Petition for Writ of Certiorari — Rodney Woodland, Petitioner v. Montero Lamar Hill

Supreme Court briefDec 22, 2025

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No. 25-_____

IN THE

Supreme Court of the United States

________________

RODNEY WOODLAND,

Petitioner,

MONTERO LAMAR HILL,

________________

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

Andy Nelson

SALIENT COUNSEL PC

26522 La Alameda #180

Mission Viejo, CA 92691

Michael Shapiro

LAW OFFICE OF MICHAEL SHAPIRO

11500 W. Olympic Blvd, #400

Los Angeles, CA 90064

Andrew Grimm

Counsel of Record

DIGITAL JUSTICE FOUNDATION

15287 Pepperwood Drive

Omaha, NE 68154

(531) 210-2381

Andrew@DigitalJustice

Foundation.org

QUESTIONS PRESENTED

1. Whether, on an acknowledged Circuit split,

copyrightability is a pure question of law, as the Ninth

Circuit held below, or includes considerations of

background facts, either as a pure question of fact or

as a mixed question of law and fact, as heavily implied

by this Court’s decision in Feist and expressly adopted

by other Circuits citing Feist.

2. Whether copyright protection for photography is

only selection and arrangement as the Ninth Circuit

held in Rentmeester and extended below, or whether

as for all other works of the visual arts that Congress

placed on an equal footing in 17 U.S.C. § 101 and in

accordance with this Court’s seminal decision in

Burrow-Giles.

PARTIES BELOW

The parties to the proceedings in the court whose

judgment is sought herein to be reviewed were the

following:

•

Petitioner: Rodney Woodland.

•

Respondent: Montero Lamar Hill a/k/a “Lil Nas

X.”

CORPORATE DISCLOSURE

Petitioner is a natural person.

RELATED PROCEEDINGS

The proceedings directly related to this one such

that they arise out of the same trial-court proceedings

are:

•

Woodland v. Hill, No. 23-55418 (9th Cir.) (May 16,

2025) (judgment below).

•

Woodland v. Hill, No. 2:22-cv-03930-AB-MRW

(C.D. Cal.) (Apr. 25, 2023) (trial-court judgment).

TABLE OF CONTENTS

QUESTIONS PRESENTED........................................ i

PARTIES BELOW ...................................................... ii

CORPORATE DISCLOSURE .................................... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF AUTHORITIES ....................................... v

