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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 1 of 20
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`
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`ENTERPRISE MANAGEMENT
`LIMITED, INC., MARY LIPPITT,
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`
`
`
`
`v.
`
`Plaintiffs,
`
`CONSTRUX SOFTWARE
`BUILDERS, INC, STEVE C.
`MCCONNELL,
`
`
`
`Defendants.
`
`CASE NO. 2:19-CV-1458-DWC
`
`ORDER ON DEFENDANTS’ MOTION
`TO DISMISS
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`
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`Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR
`
`13, the parties have consented to have this matter heard by the undersigned Magistrate Judge.
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`Dkt. 11, 12. Currently pending before the Court is Defendants Construx Software Builders, Inc.
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`and Steve McConnell’s Motion to Dismiss. Dkt. 31. After considering the relevant record, the
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`Court concludes Plaintiffs Enterprise Management Limited, Inc. and Mary Lippitt have stated a
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`copyright infringement claim regarding Defendants’ Change Model chart. Plaintiffs have not
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`sufficiently stated a copyright infringement claim regarding Defendants’ Domino Change Model
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`chart or a personality rights claim. Further, Plaintiffs’ Consumer Protection Act claim is
`
`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 1
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`

`

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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 2 of 20
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`
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`preempted by the Copyright Act and fails to state a claim. For these reasons, Defendants’ Motion
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`to Dismiss is granted-in-part and denied-in-part.
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`I.
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`Background
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`In the First Amended Complaint (“FAC”), Plaintiffs allege Defendants unlawfully copied
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`and distributed Plaintiff Lippitt’s works or derivations based on her works, which are owned by
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`Plaintiff Enterprise, without permission. Dkt. 29. Plaintiffs also allege Defendants used Plaintiff
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`Lippitt’s name to benefit their business without Plaintiff Lippitt’s permission in violation of
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`Washington State’s Consumer Protection Act (“CPA”) and Personality Rights Act. Id.
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`Defendants filed the pending Motion to Dismiss on December 26, 2019. Dkt. 31.
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`Plaintiffs filed their Response on January 13, 2020. Dkt. 32. Defendants filed their Reply on
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`January 17, 2020. Dkt. 33. On March 17, 2020, the Court directed the parties to provide
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`supplemental briefing in light of new Ninth Circuit case law. Dkt. 33. The parties submitted
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`13
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`supplemental briefing on April 10, 2020. Dkt. 35, 36.
`
`II.
`
`Standard of Review
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`A defendant may move for dismissal when a plaintiff “fails to state a claim upon which
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`relief can be granted.” Fed. R. Civ. P. 12(b)(6). To grant a motion to dismiss, the Court must be
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`able to conclude that the moving party is entitled to judgment as a matter of law, even after
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`accepting all factual allegations in the complaint as true and construing them in the light most
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`favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). To
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`survive a motion to dismiss, a plaintiff must merely cite facts supporting a “plausible” cause of
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`action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). A claim has “facial
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`plausibility” when the party seeking relief “pleads factual content that allows the court to draw
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`the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
`
`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 2
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 3 of 20
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`
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`Iqbal, 556 U.S. 662, 672 (2009). Although the Court must accept as true a complaint’s well-
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`pleaded facts, conclusory allegations of law and unwarranted inferences will not defeat an
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`otherwise proper Rule 12(b)(6) motion. Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir.
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`2007).
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`III. Discussion
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`Defendants assert (A) Plaintiffs have failed to state a copyright infringement claim; (B)
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`the CPA claim is preempted by the Copyright Act; and (C) Plaintiffs have failed to state a
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`personality rights claim. Dkt. 31.
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`A. Copyright Infringement
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`In the FAC, Plaintiffs allege Defendants violated the Copyright Act by copying and
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`distributing, without authorization or approval from Plaintiffs, copies of Plaintiffs’ charts or
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`12
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`derivations based on Plaintiffs’ charts. Dkt. 29.
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`A plaintiff who claims copyright infringement must show: (1) ownership of a valid
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`copyright; and (2) that the defendant copied protected aspects of the copyrighted work.
