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Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 1 of 21
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MONTANA
`MISSOULA DIVISION
`
`FILED
`MAR 1 9 2018
`
`Clerk, U.S District Court
`District Of Montana
`Missoula
`
`ERIKA PETERMAN,
`
`CV 17-66--M-DLC
`
`Plaintiff,
`
`vs.
`
`ORDER
`
`REPUBLICAN NATIONAL
`COMMITTEE,
`
`Defendant.
`
`Before the Court is Defendant Republican National Committee's ("RNC")
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`motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendant
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`argues that this case should be dismissed because: (1) RN C's use of Plaintiffs
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`photograph constituted a fair use under federal copyright law; (2) Plaintiff has
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`failed to state a claim for intentional interference with prospective economic
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`advantage; and (3) Plaintiffs state law claim for intentional interference with
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`economic advantage is preempted by federal copyright law. For the reasons
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`explained below, the Court grants the motion in part and denies the motion in part.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`Plaintiff Erika Peterman ("Peterman") is a photographer and is the author
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`and owner of the copyright in Peterman's photograph ("Work"). Defendant RNC
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`is a U.S. political organization responsible for developing and promoting the
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 2 of 21
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`Republican political platform, as well as coordinating fundraising and election
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`strategy. RNC previously campaigned on behalf of Montana U.S. Representative
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`Greg Gianforte in Montana's Special Election to fill its lone Congressional seat in
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`the U.S House of Representatives in 2017.
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`On March 18, 2017, Peterman contracted with the Montana Democratic
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`Party to take photographs at the annual Mansfield-Metcalf Dinner in Helena,
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`Montana. She was asked to take photographs of Democratic Candidate Rob Quist
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`("Quist") who was the focus of the event. The Work depicts Quist, wearing a
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`cattleman's hat from behind, with three bright lights in the distance. On March 21,
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`2017, Peterman edited and sent her photographs to the Montana Democratic Party
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`and gave limited license to the Montana Democratic Party and Quist's campaign to
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`use the Work. Peterman filed for registration of her Work with the U.S. Copyright
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`Office on May 12, 2017.
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`On May 9, 2017, Peterman was notified that RNC had sent out mass direct
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`mailings using her Work to negatively depict Quist. The image on the RNC mailer
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`is a direct copy of Peterman' s Work, altered with a treble clef inserted over the
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`bottom left of the image and the text, "For Montana Conservatives, Liberal Rob
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`Quist Can't Hit the Right Note." The back of the mailers contained standard
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`political advertisement disclaimer language that they were paid for by RNC and
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`were not authorized by any candidate or candidate's committee.
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`On May 16, 201 7, Peterman filed her Complaint against RNC alleging
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`copyright infringement and intentional interference with economic advantage
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`based on RNC copying, using, and distributing her Work. (Doc. 1.) On September
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`9, 2017, RNC filed a Motion to Dismiss for Failure to State a Claim, arguing that
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`its use of the Work constituted a fair use under federal copyright law and that
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`Peterman failed to state a claim for intentional interference with economic
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`advantage. (Doc. 7.) Additionally, RNC argued that Peterman's state law claim
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`for intentional interference with economic advantage was preempted by federal
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`copyright law. (Id.)
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`LEGAL STANDARD
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`Rule 12(b)(6) motions test the legal sufficiency of a pleading. Fed. R. Civ.
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`P. 12(b)(6). Under Federal Rule of Civil Procedure 8(a)(2), a complaint must
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`contain "a short and plain statement of the claim showing that the pleader is
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`entitled to relief." "To survive a motion to dismiss, a complaint must contain
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`sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible
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`on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell At/. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the
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`court can draw a "reasonable inference" from the facts alleged that the defendant is
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`liable for the misconduct alleged. Id. These facts need not be overly specific, but
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`they must "give the defendant fair notice of what the ... claim is and the grounds
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 4 of 21
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`upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam)
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`(quoting Twombly, 550 U.S. at 555).
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`Under Rule 12(b )( 6), the court is generally limited to the allegations of the
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`complaint, "which are accepted as true and construed in the light most favorable to
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`the plaintiff." Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
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`Nonetheless, a court may dismiss a complaint if it lacks a cognizable legal theory.
