Case: 17-13712 Date Filed: 07/12/2018 Page: 1 of 9
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
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`No. 17-13712
`Non-Argument Calendar
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`D.C. Docket No. 0:16-cv-61471-KMW
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`THOMAS S. ROSS,
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` Plaintiff-Appellant,
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` versus
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`APPLE, INC.,
`a California corporation,
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` Defendant-Appellee.
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`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
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`(July 12, 2018)
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`Before MARTIN, JILL PRYOR and FAY, Circuit Judges.
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`PER CURIAM:
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` [DO NOT PUBLISH]
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`IN THE UNITED STATES COURT OF APPEALS
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`FOR THE ELEVENTH CIRCUIT
`________________________
`
`No. 17-13712
`Non-Argument Calendar
`________________________
`
`D.C. Docket No. 0:16-cv-61471-KMW
`
`THOMAS S. ROSS,
`
` Plaintiff-Appellant,
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` versus
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`APPLE, INC.,
`a California corporation,
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` Defendant-Appellee.
`
`________________________
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`Appeal from the United States District Court
`for the Southern District of Florida
`________________________
`
`(July 12, 2018)
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`Before MARTIN, JILL PRYOR and FAY, Circuit Judges.
`
`PER CURIAM:
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 2 of 9
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`Thomas S. Ross, proceeding pro se, appeals following the district court’s
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`dismissal after denying leave to amend his complaint alleging copyright
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`infringement against Apple, Inc. (“Apple”). We affirm.
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`I. BACKGROUND
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`In 2016, Ross filed a complaint against Apple alleging misappropriation of
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`intellectual property and copyright infringement. He stated that he had invented an
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`electronic reading device (“the Device”) and applied for a patent on it in 1992. He
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`asserted that he had envisioned a range of uses for the Device, including reading
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`books and news, viewing photographs and videos, making phone calls, and
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`keeping notes. He said that he had created three technical drawings of the Device,
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`which he contended became his intellectual property upon creation in 1992. He
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`then stated the patent application was declared abandoned in 1995 for failure to
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`pay the application fee. He said that he had registered his copyrights on the
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`drawings of the Device in 2015.
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`Ross contended that Apple had systematically searched for abandoned and
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`discarded ideas to patent and exploit. He stated that, in 2007, Apple began using
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`images of products, including iPhones, iPods, and iPads, that were substantially
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`similar to his drawings of the Device and embodied its “non-functional aesthetic
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`look and feel.” Accordingly, Ross alleged numerous counts of copyright
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`2
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 3 of 9
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`infringement based on the visual similarities between his drawings and Apple’s
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`products.1
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`Apple moved to dismiss the complaint, arguing that Ross had failed to state
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`a copyright claim. It stated that, while he might hold a copyright on the expressive
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`elements of his patent application, he could not hold a copyright on the idea for the
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`Device and he had not identified how Apple had copied any expressive, non-
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`utilitarian elements. It also argued that Ross had not identified any specific
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`infringing work but instead referred generally to various models of Apple products.
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`Apple contended that Ross had failed to allege any evidence of direct copying and
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`only speculated that it was possible that Apple had accessed his patent
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`applications. He also had not identified any non-functional elements of his Device
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`that were similar to Apple’s products; the only similarities between its products
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`and the drawings of the Device were being rectangular, handheld electronic
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`devices with screens, hardly unique expressive elements.
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`In December 2016, the district court granted Apple’s motion to dismiss. The
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`court found that Ross had not alleged any facts to show when or how Apple copied
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`elements of his original works. It stated that the presence of the patent application
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`in the public record coupled with generalized statements about Apple’s culture of
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`stealing others’ ideas was insufficient to show that the company copied or had
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`1 Ross also alleged misappropriation and unjust enrichment; however, he did not include those
`claims in his proposed amended complaint and has not challenged their dismissal on appeal.