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`Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116-17 (9th Cir. 2018), overruled on other grounds
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`by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Zeppelin, 952 F.3d 1051 (9th Cir. 2020); Ellison
`
`v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). The second element contains distinct
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`components: “copying” and “unlawful appropriation.” Rentmeester, 883 F.3d at 1117.
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`In the Motion to Dismiss, Defendants contend Plaintiffs have not sufficiently pled facts to
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`show (1) copying and (2) unlawful appropriation and therefore the FAC fails to allege a
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`21
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`copyright infringement claim. Dkt. 31.1
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`1 Defendants do not argue Plaintiff has failed to allege a valid copyright. Dkt. 31. Further, Plaintiffs filed
`certificates of copyright registrations for the charts Defendants allegedly copied. Dkt. 29, 29-1. Therefore, the Court
`finds Plaintiffs pled facts sufficient to show ownership of a valid copyright.
`
`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 3
`
`

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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 4 of 20
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`
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`i. Plaintiffs’ Copyrighted Charts
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`The following two charts are Plaintiffs’ alleged copyrighted works:
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`
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`Plaintiffs’ first chart, Managing Complex Change, is protected under U.S. Copyright
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`Registration No. TX 2-124-202 and will be identified in this Order as “TX 2-124-202.” See Dkt.
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`29, ¶ 22.2 Plaintiffs’ second chart, Aligning for Success, is protected under U.S. Copyright
`
`
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`2 The FAC alleges the Managing Complex Change chart is protected by Registration No. TX 2-124-202.
`Dkt. 29. However, the Managing Complex Change chart in the FAC appears to be a chart created by Donald
`Warrick. See Enterprise Management Ltd., Inc. v. Warrick, 717 F.3d 1112 (10th Cir. 2013).
`
`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 4
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 5 of 20
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`
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`Registration Nos. TXu 956-226 and TX 50827-350 and will be identified in this Order as “TXu
`
`956-226/TX 50827-350.” See id. at ¶ 23.
`
`ii. Defendants’ Charts
`
`Plaintiffs allege Defendants violated the Copyright Act through use of a chart in
`
`Defendants’ YouTube video and a chart printed in a book authored by Defendants titled More
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`Effective Agile. Dkt. 29.
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`
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`Defendants’ first chart, used in the YouTube video, will be identified as “Change
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`Model.” Defendant’s second chart, used in the book More Effective Agile, will be identified as
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`“Domino Change Model.”
`
`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 5
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 6 of 20
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`
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`iii. Copying
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`Defendants first assert Plaintiffs failed to allege facts sufficient to show Defendants had
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`access to TX 2-124-202 and TXu 956-226/TX 50827-350 in order to copy the charts. Dkt. 31. In
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`the Response, Plaintiffs argue they have pled facts showing direct evidence of copying. Dkt. 32,
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`pp. 3-4. While Plaintiffs do not assert they have alleged facts sufficient to show circumstantial
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`evidence of copying, the Response appears to argue the FAC alleges copying circumstantially.
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`Id.
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`“Because independent creation is a complete defense to copyright infringement, a
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`plaintiff must prove that a defendant copied the work.” Skidmore, 952 F.3d at 1064. A plaintiff
`
`may establish copying through direct or circumstantial evidence. However, “direct evidence of
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`copying is rarely available.” Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987).
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`Absent direct evidence of copying, a plaintiff can attempt to prove copying
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`“circumstantially by showing that the defendant had access to the plaintiff’s work and that the
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`two works share similarities probative of copying.” Rentmeester, 883 F.3d at 1117. The
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`similarities between the two works must show the two works are similar due to “copying rather
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`than . . . coincidence, independent creation, or prior common source.” Skidmore, 952 F.3d at
`
`1064 (quotation and citation omitted). The Ninth Circuit as found that “the similarities between
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`the two works need not be extensive, and they need not involve protected elements of the
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`plaintiff’s work.” Rentmeester, 883 F.3d at 1117. “To prove access, a plaintiff must show a
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`reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to
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`view the protected work.” Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1143 (9th
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`22
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`Cir. 2009).
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 6
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 7 of 20
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`
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`In the FAC, Plaintiffs allege Defendant McConnell identified Plaintiff Lippitt as the
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`“author of the original Work upon which the chart” appearing in Defendants’ YouTube video
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`was based. Dkt. 29, ¶ 39. Plaintiffs also allege Defendant McConnell stated the Change Model in
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`the YouTube video was inspired by Plaintiff Lippitt and non-party Tim Knoster. Id. at ¶ 40.