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`SmileCare Dental Group v. Delta Dental Plan of California, Inc., 88 F .3d 780, 783
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`(9th Cir. 1996). Dismissal for failure to state a claim is proper only "if it appears
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`beyond doubt" that the non-moving party "can prove no set of facts which would
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`entitle him to relief." Vasquez v. L.A. County, 487 F.3d 1246, 1249 (9th Cir.
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`2007) (internal quotation marks and citation omitted).
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`The "assertion of fair use may be considered on a motion to dismiss, which
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`requires the court to consider all allegations to be true, in a manner substantially
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`similar to consideration of the same issue on a motion for summary judgment,
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`where no material facts are in dispute." See Leadsinger, Inc. v. BMG Music
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`Publ'g, 512 F.3d 522, 530 (9th Cir. 2008). Fair use doctrine "presents a mixed
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`question of law and fact" that "requires a case-by-case determination whether a
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`particular use is fair." Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.
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`539, 560 (1985). However, "[i]f there are no genuine issues of material fact, or if,
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`even after resolving all issues in favor of the opposing party, a reasonable trier of
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 5 of 21
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`fact can reach only one conclusion, a court may conclude as a matter of law
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`whether the challenged use qualifies as fair use of the copyrighted work."' Hustler
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`Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986).
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`While a plaintiff must plead facts sufficient to prove a justiciable cause of action, it
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`is not necessary to plead facts that disprove fair use to survive a Rule 12(b )( 6)
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`motion to dismiss. See Garner v. Higgins, 2015 WL 574352, at *3 (W.D. Va. Feb.
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`11, 2015).
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`DISCUSSION
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`I.
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`Copyright Infringement
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`Peterman claims that RNC violated 17 U.S.C. § 106 by infringing her
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`protected copyright in her Work. (Doc. 1at5-7.) RNC seeks dismissal of
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`Peterman's copyright infringement claim on the basis of fair use. (Doc. 8 at 4.) To
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`state a claim for copyright infringement, a plaintiff must allege: ( 1) ownership of a
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`valid copyright, and (2) copying of a protectable expression by the defendant.
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`Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987). Under Section 501 of the
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`Copyright Act, "[t]he legal or beneficial owner of an exclusive right under a
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`copyright is entitled, subject to the requirements of section 411, to institute an
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`action for any infringement of that particular right committed while he or she is the
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`owner of it." 17 U.S.C. § 501(b).
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 6 of 21
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`The Copyright Act provides that the "fair use of a copyrighted work,
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`including such use by reproduction in copies or phonorecords or by any other
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`means specified for that section, for purposes such as criticism, comment, news
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`report, teaching (including multiple copies for classroom use), scholarship, or
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`research, is not an infringement of copyright." 17 U.S.C. § 107. When
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`determining whether a use constitutes a "fair use," the Copyright Act directs courts
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`to consider: ( 1) the purpose and character of the use, including whether such use is
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`of a commercial nature or for nonprofit educational purposes; (2) the nature of the
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`copyrighted work; (3) the amount and substantiality of the portion of the work used
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`in relation to the work as a whole; and ( 4) the effect of the use on the potential
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`market for or value of the work. Id.
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`Fair use "permits the use of copyrighted works without the copyright
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`owner's consent under certain situations. The defense encourages and allows the
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`development of new ideas ... thus providing a necessary counterbalance to the
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`copyright law's goal of protecting creators' work product." Perfect JO, Inc. v.
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`Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007). As an affirmative
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`defense, fair use "presumes that unauthorized copying has occurred, and is instead
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`aimed at whether the defendant's use was fair." Monge v. Maya Magazine,
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`Inc., 688 F.3d 1164, 1170 (9th Cir. 2012). The factors are "not to be simplified
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`with bright-line rules, for the statute, like the doctrine it recognizes, calls for case-
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 7 of 21
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`by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994)
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`(citations omitted).
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`It is undisputed by the parties that Peterman is the owner of a valid copyright
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`to the Work. Therefore, the issue is whether RNC's use of the Work was a fair use
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`of Peterman' s copyrighted expression.
