Gray

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 L ALD LLC, a Florida Limited Liability Case No.: 24-CV-02195-GPC-MSB

Company,

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ORDER:

Plaintiff,

13 (1) GRANTING IN PART AND

v. DENYING IN PART DEFENDANT’s

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REQUEST FOR INCORPORATION

REBEKAH M. GRAY, an individual;

15 BY REFERENCE

MERLIN PUBLISHING LLC, a Texas

(2) GRANTING IN PART AND

16 Limited Liability Company d/b/a

DENYING IN PART THE MOTION

MERLIN’S PEN PUBLISHING;

17 TO DISMISS

GATEKEEPER PRESS, a Florida Limited

18 Liability Company; INGRAM

[ECF No. 54]

INDUSTRIES INC., a Tennessee

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corporation d/b/a INGRAM CONTENT

20 GROUP and/or LIGHTNING SOURCE;

HATCHETTE BOOK GROUP, a New

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York corporation; and DOES 1-50,

22 inclusive,

23 Defendants.

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25 Before the Court are Defendants Rebekah M. Gray, Hachette Book Group, and

26 Merlin Publishing LLC, d/b/a Merlin’s Pen Publishing’s (collectively, “Defendants”)

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1 request for judicial notice, ECF No. 54-7 (“RJN”), and Defendants’ motion to dismiss,

2 ECF No. 54-1 (“Mot.” or “Motion”). The motion to dismiss has been fully briefed. ECF

3 Nos. 59, 60. The Court finds the matters suitable for decision on the papers and

4 VACATES the hearing set for November 21, 2025.

5 Based upon a review of the briefs, the supporting documentation, the applicable

6 law, and for the foregoing reasons, the Court hereby DENIES IN PART and GRANTS

7 IN PART Defendants’ motion to dismiss.

8 FACTUAL BACKGROUND

9 This is a copyright infringement controversy involving several works of young

10 adult (“YA”) fantasy fiction.

11 Under the pseudonym “Liz Ald,” sisters Lesley and Lindsey Aldrich write YA

12 novels. ECF No. 52 (“SAC”) ¶ 27. They have authored a three-novel series, the first two

13 of which are at issue here: The Boy with the Beautiful Name and The Boy with the

14 Beautiful Soul (“Book 1” and “Book 2,” respectively; “the Works,” collectively). Id. ¶¶

15 29, 35. Together, they own the Plaintiff L ALD LLC. Id. ¶ 16.

16 Around July 25, 2020, the two sisters began using the website Wattpad to post

17 fantasy stories. Id. ¶ 36. Wattpad is a “leading web-novel platform,” where authors can

18 publish their content; it has over 650 million authored works on its site. Id. ¶¶ 37, 39.

19 According to Plaintiff, a portion of Book 1 was first posted on Wattpad around

20 January 8, 2022. Id. ¶ 60. Plaintiff posted multiple chapters of Book 1 each month on

21 Wattpad, with the entire book posted to the website by July 2022. Id. ¶ 62. Plaintiff

22 alleges that Book 1 “enjoyed immediate commercial success and notoriety” on Wattpad,

23 and on July 20, 2022, Book 1 was ranked #1 in the Fiction category for at least 12 weeks

24 and reached more than 100,000 reads. Id. ¶¶ 2, 49. By August 7, 2022, Book 1 had

25 reached 300,000 views on Wattpad. Id. ¶ 52.

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1 In August 2022, chapters of Book 2 began to be uploaded to Wattpad. Id. ¶ 62. On

2 September 12, 2022, Book 1 was featured on the “Binge from Start to Finish” category.

3 Id. ¶ 53. Chapters of Book 2 continued to be uploaded throughout this time with the

4 entire book being completely posted on Wattpad by March 2023. Id. ¶ 62. Plaintiff also

5 alleges that Book 2 “was met with similar commercial success and notoriety, reaching

6 over 175,000 views upon initial completion.” Id. ¶ 4.

7 Defendant Rebekah Gray is an author who writes YA fiction under the pen name

8 RM Gray. Id. ¶ 17. On July 10, 2023, Defendant Gray registered the copyright in

9 Nightweaver as an unpublished literary work with a creation date of 2022. Id. ¶ 154.

10 Defendants Gray and Merlin published Nightweaver in October 2023 through Defendant

11 Gatekeeper Press. Id. ¶ 155.

12 On February 5, 2024, Lesley Aldrich obtained registered copyrights for both books

13 and then transferred the interests in these copyrights to Plaintiff. Id. ¶¶ 29-32.

14 On March 14, 2024, Defendant Hachette acquired Nightweaver. Id. ¶ 156. After

15 acquiring the book, Plaintiff alleges that Defendant Hachette made “several, legally

16 significant changes to Nightweaver,” which included 200 hours of work from the

17 editorial team and 39 hours of work from the design team who altered the cover and

18 layout of the book as well as the page edges. Id. ¶ 157. The edited version of Nightweaver

19 was copyright registered on April 29, 2025, with a creation date of 2025 and a

20 publication date of March 4, 2025. Id. ¶ 163.

