United States District Court, W.D. Washington, Seattle
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT
MARY ALICE THEILER, Chief Magistrate Judge.
Plaintiff BWP Media USA, Inc., d/b/a Pacific Coast News ("BWP") filed suit against defendant Rich Kids Clothing Company, LLC ("RKCC") for copyright infringement in violation of 17 U.S.C. § 101, et seq. Now before the Court is Plaintiff's Motion for Partial Summary Judgment (Dkt. 17) and Defendant's Motion for Summary Judgment (Dkt. 20). Having considered those motions, the responses, and all arguments and requests contained therein, along with the remainder of the record, the Court herein DENIES plaintiff's motion, GRANTS defendant's motion, and DISMISSES this case.
BACKGROUND AND DISCUSSION
BWP owns the rights to a multitude of photographs featuring celebrities, which it licenses to online, television, and print publications. RKCC is a clothing company, and owns and operates a website - www.richkidsbrand.com - where it displays and sells its clothes.
BWP maintains RKCC unlawfully copied and/or displayed three of BWP's photographs on RKCC's website, and thereby directly infringed on BWP's copyrights in violation of 17 U.S.C. § 101, et seq. ( See Dkt. 1.) In order to prevail on such a claim, BWP must show "(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (cited case omitted); Seven Arts Filmed Entm't, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013).
BWP attached a three-page exhibit to its complaint. (Dkt. 1-3.) Each page of the exhibit contains a copyrighted image owned by BWP, juxtaposed alongside a "webpage capture of infringement." ( Id. ) The copyrighted images are close to standard-size photographs, approximately three inches wide and five-and-a-half inches tall, and show actors on the set of the film "Anchorman: The Legend Continues." ( See id. ) The "webpage captures" are minuscule, no more than one-sixteenth of an inch wide and some four-and-a-half inches tall, and do not reveal any discernible images within. ( See id. ) Indeed, it is not possible to confirm plaintiff's assertion that the exhibit represents a website.
In seeking summary judgment, BWP points to its undisputed ownership of a valid copyright on each of the three photographs at issue in this case, and provides an affidavit and exhibit as evidence of RKCC's copying. ( See Dkt. 18 and Dkt. 19-9.) Paul Harris, the President of BWP, attests he observed the three photographs on RKCC's website on August 19, 2013 and that the exhibit provided is a "screen-grab" of RKCC's website on that day. (Dkt. 18, ¶11.) The screen-grab consists of a series of large and in some cases almost full-page images depicting, in substantial part, models wearing clothing sold by RKCC. (Dkt. 19-9.) It also appears to include the three copyrighted images at issue in this lawsuit. ( Id. ) BWP contends it is entitled to summary judgment because RKCC fails to produce any evidence to support its unadorned denials of the allegations in the complaint.
In opposing BWP's motion, RKCC argues the screen-grab exhibit to BWP's motion must be stricken given that it was never produced during discovery. (Dkt. 23.) RKCC further argues that, even if considered, the screen-grab does not support a finding of infringement, and that other evidence refutes the alleged infringement. ( Id. ) RKCC also moves for summary judgment, contending BWP fails to produce admissible evidence upon which a reasonable jury could find liability, that the "sliver of an image" provided in the exhibit to the complaint does not show any copying, and that BWP should be foreclosed, pursuant to Federal Rule of Civil Procedure 37, from relying on the evidence only now produced and attached to its motion for partial summary judgment. (Dkt. 20.)
Given the implications to the dispositive motions and this case as a whole, the Court first considers the propriety of sanctions under Rule 37.
A. Rule 37 Sanctions
Rule 37(c)(1) forbids the use as evidence in a motion or at trial "any information required to be disclosed by Rule 26(a) that is not properly disclosed." R & R Sails, Inc. v. Ins. Co. of Penn., 673 F.3d 1240, 1246 (9th Cir. 2012) (quoting Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (quoting Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001))). Specifically, the rule provides:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of ...