The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
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Unfair Competition - Common Law Copyright

1 Elements and Case Citations

In California the so-called “common law copyright” has been codified at California Civil Code sections 980 et seq. As a result of amendments to the Civil Code in 1947, “[t]he Legislature [] abrogated the rule of protectibility of an idea and California now accepts the traditional theory of protectible property under common law copyright.” Weitzenkorn v. Lesser, 40 Cal. 2d 778, 789 (1953); see also Carpenter Foundation v. Oakes, 26 Cal. App. 3d 784, 793 (1972) (“A review of the pertinent sections of the Civil Code, 980 through 985, describes the rights and liabilities that inhere in what is generally referred to as ‘common-law copyright.’”).

[T]o recover for infringement, or piracy, of literary property, three elements must be established:

(1) ownership by the plaintiff of a protectible property interest;
(2) unauthorized copying of the material by the defendant; and
(3) damage resulting from the copying.

Golding v. R.K.O. Pictures, Inc., 35 Cal. 2d 690, 694 (1950); but see, e.g., Klekas v. Emi Films, 150 Cal. App. 3d 1102, 1110 (1984) (with regard to rights covered by the Federal Copyright Act, “If defendants’ [infringing] acts occurred after January 1, 1978, then the federal statute applies so as to preempt any claim plaintiff may have based upon a common law copyright theory. If, on the other hand, defendants’ unauthorized copying occurred prior to January 1, 1978, plaintiff may still pursue a claim predicated upon state law.”); and see n.2, below.

CALIFORNIA STATE COURTS

Supreme Court of California: Golding v. R.K.O. Pictures, Inc., 35 Cal. 2d 690, 694 (1950).

California 1st District: .

California 2d District: Teich v. General Mills, Inc., 170 Cal. App. 2d 791, 803 (1959); see also Spinner v. American Broadcasting Companies, Inc., 215 Cal. App. 4th 172, 186 (2013).

California 3d District: .

California 4th District: .

California 5th District: .

California 6th District:

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: .

Central District: Meta-Film Associates, Inc. v. MCA, Inc., 586 F. Supp. 1346, 1360 (C.D. Cal. 1984).

Eastern District: .

Northern District: .

Southern District: .

2 Issues and Defenses to Claim for Unfair Competition – Common Law Copyright

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses. See Chapter 1 for all defenses.

(2) Statute of Limitations: Two years under Cal. Code. Civ. P. § 339(1). See Fantasy, Inc. v. La Face Records, No. C 96-4384 SC ENE, 1997 U.S. Dist. LEXIS 9068, at *7 (N.D. Cal. June 24, 1997).

(3) Not Complete Federal Preemption: “[S]tate law may validly safeguard forms of intellectual property not covered under federal copyright and patent law as a means of protecting the fruits of a performing artist's labor. . .” Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 401 (2001); see also id. (“the state's interest in preventing the outright misappropriation of such intellectual property by others is not automatically trumped by the interest in free expression or dissemination of information; rather, as in the case of defamation, the state law interest and the interest in free expression must be balanced, according to the relative importance of the interests at stake.”).

“‘[F]or preemption to occur under the [Federal Copyright] Act, two conditions must be met: 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 section 106 [of the Copyright Act, 17 U.S.C. § 301(b)]..’” Kabehie v. Zoland, 102 Cal. App. 4th 513, 520 (2002).

(4) Lack of Copying: “‘"There can be no infringement unless there has been a copying, either in whole or in part, of the copyrighted work, and hence the mere fact of similarity, or even identity, between two works does not of itself make one an infringement of the other.’” Teich v. General Mills, Inc., 170 Cal. App. 2d 791, 804 (1959) (quoting 18, Corpus Juris Secundum, § 94b, p. 216).

(5) “Bare Corporate Receipt” is Insufficient: “‘Plaintiff cannot create a triable issue of access merely by showing “bare corporate receipt” of his work by an individual who shares a common employer with the alleged copier.’ . . . ‘[W]here there is no direct evidence of access, circumstantial evidence can be used to prove access either by (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that the plaintiff’s work has been widely disseminated.’ . . . For chain of events, the critical question is whether Plaintiff submitted the work ‘to an intermediary who is in a position to transmit [Plaintiff's] work to the creators of the infringing work.’ . . . Such an intermediary ‘can be a person who (1) has supervisory responsibility for the allegedly infringing project, (2) contributed ideas and materials to it, or (3) worked in the same unit as the creators.’ . . . ‘At a minimum, however, “the dealings between the plaintiff and the intermediary and between the intermediary and the alleged copier must involve some overlap in subject matter to permit an inference of access.”’” Loomis v. Cornish, No. CV 12-5525 RSWL (JEMx), 2013 U.S. Dist. LEXIS 162607, at *9-10 (C.D. Cal. Nov. 13, 2013).