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Acupuncture & Wellness Center, P.S. v. Whisnant

United States District Court, W.D. Washington, Seattle

January 8, 2018



          Robert S. Lasnik, United States District Judge.

         This 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).

         Having reviewed the complaint and the parties' memoranda, the Court finds as follows:


         Plaintiff 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.

         Around 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[1] ask the Court to dismiss both claims.


         1. Copyright infringement

         Defendants 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.

         Plaintiffs online seminar was published on October 10, 2011, but it was not registered with the Copyright Office until January 25, 2017.[2] 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.[3]

         2. Attorney's fees, costs, and statutory damages

         Defendants 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.

         3. Non-disclosure agreement

         In 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. A.[4] The book at issue was published around March 11, 2016. Dkt. # 1 ΒΆ 16. As a matter of law and logic, defendants cannot breach an agreement that was not signed ...

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