Art Attacks Ink, LLC v. Mga Entertainment Inc.

Decision Date16 September 2009
Docket NumberNo. 07-56110.,07-56110.
Citation581 F.3d 1138
PartiesART ATTACKS INK, LLC, a California limited liability company, Plaintiff-Appellant, v. MGA ENTERTAINMENT INC., a California corporation; Isaac Larian, an individual, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Michael W. Quade, Quade & Associates, San Diego, CA, for the plaintiff-appellant.

Craig Holden, MGA Entertainment, Inc., Van Nuys, CA, for the defendant-appellee.

Appeal from the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, Presiding. D.C. No. CV-04-01035-RMB.

Before HARRY PREGERSON, DOROTHY W. NELSON and DAVID R. THOMPSON, Circuit Judges.

PREGERSON, Circuit Judge:

I. Introduction

Art Attacks Ink, LLC ("Art Attacks") brought suit against MGA Entertainment Inc. ("MGA"), alleging copyright, trademark, and trade dress infringement. A jury found for MGA on the trademark claim, but could not reach a verdict on the remaining claims. MGA then moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). The district court granted the motion and Art Attacks timely appealed. We have jurisdiction under 28 U.S.C. § 1291. As a preliminary matter, we must determine whether MGA timely filed its Rule 50(b) motion. We conclude that it did not. However, because Rule 50(b) is not a jurisdictional rule, the timeliness argument is forfeitable. Art Attacks waived its timeliness objection by failing to raise it before the district court.

On the merits of the appeal, we conclude that Art Attacks failed to demonstrate that MGA had access to copyrighted works and that Art Attacks designs acquired secondary meaning. We therefore affirm the district court's grant of judgment as a matter of law as to Art Attacks's copyright and trade dress infringement claims.

II. Background

Art Attacks is a small airbrush art business that has sold custom-made T-shirts and other items since 1993. Art Attacks designs include animals, celebrities, cars, and a "Spoiled Brats" collection. The Spoiled Brats collection features cartoonish, predominantly female characters with oversized eyes, disproportionately large heads and feet, makeup, and bare midriffs.

Art Attacks sold its wares primarily from a booth at several county fairs. Because Art Attacks is a small family business, it did business at only one location at a time. Art Attacks traveled to fairs in Orange County, San Diego County, Ventura County, Riverside County, San Bernardino County, and, after 1998, Los Angeles County. Art Attacks also did business at the Camp Pendleton Exchange, a convention in the Navajo Nation, and several malls, amusement centers, and Wal-Mart stores in Arizona. Art Attacks also sold its wares at Wal-Mart stores in California, including the Santee, Chula Vista, and Poway Stores.

At county fairs and other locations, Art Attacks airbrushed designs onto a shirt or other garment, along with the customer's name and a small caption, while the customer waited. Spoiled Brats designs could be tailored to resemble individual customers. Art Attacks sold about 2,000 Spoiled Brats T-shirts per year. Art Attacks copyrighted the Spoiled Brats characters in 1996.

Art Attacks also maintained an internet website as of 1996, during the early years of widespread internet use. The website displayed images of various Art Attacks airbrush designs, including animals, celebrities, cars, animals, and the Spoiled Brats. The website took two minutes to load. Users could click through the main Art Attacks website to a linked Spoiled Brats-specific page to obtain a mail-in order form. The website also lacked Spoiled Brats "meta tags," invisible pieces of data that are embedded in websites and act as flags to internet search engines. Because the Art Attacks website lacked such flags, an internet search for "Spoiled Brats" might not lead to the Art Attacks site.

Art Attacks never advertised in broadcast or print media. It did, however, display images of the Spoiled Brats on the Art Attacks booth. Millions of fair attendees have walked past the booth over the years. The Del Amo Fair, for example, has over one million yearly attendees, seventy-five percent of whom pass by the Art Attacks booth near the main entrance.

In 2001, MGA began selling "Bratz" dolls, which, like Art Attacks's designs, feature large eyes, heavy makeup, oversized eyes, heads, and feet, and bare midriffs. Art Attacks filed suit against MGA in 2004, alleging causes of action including trademark, trade dress, and copyright infringement. A jury found for MGA on the trademark claim, but could not reach a verdict on the remaining claims. The district judge dismissed the jury on Friday, May 11, and entered an order declaring a mistrial on Monday, May 14. At a status conference on Monday, May 14, MGA declared its intention to file a Rule 50(b) motion for judgment as a matter of law. A law clerk indicated to MGA that such a motion would have to be filed by May 29, ten court days after the May 14 status conference.1 Ten days later, on May 29, MGA filed a motion for judgment as a matter of law under Federal Rule of Procedure 50(b). The district court granted the motion. This appeal followed.

