UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT TANGLE, INC., No. 23-3707 D.C. No. Plaintiff - Appellant, 4:23-cv-01196- JSW v. OPINION ARITZIA, INC.; ARITZIA LP; UNITED STATES OF ARITZIA, INC.,

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted October 11, 2024 San Francisco, California

Filed January 14, 2025

Before: Lucy H. Koh and Anthony D. Johnstone, Circuit Judges, and Michael H. Simon, District Judge.*

Opinion by Judge Simon * The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 2 TANGLE, INC. V. ARITZIA, INC.

SUMMARY**

Copyright

The panel affirmed the district court’s dismissal of a claim of trade dress infringement, reversed the district court’s dismissal of a claim of infringement of copyright in kinetic and manipulable sculptures, and remanded. As to the copyright claim, the panel held that, at the pleading stage, the plaintiff adequately alleged valid copyrights in seven kinetic and manipulable sculptures. Comparing the plaintiff’s works to dance, movies, and music, the panel held that the fact that the works moved into various poses did not, by itself, support the conclusion that they were not “fixed” in a tangible medium for copyright purposes. The panel also held that, under the “extrinsic test,” the plaintiff validly alleged copying of its protected works because it plausibly alleged that the creative choices it made in selecting and arranging elements of the works were substantially similar to the choices the defendants made in creating their own sculptures. As to the claim of trade dress infringement under the Lanham Act, the panel affirmed the district court’s dismissal for failure to give adequate notice of the asserted trade dress.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TANGLE, INC. V. ARITZIA, INC. 3

COUNSEL Matthew L. Schwartz (argued), Boies Schiller Flexner LLP, New York, New York; Beko O. Reblitz-Richardson and Sean P. Rodriguez, Boies Schiller Flexner LLP, San Francisco, California; James W. Lee, Boies Schiller Flexner LLP, Miami, Florida; for Plaintiff-Appellant. Richard P. Sybert (argued), James V. Fazio III, and Hazel Mae B. Pangan, Gordon Rees Skully Mansukhani, San Diego, California; John P. Margiotta and Brian Leary, Fross Zelnick Lehrman Zissu PC, New York, New York; for Defendants-Appellees.

OPINION SIMON, District Judge:

This appeal primarily involves the copyrightability of kinetic and manipulable sculptures, which is an area of copyright law that has not yet received much attention. We reverse the district court’s dismissal of the plaintiff’s copyright claim and hold that, at the pleading stage, the plaintiff has adequately alleged valid copyrights and has adequately alleged copying of its protected works. Ultimately, the copyright analysis applicable to the kinetic and manipulable sculptures at issue in this case may be better informed with a more complete factual record. I. As relevant here, Plaintiff-Appellant Tangle, Inc. (“Tangle”) holds copyright registrations for seven kinetic and manipulable sculptures. Each sculpture is made from 4 TANGLE, INC. V. ARITZIA, INC.

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