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`a.
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`Purpose and Character of the Use
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`In evaluating the purpose and character of use, the Ninth Circuit looks to
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`"whether and to what extent the new work is 'transformative."' Perfect 10, 508
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`F.3d at 1163 (citing Campbell, 510 U.S. at 579). A work is "transformative" when
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`it does not "merely supersede the objects of the original creation" but instead "adds
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`something new, with a further purpose or different character, altering the first with
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`new expression, meaning, or message." Id. at 1164. A use is transformative "only
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`where a defendant changes a plaintiffs copyrighted work or uses the plaintiffs
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`copyrighted work in a different context such that the plaintiffs work is
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`transformed into a new creation." Wall Data Inc. v. L.A. County Sheriff's
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`Dep't, 447 F.3d 769, 778 (9th Cir. 2006).
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`A work's separate purpose "by itself, does not necessarily create new
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`aesthetics or a new work that alter[ s] the first [work] with new expression,
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`meaning or message." Monge, 688 F.3d at 1176 (quoting Infinity Broad. Corp. v.
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`Kirkwood, 150 F.3d 104, 108 (2d Cir. 1998)) (citations omitted). A "difference in
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 8 of 21
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`purpose is not quite the same thing as transformation, and Campbell instructs that
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`transformativeness is the critical inquiry under this factor." Id. However, making
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`an exact copy of a protected work may be transformative provided "the copy
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`serves a different function than the original work." Perfect 10, 508 F.3d at
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`1165; See also Kelly v. Arriba Soft Corp., 336 F.3d 811, 818-19 (9th Cir.
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`2002) (finding transformative use where the original purpose of the copied images
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`was aesthetic, while the new purpose was to improve access to information).
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`In Monge v. Maya Magazine, Inc., a magazine published six of the
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`plaintiffs' wedding photographs by reproducing them on the cover and in a two(cid:173)
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`page spread with various bylines printed upon and around them. 688 F .3d at
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`1169-70. The Ninth Circuit found that such use "did not transform the photos into
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`a new work, as in Campbell, or incorporate the photos as part of a broader work[.]"
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`Id. at 1176. Instead, the Ninth Circuit held the magazine "left the inherent
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`character of the images unchanged" and that such "wholesale copying sprinkled
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`with written commentary ... was at best minimally transformative" for a finding
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`of fair use. Id.
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`The purpose and character of the use of the Work by RNC in a political
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`mailing does not favor a finding of fair use at this stage since the Work's purpose
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`remains a disputed issue of fact and RNC's use was, at best, minimally
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`transformative. As alleged in the Complaint, RNC copied the whole of the visual
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 9 of 21
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`Work and merely added a few lines of text that were critical of Quist, stating "For
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`Montana Conservatives, Liberal Rob Quist Can't Hit the Right Note" in the lower(cid:173)
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`left quadrant. (Doc. 1-3 at 1.) Absent the inclusion of a treble clef attached to the
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`commentary, the entirety of the visual aspects of the Work remain unaltered in
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`RNC's use.
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`There is no basis in the pleadings for determining the existence and extent of
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`any purpose or transformation of the Work at this stage. RNC added commentary,
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`which may have altered the Work with new expression. Thus, RNC's use would
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`establish a new purpose or new function. However, Peterman's purpose for the
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`Work is not plain on the face of the pleadings and has yet to be developed. RNC
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`alleges the purpose and function of the Work based on the Montana Democratic
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`Party's use of the Work and not Peterman's use of the Work. Therefore, the
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`purpose of the Work remains a disputed issue of fact for a finding of fair use.
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`Further, the character ofRNC's use appears to be minimally transformative.
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`The Work was not altered from Peterman' s original photograph, and instead
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`similar to Monge, where the Ninth Circuit found "wholesale copying sprinkled
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`with written commentary ... at best minimally transformative," RNC left the
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`inherent character of the image unchanged and only included short written
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`commentary. Additionally, as Monge illustrates, RNC's separate purpose or
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`function for the Work of criticizing Quist by itself does not necessarily create a
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 10 of 21
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`new work that alters the Work's expression. Separate purpose is not the same
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`thing as transformation, which is the critical inquiry at this juncture. Therefore,
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`because the Work's purpose remains a disputed issue of fact and the transformative
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`character of the use appears marginal, the purpose and character of the use factor
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`weighs against a finding of fair use at this stage.
