United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART DEFENDANTS' MOTION TO
S. Lasnik, United States District Judge.
matter comes before the Court on “Defendants'
12(b)(6) Motion to Dismiss Certain Claims.” Dkt. # 9.
The question for the Court on a motion to dismiss is whether
the facts alleged in the complaint sufficiently state a
“plausible” ground for relief. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All
well-pleaded allegations are presumed to be true, with all
reasonable inferences drawn in favor of the non-moving party.
In re Fitness Holdings Int'l, Inc., 714 F.3d
1141, 1144-45 (9th Cir. 2013). If the complaint fails to
state a cognizable legal theory or fails to provide
sufficient facts to support a claim, dismissal is
appropriate. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).
reviewed the complaint and the parties' memoranda, the
Court finds as follows:
Acupuncture and Wellness Center is a full-service clinic that
specializes in traditional Chinese medicine. Dkt. # 1 ¶
7. Plaintiff also offers online seminars to educate other
practitioners about this field of medicine. Id.
¶¶ 8, 11. Plaintiff alleges that sometime around
October 10, 2011, defendant Brad Whisnant viewed
plaintiff's online seminar titled “Treatment of
Pain and Acupuncture and Chinese Herbs: How to Make It All Go
Away! Part I (Upper Body).” Id ¶ 14.
Plaintiff asserts that defendant Whisnant also signed a
non-disclosure agreement. Id. ¶ 15.
March 11, 2016, defendant Whisnant published the book
“Fast Neck and Back Pain Relief with Acupuncture: How
to Use the Balance Method and Master Tung Acupuncture for
Instant Neck and Upper Back Pain Relief.” Id.
¶ 16. Plaintiff asserts that portions of this book were
lifted from plaintiffs seminar in violation of federal
copyright law. On January 25, 2017, plaintiff filed an
application with the United States Copyright Office to
register its 2011 seminar as a prerequisite to filing suit.
Dkt. # 1, Ex. B. On February 21, 2017, plaintiff filed the
instant action alleging copyright infringement and breach of
the non-disclosure agreement. Defendants ask the Court to
dismiss both claims.
argue that the copyright claim should be dismissed because
plaintiffs acupuncture seminar describes an idea or process
that is not subject to copyright protection. Dkt. # 9 at 6;
see also 17 U.S.C. § 102(b). When a work is
registered with the United States Copyright Office within
five years of its initial publication, there is a presumption
that the copyright is valid. 17 U.S.C. § 410(c). If the
Copyright Office issues a Certificate of Registration after
five years, then the evidentiary weight of the Certificate is
left to the discretion of the Court. Id.
online seminar was published on October 10, 2011, but it was
not registered with the Copyright Office until January 25,
2017. Although courts sometimes vary in the
deference they afford the Copyright Office in these
circumstances (see, e.g., Inhale, Inc. v.
Starbuzz Tobacco, Inc., 755 F.3d 1038, 1041-42 (9th Cir.
2014)), for purposes of a motion to dismiss, the existence of
a registered copyright raises a plausible inference that the
material is copyrightable. The copyright infringement claim
may therefore proceed.
Attorney's fees, costs, and statutory damages
seek dismissal of plaintiffs request for attorney's fees,
costs, and statutory damages. Dkt. # 9 at 4. With limited
exceptions, these remedies are available only if the
copyrighted work was registered before the infringement
commenced. 17 U.S.C. § 412(2); see also Derek
Andrew, Inc. v. Proof Apparel Corp., 528 F.3d 696, 699
(9th Cir. 2008). In this case, defendants' alleged
infringing activity occurred more than ten months before
plaintiff registered its 2011 seminar with the Copyright
Office. Dkt. # 1 ¶ ¶ 13, 16. Because the seminar
was not registered until after the infringement and none of
the exceptions apply, the statutory fee remedies are not
available to plaintiff as a matter of law.
addition to copyright infringement, plaintiff also alleges
that the publication of defendant Whisnant's book
violates the terms of a non-disclosure agreement he signed on
June 18, 2016. Dkt. # 1 ¶¶ 26-27, Ex.
The book at issue was published around March 11, 2016. Dkt. #
1 ¶ 16. As a matter of law and logic, defendants cannot
breach an agreement that was not signed ...