By: Brittany Blanchard

The pleading standard for copyright infringement claims is shockingly unsettled. It is unclear what elements must be pled to establish the claim and what proof is required for those elements. Despite this ambiguity in the law, the Supreme Court has not clarified this issue. This lack of clarity has resulted in a Ninth Circuit case being stuck in the complaint stage for four years.  H&M and Malibu Textiles have spent the past four years litigating the issue of what is required in pleading copyright infringement claims. This case exemplifies the harm in a lack of a judicially establish pleading standard for copyright infringement claims. The Ninth Circuit decision in the H&M case lowers the pleading standard beyond what is established in Supreme Court precedent and argues that the Supreme Court decision not to review this case means that the law in this area will continue to be ambiguous. 

There is a direct relationship between the elements of a civil claim and that claim’s pleading standard. The way courts define and interpret the required elements for a claim determines the standard the plaintiff must meet when pleading the claim and what proof of those elements must be provided. This issue has been further affected by the Supreme Court’s Twombly[1]/Iqbal[2] “plausibility” pleading standard, which requires more of a factual basis (i.e. one that is plausible) than simply reciting the bare elements of a claim without more.[3]  

In the area of copyright infringement, this pleading standard is surprisingly undefined.  It is unclear through examination of either statutory or case law what exactly is the universal pleading standard for copyright infringement claims. Do plaintiffs have to include a copy of their copyright registration with their complaint? What elements are they required to plead? To what extent do they have to provide proof of those claims at the pleading stage? The answer to these questions varies by court. This variation means that parties in copyright infringement cases are held to different standards depending on the court in which the case is filed. 

More important than the lack of consistency in this standard is the potential for an erroneously low pleading standard in some jurisdictions. If a court allows for a complaint with little proof of the elements, and therefore no factual basis for those claims, the court may be allowing for a violation of the Twombly/Iqbal “plausibility” pleading standard in copyright infringement claims[4]

This issue has compelled the parties in a Ninth Circuit case to spend five years in litigation without passing the initial pleading stage.[5] In 2014, Malibu Textiles sued defendant, H&M, for copyright infringement of two floral lace designs.[6] Despite no real change in Malibu Textiles’ allegations in each of their complaints, after five years of amended complaints and appeals, in 2019 the Ninth Circuit finally held that Malibu Textiles satisfactorily pled their claim for copyright infringement.[7] H&M filed a petition for writ of certiorari with the Supreme Court in August 2019 asking it to review the Ninth Circuit decision.[8] In its petition, H&M asserted that the Ninth Circuit lowered the pleading standard for copyright infringement claims through its interpretation of what necessary elements are required to plead the claim, meaning what must be shown at the outset of the case.[9] Although the Supreme Court denied the petition,[10] differences still remain from circuit to circuit on what must be pled in a copyright infringement claim to satisfy the pleading standard to withstand a motion to dismiss. 

Malibu Textiles v. H&M Pleading Issues: 

To plead ownership, Malibu Textiles included their copyright registration number without a copy of the certificate with their complaint.[11] In their petition for writ of certiorari, H&M asked the Supreme Court to extend its holding in Fourth Estate which requires copyright registration to be granted by the Copyright Office prior to suing for infringement.[12] H&M asked that the Supreme Court additionally hold that it is mandatory for plaintiffs to include copies of their copyright registration with their complaint.[13] H&M argued that this was a natural next step in the Court’s decision to require granted registration at the pleading stage. If approved registration is required, H&M argued that it would make sense to require proof of this approval. 

H&M exemplifies the impact of the Supreme Court decision to not specify in Fourth Estate[14] whether including the actual certificate with the complaint is required. Under the analysis of Fourth Estate, it is unclear whether the Ninth Circuit should have granted H&M’s motion to dismiss based on the lack of proof of ownership through the copyright registration. If the Supreme Court held that the certificate was required at the pleading stage, Malibu Textiles probably would not have survived H&M’s motion to dismiss because its complaint included only copyright registration numbers and did not include the certificates. 

The Ninth Circuit specifically did not require Malibu Textiles to plead a copy of its actual copyright registration. In its amended complaint, Malibu Textiles included copyright registration numbers and a photo of the works it claim were infringed upon by H&M.[15] The Ninth Circuit stated, “[C]ontrary to Defendants’ assertions, Malibu Textiles was not required to include images of Design 1717, a complete deposit of Design 1967, or registration materials for either Design in the Complaints to plausibly allege ownership.”[16] 

Is it enough for the plaintiff to state that their registration has been approved, or do they actually have to attach the certificate to their complaint? By granting the petition for writ of certiorari in this case, the Supreme Court could have clarified this issue. 

This proof of registration is a pleading issue because this determination affects the standard that plaintiffs in copyright infringement must meet to plead claims. Allowing plaintiffs to merely make allegations of ownership or only plead copyright registration numbers is a lower standard than requiring the copyright registration certificate. This is one of the ways that the Ninth Circuit has seemingly lowered the pleading standard, though it is unclear how the Supreme Court would rule on this issue. 