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`b.
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`Nature of the Copyrighted Work
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`In determining the nature of the copyrighted work, courts recognize that
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`"creative works are 'closer to the core of intended copyright protection' than
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`informational and functional works." Mattel, Inc. v. Walking Mountain Prods.,
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`353 F.3d 792, 800 (9th Cir. 2003) (quoting Campbell, 510 U.S. at 586). Courts
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`generally assess whether the original work is more creative or factual in nature and
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`whether it was published at the time of the alleged infringement. See Harper &
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`Row, 471 U.S. at 563-64. "The scope of fair use is greater when 'informational' as
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`opposed to more 'creative' works are involved." Hustler, 796 F.2d at 1153-
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`54; see also Harper & Row, 471 U.S. at 563 ("The law generally recognizes a
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`greater need to disseminate factual works than works of fiction or fantasy.").
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`Depiction of newsworthy events are "informational and factual" and more likely to
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`be the subject of fair use. See Los Angeles News Serv. v. KCAL-TV Channel 9, 108
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`F.3d 1119, 1122 (9th Cir. 1997) (finding that video footage of police beating an
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 11 of 21
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`individual weighed in favor of fair use for the nature of the copyrighted work
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`factor because of its newsworthiness).
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`Here, it is clear the nature of the Work as represented in the Complaint is a
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`published photograph by Peterman artistically depicting Quist. The photograph
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`includes elements in its framing that are not factual in nature. Instead, the Work
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`creatively and visually develops a portrait of Quist and his candidacy, including the
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`balance of the photograph, the illuminated cowboy hat atop Quist' s head, the three
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`stage lights in the distance, and the dark background employed. (Doc. 1-3 at 1.)
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`Given the inclusion of these visual elements, the Work is "closer to the core of
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`intended copyright protection" because it is more closely aligned to an artistic
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`portrait rather than an informational or functional work, despite it being taken at a
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`political event. Consequently, the nature of the copyrighted work factor weighs
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`against a finding of fair use at this interval.
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`c.
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`Amount and Substantiality of Portion Used
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`In assessing the amount and substantiality of portion used, courts consider
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`not only "the quantity of the materials used" but also "their quality and
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`importance." Campbell, 510 U.S. at 587. While "wholesale copying does not
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`preclude fair use per se," copying an entire work "militates against a finding of fair
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`use." Worldwide Church ofGodv. Philadelphia Church of God, Inc., 227 F.3d
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`1110, 1118 (9th Cir. 2000) (quoting Hustler, 796 F.2d at 1155). Similarly, "the
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 12 of 21
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`fact that a substantial portion of the infringing work was copied verbatim is
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`evidence of the qualitative value of the copied material, both to the originator and
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`to the plagiarist who seeks to profit from marketing someone else's copyrighted
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`expression." Harper & Row, 471 U.S. at 565.
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`If the subsequent user of the work "copies only as much as is necessary for
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`his or her intended use, then this factor will not weigh against him or her." Kelly,
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`336 F.3d at 820-21. Accordingly, the use of an entire image may be reasonable if
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`it serves the defendant's intended purpose. See Perfect 10, 508 F.3d at 1167-68
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`(finding use of entire image necessary to facilitate use of search engine favored
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`neither party on amount and substantiality of portion used); Kelly, 336 F.3d at 821.
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`Here, RNC copied the entirety of Peterman's Work quantitatively and
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`qualitatively for use in its political mailers. A side-by-side comparison of the
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`Work and RNC's mailer shows that RNC attempted to qualitatively retain the
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`whole of the visual aspects of the Work in order to comment on Quist's musical
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`background as it applied to his political career. The mailer reproduces the original
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`balance of the photograph, the illuminated cowboy hat atop Quist' s head, the three
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`stage lights in the distance, and a dark background to juxtapose its commentary
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`with the appearance that Quist is giving a musical performance. (Doc. 1-3 at 1.)