III. Discussion

A. Jurisdiction to Consider the Rule 50(b) Motion

Art Attacks contends that MGA failed to file its motion for judgment as a matter of law within ten days of the jury's discharge, as required by Federal Rule of Civil Procedure 50(b), and that the district court therefore lacked jurisdiction to consider the motion. "Jurisdiction is a question of law that we review de novo." United States v. Neil, 312 F.3d 419, 421 (9th Cir.2002).

1. Whether MGA's Motion Was Timely

Federal Rule of Civil Procedure 50(b) states that "if the [renewed] motion [for judgment as a matter of law] addresses a jury issue not decided by a verdict, no later than 10 days after the jury was discharged[,] the movant may file a renewed motion for judgment as a matter of law...." The period begins to run on the day after the district court dismisses the jury. Fed.R.Civ.P. 6(a). Though the district court did not enter the order granting a mistrial until Monday, May 14, the district judge dismissed the jury on Friday, May 11. The ten-day filing period therefore began to run on Monday, May 14 and closed on Friday, May 25. MGA's renewed motion for judgment as a matter of law was untimely.

2. Whether Rule 50(b)'s Timeliness Requirement is Jurisdictional

Federal Rule of Civil Procedure 6(b) forbids courts to extend the ten-day filing period set out in Rule 50(b). Accordingly, courts have sometimes characterized Rule 50(b)'s tenday filing requirement as mandatory and jurisdictional, and therefore incapable of being waived or forfeited. See, e.g., Goodman v. Bowdoin Coll., 380 F.3d 33, 46 (1st Cir.2004); Hodge ex rel. Skiff v. Hodge, 269 F.3d 155, 157 (2d Cir.2001); U.S. Leather, Inc. v. H & W P'ship, 60 F.3d 222, 225 (5th Cir.1995).

Since then, however, the Supreme Court has "clarified that procedural rules formerly referred to as `mandatory and jurisdictional' may be, instead, simply `inflexible claim-processing rule[s],' mandatory if invoked by a party but forfeitable if not invoked." United States v. Sadler, 480 F.3d 932, 934 (9th Cir.2007) (citing Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)) (internal quotations omitted). "The distinction between jurisdictional rules and inflexible but not jurisdictional timeliness rules ... turns largely on whether the timeliness requirement is or is not grounded in a statute." Sadler, 480 F.3d at 936. "[T]ime constraints arising only from Court-prescribed, albeit congressionally authorized, procedural rules [such as the Federal Rules] are not jurisdictional." Id. at 938.

Though this circuit has not yet specifically addressed whether the time restrictions in Rule 6(b) and Rule 50(b) are jurisdictional, other circuits have concluded that these restrictions are non-jurisdictional. See, e.g., Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 618 (8th Cir.2008); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 232 (2d Cir.2000). We agree. See also Eberhart, 546 U.S. at 19, 126 S.Ct. 403 (likening Federal Rule of Criminal Procedure 45(b), a non-jurisdictional rule, to Federal Rule of Civil Procedure 6(b)). Because Rule 50(b)'s ten-day filing deadline is a non-jurisdictional claimprocessing rule, it can be waived or forfeited.

3. Whether Art Attacks Waived Its Rule 50(b) Argument

Art Attacks never objected to the timeliness of MGA's Rule 50(b) motion for summary judgment before the district court. Accordingly, Art Attacks has forfeited its untimeliness objection. We therefore proceed to the merits of the appeal.

B. Copyright Infringement

We review de novo renewed motions for judgment as a matter of law. Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.2002). A grant of such a motion is proper if the evidence, construed in favor of the nonmoving party, permits only one reasonable conclusion. Id.

"Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had `access' to the plaintiff's work...." Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000) (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996)). To prove access, a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work. Id. at 482. Where there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff's work and the defendant's access, or (2) showing that the plaintiff's work has been widely disseminated. Id.

1. Chain of Events

Art Attacks does not explicitly raise a chain of events argument, but implicitly does so by...

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