Tom Bean v. Houghton Mifflin Harcourt Pub. , 585 F. App'x 461 ( 2014 )

FILED
NOT FOR PUBLICATION OCT 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOM BEAN, No. 10-16771
Plaintiff - Appellant, D.C. No. 3:10-cv-08034-DGC
v.
MEMORANDUM*
HOUGHTON MIFFLIN HARCOURT
PUBLISHING COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted October 10, 2014**
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
Tom Bean appeals from the dismissal of his copyright infringement action
against Houghton Mifflin Harcourt. The district court held that Bean had not met
17 U.S.C. § 411(a)’s pre-suit copyright registration requirement because his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
-2-
photographs were improperly registered under 17 U.S.C. § 409. We have
jurisdiction pursuant to 28 U.S.C. § 1291, Cosmetic Ideas, Inc. v.
IAC/Interactivecorp, 606 F.3d 612, 614 (9th Cir. 2010), and we VACATE the
dismissal order and REMAND for further proceedings.
We recently held in a similar case, Alaska Stock, LLC v. Houghton Mifflin
Harcourt Publishing Company, that the registration of a compilation of
photographs also registers the individual photographs within the compilation
where, as here, the registrant follows Copyright Office practice and does not
include the title and author of each individual photograph on the registration
application. 747 F.3d 673, 685 (9th Cir. 2014). Consistent with our Alaska Stock
opinion’s express disagreement with the district court’s decision in this case, id. at
684 n.50, we hold that the district court erred in dismissing Bean’s action under
Federal Rule of Civil Procedure 12(b)(6) on the ground that his photographs were
not individually registered.
VACATED and REMANDED.
Costs awarded to Appellant.