Doc’s Dream, LLC v. Dolores Press, Inc.; Melissa Scott

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOC’S DREAM, LLC,
Plaintiff-Appellant,
v.
DOLORES PRESS, INC.; MELISSA
SCOTT,
Defendants-Appellees.
No. 18-55288
D.C. No.
2:15-cv-02857-R-PLA
MEMORANDUM*
DOC’S DREAM, LLC,
Plaintiff-counter-
defendant-Appellee,
v.
DOLORES PRESS, INC.; MELISSA
SCOTT,
Defendants-counter-claim-
3rd-party-plaintiffs-
Appellants,
v.
PATRICK ROBINSON; TRUTH
SEEKERS, INC.; BOBBI JONES,
No. 18-55487
D.C. No.
2:15-cv-02857-R-PLA
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Third-party-defendants-
Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted February 15, 2019
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and KORMAN,** District
Judge.
Case Numbers 17-55068, 17-55069, 17-55071, 18-55288, and 18-55487
involve what is essentially a single copyright and trademark infringement dispute.
In a series of lawsuits, copyright and trademark claimants, Dolores Press, Inc. and
Pastor Melissa Scott, sued Patrick Robinson, Truth Seekers, Inc., Doc’s Dream,
LLC, and Bobbi Jones. Doc’s Dream also filed its own lawsuit, seeking a judicial
determination that the works at issue were abandoned to the public domain.
Dolores Press and Pastor Scott challenge the district court’s dismissal of all three
of their lawsuits and of their counterclaims in Doc’s Dream’s lawsuit. Doc’s
Dream challenges the grant of summary judgment on its claim of copyright
abandonment. We have jurisdiction under 28 U.S.C. § 1291. We reverse in 17-
** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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55068, 17-55069, 17-55071, and 18-55487, and we affirm in 18-55288.
1. The alleged infringers argue we lack appellate jurisdiction in two of the
appeals (17-55068 and 17-55069) because Dolores Press did not file a notice of
appeal within thirty days of the district court’s initial orders granting the motion to
dismiss in the First Action1 and Third Action, respectively.2 The record suggests,
however, that the district court did not intend the June 23, 2015 order in the First
Action or the April 22, 2016 order in the Third Action as “the court’s final act in
the matter.” Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir. 2004)
(citation omitted). In both cases, substantial litigation followed the district court’s
grant of the respective motions to dismiss. After ruling on several later motions,
the district court entered judgment, from which the copyright claimants timely
appealed. We have appellate jurisdiction in each of the cases.
2. In the First Action (17-55069), the district court granted the defendants’
motion to dismiss the initial complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). We review such a dismissal de novo. Soltysik v.
1 We refer to each district court action by reference to the sequence in which
each action was filed: First Action (17-55069), Second Action (18-55288 and 18-
55487), Third Action (17-55068), and Fourth Action (17-55071).
2 In 17-55071 (the Fourth Action), the alleged infringers argue we lack
appellate jurisdiction based on the doctrine of res judicata. But res judicata, if
applicable, would provide a basis for affirming the district court’s decision; it
would not deprive us of appellate jurisdiction.

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Padilla, 910 F.3d 438, 444 (9th Cir. 2018). The denial of a motion for leave to
amend is reviewed for abuse of discretion. Hoang v. Bank of Am., N.A., 910 F.3d
1096, 1102 (9th Cir. 2018). “Dismissal with prejudice and without leave to amend
is not appropriate unless it is clear on de novo review that the complaint could not
be saved by amendment.” Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1124 (9th Cir.
2018) (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003)).
The district court granted the motion to dismiss on the basis that Dolores
Press failed to sufficiently plead ownership of the copyrights. The district court
faulted Dolores Press for “us[ing] only general words to describe the copyrights
allegedly bequeathed to Pastor Scott” and for not alleging ownership on the part of
Dolores Press. The district court found Dolores Press’s “all-encompassing
statements of ownership of every audio and video recording Dr. Scott ever made”
were “insufficient to demonstrate ownership.”3
3 The district court also stated, “it is very likely that not all of Dr. Scott’s
Works were copyrighted and registered with the Copyright Office.” This
reasoning is erroneous. First, the complaint alleges that “each” of the copyrighted
works “is the subject of a valid Certificate of Copyright Registration issued by the
Register of Copyrights.” At the pleading stage, that plausible allegation is
sufficient. Second, although copyright registration is a prerequisite for filing suit,
see 17 U.S.C. § 411(a), a failure to register some of the works alleged in the
complaint would, at most, limit the works for which the plaintiff could sue for
infringement—it would not justify dismissal of a claim for infringement of works
that were registered.