OPINIONS BELOW ................................................... 1

JURISDICTIONAL STATEMENT ............................ 1

RELEVANT STATUTORY PROVISIONS ................ 2

STATEMENT OF THE CASE ................................... 3

PHOTOGRAPHIC COPYRIGHTS IMPLICATE KEY

AND FUNDAMENTAL PRINCIPLES ANIMATING

THE CONSTITUTIONAL AND DEMOCRATIC

PURPOSES OF COPYRIGHT. .................................... 3

II. THE NINTH CIRCUIT’S JURISPRUDENCE ON

PHOTOGRAPHIC COPYRIGHTS DEVIATES FROM

THESE CORE COPYRIGHT PRINCIPLES AND

GIVES PHOTOGRAPHIC COPYRIGHT SECONDCLASS TREATMENT................................................ 8

III. THE PROCEEDINGS BELOW ARE YET ANOTHER

CASE WHERE THE NINTH CIRCUIT’S

DOCTRINES

PROHIBIT

MEANINGFUL

PROTECTION

AND

RIGHTS

FOR

PHOTOGRAPHERS. ............................................... 11

iii

REASONS FOR GRANTING THE WRIT ............... 13

THE FIRST QUESTION PRESENTED ARISES ON A

CIRCUIT SPLIT AND HAS MAJOR IMPLICATIONS

FOR THE LITIGATION OF NEARLY EVERY

II. THE SECOND QUESTION PRESENTED ARISES

ON A CIRCUIT SPLIT ABOUT THE TREATMENT

OF PHOTOGRAPHIC COPYRIGHTS. ........................ 24

CONCLUSION ......................................................... 27

APPENDIX CONTENTS

APPENDIX A: NINTH CIRCUIT OPINION ......................... 3a

APPENDIX B: DISTRICT COURT OPINION ..................... 32a

APPENDIX C: ORDER DENYING REHEARING ................ 45a

TABLE OF AUTHORITIES

Cases

ACT, Inc. v. Worldwide Interactive Network, Inc.,

46 F.4th 489 (6th Cir. 2022) ............................... 24

Andy Warhol Found. for the Visual Arts, Inc.

v. Goldsmith,

598 U.S. 508 (2023) ......................................... 3, 17

Bleistein v. Donaldson Lithographing Co.,

188 U.S. 239 (1903) ............................................. 17

Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53 (1884) .......................... 7, 20-22, 24, 27

CMM Cable Rep, Inc. v. Ocean Coast Props., Inc.,

97 F.3d 1504 (1st Cir. 1996) ............................... 23

Enter. Mgmt. Ltd. v. Warrick,

717 F.3d 1112 (10th Cir. 2013) ........................... 24

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340 (1991) ...................... 12, 14-20, 22, 24

Gaiman v. McFarlane,

360 F.3d 644 (7th Cir. 2004) ............................... 23

Google LLC v. Oracle Am., Inc.,

593 U.S. 1 (2021) ........................................... 13, 14

Harney v. Sony Pictures TV, Inc.,

704 F.3d 173 (1st Cir. 2013) ......................... 23, 26

Harper & Row, Publrs. v. Nation Enters.,

471 U.S. 539 (1985) ....................................... 13, 15

Mannion v. Coors Brewing Co.,

377 F. Supp. 2d 444 (S.D.N.Y. 2005) ............ 25, 26

Metro. Reg’l Info. Sys. v.

Am. Home Realty Network, Inc.,

722 F.3d 591 (4th Cir. 2013) ............................... 23

Rentmeester v. Nike, Inc.,

883 F.3d 1117 (9th Cir. 2018) ........... 11, 12, 22, 25

Rogers v. Koons,

960 F.2d 301 (2d Cir. 1992) ................................ 26

Varsity Brands, Inc. v. Star Athletica, LLC,

799 F.3d 468 (6th Cir. 2015) ............................... 23

Zahourek Sys. v. Balanced Body Univ., LLC,

965 F.3d 1141 (10th Cir. 2020) ........................... 24

Statutes

17 U.S.C. § 101 .................................................. 2, 8, 17

17 U.S.C. § 102 ............................................................ 2

17 U.S.C. § 102(a)(1) .................................................. 17

17 U.S.C. § 107 .......................................................... 13

17 U.S.C. § 1.08[C][1] ................................................ 15

28 U.S.C. § 1254(1) ...................................................... 1

Other Authorities

1 M. Nimmer & D. Nimmer, Copyright

§§ 2.01[A], [B] (1990)........................................... 15

FEDERALIST NO. 43 ................................................... 3, 5

Paul Goldstein, Copyright’s Highway: From the

Printing Press to the Cloud 677 (2019)......... 4, 5, 6

PETITION FOR WRIT OF CERTIORARI

Petitioner hereby petitions this Honorable Court

for a writ of certiorari to review the judgment below of

the United States Court of Appeals for the Ninth

Circuit.

OPINIONS BELOW

The Ninth Circuit’s opinion (Pet.App.3a-31a) is

published at 136 F.4th 1199.

The District Court’s opinion (Pet.App.32a-44a) is

unpublished but is available on Lexis (2023 U.S. Dist.

LEXIS 59469 / 2023 LX 59633).

The Ninth Circuit’s order denying rehearing

(Pet.App.45a) is unpublished but is available on Lexis

(2025 U.S. App. LEXIS 18482 / 2025 LX 217844).

