Ninth Circuit Archives

Ninth Circuit

A $40 million jury instruction error sends trade secret dispute back to trial

by Jodi Benassi | Jul 23, 2026 | Trade Secrets

The US Court of Appeals for the Ninth Circuit reversed a jury damages award, a permanent injunction, and an attorneys’ fee award in a trade secret misappropriation case, finding that the district court improperly instructed the jury on which party bore the burden of proving whether the asserted trade secrets were “readily ascertainable through proper means.” Comet Technologies USA, Inc. et al. v. XP Power, LLC, Case Nos. 23-15601; 25-15709; 25-745 (9th Cir. July 14, 2026) (Hamilton, Nelson, Bumatay, JJ.) (Bumatay, dissenting)

Comet Technologies, a Swiss-based leader in x-ray and radio-frequency products, sued US-based competitor XP Power after three former Comet engineers left to join XP, allegedly bringing thousands of confidential documents relating to Comet’s radio-frequency power technologies, product designs, and research and development. Comet asserted claims under the federal Defend Trade Secrets Act (DTSA) and California’s Uniform Trade Secrets Act (CUTSA).

Before trial, Comet narrowed its case to five alleged trade secrets and voluntarily dismissed its CUTSA claims, leaving only its DTSA claims. The parties addressed the effect of that dismissal on the jury instructions, with XP requesting that the burden of proving lack of ready ascertainability be shifted to Comet to conform to the DTSA while Comet argued that the instruction should be removed entirely. The district court rejected both requests without an on-the-record explanation and left in Instruction 20, which told the jury that XP was not liable for misappropriation if XP proved by a preponderance of the evidence that the alleged trade secrets were readily ascertainable by proper means, meaning they could be lawfully “obtained, discovered, developed, reverse-engineered, or compiled without significant difficulty, effort, or expense.”

The jury found that XP misappropriated three of the five trade secrets and awarded Comet $20 million in compensatory damages and $20 million in exemplary damages. The district court also entered a permanent injunction and awarded more than $17 million in attorneys’ fees. XP appealed.

Erroneous jury instruction: “Readily ascertainable by proper means”

XP argued that the district court improperly instructed the jury that XP bore the burden of proving that Comet’s alleged trade secrets were “readily ascertainable by proper means.” Comet argued that XP invited the instructional error by requesting that the challenged instruction be given to the jury and, alternatively, that any error was harmless because the instructions were accurate as a whole, they correctly stated the law, and the evidence overwhelmingly established that Comet’s trade secrets were not readily ascertainable through proper means.

The Ninth Circuit agreed with XP, explaining that under the DTSA, lack of ready ascertainability is an element of Comet’s DTSA claim – not an affirmative defense – and, therefore, Comet bore the burden of proof. The Court rejected Comet’s invited-error argument, finding that XP timely objected after Comet dismissed its CUTSA claims and correctly argued that, under the DTSA, Comet – not XP – bore the burden of proving that the alleged trade secrets were not readily ascertainable through proper means.

The Ninth Circuit also rejected Comet’s harmless-error argument. The Court explained that [...]

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Top Gun and all that jazz: “Substantial similarity” in the Ninth Circuit

by Lauren Hong | Jan 15, 2026 | Copyrights

Two January 2026 decisions from the US Court of Appeals for the Ninth Circuit confirm that copyright infringement requires substantial similarity in protectable expression, proven through both extrinsic and intrinsic tests. Yonay v. Paramount Pictures Corp. demonstrates strict application of filtration principles and the constraints of selection-and-arrangement theories at summary judgment. Sedlik v. Von Drachenberg, by contrast, underscores the central and increasingly contested role of the intrinsic test at trial, even when extrinsic similarity evidence is substantial. Yonay v. Paramount Pictures Corp., Case No. 24-2897 (9th Cir. Jan. 2, 2026) (Hurwitz, Miller, Sung, JJ.); Sedlik v. Von Drachenberg, et al., Case No. 24-3367 (9th Cir. Jan. 2, 2026) (Wardlaw, Mendoza Jr., Johnstone, JJ.) (per curiam) (Wardlaw, Johnstone, JJ., concurring).

