Is the Ninth Circuit correct that one million pairs of eyes are not relevant to a claim for copyright infringement?
The Ninth Circuit basically said as much in its opinion last Friday in Art Attacks Ink, LLC v. MGA Entertainment Inc.
In this appeal of a copyright defendant’s motion for judgment as a matter of law, the Ninth Circuit considered the degree by which access exists when copyrighted goods are displayed and sold at a county fair. And not just any county fair, but county fairs in Southern California with millions of people coming through the gates.
The copyright plaintiff, Art Attacks Ink, claimed that it owned the copyright to a series of "Spoiled Brats" designs. "The Spoiled Brats collection features cartoonish, predominantly female characters with oversized eyes, disproportionately large heads and feet, makeup, and bare midriffs." Id
. at *13443. The Bratz doll marketed by defendant MGA contained a similar design. "In 2001, MGA began selling “Bratz” dolls, which, like Art Attacks’ designs, feature large eyes, heavy makeup, oversized eyes, heads, and feet, and bare midriffs." Id
. at *13445.
The copyright claim of Art Attacks Ink turned on whether the defendant copied its Spoiled Brats design. In considering the existence of wrongful copying, the Ninth Circuit presented a fairly typical copyright analysis, addressing the proof of copying when actual copying cannot be established. To prove copying, the plaintiff can produce evidence of actual copying or, alternatively, indirect evidence of copying by proving access and similarity.
It is often stated that two works can be developed independent of one another, and neither will infringe the other unless there is copying. To establish copying without direct proof requires “access.” The plaintiff can present a case of access by proving that the defendant possessed a reasonable probability of viewing the plaintiff's work. Access can be established circumstantially by producing evidence of a chain connecting the plaintiff's work with defendant's access, or by showing that the plaintiff's work was widely distributed.
Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had ‘access’ to the plaintiff’s work . . . .” 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. 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
. at *13448, internal citations omitted.
The Ninth Circuit in Art Attacks Ink
first observed that the plaintiff was not able to establish a direct linkage between its work and the defendant's access. It then discussed the evidence of wide dissemination. Art Attacks Ink is a small, family-owned business that displayed and sold its Spoiled Brats designs primarily at numerous county fairs in Southern California.
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.Id
. at *13444.
The Ninth Circuit noted that one million visitors were present at the Del Amo Fair. Art Attacks Ink had a 20 x 10 booth at the fair entrance and some 75% of the fair visitors passed by its booth. Millions more passed by its booths at other fairs. "Millions of fair attendees have walked past the booth over the years." Id.
But, says the Ninth Circuit, this was not good enough to establish wide dissemination for purposes of proving access.
Although Art Attacks did not present any evidence of how many people saw or noticed the booth, Art Attacks showed that millions of people attend the relevant county fairs. Even so, there is no evidence that significant numbers of passersby would notice the Art Attacks booth among the many other similar booths at the fair or be able to view the Spoiled Brats displays.Id
. at *13450.
Let me repeat this. There was no evidence that significant numbers of passersby would notice the plaintiff's booth, says the Ninth Circuit. Why not? If Art Attacks Ink described its Spoiled Brats design on a radio station broadcasting at the Orange County fair, or the Ventura County fair, or the Del Amo fair, or any other venue with a million pair of ears, would that not be sufficient evidence of wide dissemination?
Consider the radio industry in my home state of Oregon, for example. There are over 230 radio station transmitters broadcasting in the state of Oregon
. The only metropolitan area in Oregon with more than one million people is the Portland-metro market. Of these some 230 station/transmitters, only about 33 radio transmitters serve the Portland-metro market. All the rest, about 200 transmitters, serve markets in the rest of the state – all with less than one million pairs of ears in each market. Most of these transmitters belong to commercial stations, all of which sell varying amounts of time for commercials. How do we know this? Because the stations are still in business.
Would it not be clear enough that the radio stations in Oregon, outside of the Portland market, sell sufficient ad time to stay in business, and have a sufficient audience to develop market value? Of course. If a million pair of non-captive ears, unknown and undefined, in a radio station market can support ad time revenue and radio station value, why can't a million pair of captive eyes at a county fair – albeit a “large” county fair – support wide dissemination, particularly when these very eyes are connected to feet that walk right in front of the Art Attacks Ink booth at the fair entrance? What are we missing here? Why can a million non-captive people in a radio market constitute a sufficient size to support ad sales and market value, but if these same million people walk past a booth at the front entrance of a fair then such captive numbers do not support wide dissemination and, therefore, do not support access?
Certainly the Art Attacks Ink plaintiff had other evidence of wide dissemination, including modest sales and an Internet presence. But the Ninth Circuit explained that the number of sales in question, about 2,000, were too few in number. Prior authority established that some 6,000 sales were not sufficient to prove wide dissemination. The Ninth Circuit further did not like the plaintiff's Internet evidence. It pointed out that the plaintiff's website was slow to load because it was graphically intense, taking some two minutes, and that there were several designs displayed by plaintiff on its website in addition to its Spoiled Brats designs.
I cannot quarrel too much with the evidence of sales and Internet usage. Evidence of 2,000 sales over a several year period is pretty modest. And Internet evidence, without establishing the number of hits or Internet sales, is not very persuasive. But having a booth at the front entrance to a fair with millions of captive visitors walking past the booth – now that's evidence of wide dissemination in my view.
Importantly, the issue here is access, not sales. There is a big difference. There can be plenty of access even though sales are low. People may see but may not like and may not buy. The impression remains. Access exists.
Perhaps the Ninth Circuit panel does not go to county fairs in Southern California. Whether the panel has this type of experience or not does not mean that it is appropriate for an appellate court to dismiss the value of a million captive impressions made by a booth at the entrance gate. Most of the radio stations in my state would love to have this large of a market base. Indeed, in considering the connection between a radio market and a captive fair market, if the Ninth Circuit is so dismissive of proof of access to a million fair attendees, is any plaintiff safe in assuming that radio broadcasts to a sub-million market can safely prove access?