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`The only alteration present from the original Work is RNC's inclusion of a treble
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`clef attached to its commentary. (Id.)
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 13 of 21
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`Consequently, both the amount and substantiality of the Work RNC used for
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`its political mailers either weighs neutrally or against a finding of fair use. RNC
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`used substantially all the Work quantitatively as the entirety of the Work was
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`copied. Further, the qualitative aspects of the Work were maintained in RNC's use
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`for its intended purpose to criticize Quist's political career in conjunction with his
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`musical background. Given that the whole of the Work was precisely maintained
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`quantitatively and qualitatively for RNC's use and intended purpose, this factor
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`weighs against a finding of fair use.
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`d.
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`Effect on the Market
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`In evaluating the effect on the market of a use, courts consider "whether the
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`infringing use: (1) tends to diminish or prejudice the potential sale of the work; (2)
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`tends to interfere with the marketability of the work; or (3) fulfills the demand for
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`the original work." Hustler, 796 F.2d at 1155-56 (internal quotation marks and
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`citations omitted). The "market for potential derivative uses includes only those
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`that creators of original works would in general develop or license others to
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`develop." Campbell, 510 U.S. at 592. The more transformative the new work, the
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`less likely the new work's use will affect the market for the original work. See
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`Kelly, 336 F.3d at 821. Where the use "does not substitute for the original and
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`serves a 'different market function,' such factor weighs in favor of fair use."
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 14 of 21
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`Seltzer v. Green Day, Inc., 725 F.3d 1170, 1179 (9th Cir. 2013) (quoting Campbell,
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`510 U.S. at 591).
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`There is no basis in the pleadings for determining the market effect of
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`RNC's use of the Work as it remains a disputed issue of fact. Construing the
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`pleadings in favor of Peterman, it is uncertain whether the use of the Work in a
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`political mailing criticizing Quist is likely to diminish the potential sale of the
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`Work, interfere with the marketability of the Work, or fulfill the demand for the
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`Work. The only evidence available in the pleadings about the market for the Work
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`was that Peterman was contacted by the Montana Democratic Party to create the
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`Work, that Peterman gave limited license to the Work to the Montana Democratic
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`Party and the Quist campaign, and that RNC used the Work in a political mailer.
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`(Doc. 1 at 4.)
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`RNC's use of the Work may have potentially prejudiced further derivative
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`use of the Work by Peterman, however such evidence is not available on the face
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`of the pleadings. Likewise, though RNC' s use would not likely substitute for the
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`Work, and may have served a different market function, there is no plain evidence
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`in the pleadings to determine what effect RNC's use had on the Work. Finally, as
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`the transformative purpose and character of the use remains a disputed issue of fact
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`in the analysis above, it is additionally premature to determine what effect RNC's
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 15 of 21
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`use had on the potential market for the Work. Accordingly, a finding of fair use on
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`the market effect of the use is premature on this factor.
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`Having weighed each of the fair use factors, and resolving all issues in favor
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`of Peterman under the allegations in the Complaint, the Court finds that disputed
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`issues of material fact remain on whether RNC's use of Peterman's Work
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`constituted a fair use. Thus, RNC's Motion to Dismiss on Count I is denied.
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`II.
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`Intentional Interference with Prospective Economic Advantage
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`RNC next seeks dismissal of Peterman's intentional interference with
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`prospective economic advantage claim. Peterman asserts that RNC's use of the
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`Work for a use opposite than intended has caused Peterman damages and
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`interfered with Peterman' s prospective economic advantage and business relations.
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`(Doc. 1 at 9.) To state a claim for intentional interference with prospective
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`economic advantage, a plaintiff must adequately plead that the defendant's acts:
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`"(1) are intentional and willful; (2) are calculated to cause damage to the plaintiffs
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`business; (3) are done with the unlawful purpose of causing damage or loss,
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`without right or justifiable cause on the part of the actor; and (4) result in actual
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`damages or loss." Victory Ins. Co. v. Montana State Fund, 344 P.3d 977, 980
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`(Mont. 2015) (citing Maloney v. Home and Inv. Ctr., Inc., 994 P.2d 1124, 1132
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`(Mont. 2000)).