The extrinsic test examines objective similarities in protectable expression after excluding unprotectable elements while the intrinsic test asks whether an ordinary reasonable observer would perceive substantial similarity in expression without expert guidance.

Yonay v. Paramount Pictures – “Top Guns”

Ehud Yonay authored and owns a copyright in “Top Guns,” a 1983 magazine article about the US Navy Fighter Weapons School, popularly known as “Top Gun.” Yonay sued Paramount Pictures, alleging that its 2022 film Top Gun: Maverick infringed that copyright. The district court granted summary judgment for Paramount, and Yonay appealed.

The Ninth Circuit applied the extrinsic test and rigorously filtered out unprotectable elements, including factual material about the Top Gun program, stock scenes, and high-level themes. The Court concluded that the similarities identified by the plaintiffs existed only at an abstract level and did not involve protectable expression. Although “Top Guns” contains vivid prose and an innovative narrative structure that qualify as protectable expression, none of that expression appeared in the film. The Court explained that even under a selection-and-arrangement theory, courts must filter out unprotectable elements and determine whether the works share a protectable “pattern, synthesis, or design.” After doing so, the Court concluded that the similarities identified by the plaintiffs consisted of unprotectable facts and ideas rather than original expression.

Because the intrinsic test is reserved exclusively for the trier of fact, only the extrinsic test was relevant at the summary judgment stage. The Ninth Circuit also determined that the district court did not abuse its discretion in excluding the plaintiffs’ expert, whose analysis failed to adequately filter out unprotectable elements and therefore relied heavily on similarities in facts and abstract ideas, rendering his opinions unhelpful.

The Ninth Circuit affirmed summary judgment for Paramount, holding that Top Gun: Maverick was not substantially similar to the article “Top Guns.”

Sedlik v. Von Drachenberg, et al. – Miles Davis photograph

Jeffrey Sedlik owns a copyright in his photograph of Miles Davis. Sedlik sued Katherine Von Drachenberg and her tattoo parlor, High Voltage Tattoo, alleging copyright infringement based on Von Drachenberg’s use of the photograph as a reference to create a tattoo depicting Davis’s likeness, the creation of a preliminary sketch, and the posting of related images on social media. After a jury trial, the district court entered judgment in favor [...]

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Penny for your characters? Victorian tropes not so striking or protectable

by Anisa Noorassa | Sep 18, 2025 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed a district court’s dismissal of a copyright infringement claim finding that the plaintiff had not plausibly alleged copying of protected characters. Anna Biani v. Showtime Networks, Inc. et al., Case No. 24-3949 (9th Cir. Sept. 8, 2025) (Nguyen, Mendoza, Kernodle, JJ.)

Biani sued Showtime alleging that the series “Penny Dreadful” infringed on three original characters she created for an online role-playing forum. Biani claimed that Showtime incorporated various aspects of her characters into two of the show’s characters and alleged that the defendants had access to her work because of the similarities between the characters. The district court dismissed the complaint, finding that Biani failed to plausibly allege that Showtime had a reasonable opportunity to copy her work. The district court applied the extrinsic test for protectable material under copyright, filtering out characteristics considered to be stock aspects of the Victorian-era England genre, and found that any remaining similarities were not striking enough to preclude the possibility of independent creation. Biani was granted leave to amend but chose not to, leading to the dismissal of the case with prejudice. Biani appealed.

The Ninth Circuit affirmed the dismissal of Biani’s complaint for failure to state a claim. The Court explained that to state a claim for copyright infringement, a plaintiff must plausibly allege both ownership of a valid copyright and that the defendant copied protected aspects of the work, which includes factual copying and unlawful appropriation. Biani did not challenge the district court’s determination that she failed to plausibly allege evidence of access. Instead she argued that the similarities between the works were so striking as to preclude independent creation. While the panel concluded that the district court improperly filtered out unprotectable elements of the works, it found this error was harmless because Biani’s allegations were insufficient to plausibly infer copying. The Court found that any resemblance between the characters was not extensive enough to preclude the possibility of coincidence, independent creation, or prior common source.