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“Copyright infringement claims have two basic elements: ‘(1) ownership of
a valid copyright, and (2) copying of constituent elements of the work that are
original.’” Seven Arts Filmed Entm’t Ltd. v. Content Media Corp. PLC, 733 F.3d
1251, 1254 (9th Cir. 2013) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
U.S. 340, 361 (1991)); see also 4 Melville B. Nimmer & David Nimmer, Nimmer
on Copyright § 13.01 (Matthew Bender, rev. ed. 2017) (“Reduced to most
fundamental terms, there are only two elements necessary to the plaintiff’s case in
an infringement action: ownership of the copyright by the plaintiff and copying by
the defendant.”).
The district court erred in granting the motion to dismiss. Dolores Press
alleged that it “is the exclusive licensee of all of the pertinent intellectual property
rights of Pastor Melissa Scott, including the rights of Pastor Scott in and to the
audiovisual recordings of Dr. Scott’s teachings.” In its complaint, Dolores Press
also described the works created by Dr. Scott, alleged that Dr. Scott bequeathed
“all rights to his intellectual property” to Pastor Scott, and alleged that Pastor Scott
“granted an exclusive license to all rights in the Works to [Dolores Press].” These
allegations of ownership are sufficient. See Minden Pictures, Inc. v. John Wiley &
Sons, Inc., 795 F.3d 997, 1003 (9th Cir. 2015) (stating that an exclusive licensee
has standing to bring a claim for copyright infringement).
The alleged infringers argue the dismissal was proper because the license

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agreement, which Dolores Press attached to its proposed amended complaint, was
non-exclusive. In its order denying Dolores Press’s motion for reconsideration of
the denial of leave to amend, the district court concluded that amendment would be
futile on that basis. The district court’s reading of the license agreement was
erroneous. The license agreement is ambiguous. The district court cited the one
provision of the agreement suggesting that the license is non-exclusive, but it
ignored other provisions suggesting exclusivity. For example, a provision titled
“Grant of Licenses” states, “Subject to the terms and conditions of this Agreement,
Licensor grants to Licensee a revocable, exclusive, worldwide, royalty-free . . .
right and license during the Term . . . .” (Emphasis added). The district court’s
selective reading of the agreement was improper, particularly at the pleading stage
where the plaintiff is entitled to reasonable inferences in its favor. See Consul Ltd.
v. Solide Enters., Inc., 802 F.2d 1143, 1149 (9th Cir. 1986) (reversing the grant of
a motion to dismiss where the contractual language was conflicting on the
controlling issue).
3. In the Third Action (17-55068), the district court granted the defendants’
motion to dismiss based on lack of statutory standing. The district court’s
conclusion was based on its erroneous interpretation of the license agreement.
Even if Dolores Press were not an exclusive licensee, the district court
should have allowed Dolores Press to add the copyright and trademark owner,

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Pastor Scott, as a plaintiff. The district court relied on Federal Rule of Civil
Procedure 17(a)(3) in refusing to allow Pastor Scott to join the action. Rule
17(a)(3) is inapplicable. The district court cited a district court decision (which we
later reversed) stating that a real party in interest cannot ratify an action brought by
a party who lacks statutory standing. See Minden Pictures, Inc. v. John Wiley &
Sons, Inc., 10 F. Supp. 3d 1117, 1131 (N.D. Cal. 2014), rev’d, 795 F.3d 997 (9th
Cir. 2015). But the addition of the copyright holder as a party is not
“ratification”—let alone improper ratification—under Rule 17(a)(3). It is joinder
of the real party in interest, which would eliminate the statutory standing defect
and any other defect under Rule 17(a). There was no such attempt to join the
copyright holder in Minden Pictures, and the court in that case stated that the
summary judgment against the party lacking statutory standing “d[id] not bar [the
copyright holders] themselves from suing [the defendant] on the same claims.” 10
F. Supp. 3d at 1132. Not only would Rule 17(a)(3) permit Pastor Scott’s joinder,
under the plain language of that rule, “[t]he court may not dismiss [the] action”
without giving a reasonable time for Pastor Scott to join or be substituted into the
action. Fed. R. Civ. P. 17(a)(3).
4. Applying the “first-to-file” rule, the district court dismissed the Fourth
Action (17-55071) in favor of the Second Action. The first-to-file rule “permits a
district court to decline jurisdiction over an action when a complaint involving the

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same parties and issues has already been filed in another district.” Pacesetter Sys.,
Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982). A district court’s
“decision to accept or decline jurisdiction based on the first-to-file rule” is
reviewed for abuse of discretion. Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d
622, 625 (9th Cir. 1991).
Dolores Press argues that the first-to-file rule is inapplicable when the two
actions are filed in the same district. We need not resolve that issue, however,
because even if the district court did not err in concluding that the first-to-file rule
applies, it abused its discretion by dismissing the action, rather than staying it or
consolidating it with the earlier filed action. Id. at 628–29 (“[W]here the first-filed
action presents a likelihood of dismissal, the second-filed suit should be stayed,
rather than dismissed.”). Dismissal under the first-to-file rule is improper if it
would prejudice the plaintiff in the second-filed case from presenting its claims in
either the first-filed case or a later case. See id. When the district court dismissed
the Fourth Action under the first-to-file rule, the Second Action had already been
dismissed (and that dismissal was on appeal).
The defendants argue for affirmance of the dismissal of the Fourth Action
based on res judicata, a reason not given by the district court. Specifically, they
contend that the prior final judgment in the First Action bars the claims in the
Fourth Action. Because we reverse the dismissal of the First Action, res judicata