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`Plaintiffs contend Defendant McConnell’s attribution to Plaintiff Lippitt shows knowledge of her
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`works. Id. at ¶ 41. Plaintiffs state that Defendants have seen and had access to “Dr. Lippitt’s
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`copyrighted Works prior to publishing the YouTube Video.” Id. at ¶¶ 49, 50. Plaintiffs also
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`allege Defendants were aware Plaintiff Lippitt “is the source of the change model” at the time of
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`publishing the Domino Change Model. Id. at ¶ 82.
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`There are insufficient allegations to show direct evidence of copying. Plaintiffs have
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`alleged only the mere possibility that Defendants viewed and copied TX 2-124-202 and TXu
`
`956-226/TX 50827-350. Defendant McConnell’s statement that the Change Model is based on or
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`inspired by Plaintiff Lippitt’s and Tim Knoster’s work does not show Defendants viewed and
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`copied TX 2-124-202 or TXu 956-226/TX 50827-350. There are no allegations in the FAC
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`showing Defendants admitted to copying TX 2-124-202 or TXu 956-226/TX 50827-350, nor
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`allegations showing Defendants engaged in “virtual duplication” of Plaintiffs’ entire work.
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`Narell v. Freeman, 872 F.3d 907, 910 (9th Cir 1989) (noting direct copying occurs when the
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`defendant has engaged in “virtual duplication of a plaintiff’s entire work” and finding an author’s
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`admission that he consulted the original work and took language from it when writing his book
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`was not sufficient to show direct evidence of copying); see Rogers v. Koons, 960 F.3d 301, 307
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`(2d Cir. 1992) (finding direct evidence of copying when the copied work was based on a
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`photograph of the original work with specific instructions to design the copied work “as per the
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 7
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 8 of 20
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`photo”). Plaintiffs statements that Defendants have seen and had access to TX 2-124-202 and
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`TXu 956-226/TX 50827-350 are conclusory and fail to allege direct evidence of copying.
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`However, in the FAC, Plaintiffs allege Defendants identify Plaintiff Lippitt and state the
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`Change Model was inspired by Plaintiff Lippitt. Dkt. 29, ¶¶ 37, 39. In this case, Defendants’
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`reference to Plaintiff Lippitt is sufficient to show a reasonable possibility that Defendants viewed
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`Plaintiffs’ copyrighted works prior to creating the Change Model. Further, Defendants’ Change
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`Model contains similarities that are probative of copying. For example, the Change Model, TX
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`2-124-202, and TXu 956-226/TX 50827-350 all consist of the same flow-chart format and use
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`nearly identical words.
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`The Domino Change Model does not reference Plaintiff Lippitt. However, the FAC
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`alleges Defendants were aware that Plaintiff Lippitt was the source of the complex change idea
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`at the time of publishing the Domino Change Model. Dkt. 29. Plaintiffs have sufficiently alleged
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`a reasonable possibility that Defendants viewed TX 2-124-202 and TXu 956-226/TX 50827-350
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`prior to publishing the Domino Change Model. Furthermore, the Domino Change Model
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`contains nearly identical words to TX 2-124-202 and TXu 956-226/TX 50827-350.
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`In sum, Plaintiffs have alleged facts “from which a reasonable finder of fact could infer
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`that [Defendants] had a reasonable opportunity to copy [Plaintiffs’] work.” Shame on You
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`Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123, 1149 (C.D. Cal. 2015), aff'd sub nom.
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`Shame on You Prods., Inc. v. Banks, 690 F. App’x 519 (9th Cir. 2017). Therefore, the Court
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`finds allegations in the FAC, including imbedded images of the charts and Defendants’
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`identification of Plaintiff Lippitt, are sufficient to create a presumption that Defendants’ charts
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`were a product of copying rather than independent creation. Accordingly, Plaintiffs have alleged
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`facts sufficient to show “copying.”