21 At some point in time, Plaintiff concluded that there were similarities between

22 Plaintiff’s Works and Nightweaver, and on March 20, 2024, Plaintiff sent a cease-and-

23 desist letter to Defendants Gray and Gatekeeper Press, LLC, asserting copyright

24 infringement. Id. ¶ 131. Gray’s counsel responded to the letter, stating that Nightweaver

25 was written before any publication or authoring of Liz Ald’s “Beautiful Boy” series, so

26 Defendant Gray could not have copied any element of it. Id. ¶ 132. As supporting

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1 evidence, Defendant Gray’s counsel sent Plaintiff copies of email exchanges between

2 Gray and her editor in June 2022 in which Gray allegedly provided the complete

3 manuscript. Id. ¶ 133.

4 Gray’s counsel also sent a Word document that was purportedly the attached

5 manuscript for Nightweaver. Id. Plaintiff alleges that it discovered “peculiarities” from

6 the properties of the manuscript, namely that “the 100,000-word document showed that in

7 its lifetime…the document had only two (2) revisions and a total editing time of two (2)

8 minutes.” Id. ¶ 135. Plaintiff also alleges that the document contained a manipulated

9 Create Date of June 12, 2022, which would pre-date the complete publication of Book 1

10 by a few weeks. Id. ¶¶ 6, 136. Finally, Plaintiff noted that the document had full blank

11 pages at nearly every chapter break, which Plaintiff alleges was done to have the file size

12 match the file size of the original attachment that accompanied Defendant Gray’s June

13 2022 email to her editor. Id. ¶ 142. Based on this, Plaintiff alleges that Defendant Gray

14 had manipulated the Word document manuscript to make it seem like its creation pre-

15 dated Plaintiff’s Works. Id. ¶ 136.

16 Plaintiff maintains that Defendant Gray has continued to refuse to provide the

17 authenticated manuscript and native files of the emails and attachments for Plaintiff’s

18 review. Id. ¶¶ 143, 147.

19 PROCEDURAL HISTORY

20 On November 25, 2024, Plaintiff moved for preliminary injunction to enjoin

21 Defendants “from offering for sale on any medium the novel titled Nightweaver by RM

22 Gray.” ECF No. 3. The Court denied the motion for preliminary injunction on January

23 28, 2025. ECF No. 19 (“Order Denying Prelim. Inj.”).

24 Defendants filed a motion to dismiss the complaint, ECF No. 22, and then Plaintiff

25 filed an amended complaint on March 10, 2025, ECF No. 28.

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1 On April 4, 2025, Defendants filed a motion to dismiss the amended complaint.

2 ECF No. 33. The motion was granted in part and denied in part with leave to amend.

3 ECF No. 47. Plaintiff then filed their second amended complaint on September 4, 2025.

4 On September 18, 2025, Defendants filed a second motion to dismiss. ECF No. 54.

5 The motion to dismiss has been fully briefed. ECF Nos. 59, 60.

6 LEGAL STANDARD

7 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint and

8 whether it has “state[d] a claim upon which relief can be granted.” Fed. R. Civ. P.

9 12(b)(6). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a

10 cognizable legal theory or sufficient facts to support a cognizable legal theory. See

11 Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean

12 Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984).

13 A complaint may survive a motion to dismiss only if, taking all well-pleaded

14 factual allegations as true, it contains factual matter that “state a claim to relief that is

15 plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

16 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim is facially plausible when the

17 factual allegations allow “the court to draw the reasonable inference that the defendant is

18 liable for the misconduct alleged.” Id.

19 Where a motion to dismiss is granted, “leave to amend should be granted ‘unless

20 the court determines that the allegation of other facts consistent with the challenged

21 pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc.,

22 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture

23 Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).

24 INCORPORATION BY REFERENCE

25 Generally, on a motion to dismiss, courts will limit their review to the contents of

26 the complaint and may only consider extrinsic evidence that is properly presented as part

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1 of the complaint. See Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001).

2 However, courts can incorporate by reference certain documents that are not found

3 within, or attached to, the plaintiff’s pleading without converting the motion to dismiss

4 into a motion for summary judgment. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th

5 Cir. 2005); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The goal of the

6 doctrine is to prevent “plaintiffs from selecting only portions of documents that support

7 their claims, while omitting portions of those very documents that weaken—or doom—

8 their claims.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).

9 Essentially, “[e]ven if a document is not attached to a complaint, it may be incorporated

10 by reference into a complaint if the plaintiff refers extensively to the document or the

11 document forms the basis of the plaintiff's claim.” Ritchie, 342 F.3d at 908.

12 In addition to being extensively referenced in the complaint, the document can

13 only be incorporated by reference if the authenticity of its contents is not disputed by the

14 parties. Knievel, 393 F.3d at 1076. Once the document is incorporated by reference, a

15 court is allowed to “treat such a document as part of the complaint, and thus may assume

16 that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” Id.