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does not apply. See Ornellas v. Oakley, 618 F.2d 1351, 1356 (9th Cir. 1980) (“A
reversed or dismissed judgment cannot serve as the basis for a disposition on the
ground of res judicata or collateral estoppel.”).
Even if the judgment in the First Action could have preclusive effect as to
Dolores Press, that judgment would not preclude Pastor Scott’s claims. We reject
the defendants’ argument that Pastor Scott should be deemed to be in privity with
Dolores Press. The district court dismissed Dolores Press’s claims in the First
Action because it found that Dolores Press—as opposed to some other person—did
not have standing to assert that claim. When Pastor Scott—that other person—
attempted to become a party, she was not allowed. Her interests were distinct from
those of Dolores Press, and she was not adequately represented by Dolores Press.
Cf. Kourtis v. Cameron, 419 F.3d 989, 998 (9th Cir. 2005) (holding that a
copyright owner and the author were not in privity because the prior contractual
relationship did “not satisfy the adequacy-of-representation requirement”),
abrogated on other grounds by Taylor v. Sturgell, 553 U.S. 880 (2008).
5. In the Second Action—Doc’s Dream’s defensive action asserting a claim
that the copyrights were abandoned—we previously held that the district court
abused its discretion in denying Doc’s Dream leave to amend. See Doc’s Dream,
LLC v. Dolores Press, Inc., 678 F. App’x 541 (9th Cir. 2017). Upon remand,
Doc’s Dream amended its complaint and Dolores Press and Pastor Scott re-alleged

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their infringement claims as counterclaims. Dolores Press and Pastor Scott
challenge the dismissal of their counterclaims (18-55487), which the district court
ruled were precluded by the prior judgments in the First, Third, and Fourth
Actions. Because we reverse the dismissals in each of the prior actions, res
judicata does not apply. See Ornellas, 618 F.2d at 1356.
6. Doc’s Dream challenges the district court’s rulings on the parties’ cross
motions for summary judgment in the Second Action (18-55288). The district
court concluded that Dolores Press and Pastor Scott were entitled to judgment as a
matter of law on Doc’s Dream’s claim of copyright abandonment. “We review the
district court’s grant of summary judgment de novo.” Bravo v. City of Santa
Maria, 665 F.3d 1076, 1083 (9th Cir. 2011). “Viewing the evidence and drawing
all inferences in the light most favorable to the non-moving party, we must
determine whether any genuine issues of material fact remain and whether the
district court correctly applied the relevant substantive law.” Id.
“[R]ights gained under the Copyright Act may be abandoned.” Micro Star
v. Formgen Inc., 154 F.3d 1107, 1114 (9th Cir. 1998). Abandonment “must be
manifested by some overt act indicative of a purpose to surrender the rights and
allow the public to copy.” Hampton v. Paramount Pictures Corp., 279 F.2d 100,
104 (9th Cir. 1960). Doc’s Dream’s theory of abandonment shifted during the
summary judgment proceedings. Initially, its position was that Dr. Scott (the

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author of the works) abandoned all of his rights under copyright law. That position
was well refuted by evidence that Dr. Scott during his life was consistent (and
adamant) in asserting copyright protection in his works. Doc’s Dream then
changed its theory by claiming that a limited abandonment (what Doc’s Dream
calls a “Naked License”) occurred. Under Doc’s Dream’s narrowed theory, Dr.
Scott abandoned the right to control non-commercial dissemination of his works by
allowing the public to view his works on the Internet, while retaining other rights
afforded by the Copyright Act. The district court did not err in refusing to
entertain Doc’s Dream’s limited abandonment theory, which was raised for the
first time during the summary judgment briefing. We affirm the grant of summary
judgment in favor of Dolores Press and Pastor Scott on Doc’s Dream’s claim of a
complete abandonment without reaching the merits of the theory of a limited
abandonment.
We REVERSE the dismissals in the First Action (17-55069), Third Action
(17-55068), and the Fourth Action (17-55071), and we REVERSE the dismissal of
the counterclaims in the Second Action (18-55487). We AFFIRM the grant of
summary judgment in the Second Action (18-55288) but only as to the initially
pled complete abandonment claim. We do not address the viability of Doc’s
Dream’s Naked License/limited abandonment theory, and our decision should not
be construed as precluding Doc’s Dream or the other alleged infringers from

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asserting that defense (or any other defenses) at trial. Nor does our decision
preclude Doc’s Dream from presenting at trial the evidence it offered in the
summary judgment proceedings.
To serve the interest of judicial efficiency, and for the convenience of the
parties, we encourage the district court to consolidate these cases.4
REVERSED and costs awarded to appellants in 17-55069, 17-55068, 17-
55071, and 18-55487; AFFIRMED and costs awarded to appellees in 18-55288.5
4 At oral argument, the parties agreed consolidation would be appropriate.
5 The pending motions for judicial notice (Dkt. 12 in 17-55068, Dkt. 13 in
17-55069, and Dkt. 12 in 17-55071) are denied.

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