The Ninth Circuit also held that Biani’s claim failed under the “unlawful appropriation” analysis, agreeing with the district court that Biani failed to allege substantial similarity in protectable expression. The Court applied the extrinsic test to assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression. The Court found that many of the characteristics that Biani alleged were unique to her characters (such as their age, strength, beauty, and engagement in witchcraft) were actually unprotectable elements, common in the public domain, and a standard aspect of Victorian-era-based fiction. The Court thus concluded that Biani failed to allege substantial similarity in protectable expression and thus affirmed the district court’s dismissal.

Solidarity: Union’s commercial use may be Lanham Act violation

by Cecilia Choy, PhD | Sep 18, 2025 | Trademarks

The US Court of Appeals for the Ninth Circuit reversed and remanded a district court’s dismissal of a Lanham Act action, finding that this case was not the rare instance where there was no plausible likelihood that a reasonably prudent consumer would be confused about the origin of the goods that allegedly bore the distinctive marks at issue. Trader Joe’s Co. v. Trader Joe’s United, Case Nos. 24-720; -2826 (9th Cir. Sept. 8, 2025) (Sanchez, Thomas, Donato, JJ.)

Trader Joe’s, a US grocery store chain, owns the red typeface logo and sells reusable tote bags and other branded goods bearing its marks. Trader Joe’s United (TJU), a labor union representing certain Trader Joe’s employees, markets (for profit) various products via its website, including reusable tote bags. Its website header features a logo that uses the distinctive red typeface and the concentric circle design in Trader Joe’s logo. The image below shows totes from Trader Joe’s (left) and TJU (right).

TJU allegedly began using Trader Joe’s marks in commerce, and Trader Joe’s sent TJU a cease-and-desist letter. Trader Joe’s noted that its demand was directed solely at TJU’s commercial use of the marks on merchandise sold to consumers on the TJU website, not the reference to Trader Joe’s to identify the union or discuss the union’s cause.

Trader Joe’s sued TJU, asserting several claims, including trademark infringement, and sought to permanently enjoin TJU from using Trader Joe’s trademarks in connection with the sale of commercial merchandise on the TJU website. Trader Joe’s also sought the destruction of all infringing merchandise and recovery of damages. TJU moved to dismiss, arguing that Trader Joe’s filed its trademark infringement complaint in retaliation over an ongoing labor dispute and asserting that there was no plausible likelihood that a consumer would believe that products sold on TJU’s website were sponsored, endorsed, or approved by Trader Joe’s.

Applying the Sleekcraft likelihood-of-confusion factors, the district court agreed with TJU and noted several differences between the marks. The district court also explained that Trader Joe’s does not sell many of the products sold on TJU’s website, including buttons, t-shirts, and mugs. The district court concluded that confusion about the origin of these products was unlikely for a reasonable consumer because TJU’s website clearly identified itself as a website of a labor union and was openly critical of Trader Joe’s labor practices. Trader Joe’s appealed.

The Ninth Circuit concluded that when the allegations were viewed in the light most favorable to Trader Joe’s, the district court erred when applying the fact-specific likelihood-of-confusion test. To prevail on a trademark infringement claim, Trader Joe’s would need to establish that it had a protectible ownership interest in the mark and that TJU’s use of the mark was likely to cause consumer confusion. To determine whether a reasonably [...]

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Striking a chord: Ninth Circuit revives copyright suit over liturgical music

by Hannah Hurley | Sep 11, 2025 | Copyrights

In a copyright case involving liturgical music, the US Court of Appeals for the Ninth Circuit affirmed in part, reversed in part, and remanded a district court summary judgment after finding triable issues of fact regarding access and similarity between two musical compositions. The Court upheld the exclusion of the plaintiff’s late-disclosed evidence on access. Ambrosetti v. Or. Cath. Press, et al., Case No. 24-2270 (9th Cir. Aug. 27, 2025) (Thomas, Smith, Rayes, JJ.)

Vincent Ambrosetti, a prolific composer of sacred music, alleged that Bernadette Farrell copied his 1980 composition “Emmanuel” when writing her 1993 hymn “Christ Be Our Light.” Both works are widely used in Catholic liturgy, and Farrell’s song has become a staple in worship settings around the globe. Ambrosetti claimed that Farrell had access to “Emmanuel” through her association with Oregon Catholic Press (OCP), which published her work and had received copies of Ambrosetti’s music in the 1980s. He also pointed to striking musical similarities between the two compositions.

