                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MALIBU TEXTILES, INC., a New York                No.   14-56635
corporation,
                                                 D.C. No.
              Plaintiff-Appellant,               2:14-cv-04054-R-MAN

 v.
                                                 MEMORANDUM*
LABEL LANE INTERNATIONAL, INC.,
a California corporation, and ENTRY,
INC., dba ALT B., a California
corporation,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                     Argued and Submitted September 1, 2016
                              Pasadena, California

Before: SILVERMAN, IKUTA, and WATFORD, Circuit Judges.

      The district court erred by granting the defendants’ motion to dismiss with

prejudice. Although Malibu did not plead sufficient facts to state a claim for



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 4
copyright infringement, the district court abused its discretion by denying Malibu

the opportunity to amend its complaint. Dismissal with prejudice is appropriate

only if the complaint “could not be saved by any amendment.” Leadsinger, Inc. v.

BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008). Here, that is not the case.

      To state a claim for copyright infringement, Malibu had to allege facts

plausibly showing that the defendants copied the protected elements in Malibu’s

work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). A

plaintiff may satisfy this element by showing either that the two works in question

are strikingly similar, or by showing that they are substantially similar and that the

defendant had access to the plaintiff’s work. Id. at 481, 485. In the absence of

direct evidence of access, a plaintiff can show that a chain of events linked the

protected work to the defendant, or that the work had been widely disseminated.

Id. at 482. Malibu’s complaint did not adequately allege copying of a protected

work under any of these theories.

      However, Malibu potentially could have amended its complaint to cure this

deficiency in several ways. To allege striking or substantial similarity, Malibu

could have described the pattern’s protectible elements—such as the selection,

coordination, and arrangement of flowers, leaves, and branches—and identified

those same elements in the defendants’ patterns, perhaps with reference to photos
                                                                           Page 3 of 4
showing a side-by-side comparison of the works. See L.A. Printex Indus., Inc. v.

Aeropostale, Inc., 676 F.3d 841, 850 (9th Cir. 2012). Although Malibu’s first

amended complaint described the arrangement of elements that was allegedly

incorporated into defendants’ product, and alleged that the layout and arrangement

of the two products were substantially similar or virtually identical, the complaint

did not provide photos that clearly showed these similarities and did not describe

the arrangement of the elements with sufficient specificity. And to allege access,

Malibu could have pleaded facts showing a chain of events that linked the

protected pattern with the allegedly infringing patterns, or provided sales figures

accompanied by dates and geographic distribution information plausibly showing

access via widespread dissemination. Because these allegations could cure the

complaint’s deficiencies, the district court’s conclusion that amendment would be

futile was incorrect.

      The district court also relied incorrectly on Satava v. Lowry, 323 F.3d 805,

813 (9th Cir. 2003), in holding that Malibu failed to allege that any protectible

elements were substantially similar in both works. Stylized fabric designs

featuring floral elements are entitled to broad copyright protection under L.A.

Printex, 676 F.3d at 850 n.4, 851. Even if some of the elements in Malibu’s

pattern were not protectible on their own, copyright protection extends to the
                                                                          Page 4 of 4
“[o]riginal selection, coordination, and arrangement of unprotectible elements.”

Id. at 849. The district court should have considered these aspects of the pattern in

its analysis of protected elements.

      REVERSED and REMANDED.
