UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD N. BELL, No. 19-55882 Plaintiff-Appellant, D.C. No. v. 2:18-cv-07328- CBM-MRW WILMOTT STORAGE SERVICES, LLC, Defendant-Appellee.

RICHARD N. BELL, No. 19-56181 Plaintiff-Appellee, D.C. No. v. 2:18-cv-07328- CBM-MRW WILMOTT STORAGE SERVICES, LLC, Defendant-Appellant, OPINION and ROE CORPORATIONS; IADVANTAGE, LLC; DOES, Defendants. 2 BELL V. WILMOT STORAGE SERVICES

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted August 13, 2020 Pasadena, California

Filed September 9, 2021

Before: Kim McLane Wardlaw and Richard R. Clifton, Circuit Judges, and Jennifer Choe-Groves, * Judge.

Opinion by Judge Wardlaw; Concurrence by Judge Clifton; Concurrence by Judge Choe-Groves

* The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. BELL V. WILMOT STORAGE SERVICES 3

SUMMARY **

Copyright

The panel reversed the district court’s grant of summary judgment in favor of the defendant based on a putative de minimis use defense in a copyright case, and remanded for consideration of remaining defenses and damages issues.

The panel held that the concept of de minimis copying is properly used to analyze whether so little of a copyrighted work has been copied that the allegedly infringing work is not substantially similar to the copyrighted work and is thus non-infringing. However, once infringement is established, that is, ownership and violation of one of the exclusive rights in copyright under 17 U.S.C. § 106, de minimis use of the infringing work is not a defense to an infringement action.

Plaintiff Richard Bell alleged that Wilmott Storage Services, LLC, infringed his copyright in a photograph of the Indianapolis skyline. The panel concluded that Wilmott publicly displayed the photo on its website, even though the photo was accessible only to members of the public who either possessed the specific pinpoint address or who performed a particular type of online search, such as a reverse image search. Applying the Perfect 10 “server test,” the panel reasoned that Wilmott’s server was continuously transmitting the image to those who used the specific pinpoint address or were conducting reverse image searches using the same or similar photo. Thus, Wilmott transmitted,

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 BELL V. WILMOT STORAGE SERVICES and therefore displayed, the Indianapolis photo without Bell’s permission. The panel further concluded that Wilmott’s display was public by virtue of the way it operated its servers and its website.

Having concluded that Wilmott publicly displayed the Indianapolis photo, the panel wrote that it would ordinarily ask whether the infringing work was substantially similar to the copyrighted work. Here, however, the panel concluded that the “degree of copying” was total because the infringing work was an identical copy of the copyrighted Indianapolis photo. Accordingly, there was no place for an inquiry as to whether there was de minimis copying, and thus no infringement. Agreeing with ot