The district court excluded key evidence (letters from OCP’s then-publisher Owen Alstott acknowledging receipt of Ambrosetti’s music) as a sanction for late disclosure and barred Ambrosetti from arguing that Farrell accessed “Emmanuel” through those letters. Without that theory of access, and finding no striking similarity, the district court granted summary judgment for OCP. Ambrosetti appealed.

The Ninth Circuit affirmed the exclusion of the letters, finding that the sanctions were not “claim dispositive” since Ambrosetti could still pursue other theories of access and striking similarity. However, the panel reversed the summary judgment ruling, concluding that triable issues of fact existed as to whether Farrell had access to “Emmanuel” based on her and Alstott’s attendance at music conventions where Ambrosetti performed.

The Ninth Circuit also found that there was a genuine issue of material fact as to whether “Emmanuel” and “Christ” were substantially similar. According to Ambrosetti’s expert, 23 similarities in pitch, rhythm, and melodic development supported a finding of substantial similarity, with the district court noting that while individual elements may not be protectable, the unique combination could be. In vacating the summary judgement, the Ninth Circuit noted that summary judgment is “not highly favored” in copyright cases involving musical works where the evidence relied on is primarily competing expert testimony.

The Ninth Circuit upheld the exclusion of Alstott’s letters as a discovery sanction but found a genuine issue of material fact on the issue of access remained, thus precluding summary judgement.

No specifics, no case? DTSA trade secret disclosure timing differs from CUTSA

by Jodi Benassi | Aug 21, 2025 | Trade Secrets

The US Court of Appeals for the Ninth Circuit found that a district court abused its discretion by striking several of the plaintiff’s trade secrets, concluding that the court improperly relied on Rule 12(f) and failed to support dismissal as a discovery sanction under Rule 37. The Court emphasized that the fact-specific question of “reasonable particularity” in Defend Trade Secrets Act (DTSA) cases is generally reserved for summary judgment or trial, not for resolution at the discovery stage. Quintara Biosciences, Inc. v. Ruifeng Biztech, Inc., et al., Case No. 23-16093 (9th Cir. Aug. 12, 2025) (VanDyke, Johnstone, JJ., Christensen, Dist. J.)

Quintara and Ruifeng are DNA sequencing analysis companies that engaged in a business arrangement. The relationship soured when Quintara alleged that Ruifeng locked Quintara out of its office, took possession of its equipment, and hired Quintara employees. Quintara sued Ruifeng under the DTSA for misappropriating nine trade secrets.

During discovery, Ruifeng moved for a protective order to pause proceedings until Quintara identified its trade secrets with reasonable particularity, as required by the California Uniform Trade Secrets Act (CUTSA), Cal. Civ. Pro. Code § 2019.210, the California version of the DTSA. The district court agreed with Ruifeng and ordered Quintara to disclose each allegedly misappropriated trade secret with reasonable particularity. Quintara filed an amended trade secret disclosure, but Ruifeng found it deficient and again moved to halt discovery. To resolve the impasse, the district court gave Ruifeng a choice: either accept the disclosure and proceed with discovery, or move to strike the disclosure, withhold discovery, and risk consequences if the motion failed. Ruifeng chose the latter and moved to strike Quintara’s trade secrets in the disclosure under Fed. R. Civ. Pro. 12(f).

Citing its broad discretion over discovery and Fed. R. Civ. Pro. 16, the district court granted Ruifeng’s motion, holding that Quintara failed to comply with § 2019.210. As a result, the court struck nine of the 11 trade secrets from the disclosure, effectively dismissing Quintara’s misappropriation claims as to those trade secrets. Quintara appealed.

