference
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`result from the fabric-printing process generally and
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`are inconsequential.” L.A. Printex Industries, Inc.,
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`676 F.3d at 851 (quotations omitted).
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`Element 2, depicted below, refers to a mid-sized
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`red flower in each design, which is shaped and shaded
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`nearly identically. Additionally, both designs depict
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`a small petal jutting toward the left at the bottom of
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`the rosebud.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 14 of 22 Page ID #:905
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`Element 3, depicted below, reveals a mid-sized red
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`flower with nearly identical shape and shading.
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`Moreover, each flower contains a more pronounced green
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`ovule. The ovule is shaded similarly in both designs,
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`with the area closest to the rosebuds shaded in one
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`color and the lower area of the ovule shaded in a
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`contrasting color. Next to the ovule in both designs,
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`a leaf protrudes out to the right and curves down.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 15 of 22 Page ID #:906
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`Element 4, depicted below, reflects a three-petal
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`flower with three curved slopes along the outer petals,
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`and steeper slopes along the central petal, blooming
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`outward from an asymmetrical ovule jutting toward the
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`left. The shading in each flower, and in the ovule
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`connected to the flower, is nearly the same.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 16 of 22 Page ID #:907
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`Element 5, depicted below, reflects a large, more
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`cylindrical red flower that is shaded almost
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`identically in both designs. The shape of the flowers
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`is also nearly identical, with the leftmost petal
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`jutting outward to the left and appearing taller than
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`the rest of the flower, the rightmost petal sloping
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`downward, and the swirl of the rose appearing the same
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`in both.
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`In addition to these individual similarities, a
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`jury could find that the floral patterns as a whole are
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`substantially similar based on the following: both
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`depict small bouquets of red flowers resembling roses,
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`both contain the same varying sizes and shapes of the
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`roses, both have green leaves with short stems
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`connecting the roses to the leaves and each other, and
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`both contain a similar ratio between the flowers and
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`negative space. See, e.g., Star Fabrics, Inc. v.
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`Closet Signature Fashion Valley Mall, No. LA CV 17-
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 17 of 22 Page ID #:908
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`09260-JAK-FFM, 2018 WL 6265095, at *4 (C.D. Cal. May 4,
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`2018)(finding substantial similarity based on the shape
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`and texture of the flowers and the clustering of
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`certain types of flowers, color of the flower petals
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`and their leaves, size of the flowers and leaves, and
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`ratio between the flowers and negative space).
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`Defendants dispute these similarities and focus on
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`four alleged differences between the designs: (1) in
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`the Subject Design most of the big red flowers have
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`smaller yellow flowers of a different kind than the red
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`flowers, whereas in the Accused Designs, the big
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`flowers are not accompanied by smaller flowers of a
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`different kind; (2) in the Subject Design, all of the
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`big red flowers have large green leaves, whereas in the
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`Accused Designs a majority of the big red flowers have
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`a vine with small flowers winding away from the big
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`flowers and some of the big flowers have no small
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`flowers at all; (3) the Subject Design has flowers
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`close together, whereas the Accused Designs are spread
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`out more such that there are empty spaces without
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`flowers; and (4) the Subject Design has a different big
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`red flower than the Accused Designs. Mot. at 6:7-21.
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`However, of the four listed differences, the second and
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`third differences only pertain to Version 2 of the
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`Accused Design. Further, the Court disagrees with
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`Defendants as to the fourth difference in light of the
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`similarities between the large red flowers discussed
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`above. The Court agrees with Defendants that the first
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 18 of 22 Page ID #:909
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`difference is the most distinguishable feature of the
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`Subject Design, and indeed, the difference may
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`ultimately lead a jury to conclude that the two works
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`are not substantially similar. However, at this
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`juncture and “in light of the similarities described
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`above, the differences support the . . . conclusion[]
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`that there is a genuine dispute of material fact on
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`substantial similarity.” See L.A. Printex Industries,
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`Inc., 676 F.3d at 851.
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`In sum, the Court finds that a triable issue of
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`fact exists as to whether there is substantial
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`similarity between the Subject Design and Version 1 of
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`the Accused Design.
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`2.