17 However, at the same time, it is improper to assume the truth of an incorporated

18 document if such assumptions only serve to dispute facts stated in a well-pleaded

19 complaint.” Khoja, 899 F.3d at 1003 (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th

20 Cir. 2006)).

21 Defendants request the Court to consider, based on incorporation by reference,

22 several items. ECF No. 54-7 (“RJN”). The items are as follows: (1) The Boy with the

23 Beautiful Name and The Boy with the Beautiful Soul, which were previously lodged with

24 the Court on an Amazon Kindle eBook reader on December 13, 2024, see Notice of

25 Lodging, ECF No. 10; (2) Nightweaver, which was previously lodged with the Court on

26 February 14, 2025, using a print copy of the standard edition of Nightweaver as published

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1 by Hachette Book Group, see Notice of Lodging, ECF No. 23; and (3) a June 13, 2022

2 email from Ms. Gray to her editor, including its attachment of a Nightweaver manuscript,

3 which was lodged with the Court on September 18, see ECF No. 53.

4 As it did before, the Court finds that Item No. 1 and Item No. 2 are incorporated by

5 reference in the complaint. ECF No. 47 at 6-7.1 Both items lie at the heart of the

6 complaint, and there is no dispute as to the accuracy and authenticity of these copies. See

7 ECF No. 59-1 at 5.

8 As to Item No. 3 (Defendant Gray’s email and attachment to her editor),

9 Defendants argue that the SAC extensively references the email Defendant Gray sent to

10 her editor and the attachment that contains a manuscript of Nightweaver. ECF No. 54-7 at

11 4-5. They also contend that the copies of the email and attachment are properly

12 authenticated and not in reasonable dispute. Id. at 5. In response, Plaintiffs maintain that

13 though the email and attachments are referenced in the complaint, the SAC puts their

14 authenticity directly in dispute. ECF No. 59-1 at 9-10.

15 Turning first to Defendant Gray’s email, Plaintiff does not argue that the email

16 itself is inauthentic as seen in both the complaint and the opposition to the RJN. See SAC

17 ¶¶ 142, 144; ECF No. 59-1 at 10. Plaintiff references the date of the email but focuses

18 and specifically takes issue with the authenticity of the attachments. Id. Thus, the Court

19 finds that the email and the fact that the email had an attachment are incorporated by

20 reference.

21 As for the attachment itself, the SAC does reference the attached document

22 frequently. However, the very focus of those references is to dispute its authenticity,

23 which Plaintiff supports with specific details it finds suspicious. See ECF No. 59-1 at 10;

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26 1 Throughout the order, the pagination for docketed documents is derived from the

numbering generated by the ECF system.

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1 SAC ¶¶ 137, 145. Thus, the Court declines to consider the attachment under the

2 incorporation-by-reference doctrine.

3 DISCUSSION

4 Defendant moves to dismiss, arguing that (1) the SAC fails to state a direct

5 infringement claim, (2) the SAC fails to state a claim for contributory infringement, and

6 (3) Section 412 bars statutory damages and fees. Mot. at 13-31. In response, Plaintiff

7 argues that (1) the Court should find, as with the prior motion to dismiss, that the direct

8 copyright infringement claim is properly alleged, (2) contributory infringement has been

9 plausibly pled, and (3) Section 412 does not bar statutory damages given the timing and

10 extent of the infringing activity. See ECF No. 59 (“Opp.”).

11 I. DIRECT COPYRIGHT INFRINGEMENT

12 a. New Determination of the Same Claim

13 In response to Defendants challenging the plausibility of the direct copyright

14 infringement claim once again, Plaintiffs contend that Defendants have brought an

15 improper motion for reconsideration as to this claim and encourages the Court to follow

16 its reasoning in the prior motion to dismiss. Id. at 12-15. Defendants, however, maintain

17 that the Court is required to make a new determination with an amended complaint

18 because they bring new arguments. ECF No. 60 (“Rep.”) at 6-8.

19 The law of the case doctrine states that “a court will generally refuse to reconsider

20 an issue that has already been decided by the same court or a higher court in the same

21 case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012). When the issue was

22 decided by the same district court, that court may follow its earlier holding if it

23 “determines the amended complaint is substantially the same as the initial complaint.”

24 Askins v. U.S. Dep't of Homeland Sec., 899 F.3d 1035, 1043 (9th Cir. 2018). However,

25 “the new complaint is the only operative complaint before the district court” and the court

26 “is not ... bound by any law of the case.” Id. In other words, the law of the case doctrine

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1 in this context “is in no way a limit on a court's power to revisit, revise, or rescind an

2 interlocutory order prior to entry of final judgment in the case.” City of Los Angeles v.

3 Santa Monica Baykeeper, 254 F.3d 882, 888 (9th Cir.2001) (internal quotation marks and

4 citations omitted).

5 Here, because Plaintiff filed a SAC, the law of the case doctrine does not apply. At

6 the same time, Plaintiff argues and the Court notes that that direct copyright infringement

7 allegations in the SAC and FAC are the same. See ECF No. 52-1. Thus, the Court retains

8 the discretion to decline consideration of this claim or to rule on new arguments made by

9 Defendants. See Lopez v. Dang, No. SACV 21-353 JVS (KESx), 2022 WL 1567452

10 (C.D. Cal. Apr. 21, 2022), aff'd, No. 22-55495, 2023 WL 2301511 (9th Cir. Mar. 1,

11 2023) (“Just as Plaintiffs may bring new allegations in its amended complaint, Silverstein

12 may present new arguments in his motion to dismiss, and the Court may rule on those

13 arguments.”).