In addition to allowing Malibu Textiles to plead ownership without proof of its copyright registration certificate, the Ninth Circuit also allowed Malibu Textiles to make no claim on access and rely on a striking similarity argument.[17] Allowing a pleading of only striking similarity without any access claim basically eradicates access as one of the established elements for copyright infringement.[18] By allowing lack of pleading of access and only conclusory statements regarding striking similarity, the Ninth Circuit is lowering the plausibility pleading standard established in Twombly[19] and Iqbal.[20]

Malibu Textiles was held to a low standard for pleading both of the required elements of copyright infringement. The Ninth Circuit allowed a pleading of ownership with no proof of their copyright registration and a pleading of copying with no access claim. 

Impact of Lower Pleading Standard for Copyright Infringement Claims:

The Ninth Circuit decision, of course, affects the parties in H&M. But this decision will also have an impact on other future litigation. For example, in July of 2020, the Ninth Circuit again reversed a district court dismissal of a copyright infringement claim involving the Walt Disney Company. Disney stated that the decision “was part of a string of recent decisions that will discourage lower courts from decided copyright cases on motions to dismiss.”[21]  

A lower pleading standard creates a lower burden for plaintiffs and a higher burden for defendants. Plaintiffs are able to include little information in their complaint and defendants are then required to respond to this vague pleading. A lower pleading standard also lessens the potential for early resolution of cases which further burdens defendants.

A lower burden for plaintiffs is not necessarily a wholly negative result. There are legitimate policy considerations that may even support the concept of a lower standard. There is an argument that creating a higher standard could have negative effects on protection of creative works: 

The threat of litigation is the strongest (and perhaps the only effective) deterrent for would-be infringers. Therefore, any impediment to bringing an infringement suit should be viewed as an erosion of the protections copyright holders retain. Eroding the protections that copyrights provide could reduce the incentive for individuals to engage in the types of creative works protected under copyrights.[22]  

However valid these policy considerations are, this does not allow for the creation of a different judicial standard than enumerated in Twombly and Iqbal

The Twombly standard has given courts the opportunity to more easily resolve cases at a very early stage in the litigation process through granting motions to dismiss.[23]  Defendants are able to file motions to dismiss to resolve cases which were pled with only “labels and conclusions, and a formulaic recitation of the elements of a cause of action.”[24] 

By lowering the pleading standard for copyright infringement claims, the Ninth Circuit is diminishing the potential for pre-discovery resolutions. Instead of the potential benefits that defendants have seen under Twombly, defendants in copyright infringement litigation in the Ninth Circuit may have a higher burden. Defendants will have to bear the cost of further litigation and discovery for cases which may otherwise have been dismissed under the Twomblyand Iqbal standard. 

[1] Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

[2] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[3] Twombly, 550 U.S. at 545 (2007).

[4] Id.

[5] Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 952 (9th Cir. 2019), cert. denied sub nom; H&M Hennes & Mauritz, LP v. Malibu Textiles, Inc., 140 S. Ct. 456 (2019) (No. 19-297).

[6] Complaint at 1, Malibu Textiles, Inc. v. H&M Hennes & Mauritz, LP, No. CV14-01018 (C.D. Cal. Feb. 10, 2014).

[7] H&M Hennes & Mauritz, LP, 140 S.Ct. 456 (No. 19-297). 

[8] Petition for Writ of Certiorari at 1, Malibu Textiles, Inc., 922 F.3d 946 (No. 19-297).

[9] Id. at 2.

[10] H&M Hennes & Mauritz, LP, 140 S.Ct. 456 (No. 19-297). 

[11] Amended Complaint, Malibu Textiles, Inc. v. H&M Hennes & Mauritz, LP, No. 14-cv-4054-R (Feb. 6, 2017).

[12] Petition for Writ of Certiorari at 6, Malibu Textiles, Inc. 922 F.3d 946 (No. 19-297).

[13] Id. at 7.

[14] Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).

[15] Amended Complaint, H&M Hennes & Mauritz, LP, No. 14-cv-4054-R.

[16] Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 952 (9th Cir. 2019), cert. denied sub nom; H&M Hennes & Mauritz, LP v. Malibu Textiles, Inc., 140 S. Ct. 456 (2019) (No. 19-297).

[17] Id.

[18] 2 William F. Patry, Patry on Copyright § 9:38 (2019).

[19] Twombly, 550 U.S. 544 (2007).

[20] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[21] Matthew Bultman, ‘Pirates’ Copyright Case Means Discovery ‘Quagmire’, Disney Says, Bloomberg Law, (Aug. 6, 2020),  https://news.bloomberglaw.com/ip-law/pirates-copyright-case-means-discovery-quagmire-disney-says.

[22] Benjamin W. Cheesbro, Note, A Pirate’s Treasure?: Heightened Pleadings Standards for Copyright Infringement Complaints After Bell Atlantic Corp. v. Twombly, 16 J. Intell. Prop. L. 241, 265 (2009).

[23] Evan Brown, Note, Shaking Out the “Shakedowns”: Pre-Discovery Dismissal of Copyright Infringement Cases After Comparison of the Works at Issue, 9 Wash. J.L. Tech. & Arts 69, 70 (2013).

[24] Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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