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 8
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 9 of 20
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`iv. Unlawful Appropriation
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`Second, Defendants assert Plaintiffs have not sufficiently alleged facts to show “unlawful
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`appropriation.” Dkt. 31. “Unlawful appropriation” exists when the works in question share
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`substantial similarities. Id. The Ninth Circuit employs “a two-part test to determine whether the
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`defendant’s work is substantially similar to the plaintiff’s copyrighted work.” Id. First, the
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`extrinsic test compares the objective similarities of the specific expressive elements of the two
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`works. Id. Notably, before the comparison can be made, “the court must ‘filter out’ the
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`unprotectable elements of the plaintiff’s work – primarily ideas and concepts, material in the
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`public domain, and scènes à faire (stock or standard features that are commonly associated with
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`the treatment of a given subject).” Rentmeester, 883 F.3d at 1118. Second, the intrinsic test
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`examines the “similarity of the expression from the standpoint of the ordinary reasonable
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`observer, with no expert assistance.” Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir.
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`2008). “Only the extrinsic test’s application may be decided by the court as a matter of law” and
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`is, therefore, the only test relevant in ruling on a motion to dismiss. Rentmeester, 883 F.3d at
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`1118.
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`Change Model: As Plaintiffs have separate copyrights for the two charts in the FAC, the
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`Court will analyze the similarities and differences between the Change Model, TX 2-124-202,
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`and TXu 956-226/TX 50827-350 independently.
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`Change Model and TX 2-124-202: Both the Change Model and TX 2-124-202 contain
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`columns and rows to express a flow-chart of complex change. The Change Model also uses
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`nearly identical words as used in TX 2-124-202. Both charts use a similar shape to highlight the
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`elements (rectangle with round edges and a rectangle with square edges). Additionally, both
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`charts show each result when an element necessary for change is missing.
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 9
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 10 of 20
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`The Court recognizes the Change Model and TX 2-124-202 contain differences. The
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`Change Model contains an additional element (“consensus”) and an additional result
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`(“sabotage”), which adds an extra row and column to the chart. The Change Model also shows
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`two elements (“resources” and “incentives”) in an order different than TX 2-124-202. The
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`Change Model uses colored boxes, whereas TX 2-124-202 does not contain color. The Change
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`Model also uses plus signs and equal signs as connectors between the elements and the results.
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`TX 2-124-202 uses arrows as connectors. Finally, to show a missing element, TX 2-124-202
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`inserted a blank space. In contrast, the Change Model removed the box coloring and changed the
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`font color to white to show an element had been removed. Thus, unlike TX 2-124-202, the
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`Change Model does not contain a blank space.
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`Change Model and TXu 956-226/TX 50827-350: As with TX 2-124-202, both the Change
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`Model and TXu 956-226/TX 50827-350 contain columns and rows, creating a flow-chart to
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`express complex change. The Change Model uses nearly identical words as used in TXu 956-
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`226/TX 50827-350. Both charts also show the corresponding result when each element necessary
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`for change is removed. Furthermore, both the Change Model and TXu 956-226/TX 50827-350
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`use plus signs and equal signs to connect the elements with the result.
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`However, as with the Change Model and TX 2-124-202, there are differences between
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`the Change Model and TXu 956-226/TX 50827-350. The Change Model has a black background
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`and uses green and yellow colored boxes to highlight the elements. In TXu 956-226/TX 50827-
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`350, the background is grey-scaled and the elements are contained within transparent ovals. To
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`show a missing element, TXu 956-226/TX 50827-350 omits the oval and inserts a jagged line. In
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`contrast, to show an element had been removed from the change process, the Change Model
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`includes the missing element, which is inserted in a transparent box with white font coloring.
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 10
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 11 of 20
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`Thus, unlike TXu 956-226/TX 50827-350, the Change Model does not contain a blank space or a
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`line where the missing element would be located. The Change Model contains an additional
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`element (“consensus”) and an additional result (“sabotage”). The Change Model also changed
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`the wording for one element (“skills” in place of “capabilities”) and two results (“change” in the
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`place of “success” and “treadmill” in place of “false starts”). The Change Model also has two
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`elements (“resources” and “incentives”) in in an order different than the chart.