14 The Court will exercise its discretion and conduct a full analysis, incorporating the

15 arguments that Defendants bring in this instant motion.

16 b. Merits

17 To sustain a copyright claim against a motion to dismiss, Plaintiff must allege (1)

18 “ownership of a valid copyright” and (2) “copying of constituent elements of the work

19 that are original.” Folkens v. Wyland Worldwide, LLC, 882 F.3d 768, 774 (9th Cir. 2018).

20 As in the first motion to dismiss, there is no dispute on the first prong. Instead, this claim

21 depends on whether the second prong is plausibly alleged.

22 The second prong, however, is bifurcated into two distinct components: “copying”

23 and “unlawful appropriation.” See Woodland v. Hill, 136 F.4th 1199 (9th Cir. 2025);

24 Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020). Plaintiff must plausibly

25 allege both components to survive a motion to dismiss.

26 / / /

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1 i. Copying

2 Because independent creation of a work is a complete defense to copyright

3 infringement, a plaintiff must first adequately plead that the defendant copied the work at

4 issue. Skidmore, 952 F.3d at 1064. Because direct evidence of copying is rare, copying is

5 often proven circumstantially “by showing that the defendant had access to the plaintiff's

6 work and that the two works share similarities probative of copying.” Rentmeester v.

7 Nike, Inc., 883 F.3d 1111, 1117 (9th Cir. 2018), overruled on other grounds by Skidmore

8 as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).

9 1. Access

10 When there is no direct evidence of access, circumstantial evidence can be used to

11 prove access by either showing that the plaintiff’s work has been “widely disseminated”

12 or establishing “a chain of events” that link the plaintiff’s work and the defendant’s

13 access. Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1143 (9th Cir.

14 2009). However, if circumstantial evidence of access cannot be shown, the plaintiff’s

15 claim “survives only if the two works are so ‘strikingly similar’ as to preclude ‘the

16 possibility of independent creation,’” which raises the bar plaintiffs must meet. Biani v.

17 Showtime Networks, Inc., 153 F.4th 957, 962 (9th Cir. 2025) (quoting Unicolors, Inc. v.

18 Urb. Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017)).

19 a. No Reasonable Possibility of Access & Striking Similarity

20 Defendants argue that the fact that Defendant Gray transmitted a manuscript of

21 Nightweaver on June 13, 2022 forecloses a reasonable possibility that Defendant Gray

22 accessed the works, disposing of the need to address Plaintiff’s access theories. Mot. at

23 14-15. By the transmission of that email, Book 1 had not yet been completed, and none of

24 Book 2 had been posted. Id. Thus, in Defendants’ view, access has not been established,

25 and the literary works must be compared under a higher, “strikingly similar” standard. Id.

26 at 16.

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1 However, given that the content of the attachment cannot be incorporated by

2 reference at this stage, the existence of the email and its date are not enough to be

3 dispositive. The date of the email does place the manuscript before Book 1 had been fully

4 posted, but the email’s message only indicates the manuscript is the “current draft of

5 Nightweaver.” ECF No. 54-10. There is a long period between that draft and the work’s

6 copyright registration on July 10, 2023, where substantial changes could have been made.

7 Additionally, by July 10, 2023, both Book 1 and Book 2 had been completely posted on

8 Wattpad for Defendant Gray to potentially access. SAC ¶ 62. Thus, the email’s existence

9 is not enough to foreclose potential access theories at this stage. After the completion of

10 discovery, Defendants are free to renew this argument as part of a dispositive motion.

11 b. Theories of Access

12 At the pleading stage, plaintiff must allege a reasonable possibility of access. Art

13 Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009); Loomis v.

14 Cornish, 836 F.3d 991, 995 (9th Cir. 2016). A reasonable possibility of access is

15 adequately pled if a reasonable finder of fact could infer the defendant had a reasonable

16 opportunity to copy the work at issue. Shame on You Prods., Inc. v. Elizabeth Banks, 120

17 F. Supp. 3d 1123, 1149 (C.D. Cal. 2015), aff'd sub nom. Shame on You Prods., Inc. v.

18 Banks, 690 F. App'x 519 (9th Cir. 2017) The allegations must, therefore, create more than

19 a bare possibility of access and rise above mere speculation and conjecture. See

20 Woodland v. Hill, 136 F.4th 1199, 1207 (9th Cir. 2025).

21 Plaintiff has alleged three theories of access: direct, chain of events, and

22 widespread dissemination. SAC ¶¶ 64-82. The SAC, however, has not made any

23 additions or changes to its direct access and chain of events allegations from the first

24 amended complaint, which the Court previously found to be mere speculation or

25 conjecture. See ECF No. 52-1; ECF No. 47 at 12-13. The Court, therefore, adopts the

26 same analysis and findings it conducted in that prior order. The Court, then, turns to the

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1 final widespread dissemination allegation, which was previously found to be adequately

2 pled and of which Defendants continue to dispute.