The question before the Ninth Circuit was when in the litigation, and with what level of particularity, a plaintiff under the DTSA must identify its alleged trade secrets. The Court began by noting that CUTSA requires a plaintiff to identify the alleged trade secret with “reasonable particularity” before discovery begins. In contrast, the federal DTSA imposes no such requirement regarding the timing or scope of trade secret identification. Instead, DTSA cases proceed under the Federal Rules of Civil Procedure, which do not require plaintiffs to specify their trade secrets with particularity at the outset of the case. The Court explained that under the DTSA, a plaintiff must demonstrate that the claimed trade secret is described with sufficient particularity to distinguish it from general knowledge in the industry or from the specialized knowledge of those skilled in the trade. At an early stage of litigation, particularly when no discovery has yet occurred, it is not fatal to a plaintiff’s claim if the trade secret disclosure [...]

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It’s not monkey business: NFTs can be trademarked

by Ashley K. Justice | Jul 31, 2025 | Trademarks

The US Court of Appeals for the Ninth Circuit concluded that a non-fungible token (NFT) is a “good” under the Lanham Act but reversed the district court’s grant of summary judgment for trademark infringement because the owner did not prove as a matter of law that the defendants’ use was likely to cause confusion. The Ninth Circuit also affirmed the district court’s dismissal of the defendants’ counterclaim for declaratory relief regarding copyright ownership. Yuga Labs, Inc. v. Ryder Ripps and Jeremy Cahen, Case No. 24-879 (9th Cir. July 23, 2025) (Bade, Forrest, Curiel, JJ.)

Yuga Labs is the creator of the Bored Ape Yacht Club (BAYC) NFT collection. Yuga created this collection through a smart contract recorded on the blockchain Ethereum. Each BAYC NFT has a cartoon of a bored ape and a sequential unique identifier called an ape ID. Per its terms and conditions, BAYC NFT consumers receive commercial and personal rights free of royalty fees.

Ryder Ripps and Jermey Cahen created the Ryder Ripps Bored Ape Yacht Club (RR/BAYC) using the same ape images and ape IDs. The collection was also hosted on an Ethereum blockchain smart contract. They criticized Yuga for “using neo-Nazi symbolism, alt-right dog whistles, and racist imagery” and alleged that they created RR/BAYC as satire and criticism. Ripps made the RR/BAYC smart contracts’ names “Bored Ape Yacht Club” and made the smart contract symbol “BAYC.” Ripps’ website includes an artist statement that the artwork is a “new mint of BAYC imagery.” NFT marketplace websites for RR/BAYC displayed a large header “Bored Ape Yacht Club” and in a smaller text “@ryder_ripps.”

Yuga sued Ripps and Cahen for several claims, including trademark infringement based on a false designation of origin theory, false advertising, and cybersquatting. In response, the defendants asserted that Yuga did not have enforceable trademark rights, and even if it did, the defendants’ use was protected by fair use and the First Amendment. The defendants asserted several counterclaims, including knowing misrepresentation of infringing activity under the Digital Millenium Copyright Act (DMCA), and sought declaratory judgment of no copyright ownership.

The district court granted Yuga’s motion for summary judgment on its false designation of origin and cybersquatting claims. Yuga withdrew its remaining claims, so the trial proceeded only for equitable remedies on the false designation of origin and cybersquatting. At trial, the district court found that Yuga’s BAYC marks were unregistered trademarks. The district court awarded Yuga disgorgement of the defendants’ profits, maximum statutory damages, and attorneys’ fees after finding that the case was exceptional due to the defendants’ willful infringement, bad faith intent to profit, and litigation conduct. The defendants were also permanently enjoined. The defendants appealed the grant of summary judgment and sought vacatur of the remedies.

The Ninth Circuit first addressed the defendants’ argument that NFTs are not goods protected by the Lanham Act. The Court concluded that NFTs are goods under the Lanham Act based on a US Patent & Trademark Office report that determined them as such. The Court also [...]

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Clean bill of health: Only domestic activities count when analyzing likelihood of confusion

by Hannah Hurley | Jul 24, 2025 | Trademarks

Affirming a summary judgment decision finding no trademark infringement under the Lanham Act, the US Court of Appeals for the Ninth Circuit determined that the district court properly focused on domestic activity with regard to the allegedly infringing trademark. Doctor’s Best, Inc. v. Nature’s Way Products, LLC, Case No. 24-2719 (9th Cir. July 15, 2025) (Paez, Ikuta, Nelson, JJ.) (Ikuta, J., concurring).