`3
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 4 of 9
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`access to the patent application. The court also found that Ross had not
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`sufficiently alleged substantial or striking similarity because he merely asserted
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`that the “overall look and feel” of Apple’s products was the same as the Device.
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`In January 2017, Ross moved for leave to file an amended complaint. With
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`his motion he submitted a proposed amended complaint and asserted that nothing
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`like the Device existed when he designed it in 1992 and that Apple and other tech
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`companies began releasing handheld digital notepads and tablets in 1993, but their
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`designs were bulky and none matched the “elegant look and feel” of the Device.
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`Ross asserted one claim for copyright infringement, pursuant to 17 U.S.C. § 106,
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`and stated that he had exclusive rights to the drawing of the Device and that Apple
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`had violated those rights by making copies and derivatives of the drawing without
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`his consent.
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`The district court denied Ross’s motion for leave to amend in July 2017 and
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`dismissed the case without prejudice. First, the court stated that the idea for the
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`Device depicted in Ross’s drawing could not be the basis for a claim that Apple
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`infringed on his rights to the drawing. The court found that the proposed amended
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`complaint, like the original complaint, failed to distinguish between the drawing
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`and the Device that it depicted. Second, the court found that, even if the proposed
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`amended complaint alleged infringement of expressive elements, Ross had failed
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`4
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 5 of 9
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`to allege facts showing Apple copied or had a reasonable opportunity to access the
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`drawing.
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`Ross appealed and designated the court’s July 2017 Order for review. On
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`appeal, he argues that his 1992 drawing of the Device depicted artistic, ornamental
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`elements and he showed that Apple’s line of electronics infringed on his copyright
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`to those elements because they were strikingly similar.
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`II. DISCUSSION
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`A district court’s denial of leave to amend the complaint is reviewed for
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`abuse of discretion. Covenant Christian Ministries, Inc. v. City of Marietta, 654
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`F.3d 1231, 1239 (11th Cir. 2011). A legal determination that a proposed
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`amendment to the complaint would be futile is reviewed de novo. SFM Holdings,
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`Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1336 (11th Cir. 2010).
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`Pro se filings are held to a less stringent standard than those drafted by
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`attorneys and are liberally construed. Tannenbaum v. United States, 148 F.3d
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`1262, 1263 (11th Cir. 1998). However, where a pro se litigant fails to raise a legal
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`claim on appeal, he abandons that claim, and we will not review it. Timson v.
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`Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Where an appellant makes only
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`passing reference to an issue or raises it in a perfunctory manner, without
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`providing supporting arguments or authority, that claim is considered abandoned
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`5
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 6 of 9
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`and need not be addressed on appeal. Sapuppo v. Allstate Floridian Ins. Co., 739
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`F.3d 678, 681 (11th Cir. 2014).
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`Generally, a district court must sua sponte provide a pro se plaintiff at least
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`one opportunity to amend his complaint, even where the plaintiff did not request
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`leave to amend. See Silva v. Bieluch, 351 F.3d 1045, 1048-49 (11th Cir. 2003).
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`However, a district court need not allow even a pro se plaintiff leave to amend
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`where an amendment would be futile. Cockrell v. Sparks, 510 F.3d 1307, 1310
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`(11th Cir. 2007). “Leave to amend a complaint is futile when the complaint as
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`amended would still be properly dismissed or be immediately subject to summary
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`judgment for the defendant.” Id.
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`Two elements must be proven to establish copyright infringement:
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`(1) ownership of a valid copyright, and (2) copying of constituent elements of the
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`work that are original. Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th
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`Cir. 1994). As to the first prong, an “author has a valid copyright in an original
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`work at the moment it is created—or, more specifically, fixed in any tangible
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`medium of expression.” See Original Appalachian Artworks, Inc. v. Toy Loft, Inc.,
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`684 F.2d 821, 823 n.1 (11th Cir. 1982) (citing 17 U.S.C. § 102(a)). Copyright law
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`never protects an idea itself, but only protects the expression of that idea. Herzog
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`v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999).