3 “[W]idespread dissemination centers on the degree of a work’s commercial

4 success and on its distribution through radio, television, and other relevant mediums.”

5 Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016). And “although the Ninth Circuit

6 has not identified a specific threshold for the level of public engagement with a work that

7 constitutes ‘wide dissemination,’ its precedent indicates that a work’s degree of

8 commercial success and/or notoriety must be substantial.” Segal v. Segel, 2022 WL

9 198699, at *9 (S.D. Cal. Jan. 21, 2022). “[S]ocial media and other digital-sharing

10 platforms could make it easier for plaintiffs to show that defendants had access to their

11 materials—but only if they can show that the defendants had a reasonable chance of

12 seeing their work under that platform's algorithm or content-sharing policy.” Woodland,

13 136 F.4th at 1209.

14 Defendants have argued circumstantial access cannot be established through

15 widespread dissemination because of the existence of Defendant Gray’s email. Mot. at

16 15. Specifically, because the drafted manuscript was sent via email on June 13, 2022

17 before Book 2 had even begun to be posted, Defendants argue that dissemination can

18 only be evaluated by that June 13, 2022 date. Id. The SAC alleges Book 1 had 100,000

19 views and was ranked #1 on July 20, 2022, SAC ¶¶ 49-51, so at the time the email was

20 sent, Book 1 did not yet have a ranking on Wattpad’s page and likely had fewer than

21 100,000 views. Mot. at 16. Given that framing, Defendants argue that the Works did not

22 have substantial notoriety to adequately plead access.

23 However, as discussed in the previous subsection, Defendant Gray’s email cannot,

24 at this stage, so definitively abridge the time and facts the Court should consider for its

25 analysis. The substance of the attachment cannot be incorporated by reference, and thus,

26 the Court is unable to conclude that the manuscript was mostly left untouched before

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1 being published the following year. The Court only notes that the email refers to the

2 attachment as a current draft, which would not dispositively close off consideration of

3 facts after June 13, 2022.

4 Without that time limitation, the Court finds Plaintiff has adequately pled access

5 through widespread dissemination.

6 As before, Plaintiff alleges that its Works were widely disseminated, based on their

7 “commercial success and notoriety” on Wattpad. SAC ¶ 4. Plaintiff alleges that Book 1

8 had 100,000 views by July 20, 2022, and was ranked #1 on Wattpad’s “Fiction” section

9 for 12+ weeks. Id. ¶ 2. By September 12, 2022, it reached over 630,000 views. Id. ¶ 3.

10 For Book 2, Plaintiff alleges that it had 9,700 views in September 2022, see id. ¶ 55

11 (photo), which is when its first 54 of 198 chapters were available, id. ¶ 62, and at some

12 unspecified point, it had 175,000 total views, id. ¶ 74. Thus, Plaintiff alleges that

13 Plaintiff’s Works combined had “over 1 million views” on Wattpad. Id. ¶ 56.

14 At this procedural stage, the Court need only find that Plaintiff’s theory of

15 widespread dissemination is plausible. Plaintiff alleges that Book 1 had over 630,000

16 views and Book 2 had over 175,000 views on Wattpad; this is significant enough to find

17 that there was a substantial degree of commercial success. Additionally, even though

18 “views” and “reads” are different metrics on Wattpad, and even though Book 1 had more

19 views than Book 2 (the work that contained most of the alleged similarities), Plaintiff has

20 pled that there was enough visibility for the Works on the Wattpad platform such that

21 Defendant Gray’s access to the Works can be circumstantially established.

22 2. Similarities Probative of Copying

23 After plausibly establishing access, Plaintiff must also show similarities probative

24 of copying. Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1143 (9th

25 Cir. 2009). Probative similarity is shown when the “similarities between the two works

26 are due to ‘copying rather than… coincidence, independent creation, or prior common

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1 source.’” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (citation

2 omitted). “A finding of such similarity may be based on the overlap of unprotectable as

3 well as protectable elements.” Id. (citation omitted). The similarities do not need to be

4 extensive or involve only protectable elements in the work but should be “similarities one

5 would not expect to arise if the two works had been created independently.” Whitehead

6 v. Netflix, Inc., No. 22-cv-4049-CRB, 2022 WL 17342602, at *11 (N.D. Cal. Nov. 30,

7 2022) (quotation omitted).

8 Here, Plaintiff here alleges 42 plot similarities, 58 similar character traits, and 99

9 scene similarities. Plaintiff has also provided several charts to compare those similarities.

10 As discussed more below, many of those similarities are non-protectable, and as

11 Defendant points out, some of those identified similarities do not recognize notable

12 differences. However, this prong of copying does not require the Court to make

13 distinctions between protectable elements. Given the number of similarities alleged, the

14 presence of some protectable elements, and the possibility that the selection and

15 arrangement of the similarities might lead to another protectable aspect of the Works,

16 Plaintiff has adequately shown similarities probative of copying.

17 ii. Unlawful Appropriation

18 To allege unlawful appropriation, Plaintiff must plead facts showing that the works

19 share substantial similarities. Skidmore, 952 F.3d at 1064. “[W]hether works are

20 substantially similar involves a two-part analysis consisting of the ‘extrinsic test’ and the

21 ‘intrinsic test.’ The extrinsic test assesses the objective similarities of the two works,

22 focusing only on the protectable elements of the plaintiff’s expression.” Rentmeester v.

