Judge: Armen Tamzarian, Case: 23STCV19317, Date: 2024-03-26 Tentative Ruling

Case Number: 23STCV19317    Hearing Date: March 26, 2024    Dept: 52

Defendant Parkwood Entertainment, LLC’s Demurrer to First Amended Complaint

Defendant Parkwood Entertainment, LLC demurs to the entire first amended complaint by plaintiff Ellana Bland.

1st Cause of Action: Copyright Infringement

Plaintiff does not allege sufficient facts for copyright infringement because this court has no subject matter jurisdiction over such a claim.  “The federal courts have exclusive jurisdiction over copyright infringement causes of action.”  (Benitez v. Williams (2013) 219 Cal.App.4th 270, 275.)  A state court does “not have subject matter jurisdiction over [a] plaintiff’s copyright infringement claim.”  (Ibid.)  Federal preemption requires two conditions: “ ‘first, the subject of the claim must be a work fixed in a tangible medium of expression and come within the subject matter or scope of copyright protection ..., and second, the right asserted under state law must be equivalent to the exclusive rights contained in’ ” federal copyright law.  (Kabehie v. Zoland (2002) 102 Cal.App.4th 513, 520.)

The subject of plaintiff’s claim falls within the scope of copyright protection.  “The first prong of this test is satisfied wherever the works at issue come within the ‘subject matter of copyright,’ … even where the works at issue (or some parts of those works) may not actually be protected, or even protectable, under the Copyright Act.”  (Idema v. Dreamworks, Inc. (C.D. Cal. 2001) 162 F.Supp.2d 1129, 1189.)  “[T]he scope of preemption is broader than the scope of protection.”  (Ibid.) 

Plaintiff’s claim arises from the design of a dress.  Even if not actually protectable under copyright law, it is within the subject matter of copyright.  The United States Supreme Court has held that some aspects of clothing designs may be copyrighted.  (Star Athletica, L.L.C. v. Varsity Brands, Inc. (2017) 580 U.S. 405, 414-419.)  “[A] feature incorporated into the design of a useful article [i.e., a garment] is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  (Id. at p. 408.)

Plaintiff’s first amended complaint alleges, “The first cause of action is copyright infringement.” (FAC, p. 1.)  Plaintiff alleges she “is the original curator and producer of what became the ‘Blues Dress’ ”, and “the illustration was used without consulting and was not permitted by the plaintiff.”  (Ibid.)  She thus alleges sufficient facts to conclude that her “illustration” or design of a dress falls within the subject of copyright law, even if it cannot be protected by copyright.  Answering that question requires applying the test established in Star Athletica, L.L.C. v. Varsity Brands, Inc.—which is part of the substantive law of copyright. 

The right plaintiff asserts is equivalent to the exclusive rights contained in federal copyright law.  “ ‘[A] right that is “equivalent to copyright” is one that is infringed by the mere act of reproduction, performance, distribution, or display.’ ”  (Kabehie v. Zoland, supra, 102 Cal.App.4th at p. 520.)  Plaintiff alleges Parkwood Entertainment is liable for copyright infringement because its “representative Beyonce Knowles Carter … wore a blue dress that was created from a design” by plaintiff.  (FAC, p. 1.)  She further alleges, “Parkwood will forever have this dress as a part of one of the largest grossing tours of all time.”  (Id., p. 2.)  Plaintiff thus alleges defendants infringed on her rights by displaying her dress when Beyonce Knowles Carter wore it in public. 

Plaintiff’s claim meets both conditions required for federal preemption.  She therefore fails to allege sufficient facts to constitute a cause of action for copyright infringement.   

2nd Cause of Action: Respondeat Superior

            Plaintiff does not allege sufficient facts for this purported cause of action.  Rather than a cause of action, the doctrine of respondeat superior means “an employer is vicariously liable for the torts of its employees committed within the scope of the employment.”  (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)  Plaintiff alleges Parkwood Entertainment is vicariously liable because Kelvin “KJ” Moody appropriated the design of her dress.  In other words, she alleges Parkwood Entertainment is vicariously liable for copyright infringement.  An employer cannot be vicariously liable for an underlying cause of action that itself fails. 

Unlabeled Cause of Action: Negligent Hiring

Plaintiff’s first amended complaint also refers to “negligent hiring.”  (FAC, p. 1.)  She does not allege sufficient facts for that cause of action.  “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ”  (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)  Plaintiff does not allege Parkwood Entertainment, LLC knew hiring Kelvin “KJ” Moody was likely to create a risk of copyright infringement.  Plaintiff alleges hiring him was negligent because “Moody is a blood relative of Parkwood Entertainment representative Beyonce Knowles Carter” which is a “conflict of interest.”  (FAC, p. 1.)  Plaintiff thus alleges a form of nepotism, which creates no risk of any particular harm, nor specifically a risk of copyright infringement. 

Disposition

            Defendant Parkwood Entertainment, LLC’s demurrer to plaintiff Ellana Bland’s first amended complaint is sustained with 30 days’ leave to amend.