                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALMUT REINICKE,                                  No. 14-56467

              Plaintiff-Appellant,               D.C. No. 3:12-cv-01405-GPC-
                                                 KSC
 v.

CREATIVE EMPIRE, LLC, a Michigan                 MEMORANDUM*
limited liability company, DBA
Mangolanguages.com; and DOES, 1-10,
inclusive,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Gonzalo P. Curiel, District Judge, Presiding

                      Argued and Submitted August 29, 2016
                               Pasadena, California

Before: KOZINSKI and BYBEE, Circuit Judges, and WALTER, Senior District
Judge.**



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald E. Walter, Senior United States District Judge
for the Western District of Louisiana, sitting by designation.
      The parties agree that the Ninth Circuit’s test for whether an implied,

nonexclusive copyright license can be granted is set forth in Asset Marketing

Systems, Inc. v. Gagnon, 542 F.3d 748, 754–55 (9th Cir. 2008). “Generally, a

‘copyright owner who grants a nonexclusive license to use his copyrighted material

waives his right to sue the licensee for copyright infringement’ and can sue only

for breach of contract.” Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115,

1121 (9th Cir. 1999) (quoting Graham v. James, 144 F.3d 229, 236 (2d Cir.

1998)), overruling on other grounds recognized by Perfect 10, Inc. v. Google, Inc.,

653 F.3d 976, 979 (9th Cir. 2011); see also Effects Assocs., Inc. v. Cohen, 908 F.2d

555, 559 (9th Cir. 1990) (holding that an implied grant of a nonexclusive license to

use a copyrighted work precludes a copyright infringement claim).

      Here, the dispute centers around Reinicke’s intent. “The relevant intent is

[Reinicke’s] objective intent at the time of the creation and delivery of the [work]

as manifested by the parties’ conduct.” Asset Mktg., 542 F.3d at 756 (citations

omitted). Reinicke was initially hired for a small translation project; then retained

for Mango 1.0 pursuant to a written agreement; and finally, retained for Mango

2.0, with compensation on an hourly basis. It is undisputed that there was no

written contract pertaining to the Mango 2.0 work. Further, Reinicke’s failed

requests to execute a contract focused on payments for Mango’s use of her work,


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not on any limitations of such use. This case is thus distinguishable from a case

where unsuccessful efforts to execute a contract weighed against a finding of

intent, because negotiations expressly involved retention of the copyright and

limitation on use of the copyrighted work. See Johnson v. Jones, 149 F.3d 494, 498

(6th Cir. 1998); id. at 500 (“[E]very objective fact . . . points away from the

existence of an implied license.”).

      The record reflects that the sole and express purpose of Reinicke’s work was

its use in Mango 2.0. Regardless of the Mango 2.0 compensation terms, Reinicke

wanted Mango to use and distribute her work, in order to drive overall Mango

sales, from which Reinicke would benefit under the Mango 1.0 commission

agreement. In developing and submitting language content intended for

distribution which, if distributed, would infringe her copyright, Reinicke gave

Mango an implied license to use her work. See Oddo v. Ries, 743 F.2d 630, 633–34

(9th Cir. 1984). And, despite failing to execute a commission-based agreement,

Reinicke continued to create and deliver the work, at Mango’s request, without

ever stating that Mango’s use thereof was contingent upon her receipt of

commission payments. See Asset Mktg., 542 F.3d at 757.

      Although Reinicke concedes that the relevant inquiry is one of objective,

rather than subjective, intent, she nonetheless contends that Mango made false


                                           3
promises of commission payments which fraudulently induced her to create and

deliver the work. Thus, Reinicke argues that principles of California contract law

apply to vitiate her consent to grant an implied license. A thorough review of the

parties’ communications belies Reinicke’s claims. See Hansen v. United States, 7

F.3d 137, 138 (9th Cir. 1993) (“[A party] cannot rely on conclusory allegations

unsupported by factual data to create an issue of material fact.”). Therefore,

determining whether fraudulent inducement can vitiate intent in this context is

wholly unnecessary, because there is insufficient evidence to support a finding of

fraud.

         Every objective fact, as manifested by Reinicke’s conduct, supports a

finding that an implied license existed. See Asset Mktg., 542 F.3d at 756 (citing

Effects, 908 F.2d at 559 n.6). The district court correctly found that Reinicke

granted Mango an implied license, which precluded this copyright infringement

suit.

         AFFIRMED.




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