                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 03 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


AMIR CYRUS AHANCHIAN, an                         No. 08-56667
individual,
                                                 D.C. No. 2:07-cv-06295-JFW-E
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

XENON PICTURES, INC., a Delaware
corporation; et al.,

              Defendants - Appellees.



AMIR CYRUS AHANCHIAN, an                         No. 08-56906
individual,
                                                 D.C. No. 2:07-cv-06295-JFW-E
              Plaintiff - Appellant,

  v.

XENON PICTURES, INC., a California
corporation; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     John F. Walter, District Judge, Presiding

                      Argued and Submitted February 2, 2010
                               Pasadena, California

Before: KLEINFELD, WARDLAW and CALLAHAN, Circuit Judges.

      Amir Cyrus Ahanchian appeals the district court’s grant of summary

judgment in favor of Xenon Pictures, Inc., CKrush, Inc., Sam Maccarone, and

Preston Lacy (“defendants”) over the authorship of certain skits portrayed in

National Lampoon’s TV: The Movie (“movie”) in Appeal No. 08-56667. He also

appeals the ensuing award of attorneys’ fees in Appeal No. 08-56906. Because

genuine issues of material fact exist as to Ahanchian’s implied contract and

copyright claims, we reverse in part and affirm in part. See Estate of Tucker ex rel.

Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1029 (9th Cir. 2008).

Accordingly, we vacate the award of attorneys’ fees and costs.

                                         I.

      Both in his opposition to summary judgment and during argument on appeal,

Ahanchian conceded that his Lanham Act claims are foreclosed by the Supreme

Court’s holding in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23

(2003). Accordingly, we affirm the district court’s grant of summary judgment as

to Ahanchian’s Lanham Act claims.



                                          2
                                         II.

      The district court erred in granting summary judgment on Ahanchian’s

implied contract claim because genuine issues of material fact exist as to that

claim. Viewing the facts in the light most favorable to Ahanchian, as we must, we

conclude that they establish a course of conduct revealing an implied promise to

pay. See Gomez v. Lincare, Inc., 173 Cal. App. 4th 508, 525 (Ct. App. 2009);

Spinelli v. Tallcott, 272 Cal. App. 2d 589, 595 (Ct. App. 1969).

      Ahanchian’s implied contract claim is not barred by the two year statute of

limitations. See Cal. Civ. Proc. Code § 339(1) (two year statute of limitations

begins running upon “discovery of the loss or damage suffered by the aggrieved

party”). Without a breach of the contract, there can be no loss or damage for the

injured party to discover. Cf. E.O.C. Ord., Inc. v. Kovakovich, 200 Cal. App. 3d

1194, 1203 (Ct. App. 1988) (“[A] cause of action based upon a breach of contract

accrues at the time of the breach.”). Here, the alleged breach occurred when

Ahanchian’s skits were included in the movie and he was not paid for them.

Before Ahanchian viewed the movie, he could not reasonably have known of the

breach or resulting harm. Thus, crediting Ahanchian’s testimony that he first

viewed the movie in September 2006, his implied contract claim, which was filed

on September 17, 2007, is timely. See Cornwell v. Electra Cent. Credit Union, 439


                                          3
F.3d 1018, 1033 (9th Cir. 2006) (non-movant’s testimony is credited for purposes

of summary judgment); Amen v. Merced County Title Co., 375 P.2d 33, 36 (Cal.

1962) (cause of action accrues when party knows or should have known of the

claimed injury).

                                         III.

      Genuine issues of material fact also preclude summary judgment as to the

question of joint authorship of the skits. In November 2006, Ahanchian filed

certificates of registration for ten skits and claimed sole authorship of nine. These

certificates are “prima facie evidence of the validity of the copyright and of the

facts stated in the certificate.” 17 U.S.C. § 410(c). Defendants argue that

undisputed facts demonstrate that Ahanchian, at most, co-authored the skits with

them, and, as co-authors they cannot be liable for copyright infringement.1 Oddo v.

Ries, 743 F.2d 630, 632–33 (9th Cir. 1984) (“A co-owner of a copyright cannot be

liable to another co-owner for infringement of the copyright.”).