Doctor’s Best (DB) manufactures nutritional supplements under the mark NATURE’S DAY at its California facility. Although the products bear English labels compliant with US regulations, they are marketed and sold exclusively in China, South Korea, and Taiwan.

Nature’s Way Products (NWP), owner of the long-standing US trademark NATURE’S WAY, opposed DB’s attempt to register NATURE’S DAY in the United States, citing potential consumer confusion. After NWP sent a cease-and-desist letter, DB preemptively sued for a declaratory judgment of noninfringement. NWP counterclaimed for trademark infringement under Sections 32 and 43(a) of the Lanham Act.

In June 2023, the Supreme Court held in Abitron Austria GmbH v. Hetronic Int’l, Inc. that the Lanham Act’s infringement provisions apply only to domestic “use in commerce.” DB moved for summary judgment, arguing that its only domestic activity – transporting products within the US – did not create a likelihood of confusion among US consumers. The district court agreed, finding that DB’s domestic transport of Nature’s Day products was insufficient to support a claim of infringement. The court concluded that no reasonable jury could find that this conduct would confuse US consumers and granted summary judgment in favor of DB. NWP appealed.

NWP argued that any domestic use in commerce, however minimal, triggered the full likelihood-of-confusion analysis, even if confusion occurred abroad. The Ninth Circuit rejected this interpretation, holding that Abitron requires courts to first identify domestic use before evaluating confusion. The Court found that DB’s manufacturing and transport activities were the only relevant domestic conduct.

Turning to likelihood of confusion, the Ninth Circuit applied the eight-factor test set forth in its 1979 decision in AMF Inc. v. Sleekcraft Boats:

Strength of the mark
Proximity or relatedness of the goods
Similarity of the marks
Evidence of actual confusion
Marketing channels used
Type of goods and the degree of care likely to be exercised by the purchaser
Defendant’s intent in selecting the mark
The likelihood of expansion of the product lines

Reviewing the Sleekcraft factors, the Ninth Circuit concluded that no genuine dispute existed as to the likelihood of confusion. DB’s products were sold exclusively overseas while NWP’s products were sold only in the US. The Court emphasized that confusion must occur among domestic consumers to be actionable under the Lanham Act, and that did not occur here.

In a concurring opinion, Judge Ikuta agreed with the outcome but clarified that DB’s transport of products constituted a domestic use in commerce. However, she found no genuine issue of material fact regarding whether that use caused domestic confusion, reiterating that Abitron excludes extraterritorial confusion from the analysis.

Running on Empty: ‘Stang’ With No Anthropomorphic Characteristics Isn’t Copyrightable Character

by Taylor MacDonald | Jun 5, 2025 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed a district court’s denial of copyright protection for a car that had a name but no anthropomorphic or protectable characteristics. Carroll Shelby Licensing, Inc. v. Denice Shakarian Halicki et al., Case No. 23-3731 (9th Cir. May 27, 2025) (Nguyen, Mendoza, JJ.; Kernodle Dist. J., sitting by designation).

In 2009, Denice Shakarian Halicki and Carroll Shelby Licensing entered into a settlement agreement resolving a lawsuit concerning Shelby’s alleged infringement of Halicki’s asserted copyright interest in a Ford Mustang known as “Eleanor,” which appeared in a series of films dating back to the 1970s. Under the agreement, Shelby, a custom car shop, was prohibited from producing GT-500E Ford Mustangs incorporating Eleanor’s distinctive hood or headlight design. Shortly thereafter, Shelby licensed Classic Recreations to manufacture “GT-500CR” Mustangs, a move Halicki viewed as a breach of the settlement agreement. Halicki contacted Classic Recreations and demanded it cease and desist in the production of the GT-500CRs.

Shelby filed a lawsuit alleging breach of the settlement agreement and seeking declaratory relief. Halicki counterclaimed for copyright infringement and breach of the agreement. Following a bench trial, the district court ruled in Shelby’s favor on both the breach and infringement claims but declined to grant declaratory relief. Shelby appealed.