23 Nike, Inc., 883 F.3d 1111, 1118 (9th Cir. 2018). Under the “extrinsic test,” the court first

24 filters out “the unprotectable elements of the plaintiff’s work – primarily ideas and

25 concepts, material in the public domain, and scènes à faire (stock or standard features

26 that are commonly associated with the treatment of a given subject).” Id. The remaining

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1 protectable elements are then compared “to corresponding elements of the defendant’s

2 work to assess similarities in the objective details of the works.” Id. “For literary works,

3 ‘[t]he extrinsic test focuses on articulable similarities between the plot, themes, dialogue,

4 mood, setting, pace, characters, and sequence of events in the two works.’” Masterson v.

5 Walt Disney Co., 821 F. App’x 779, 782 (9th Cir. 2020) (quotation omitted).

6 “Only the extrinsic test’s application may be decided by the court as a matter of

7 law…” Rentmeester, 883 F.3d at 1118. (citation omitted). Dismissal may be disfavored

8 at this stage, if additional evidence would “help inform the question of substantial

9 similarity.” Alfred v. Walt Disney Co., 821 Fed. App’x 727, 719 (9th Cir. 2020). But

10 “determining substantial similarity does not necessarily require expert testimony.”

11 Masterson, 821 Fed. App’x at 781. Instead, the court is required to do what it always

12 must do when faced with a 12(b)(6) motion to dismiss: determine whether the complaint

13 states a plausible claim. Although ruling as a matter of law at the pleading stage can

14 sometimes be appropriate, the Ninth Circuit has “long held that summary judgment is not

15 highly favored on questions of substantial similarity.” Zindel as Tr. For David Zindel Tr.

16 V. Fox Searchlight Pictures, Inc., 815 F. App’x 158, 159 (9th Cir. 2020) (cleaned up and

17 citation omitted). “Courts must be just as cautious before dismissing a case for lack of

18 substantial similarity on a motion to dismiss.” Id. Dismissal is only warranted if, as a

19 matter of law, the similarities between the two works are only unprotectable material or

20 are de minimis, such that reasonable minds could not differ on the issue of substantial

21 similarity. See id. (citing L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 848

22 (9th Cir. 2012), abrogated on other grounds as recognized by Unicolors, Inc. v. H&M

23 Hennes & Mauritz, L.P., 959 F.3d 1194 (9th Cir. 2020)). If additional evidence

24 uncovered in discovery “could shed light on any issues that actually matter to the

25 outcome,” then dismissal at the pleading stage is inappropriate. See Rentmeester, 883

26 F.3d at 1123.

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1 1. Substantial Similarity

2 In its previous order, the Court found that Plaintiff has provided enough evidence

3 of similarities that go beyond a de minimis level, such that reasonable minds could differ

4 on whether there is substantial similarity between Plaintiff’s Works and Nightweaver. In

5 doing so, the Court analyzed Plaintiff’s charts highlighting character, plot, and scene

6 similarities and filtered out the similarities that were too general to be protectable ideas,

7 such as generic and common fantasy and romance tropes. This included the

8 characterization of the heroine as smart and sassy with dark brown hair, or that the

9 heroine visits a garden with the lead male love interest. SAC ¶ 113. The Court also

10 filtered out similarities that were only common phrases, verbs, adjectives, and idioms.

11 See, e.g., ECF No. 28-5, Ex. 5 (#53: “Sara bit her lip” compared with “I bite my lip.”).

12 After filtering out the non-protectable elements, the Court compared the remaining

13 protectable elements. This included Plaintiff’s allegations that both works feature an

14 antagonist who has a tattoo on his arm that identifies him with a rebel group of pirates

15 causing fear and mayhem; the lead female sees the tattoo early in the story but doesn’t

16 know the true identity of the antagonist until the end of the book, where – in a major plot

17 twist – he reveals his identity. SAC ¶ 110. The Court also identified surprising scene

18 similarities that Plaintiff highlights in the complaint, such as a garden picnic with apple

19 pie made from a cookbook owned by someone other than the protagonist and the male

20 character mentions that he dislikes flowers. Id. ¶ 113. In another scene, the heroine is

21 introduced to a memorial statue of a late queen holding an infant in her arms. Id. There

22 is also the scene of a surprising disappearance of a stain from a white item (in one work,

23 a self-cleaning carpet; in another, a self-cleaning handkerchief). Id. From these

24 similarities, the prior order held that there was more than de minimis resemblance

25 between the works at issue. It also noted that, given determining substantial similarity is a

26 close issue of fact, additional evidence such as expert testimony would “aid in the

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1 objective literary analysis needed to determine the extent and qualitative importance of

2 the similarities…in the works’ expressive elements…” Zindel as Tr. For David Zindel

3 Tr. V. Fox Searchlight Pictures, Inc., 815 F. App’x 158, 159 (9th Cir. 2020). While this

4 does not mean that courts cannot dismiss cases that allege infringement of literary works

5 without discovery, see Masterson, 821 Fed. App’x at 780, it does stress the difficulty of

6 courts analyzing the entirety of extensive literary works, separating out protectable and

7 non-protectable elements, and then coming to a determination of substantial similarity.