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`Version 2
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`For many of the same reasons as stated with respect
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`to Version 1 of the Accused Design, a reasonable juror
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`could also find that Version 2 of the Accused Design is
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 19 of 22 Page ID #:910
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`substantially similar to the Subject Design.
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`Specifically, Version 2 contains four of the five
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`“elements” of similarities that Version 1 had. Those
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`four elements, depicted below, relate to the
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`similarities between the largest red flowers in each
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`design; the mid-sized red flowers with a small petal
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`jutting toward the left at the bottom of the rosebud;
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`the three-petal flower with three curved slopes along
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`the outer petals and steeper slopes along the central
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`petal, blooming outward from an asymmetrical ovule
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`jutting toward the left; and the large, more
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`cylindrical red flower that is shaded almost
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`identically in both designs with the leftmost petal
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`more prominent than the other petals and sloping to the
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`left.
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 20 of 22 Page ID #:911
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`
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`When viewed as a whole, the Subject Design and
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`Accused Design Version 2 also contain similarities.
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`Specifically, both designs depict small bouquets
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`consisting of the same red flowers that resemble roses,
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`both contain the same varying sizes and shapes of the
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`roses, and both contain negative space between each
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`bouquet. See Desire, LLC, 2017 WL 5635009, at *11
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`(finding that where the same types of flowers were
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`portrayed in both designs and the sizes of flowers in
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`each design were consistent, there existed a triable
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`issue of fact as to substantial similarity of the
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`designs as a whole).
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`Despite these similarities, the Court also
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 21 of 22 Page ID #:912
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`recognizes that there are significant differences
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`between the two works. First, the big red flowers in
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`Version 2 of the Accused Design are not accompanied by
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`yellow flowers or flowers of a different kind.
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`Instead, the big red flowers are either accompanied by
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`one other medium red flower of the same type as the
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`large red flower, or are isolated and unaccompanied by
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`any other flowers or leaves. Second, Version 2 of the
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`Accused Design does not contain any green leaves or
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`stems. Third, the flowers and bouquets in Version 2 of
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`the Accused Design are more spread out than the
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`bouquets depicted in the Subject Design, as the flowers
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`are either isolated or connected to a dark grey vine
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`with small flowers winding away from the big flowers.
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`Fourth, the color scheme of the two designs is
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`different. Nonetheless, as stated with respect to the
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`differences found between the Subject Design and
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`Version 1 of the Accused Design, these differences only
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`further support the conclusion that a triable issue of
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`fact exists. See L.A. Printex, 676 F.3d at 851 (“It is
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`entirely immaterial that, in many respects, plaintiff’s
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`and defendant’s works are dissimilar, if in other
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`respects, similarity as to a substantial element of
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`plaintiff’s work can be shown.”).
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`In conclusion, Defendants bear a heavy burden to
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`establish that there is no triable issue of fact as to
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`substantial similarity. See Rentmeester v. Nike, Inc.,
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`883 F.3d 1111, 1127 (9th Cir. 2018)(“[Substantial
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`Case 2:18-cv-06543-RSWL-AGR Document 72 Filed 08/20/19 Page 22 of 22 Page ID #:913
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`similarity] is an inherently factual question which is
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`often reserved for the jury[.]”). Because a comparison
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`of the Subject Design and the Accused Designs reveals
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`several objective similarities and differences, the
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`Court cannot conclude as a matter of law that the works
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`are not substantially similar. Thus, the Court DENIES
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`Defendants’ Motion.4
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`III. CONCLUSION
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`Based on the foregoing, the Court DENIES
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`Defendants’ Motion for Summary Judgment
`
`IT IS SO ORDERED.
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`DATED: August 20, 2019 s/ RONALD S.W. LEW
` HONORABLE RONALD S.W. LEW
` Senior U.S. District Judge
`
`4 Plaintiff devotes much of its Opposition to arguing that
`the works are strikingly similar. However, Defendants only
`brought the Motion on the basis that the works lack substantial
`similarity. Because the Court finds a triable issue of fact as
`to substantial similarity, Defendants’ Motion is denied and the
`Court need not decide whether the designs’ similarities rise to
`the level of striking similarity.
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