The Ninth Circuit began by addressing whether “Eleanor” qualified for copyright protection as a character under the Copyright Act. Although the act does not explicitly list characters among the types of works it protects, the Ninth Circuit has recognized that certain characters may be entitled to such protection. The applicable standard, articulated in 2015 by the Ninth Circuit in DC Comics v. Towle, sets forth a three-pronged test, under which the character must:

Have “physical as well as conceptual qualities”
Be “sufficiently delineated to be recognizable as the same character whenever it appears” with “consistent, identifiable character traits and attributes”
Be “especially distinctive” and have “some unique elements of expression.”

The Ninth Circuit concluded that Eleanor failed to satisfy any of the three prongs of the Towle test. As to the first prong, the Court found that Eleanor functioned merely as a prop and lacked the anthropomorphized qualities or independent agency associated with protectable characters. Regarding the second prong, the Court noted that Eleanor’s appearance varied significantly across the films in terms of model, colors, and condition. Under the third prong, the Court found that Eleanor lacked the distinctiveness necessary to elevate it beyond the level of a generic sports car commonly featured in similar films. Thus, the Court concluded that Eleanor did not qualify as a character, let alone a copyrightable one.

The Ninth Circuit next turned to the parties’ settlement agreement. While California law permits the use of extrinsic evidence to aid in contract interpretation, the Court found the language sufficiently unambiguous to render such evidence unnecessary. Notably, the parties did not include “Eleanor” as a defined term in the agreement, and the term was used in varying contexts throughout the document, conveying different meanings [...]

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Plausibly Alleging Access Requires More Than Social Media Visibility

by Amit Kumar Saha, PhD | May 29, 2025 | Copyrights

The US Court of Appeals for the Ninth Circuit affirmed a district court’s dismissal of a copyright action, finding that the plaintiff failed to plausibly allege either that the defendant had “access” to the work in question merely because it was posted on social media, or that the accused photos were substantially similar to any protectable elements of plaintiff’s photographs. Rodney Woodland v. Montero Lamar Hill, aka Lil Nas X, et al., Case No. 23-55418 (9th Cir. May 16, 2025) (Lee, Gould, Bennett, JJ.)

The dispute arose between Rodney Woodland, a freelance model and artist, and Montero Lamar Hill, also known as Lil Nas X, a well-known musical artist. Woodland alleged that Hill infringed on his copyright by posting photographs to his Instagram account that bore a striking resemblance to images Woodland had previously posted. Woodland claimed that the arrangement, styling, and overall visual composition of Hill’s photos closely mirrored his own, asserting that these similarities constituted unlawful copying of his original work.

Woodland’s original images had been publicly shared on his Instagram account, where he maintained a modest following. He did not allege any direct contact or interaction with Hill or his representatives, nor did he claim that Hill had acknowledged or referenced his work. Instead, Woodland’s claim rested on the contention that the similarities between the two sets of photographs were so substantial that copying could be inferred. In his complaint, Woodland asserted that Hill had access to his publicly posted images and that the degree of similarity supported a finding of unlawful copying. The district court dismissed the complaint, holding that Woodland failed to plausibly allege either access or substantial similarity. Woodland appealed.

The Ninth Circuit affirmed, agreeing with the district court that Woodland failed to satisfy the pleading standard necessary to survive a motion to dismiss. The Ninth Circuit explained that to state a viable claim for copyright infringement, a plaintiff must alleged both the fact of copying and the unlawful appropriation of protected expression. The Court found that Woodland failed to establish either element.

The Ninth Circuit considered two principal legal issues:

Whether Woodland sufficiently alleged that Hill had access to Woodland’s copyrighted works
Whether the photographs posted by Hill were substantially similar to Woodland’s photographs in their protectable elements under copyright law

On the issue of access, the Ninth Circuit found that the merely alleging availability of Woodland’s photos on Instagram did not, by itself, plausibly demonstrate that Hill had seen them. The Court noted that in the era of online platforms, “the concept of ‘access’ is increasingly diluted.” And while that might make it easier for plaintiffs to show “access,” there must be a showing that the defendants had a reasonable chance of seeing that work under the platform’s policies. The mere fact that Hill used Instagram and Woodland’s photos were available on the same platform raised only a “bare possibility” that Hill viewed the photos. Woodland had not plausibly alleged that Hill “followed, liked, or otherwise interacted” with Woodland’s posts [...]

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