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`Substantially Similar: The Copyright Act protects the original “selection, coordination,
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`and arrangement” of an idea. Malibu Textiles, Inc. v. Label Lane Int'l, Inc., 922 F.3d 946, 952
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`(9th Cir. 2019). To show substantial similarities, the two works’ “selection and arrangement of
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`elements must be similar enough that ‘the ordinary observer, unless he set out to detect the
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`disparities, would be disposed to overlook them.’” Rentmeester, 883 F.3d at 1121 (quoting Peter
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`Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)).
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`In this case, the FAC sufficiently alleges substantial similarities between the Change
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`Model and both TX 2-124-202 and TXu 956-226/TX 50827-350. While the Court has
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`highlighted the differences in each chart, the side-by-side images show substantial similarities in
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`the selection and arrangement of the charts. At this stage, the Court finds the arrangement of the
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`elements are similar enough that an “ordinary observer . . . would be disposed to overlook” the
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`differences. See id. Therefore, the FAC contains sufficient allegations to show the Change Model
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`is substantially similar to TX 2-124-202 and TXu 956-226/TX 50827-350. See Malibu Textiles,
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`Inc., 922 F.3d at 952 (finding striking similarities, a standard higher than substantial similarities,
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`where the “works contain nearly identical floral, leaf, boteh, and dot elements, and those
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`elements are arranged in virtually the same way;” noting the slight differences and finding side-
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`by-side pictures made the similarities apparent); Kevin Barry Fine Art Assocs. v. Ken Gangbar
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 11
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 12 of 20
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`Studio, Inc., 391 F. Supp. 3d 959, 968 (N.D. Cal. 2019) (denying motion to dismiss and finding
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`substantial similarities where the complaint contained side-by-side pictures showing the two
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`pieces had “similar general arrangements, with similar cluster patterns, presented in nearly the
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`same way”); Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1299
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`(C.D. Cal. 1995) (comparing the works in question and finding the extrinsic ideas that were
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`inherent parts of the copyrighted films appear to be substantially similar to those in a
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`commercial). Whether Plaintiffs can prove these allegations remains to be seen, however, for
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`purposes of this Motion, the FAC sufficiently states a claim for copyright infringement as to the
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`Change Model.
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`Domino Change Model: In contrast to the Change Model, the FAC fails to allege facts
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`sufficient to show the Domino Change Model is substantially similar to TX 2-124-202 or TXu
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`956-226/TX 50827-350. The Domino Change Model uses nearly identical words as TX 2-124-
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`202 and TXu 956-226/TX 50827-350 to show complex change. However, the Domino Change
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`Model expresses complex change using domino images and only two words per tile. The
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`Domino Change Model does not contain graphics that are substantially similar to TX 2-124-202
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`or TXu 956-226/TX 50827-350. Rather, the Domino Change Model expresses complex change
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`in a completely different manner: placing each element with the corresponding result if the
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`element identified on each domino is missing from the change process. While Defendants used
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`the many of the same words to express complex change, Defendant also added an additional
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`element and result, expanding the ideas expressed in TX 2-124-202 or TXu 956-226/TX 50827-
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`350. The Court finds the use of the same words alone is insufficient to show unlawful
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`appropriation in this case.
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 12
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 13 of 20
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`Plaintiffs assert the Domino Change Model is an unlawful derivative work. Dkt. 32. The
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`Copyright Act grants the exclusive rights to prepare a derivative work to the holder of the
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`copyright. 17 U.S.C. § 106(2). “To constitute a violation of section 106(2) the infringing work
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`must incorporate in some form a portion of the copyrighted work.” Litchfield v. Spielberg, 736
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`F.2d 1352, 1357 (9th Cir. 1984). The Ninth Circuit, however, rejected the argument that a
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`copyright holder did not have to establish that a work is substantially similar to the original work
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`to be an unlawful derivative work. Id. Here, the Domino Change Model does incorporate
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`portions of TX 2-124-202 and TXu 956-226/TX 50827-350. But, as discussed above, the
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`Domino Change Model is not substantially similar to TX 2-124-202 or TXu 956-226/TX 50827-
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`350. Therefore, the Court is not persuaded by Plaintiffs’ argument that the Domino Change
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`Model violates the Copyright Act because it is an unlawful derivative work. See Vault Corp. v.
