UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RODNEY WOODLAND, No. 23-55418

Plaintiff-Appellant, D.C. No. 2:22-cv-03930- v. AB-MRW MONTERO LAMAR HILL, AKA Lil Nas X; DOES, 1-10, Inclusive, OPINION

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted January 13, 2025 Pasadena, California

Filed May 16, 2025 Before: Ronald M. Gould, Mark J. Bennett, and Kenneth K. Lee, Circuit Judges.

Opinion by Judge Lee 2 WOODLAND V. HILL

SUMMARY *

Copyright

The panel affirmed the district court’s dismissal of an action for copyright infringement brought by Rodney Woodland against Montero Lamar Hill. Woodland alleged that Hill, also known as Lil Nas X, posted photos of himself on his Instagram page that were too similar to photos on Woodland’s page. The panel held that, in the online context, Woodland did not plausibly allege that Hill had “access” to Woodland’s photos and thus did not sufficiently allege the copying of copyrighted material. Woodland also failed to plausibly allege that Hill unlawfully appropriated his photos. The panel held that the Copyright Act protects only the “selection” and “arrangement” of individual elements in a photo, and here, the “selection” and “arrangement” in the photos were not substantially similar.

COUNSEL Andrew Grimm (argued), Digital Justice Foundation, Omaha, Nebraska; Gregory W. Keenan, Digital Justice Foundation, Floral Park, New York; Michael R. Shapiro,

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. WOODLAND V. HILL 3

Law Offices of Michael Shapiro, Los Angeles, California; for Plaintiff-Appellant. Peter J. Anderson (argued), Davis Wright Tremaine LLP, San Francisco, California; Adrian F. Vallens, Davis Wright Tremaine LLP, Los Angeles, California; for Defendant- Appellee.

OPINION LEE, Circuit Judge:

Rodney Woodland, a freelance artist and model, posts semi-naked photographs of himself in different poses on Instagram. Montero Lamar Hill, better known as the recording artist Lil Nas X, also has an Instagram account— and he, too, shares semi-naked photos of himself in varying poses (as one apparently does on Instagram these days). Woodland sued Hill for copyright infringement, alleging that several photos on Hill’s Instagram page are too similar to those from his own profile. We affirm the district court’s order dismissing his copyright infringement claim. For a copyright claim, a plaintiff must show, among other things, (1) the copying of copyrighted material and (2) the unlawful appropriation of it. Rentmeester v. Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018), overruled in part on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1066–69 (9th Cir. 2020) (en banc). Woodland has not plausibly alleged either. First, Woodland has not plausibly pleaded that Hill had “access” to Woodland’s photos to allege copying. See id. The mere fact that Woodland posted his photos on his Instagram 4 WOODLAND V. HILL

page—without more—falls short of plausibly alleging that Hill had “access” to and saw Woodland’s photographs. Second, Woodland has not shown that Hill unlawfully appropriated his photos. While some elements from the photos appear superficially similar, the Copyright Act protects only the “selection” and “arrangement” of individual elements in a photo. See id. at 1119. And here, the “selection” and “arrangement” in the