8 Defendants have encouraged the Court to alter course in this instant motion.

9 Defendants first emphasize Biani, highlighting that it affirmed dismissal of a case

10 alleging infringement of a literary work without discovery. Mot. at 23. Defendants also

11 contend that the Court need not require expert testimony to make its substantial similarity

12 determination, citing several cases in support. Id. at 24. Finally, Defendants argue that the

13 protectable elements that the Court previously identified were mischaracterizations

14 presented by Plaintiff and would, thus, not meet substantial similarity when correctly

15 represented. Id. at 25-27. The Court discusses each of these three arguments in turn.

16 First, the Court finds Defendants’ reliance on Biani unconvincing. Biani involved a

17 Plaintiff who claimed her three original and copyrighted characters were infringed by a

18 television show. Biani v. Showtime Networks, Inc., 153 F.4th 957, 960 (9th Cir. 2025). In

19 finding the claim failed under the unlawful appropriation prong, the Biani court noted

20 that all similarities were unprotectable as they focused on characteristics of being

21 similarly aged, “strong,” “beautiful,” “pale brunettes,” and dressed in Victorian attire, and

22 on a plot where “women reject[ed] the norms of her era.” Id. at 965.

23 This is quite different from the facts here. Plaintiff does not claim only her

24 characters have been infringed but also that entire plots and scenes have been copied.

25 While the SAC does argue unprotectable elements similar to those in Biani, the Court had

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1 previously filtered the unprotectable elements out and still found elements that were

2 protectable and substantially similar.

3 Defendants’ second contention that expert testimony is not required is also not

4 compelling. Though courts can dismiss infringement claims without discovery or expert

5 testimony at this stage, the Court retains discretion to determine whether expert testimony

6 would aid in a close question of fact, especially based on the complexity of the

7 allegations, the material before it, and its determination of protectable elements. See

8 Zindel, 815 F. App’x at 160; see also Shaw v. Lindheim, 919 F.2d 1353 (9th Cir.

9 1990), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led

10 Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (“Even if a copied portion be relatively small in

11 proportion to the entire work, if qualitatively important, the finder of fact may properly

12 find substantial similarity.”). The Court finds that expert testimony would be helpful in

13 the objective literary analysis needed to determine the extent and qualitative importance

14 of the identified similarities. Further, expert testimony may aid in reviewing the

15 authenticity of the manuscript that was reportedly emailed by Defendant Gray on June

16 13, 2022.

17 Finally, Defendants contend that the Court’s finding of four protectable elements

18 are based on Plaintiff’s misrepresentations. Thus, Defendants maintain that, if those

19 mischaracterizations are corrected, there would be no notable protectable elements, and

20 thus, the Court would no longer be able to find substantial similarity.

21 However, though Defendants’ identified differences are noted, the Court continues

22 to find the four elements protectable. For the prior order, the Court conducted an actual

23 reading of the works at issue, which allowed it to identify the differences between the

24 literary works that Defendants identify. However, those differences did not, and continue

25 to not, change the Court’s conclusion. Thus, Plaintiff has adequately pled substantial

26 similarity.

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1 2. Combination of Elements

2 To plead a selection-and-arrangement infringement, a plaintiff must show that the

3 “works share, in substantial amounts, the ‘particular,’ i.e., the ‘same,’ combination of

4 unprotectable elements.” Skidmore, 952 F.3d at 1075.

5 As it found it its prior order, the Court finds here that expert analysis would be

6 helpful in filtering protectable from unprotectable similarities. This is especially so,

7 given that even if elements are unprotectable as they stand alone, it is plausible that

8 specific combinations of elements could be original and therefore protectable. Expertise

9 would aid in analyzing the different combinations and determining whether there are

10 similarities there.

11 In sum, Defendants continue to plausibly allege direct infringement, and the Court

12 DENIES Defendant’s motion to dismiss as to this claim.

13 II. CONTRIBUTORY INFRINGEMENT

14 Defendants argue that the contributory infringement claim should be dismissed

15 because the direct infringement claim has not been successfully established. However, as

16 discussed above, the direct infringement claim has met the plausibility standard. Thus,

17 Defendants argument fails, and the Court DENIES the motion as to the contributory

18 infringement claim.

19 III. STATUTORY DAMAGES AND ATTORNEYS’ FEES

20 In order to recover statutory damages and attorney’s fees under the Copyright Act,

21 a plaintiff “must plead facts showing that the alleged infringement commenced after his

22 registration” of the allegedly infringed work. Gardner v. CafePress Inc., No. 3:14-cv-

23 0792-GPC, 2014 WL 7183704, at *3 (S.D. Cal. Dec. 16, 2014); 17 U.S.C § 412(2).