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`6
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 7 of 9
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`The design of a useful article is “considered a pictorial, graphic, or
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`sculptural work only if, and only to the extent that, such design incorporates
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`pictorial, graphic, or sculptural features that can be identified separately from, and
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`are capable of existing independently of, the utilitarian aspects of the article.” 17
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`U.S.C. § 101. Elements of a design for a useful item may be protected under
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`copyright law if those elements are “ornamental” or “superfluous.” Norris Indus.
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`v. Int’l Tel. & Tel. Corp., 696 F.2d 918, 923-24 (11th Cir. 1983). However,
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`“functional components of useful articles, no matter how artistically designed,
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`[are] generally . . . denied copyright protection unless they are physically separable
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`from the useful article.” Id. at 924. The Supreme Court recently held that
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`the design of a useful article is eligible for copyright protection only if
`the feature (1) can be perceived as a two- or three-dimensional work
`of art separate from the useful article and (2) would qualify as a
`protectable pictorial, graphic, or sculptural work . . . if it were
`imagined separately from the useful article into which it is
`incorporated.
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`Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002, 1007 (2017).
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`To establish copying, the second prong of a copyright infringement claim,
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`the plaintiff may show that the defendant (1) had access to the copyrighted work,
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`and (2) the two works are so “substantially similar” that “an average lay observer
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`would recognize the alleged copy as having been appropriated from the original
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`work.” Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th Cir. 2002)
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`(quotation omitted). To establish access to the copyrighted work, the plaintiff must
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 8 of 9
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`show that the defendant had a reasonable possibility of viewing it — speculation,
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`conjecture or “bare possibility” are not sufficient. Herzog, 193 F.3d at 1250.
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`If the plaintiff cannot show access, he may still prevail by demonstrating that
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`the works are “strikingly similar.” Calhoun, 298 F.3d at 1232 n.6. Striking
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`similarity exists where the items are so similar in appearance that the possibility of
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`independent creation, coincidence, and prior common source are, as a practical
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`matter, precluded. Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir.
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`2007).
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`Here, the district court did not abuse its discretion in denying Ross leave to
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`amend his complaint. See Covenant Christian Ministries, 654 F.3d at 1239. As to
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`the first prong of his infringement claim, he did not establish in his proposed
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`amended complaint that he had a valid copyright on any element of the drawing
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`that Apple allegedly copied. See Beal, 20 F.3d at 459. The idea for the Device
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`was not subject to copyright protection; each element of the drawing that he
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`identified was purely functional and inseparable from the idea of a handheld
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`electronic reading device. See Norris Indus., 696 F.2d at 924. None of those
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`elements can be conceived as a work of art separate from the Device itself but are
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`necessary parts of it. See Star Athletica, 137 S. Ct. at 1007.
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`As to the second prong, even if Ross had identified elements of his drawing
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`that were entitled to copyright protection, his claim would still fail because he did
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`8
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`Case: 17-13712 Date Filed: 07/12/2018 Page: 9 of 9
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`not plead facts to establish that Apple copied those elements. See Beal, 20 F.3d at
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`459. We need not review whether Ross alleged direct evidence of copying or
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`plausibly pled that Apple had access to his drawing because he does not offer any
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`argument in support of those issues on appeal. See Timson, 518 F.3d at 874. He
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`also did not make a showing in his proposed amended complaint of striking
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`similarity because no Apple product was so similar in appearance to the Device or
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`any of its elements so as to preclude independent creation, coincidence, and prior
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`common source. See Corwin, 475 F.3d at 1253. There is nothing unique or
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`expressive about a handheld electronic device being rectangular with a screen.
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`Accordingly, we affirm the denial of Ross’s motion for leave to amend and
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`subsequent dismissal of his case.
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`AFFIRMED.
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`9
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