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`Quaid Software Ltd., 847 F.2d 255, 267 (5th Cir. 1988) (to be an unlawful derivation, “the
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`infringing work must be substantially similar to the copyrighted work”).
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`For these reasons, Plaintiffs failed to allege facts sufficient to show the Domino Change
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`Model is substantially similar to either TX 2-124-202 or TXu 956-226/TX 50827-350. Thus, as a
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`matter of law, the FAC fails to state a claim for copyright infringement as to the Domino Change
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`Model.
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`v. Conclusion
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`For the above stated reasons, the Court finds Plaintiffs have sufficiently alleged a
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`copyright infringement claim against Defendants regarding the Change Model. Plaintiffs have
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`not sufficiently stated a copyright infringement claim against Defendants regarding the Domino
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 13
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 14 of 20
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`Change Model. Accordingly, Defendants’ Motion to Dismiss as to Plaintiffs’ copyright claims is
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`granted-in-part and denied-in-part.
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`B. Consumer Protection Act
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`In the FAC, Plaintiffs allege Defendants marketed TX 2-124-202 and TXu 956-226/TX
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`50827-350 to benefit their business without Plaintiffs’ permission in violation of the CPA. Dkt.
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`29, ¶¶ 117-19. Plaintiffs contend Defendants committed unfair methods of competition or unfair
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`or deceptive acts or practices. Id. at ¶¶ 120-21. Plaintiffs assert they have been injured as a result
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`of Defendants’ unfair trade practices. Id. at ¶ 122.
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`Washington’s CPA makes unlawful “[u]nfair methods of competition and unfair or
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`deceptive acts or practices in the conduct of any trade or commerce ....” RCW 19.86.020 (2009).
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`To sustain an unfair competition action under the CPA, a plaintiff must demonstrate (1) an unfair
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`or deceptive act or practice (2) occurring in trade or commerce (3) that impacts the public
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`interest (4) causing an injury to the plaintiff's business or property with (5) a causal link between
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`the unfair or deceptive act and the injury suffered. Nat'l Products, Inc. v. Gamber–Johnson LLC,
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`699 F.Supp.2d 1232, 1242 (W.D. Wash. 2010) (citing Dewitt Const. Inc. v. Charter Oak Fire
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`Ins. Co., 307 F.3d 1127, 1132 (9th Cir. 2002)).
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`Defendants assert Plaintiffs’ CPA claims related to Defendants’ use of copyrighted works
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`and uncopyrighted ideas is preempted by the Copyright Act. Dkt. 31, 33. Defendants also
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`contend Plaintiffs’ CPA claim related to Defendants’ use of Plaintiff Lippitt’s name fails to state
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`a claim upon which relief can be granted. Dkt. 31, 33.
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`i. Preemption
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`Defendants first contend Plaintiffs’ claims related to copyrighted works and
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`uncopyrighted ideas are preempted by the Copyright Act. Dkt. 31. The Copyright Act protects
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 14
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 15 of 20
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`the right to reproduce, distribute, and display copyrighted materials, as well as the right to
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`prepare derivative works based on the copyrighted material. 17 U.S.C. § 106. A CPA claim may
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`be preempted by federal copyright law when the state claim incorporates by reference and
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`merely restates federal copyright claims. See 17 U.S.C. § 301(a); Litchfield, 736 F.2d at 1358
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`(holding that because the unfair competition and misrepresentation claims are “restatements of
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`the copyright infringement claims, they are preempted by federal copyright law”). State law
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`claims are preempted when (1) the work at issue comes within the subject matter of copyright,
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`and (2) the state law rights are equivalent to the exclusive rights of copyright. Grosso v. Miramax
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`Film Corp., 383 F.3d 965, 968 (9th Cir. 2004). To survive preemption, the state law claim must
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`include an “extra element” that makes the right asserted qualitatively different from those
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`protected by the Copyright Act. Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th
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`Cir.2005) (citing Summit Mach. Tool Mfg. v. Victor CNC Sys., 7 F.3d 1434, 1439–40 (9th
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`Cir.1993)).
