NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 21 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

URBAN TEXTILE, INC., a California No. 17-56749 Corporation, D.C. No. Plaintiff-Appellant, 2:14-cv-08285-ODW-FFM

v.

MEMORANDUM*

RUE 21, INC.; MARK-EDWARDS

APPAREL, INC.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted March 5, 2019** Pasadena, California

Before: FERNANDEZ and OWENS, Circuit Judges, and DONATO,*** District Judge.

Plaintiff Urban Textile, Inc. (“Urban”) appeals from the district court’s order

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. granting partial summary judgment to defendants Mark Edwards Apparel, Inc. and

Rue 21, Inc. on Urban’s copyright infringement claim for eleven fabric designs.

Because the parties are familiar with the facts, they will not be recounted here. We

have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

We review a grant of partial summary judgment de novo. Geurin v. Winston

Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002). The district court did not err in

concluding that Urban published the subject designs prior to registering them with

the Copyright Office as unpublished works. The district court relied on an

evidentiary presumption imposed against Urban as a discovery sanction, which

deemed established that Urban had placed copies of each of the subject designs in

its “Look Books” that were made available to potential customers for the purpose

of soliciting purchases of fabric bearing the subject designs. Urban has not

challenged the district court’s imposition of the presumption.

The district court properly concluded that the inclusion of the subject

designs in Urban’s Look Books constituted “publication” under the Copyright Act.

See 17 U.S.C. § 101 (“publication” includes “[t]he offering to distribute copies . . .

to a group of persons for purposes of further distribution”); United States

Copyright Office, Compendium of U.S. Copyright Office Practices § 1906.1 (3d

ed. 2017) (“[P]ublication occurs when one or more copies . . . are offered to a

wholesaler, a retailer . . . or similar intermediaries for the purpose of distributing

2 17-56749 the work to the public,” and when, for example, “fabric, carpet, or wallpaper

samples are offered to sales representatives for the purpose of selling those works

to wholesalers and retailers.”).

AFFIRMED.

3 17-56749