24 When there are multiple alleged infringements, “the first act of infringement in a

25 series of ongoing infringements of the same kind marks the commencement of one

26 continuing infringement under § 412.” Derek Andrew, Inc. v. Poof Apparel Corp., 528

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1 F.3d 696, 701 (9th Cir. 2008) (emphasis in original). In other words, “each separate act of

2 infringement of the same kind, although a separate infringement within the meaning of

3 the statute, does not mark the “commencement” of a new infringement within the

4 meaning of section 412, rather, the infringement is part of an ongoing, continuing

5 infringement.” Marshall, 2019 WL 1557429, at *4. Thus, the commencement date used

6 for recovery of statutory damages is the timing of the first infringement, even if other

7 infringing actions followed.

8 However, if a portion of alleged infringements occur after the copyright’s

9 registration, that infringement can be entitled to statutory damages if there are legally

10 significant differences between the post-registration infringement and the first act of

11 infringement. Derek Andrew, 528 F.3d at 701. A legally significant difference is one that

12 establishes a separate infringing activity commenced with that action. See id. (finding a

13 hang-tag was part of an ongoing series of infringements even though it was attached to

14 different garments because the new garments were not a legally significant difference);

15 Marshall v. Babbs, No. 2:18-cv-03822-DDP, 2019 WL 1557429, at *3 (C.D. Cal. Apr.

16 10, 2019) (finding no legally significant difference between publishing the same

17 infringing song on different mediums).

18 Here, Lesley Aldrich allegedly registered the copyrights to the Works on February

19 5, 2024. SAC ¶ 153. Gray completed Nightweaver in 2022 and began publishing it in

20 October 2023, months before Plaintiff registered its works. Id. ¶¶ 154-55. Defendant

21 Hachette, however, acquired Nightweaver in March 2024 and released an edited version

22 to the public in March 2025. Id. ¶ 156. The edited version of Nightweaver was copyright

23 registered on April 29, 2025 with a creation date of 2025. Id. ¶ 163. Plaintiff has

24 identified thirty-four differences in the initial version of Nightweaver and the version

25 registered by Defendant Hachette, as well as differences in the cover and artwork. Opp. at

26 31; SAC, Ex. 9.

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1 From these facts, Plaintiff alleges that Defendant Hachette is liable for statutory

2 damages and attorneys’ fees because there are legally significant differences between the

3 two versions based on “Nightweaver’s change in publisher, [the] significant time period

4 between publications of the two versions, character name and other editorial changes, and

5 the fact that each version has its own copyright.” Id. ¶ 164.

6 However, a change in publisher, changes in a character’s name, and a new

7 copyright do not constitute an infringing activity that is significantly different from the

8 first alleged infringement. They, rather, clothe the first infringement alleged by Plaintiff

9 in slightly different garments. See Marshall v. Babbs, No. 2:18-cv-03822-DDP, 2019 WL

10 1557429, at *3 (C.D. Cal. Apr. 10, 2019). The first alleged infringement, nonetheless,

11 remains despite a slightly different appearance. These minor alterations do not, on their

12 own, establish a separate infringing activity commenced.

13 The passage of time also does not separate the alleged post-registration infringing

14 activities from the first. The SAC identifies that the alleged actions of Defendant Gray as

15 the original source of the direct infringement. Though 17 months have passed between

16 the first and second publications of Nightweaver with Defendant Hachette acquiring the

17 story’s rights, the post-registration infringement by Defendant Hachette just continues

18 that original pre-registration infringement rather than constituting an independent act.

19 The passage of time does not, by itself, create a legally significant difference indicating a

20 new infringement has commenced. See McGucken v. Chive Media Grp., LLC, No. CV

21 18-01612-RSWL-KS, 2018 WL 5880751, at *5 (C.D. Cal. Nov. 8, 2018).

22 Similarly, the thirty-four identified differences between versions do not

23 demonstrate a separate infringing activity commenced. Instead, those highlighted

24 differences only reflect added prose to enhance the story’s quality and coherence. While

25 the variations between the Hatchette and Gatekeeper editions are made clearer with

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1 || Exhibit 9 of the SAC, it does not identify legally significant differences between the

2 ||series of ongoing, alleged infringements.

3 As relevant here, Plaintiff requests leave to amend any dismissed claims; however,

4 ||the Court concludes that amendment would be futile for this claim. The necessary facts to

5 || determine whether Plaintiff may be entitled to statutory damages and attorney’s fees have

6 || been sufficiently pled. The court DENIES leave to amend this claim.

7 For these reasons, the Court GRANTS Defendants’ motion to dismiss the claims

8 || for statutory damages and attorneys’ fees under the Copyright Act without leave to

9 amend.

10 CONCLUSION

1] For the foregoing reasons, the Court hereby DENIES IN PART and GRANTS IN

12 ||PART the Defendants’ motion to dismiss without leave to amend. The Court VACATES

13 || the hearing set for November 21, 2025.

14 IT IS SO ORDERED.

15 Dated: November 18, 2025 <=

17 United States District Judge

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