                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 15 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ACMET, INC., a California Corporation,           No.    15-55928

              Plaintiff-Appellant,               D.C. No.
                                                 2:14-cv-00048-TJH-AJW
 v.

THE WET SEAL, INC., a Delaware                   MEMORANDUM*
Corporation; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Terry J. Hatter, District Judge, Presiding

                      Argued and Submitted February 8, 2017
                               Pasadena, California

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Acmet, Inc., appeals from the district court’s denial of its motion for

summary judgment and sua sponte entry of summary judgment in favor of

defendants. We have jurisdiction under 28 U.S.C. § 1291 and review the district

court’s order de novo. See Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(en banc). We affirm the district court’s denial of Acmet’s motion for summary

judgment and reverse the sua sponte entry of summary judgment in defendants’

favor. See Buckingham v. United States, 998 F.2d 735, 742 (9th Cir. 1993).

      “To establish copyright infringement, a plaintiff must prove two elements:

‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the

work that are original.’” L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d

841, 846 (9th Cir. 2012) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,

499 U.S. 340, 361 (1991)). The district court ruled that defendants failed to rebut

the presumption of a valid copyright arising from Acmet’s copyright registration

certificate for the design in question, Registration No. VA 1-862-161. For

purposes of this appeal, defendants concede that Acmet owns a valid copyright.

The district court ruled that Acmet failed to prove copying.

      “[D]irect evidence of copying is not available in most cases . . . .” Id.

(quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir. 1996)). “Absent direct

evidence of copying, proof of infringement involves fact-based showings that the

defendant had ‘access’ to the plaintiff’s work and that the two works are

‘substantially similar.’” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th

Cir. 2000) (quoting Smith, 84 F.3d at 1218). “Proof of striking similarity is an




                                          2
alternative means of proving ‘copying’ where proof of access is absent.” Baxter v.

MCA, Inc., 812 F.2d 421, 424 n.2 (9th Cir. 1987).

      1.     Here, reasonable jurors could differ on whether Acmet’s and

defendants’ designs are strikingly similar. See Cavalier v. Random House, Inc.,

297 F.3d 815, 822 (9th Cir. 2002). There are objective similarities between

protectable elements of the designs. See L.A. Printex, 676 F.3d at 850 (“Because

there is ‘a wide range of expression’ for selecting, coordinating, and arranging

floral elements in stylized fabric designs, ‘copyright protection is broad and a work

will infringe if it’s substantially similar to the copyrighted work.’” (quoting Mattel,

Inc. v. MGA Entm't, Inc., 616 F.3d 904, 913–14 (9th Cir. 2010))). The designs

have the same number of triangles arranged in the same pattern with the same size

ratios. The designs all have a top border that is arranged in the same way. The

only differences in the designs are the colors, the bottom border, and the addition

of an extra line in two of defendants’ designs.

      2.     There is also evidence from which reasonable jurors could draw an

inference that defendants had access to Acmet’s design. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Art Attacks Ink, LLC v. MGA Entm’t Inc.,

581 F.3d 1138, 1143–44 (9th Cir. 2009). Defendant Tony Kim was the president

and owner of both the company that Acmet hired to print its design (Design by


                                           3
Nature) and the company that sold allegedly infringing fabric to retailers (Fashion

Life). Fashion Life ordered garments bearing the allegedly infringing designs from

a Chinese vendor within three months of Acmet’s disclosing its design to Design

by Nature.

      A jury reasonably could resolve these issues in favor of either party, making

summary judgment inappropriate. See L.A. Printex, 676 F.3d at 846.

      AFFIRMED IN PART AND REVERSED IN PART, AND

REMANDED. The parties shall bear their own costs on appeal.




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