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`Plaintiffs contend the CPA claim contains different rights than those protected by the
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`Copyright Act and, thus, is not preempted. Dkt. 32, pp. 9-11. Specifically, Plaintiffs assert the
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`FAC alleges Defendants used Plaintiff Lippitt’s name and “uncopyrighted ideas” to benefit their
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`own business. Id. at pp. 10-11. However, the CPA claim incorporates the allegations specific to
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`the copyright claim. Dkt. 39, ¶ 117; see Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212–
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`13 (9th Cir. 1998). And, the gravamen of Plaintiffs’ claim is that Defendants copied and used
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`Plaintiffs’ copyrighted materials. The CPA claim related to Plaintiffs’ copyrighted works and
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`uncopyrighted ideas implicates all of Plaintiffs’ alleged rights under the Copyright Act and lacks
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`an extra element. See Milo & Gabby, LLC v. Amazon.com, Inc., 12 F.Supp.3d 1341, 1347-48
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`(W.D. Wash. 2014) (finding the complaint was poorly drafted to clearly set out an additional
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 15
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 16 of 20
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`element not found in the copyright claim and, thus, the CPA claim was preempted by the
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`Copyright Act); Selby v. New Line Cinema Corp., 96 F.Supp.2d 1053, 1059 (C.D. Cal. 2000)
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`(finding the plaintiff’s ideas fell within the subject matter of copyright).
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`The rights in both the CPA and copyright claims stem from the Copyright Act and are
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`qualitatively indistinguishable. Thus, Plaintiffs’ CPA claim related to Defendants use of
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`copyrighted works and uncopyrighted ideas is preempted by the Copyright Act. See Oldcastle
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`Precast, Inc. v. Granite Precasting & Concrete, Inc., 2010 WL 2217910, at *2 (W.D. Wash.
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`June 1, 2010) (finding CPA claim preempted and a new element was not added where the
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`plaintiff alleged the defendant marketed copied materials as its own and used the copied parts to
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`mislead the public); Blue Nile, Inc. v. Ice.com, Inc., 478 F.Supp.2d 1240, 1249–50 (W.D. Wash.
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`2007) (finding a CPA claim preempted where the plaintiff incorporated his copyright allegations
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`into the claim and failed to add an extra element).
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`ii. Lippitt’s Name
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`Defendants also assert Plaintiffs have failed to state a CPA claim based on Defendants’
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`use of Plaintiff Lippitt’s name. Dkt. 31. Plaintiffs allege “Defendants are using Dr. Lippitt’s
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`name to benefit their own business.” Dkt. 29, ¶ 118. Further, Plaintiffs state that, “[b]y
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`knowingly using Dr. Lippitt’s name and ideas to their own profit, Defendants commit unfair
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`competition.” Id. at ¶ 121. Plaintiffs state only that they have been injured in their business by
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`Defendants’ unfair trade practices. Id. at ¶ 122. To state a claim under the CPA, a plaintiff must
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`demonstrate, in relevant part, that the unfair or deceptive practice caused an injury to plaintiff’s
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`business with a causal link between the unfair or deceptive act and the injury. See Nat'l Products,
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`Inc., 699 F.Supp.2d at 1242. Here, the FAC merely recites the elements of a CPA claim. There
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`are no allegations sufficiently explaining how Defendants used Plaintiff Lippitt’s name to
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`ORDER ON DEFENDANTS’ MOTION TO
`DISMISS - 16
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`Case 2:19-cv-01458-DWC Document 37 Filed 05/29/20 Page 17 of 20
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`unfairly compete or how that use caused injuries to Plaintiffs. Therefore, the Court finds
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`Plaintiffs’ thread-bare allegations are insufficient to state a CPA claim based on Defendants’ use
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`of Plaintiff Lippitt’s name. See Iqbal, 556 U.S. at 678 (the pleading must be more than an
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`“unadorned, the-defendant-unlawfully-harmed-me accusation”); Alvarez v. Target Corp., 2013 WL
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`4734123, at * 7 (E.D. Wash. July 10, 2013) (finding the plaintiff did not state a CPA claim when
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`she merely recited the injury element without additional facts indicating the injury to the plaintiff’s
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`business or property).
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`iii. Conclusion
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`For the above stated reasons, the Court finds Plaintiffs’ CPA claims related to
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`Defendants’ alleged use of Plaintiffs’ co