                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                       MAY 22 2015
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 MERIDIAN TEXTILES, INC., a California             No. 12-57190
 Corporation,
                                                   D.C. No. 2:11-cv-08351-RGK-
              Plaintiff - Appellant,               AGR

    v.
                                                   MEMORANDUM*
 TOPSON DOWNS OF CALIFORNIA,
 INC., a California Corporation; et al.,

              Defendants - Appellees.

                      Appeal from the United States District Court
                         for the Central District of California
                      R. Gary Klausner, District Judge, Presiding

                          Argued and Submitted May 8, 2015
                                Pasadena, California

Before: BEA and FRIEDLAND, Circuit Judges and RICE,** District Judge.

         Appellant Meridian Textiles, Inc. appeals from the district court’s sua sponte

entry of summary judgment in favor of Appellees. We have jurisdiction under 28

U.S.C. § 1291, and we reverse.
         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
             The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
      The district court held that Meridian’s copyright in its zebra design,

registration number S1479, was invalid because the only differences between

Meridian’s design and prior art zebra stripe designs were “in the thickness of the

lines and orientation of the pattern.” But there is no evidence that Meridian

copied its zebra design from prior art, and the district court may not say as a matter

of law that “the differences in the placement of geometric shapes should be

regarded as trivial.” N. Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1035

(9th Cir. 1992). The district court therefore erred in holding the copyright to the

zebra design invalid. See id. at 1033 (“All that is needed to satisfy both the

Constitution and the statute is that the author contributed something more than a

merely trivial variation, something recognizably his own.” (citation and internal

quotation marks omitted)). We decline to affirm the district court on the

alternative ground that there is no substantial similarity between Meridian’s zebra

design and Appellee’s zebra design. Reasonable jurors could differ on whether

the designs are substantially similar to each other. Cavalier v. Random House,

Inc., 297 F.3d 815, 822 (9th Cir. 2002).

      The district court held that Meridian has a valid copyright in its animal print

design, registration number I03879, but entered summary judgment sua sponte for

                                           2
Appellees on infringement because the district court did not find substantial

similarities in protectable elements between Meridian’s design and Appellees’

design. But there are objective similarities between the two designs such that,

drawing all inferences in Meridian’s favor, a rational jury could find that

Appellees’ design is substantially similar to Meridian’s. Because reasonable

jurors could differ on the issue of substantial similarity, summary judgment was

improper. Id.1

      The district court held that Meridian has a valid copyright in its burnout and

lace designs,2 registration numbers I03703 and S2088, but entered summary

judgment sua sponte for Appellees on infringement because the district court did


1
  To the extent Appellees ask us to hold that Meridian’s animal print design is not
entitled to copyright protection because it was copied from another source, that
argument was not raised before the district court and is waived on appeal. United
States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005). Nor did
Appellees otherwise offer sufficient evidence in the district court to rebut the
presumption that Meridian’s animal print design copyright is valid. N. Coast, 972
F.2d at 1033.
2
 To the extent Appellees ask us to hold that Meridian’s lace design is not entitled
to copyright protection because of inaccuracies in the copyright registration, that
argument was not raised before the district court and is waived on appeal. Flores-
Montano, 424 F.3d at 1047. Appellees did not offer sufficient evidence in the
district court to rebut the presumption that Meridian’s lace design and burnout
design copyrights are valid. N. Coast, 972 F.2d at 1033.

                                          3
not find substantial similarities between Meridian’s and Appellees’ designs. The

district court did not provide notice to Meridian that it was considering entering

summary judgment sua sponte for Appellees, and in its ruling, the court considered

only properly authenticated photographs submitted by Meridian and did not

provide Meridian an opportunity to authenticate its other proposed exhibits,

including physical exhibits. This was error. See Fed. R. Civ. P. 56(f); Cool Fuel,

Inc. v. Connett, 685 F.2d 309, 311 (9th Cir. 1982) (holding that sua sponte

summary judgment is permissible only if “it is made to appear from all the records,

files, affidavits and documents presented that there is no genuine dispute

respecting a material fact essential to the proof of movant’s case”).

      For the foregoing reasons, the district court’s sua sponte grant of summary

judgment to Appellees is REVERSED.3




3
 Meridian’s opposed motion to transmit physical exhibits to this court under
Circuit Rule 27-14 is DENIED.

                                          4