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 16 of 21
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`The Copyright Act preempts state laws that regulate in the area of copyright.
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`17 U.S.C. § 30l(a). "All legal or equitable rights that are equivalent to any of the
`
`exclusive rights within the general scope of copyright as specified by Section 106 .
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`. . are governed exclusively by this title .... [N]o person is entitled to any such
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`right or equivalent right in any such work under the common law or statutes of any
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`State." Id.; see Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 760 (9th Cir. 2015)
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`("[T]he [exclusive] rights protected under the Copyright Act include the rights of
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`reproduction, preparation of derivative works, distribution, and display.")
`
`(quoting Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1089 (9th Cir. 2005)).
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`"Copyright preemption is both explicit and broad: 17 U.S.C. § 301(a) prohibits
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`state-law protection for any right equivalent to those in the Copyright Act."
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`Media.net Advert. FZ-LLC v. NetSeer, Inc., 156 F.Supp.3d 1052, 1069 (N.D. Cal.
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`2016) (quoting G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Serv., Inc., 958
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`F.2d 896, 904 (9th Cir. 1992)).
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`In determining whether a state law claim is preempted by the Copyright Act,
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`the Ninth Circuit considers: (1) whether the content of the protected right falls
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`within the subject matter of copyright; and (2) whether the right asserted under
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`state law is "equivalent to the exclusive rights contained in Section 106 of the
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`Copyright Act." Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1150
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`(9th Cir. 2008). "Copyright law does not preempt state laws with respect to
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`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 17 of 21
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`'activities violating legal or equitable rights that are not equivalent to any of the
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`exclusive rights within the general scope of copyright as specified by Section
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`106."' Id. (quoting 17 U.S.C. § 301(b)(3)).
`
`In evaluating a plaintiffs state law claims, to the extent they "rely solely on
`
`defendant's use of copyrighted material-that is, the reproduction, performance,
`
`distribution, or display of the work-the claims are preempted." Sweet People
`
`Apparel, Inc. v. Louis Grp., Inc., 2013 WL 12131735, at *6 (C.D. Cal. Jan. 31,
`
`2013). Section 301(a) reflects a Congressional intent "that state-law claims which
`
`come within the subject matter of copyright law and which protect rights
`
`equivalent to any of the exclusive rights within the scope of federal copyright law .
`
`. . should be litigated only as federal copyright claims." Id. (citing Firoozye v.
`
`Earth/ink Network, 153 F. Supp. 2d 1115, 1122 (N.D. Cal. 2001).
`
`To avoid preemption, the state law claim must include "an 'extra element'
`
`that makes the right asserted qualitatively different from those protected under the
`
`Copyright Act[.]" Altera Corp., 424 F.3d at 1089 (emphasis added). The "extra
`
`element" must effectively change the claim "so that it is qualitatively different
`
`from a copyright infringement claim." Summit Mach. Tool Mfg. Corp. v. Victor
`
`CNC Sys., Inc., 7 F.3d 1434, 1440 (9th Cir. 1993) (citations omitted); see also
`
`Aagardv. Palomar Builders, Inc., 344 F. Supp. 2d 1211, 1219 (E.D. Cal.
`
`2004) (rejecting that loss of business from sale of plaintiffs copyrighted work was
`
`-17-
`
`

`

`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 18 of 21
`
`an additional element to intentional interference with prospective economic
`
`relations claim because "federal copyright laws already protect the exclusive right
`
`of distribution.").
`
`Whether federal copyright law preempts a state law claim "therefore
`
`depends on whether the asserted right is qualitatively different than those protected
`
`by the Copyright Act." Media.net, 156 F. Supp. 3d at 1070. The Second Circuit
`
`provides persuasive authority that the rights protected by the Copyright Act are
`
`synonymous to those asserted in state law claims involving tortious interference
`
`because "[i]n both cases, it is the act of unauthorized publication which causes the
`
`violation. The enjoyment of benefits from derivative use is so intimately bound up
`
`with the right itself that it could not possibly be deemed a separate element."