      The movie is a collection of independent comedic skits. Thus, the movie is a

collective work, see 17 U.S.C. § 101, and there exists a distinct copyright interest

      1
        Defendants also assert that Ahanchian’s registrations in the skit should be
invalidated because of his misrepresentation of sole authorship. See Whimsicality,
Inc. v. Rubie’s Costume Co., 891 F.2d 452, 455 (2d Cir. 1989). Both arguments,
however, turn on the same question: Is there a genuine dispute as to whether
Ahanchian solely authored the skits?

                                          4
in each skit which vests in its author. See id. § 201(c); Andy Warhol Found. for the

Visual Arts v. Fed. Ins. Co., 189 F.3d 208, 217 (2d Cir. 1999). Defendants assert

that the movie is a “joint work,” 17 U.S.C. § 101. To succeed, they must show that

they jointly authored the individual skits, as they recognized before the district

court.

         As to one of the skits at issue, “Sex and the Pen,” the certificate of

registration states that it was co-written by Maccarone and Lacy, and Ahanchian so

alleges. Therefore, the district court correctly granted summary judgment against

Ahanchian on Ahanchain’s “Sex and the Pen” claim of infringement.2 Zuill v.

Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996); Oddo, 743 F.2d at 632–33.

         As to the remaining nine skits, however, whether defendants made any

independently copyrightable contributions to the skits, an important threshold

requirement for joint authorship, is hotly disputed. See Richlin v. Metro-Goldwyn-

Mayer Pictures, Inc., 531 F.3d 962, 968 (9th Cir. 2008). Ahanchian testified that

defendants’ contributions to the skits were limited to the suggestion of a specific

character name in two and the term “I-talians” in a third. In addition, Ahanchian

testified that after he read the skits he authored to the defendants, they reacted with

         2
        Ahanchian’s counsel also conceded that the skit “Space Truckers” was co-
authored with Maccarone and Lacy. However, Ahanchian’s complaint does not
allege copyright infringement of “Space Truckers.”

                                             5
statements such as, “‘Yes,’ ‘No,’ ‘Go back to it,’ that kind of thing.” However,

such “[i]deas, refinements, and suggestions” are insufficient to establish joint

authorship. Janky v. Lake County Convention & Visitors Bureau, 576 F.3d 356,

363 (7th Cir. 2009); see also Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir.

2000) (holding that certain “substantial” and “valuable contributions” were

nonetheless not copyrightable contributions).

      Genuine issues of material fact also exist as to the critical factors for

determining joint authorship set forth in Aalmuhammed v. Lee, 202 F.3d 1227,

1234 (9th Cir. 2000). First, it is disputed whether Ahanchian or defendants

displayed “objective manifestations of a shared intent to be coauthors” of the skits.

Id. Second, Ahanchian testified that he was the sole “‘inventive or master mind’”

who “‘creat[ed], or [gave] effect to the idea’” contained in the disputed skits. Id.

(quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884); see

also Richlin, 531 F.3d at 968(recognizing that this factor will frequently be the

most important). Ahanchian asserts he maintained control over the development

and actual composition of the skits. Finally, given the defendants’ limited

contribution as described by Ahanchian, the “audience appeal” of the skits derives

solely from Ahanchian’s contributions. Aalmuhammed, 202 F.3d at 1234.




                                           6
      Ahanchian’s account of the origin and development of the disputed skits is

contested by Maccarone’s deposition testimony and the testimony of the only non-

party present at the formative meetings among Ahanchian, Maccarone, and Lacy.

However, at the summary judgment stage we must view the evidence and all

justifiable inferences in the light most favorable to Ahanchian. Blankenhorn v.

City of Orange, 485 F.3d 463, 470 (9th Cir. 2007). Therefore, defendants failed to

demonstrate the absence of genuine issues of material fact as to Ahanchian’s

copyright infringement claims.

                                        IV.

      In appeal No. 08-56667, we therefore AFFIRM the district court’s grant of

summary judgment as to Ahanchian’s Lanham Act claim and copyright

infringement claim based solely on the “Sex and the Pen” skit. We REVERSE the

district court’s grant of summary judgment as to the implied contract claim and the

remainder of the copyright infringement claims and REMAND this action to the

district court for further proceedings consistent with this memorandum.

Accordingly, we VACATE the district court’s award of attorney’s fees in appeal

No. 08-56906.

      APPEAL NO. 08-56667: Affirmed in part; reversed and remanded in

part; each side shall bear its own costs of appeal.


                                         7
     APPEAL NO. 08-56906: Vacated; Defendants shall bear the costs of this

appeal.




                                    8