`
`Harper & Row Publishers, Inc. v. Nation Enters., 723 F.2d 195, 201 (2d Cir.
`
`1983), rev'd on other grounds, 471 U.S. 539 (1985). Thus, to survive preemption,
`
`the "state claim must have an extra element which changes the nature of
`
`action." Laws v. Sony Music Entm 't, Inc., 448 F.3d 1134, 1144 (9th Cir. 2006)
`
`(quoting Del Madera Props. v. Rhodes & Gardner, 820 F.2d 973, 977 (9th Cir.
`
`1987)) (emphasis added).
`
`Peterman's intentional interference with prospective economic advantage
`
`claim is preempted under federal copyright law as it asserts rights under state law
`
`that are derivative of her copyright infringement claim. Under the Ninth Circuit's
`
`-18-
`
`

`

`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 19 of 21
`
`framework in Sybersound, Peterman's state claim is preempted because the content
`
`of the asserted right under state law falls within the subject matter of copyright,
`
`and the right asserted under state law is equivalent to the exclusive rights contained
`
`in federal copyright law. Peterman's claim is supported solely on RNC's alleged
`
`infringing use of the Work, a work protected by federal copyright law. Further, the
`
`state law claim's strict reliance on the infringing use of Peterman's Work as
`
`support for the action is equivalent to the exclusive rights granted under federal
`
`copyright law. Peterman's state law claim is therefore preempted because of its
`
`dependence on RNC's use of the Work, a claim already secured by federal
`
`copyright law.
`
`Further, Peterman's intentional interference with prospective economic
`
`advantage claim is predicated on RNC's unauthorized use of her Work in violation
`
`of her copyright, and as a result, is not "qualitatively different" from Peterman's
`
`copyright infringement claim. Peterman potentially claims an "extra element" as
`
`the potential loss of business as a result ofRNC's use of the Work during a time
`
`when the Work had special and increased value. However, Peterman's claim does
`
`not assert an extra element that fundamentally changes the nature of her claim to
`
`distinguish it from her copyright infringement claim because it relies on the
`
`unauthorized use of her Work as support. (Doc. 1 at 9.) Like the tortious
`
`interference claim presented in Harper, Peterman's intentional interference with
`
`-19-
`
`

`

`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 20 of 21
`
`prospective economic advantage claim alleges a violation of essentially the same
`
`exclusive rights provided for by federal copyright law. The Copyright Act already
`
`protects the exclusive right of distribution. Consequently, Peterman's state law
`
`claim is preempted.
`
`Peterman has not identified an independent theory of interference with
`
`economic advantage apart from RNC's unauthorized use of the Work that would
`
`allow her to plead it outside of federal copyright law. The Complaint does not
`
`contain any specific facts regarding any economic advantage Peterman had that
`
`was damaged by RNC's use of the Work outside of the alleged infringement.
`
`(Doc. 1 at 9.) Further, the Complaint fails to include facts suggesting that it was
`
`plausible that RNC's actions were calculated to cause damage to Peterman's
`
`photography business or that RNC's actions resulted in actual damage or loss to
`
`state a claim for intentional interference with prospective economic advantage.
`
`(Id.) To any extent Peterman's claim is not preempted by federal copyright law,
`
`Peterman has additionally failed to state a claim for relief. Thus, RNC's Motion to
`
`Dismiss on Count II is granted.
`
`Accordingly, IT IS ORDERED that Defendant's Motion to Dismiss for
`
`Failure to State a Claim (Doc. 7) is GRANTED IN PART and DENIED IN PART.
`
`Defendant's Motion to Dismiss Count I is DENIED and Defendant's Motion to
`
`Dismiss Count II is GRANTED.
`
`-20-
`
`

`

`Case 9:17-cv-00066-DLC Document 19 Filed 03/19/18 Page 21 of 21
`
`DATED this I q ~ay of March, 20
`
`.
`
`Dana L. Christensen, Chief Judge
`United States District Court
`
`-21-
`
`

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