JURISDICTIONAL STATEMENT

The judgment below was entered on May 16, 2025.

A timely petition for rehearing was denied on July 24,

2025. Justice Kagan graciously extended the time to

file to Sunday, December 21, 2025. By operation of

rule, this Petition is timely as filed on December 22,

2025. This Petition is timely and this Honorable

Court has jurisdiction. 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Sections 101 and 102, of Title 27 of U.S. Code,

reads, in relevant part and with emphasis added, as

follows:

§ 101. Definitions

[….]

“Pictorial, graphic, and sculptural works” include twodimensional and three-dimensional works of fine,

graphic, and applied art, photographs, prints and art

reproductions, maps, globes, charts, diagrams,

models,

and

technical

drawings,

including

architectural plans.

[…]

§ 102 - Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with

this title, in original works of authorship fixed in

any tangible medium of expression, now known

or later developed, from which they can be

perceived,

reproduced,

otherwise

communicated, either directly or with the aid of a

machine or device. Works of authorship include

the following categories:

[….]

(5)

pictorial, graphic, and sculptural works;

STATEMENT OF THE CASE

PHOTOGRAPHIC COPYRIGHTS IMPLICATE KEY

AND FUNDAMENTAL PRINCIPLES ANIMATING THE

CONSTITUTIONAL AND DEMOCRATIC PURPOSES

OF COPYRIGHT.

Writing in the FEDERALIST PAPERS, James

Madison’s discussion of the Intellectual-Property

Clause of the U.S. Constitution, i.e., of the thenproposal for nationalizing copyright and patent law, is

surprisingly short.

Madison doesn’t spill much ink justifying the value

of intellectual property because he seems to have

thought his readers would view its importance and

value to be self-evident, writing that the “utility of this

power [of copyright] will scarcely be questioned.”

FEDERALIST NO. 43.

Indeed, just a few years ago, this Court echoed that

sentiment, observing what a powerful utility – a

“powerful engine” of creativity” – American copyright

law has been. See Andy Warhol Found. for the Visual

Arts, Inc. v. Goldsmith, 598 U.S. 508, 550 (2023) (“If

the last century of American art, literature, music,

and film is any indication, the existing copyright law,

of which today’s opinion is a continuation, is a

powerful engine of creativity.”).

Many of the Framers were quite familiar with

at their respective States’ pre-Ratification enactments

of copyright laws, as treatise author Professor Paul

Goldstein explains.

Paul Goldstein, Copyright’s

Highway: From the Printing Press to the Cloud 677

(2019) (“The [Constitutional] Convention did not have

to revisit the question of the need for copyright, for

many of the delegates, George Washington among

them, had been present at the debates over the state

When the issue of adding intellectual property to

the U.S. Constitution arose in the last two weeks of

the Convention, this proposal to nationalize copyright

law obtained universal assent. Id. at 691 (“On

September 5, 1787, less than two weeks before the

Constitutional Convention ended, David Brearly of

New Jersey presented the proposal of the Committee

of Detail for a clause in the Constitution empowering

Congress to enact a national copyright law. The

clause [] passed unanimously and evidently without

debate[.]”).

It was not their mere familiarity with copyright

that drove the consensus. Instead, several key aspects

of the internal workings of copyright law rendered it

especially attractive to the Framers and their

worldviews.

To the Framers, copyright law was liberal in the

sense that copyright functions through an enforceable

individual property right. But, copyright was also

public-spirited insofar as stimulating private

expression would advance the arts. As Madison

eloquently put it: “The public good fully coincides in

both [copyright law and patent law] with the claims of

individuals.” FEDERALIST NO. 43. Copyright law, the

Framers thought, married individual right with public

good.

Yet, that wasn’t all. The Framers also astutely

appreciated copyright law’s deployment of copyright

markets to democratize art, expression, innovation,

and culture – both in art’s creation and, also, in its

appreciation. To put it in economic terms, copyright

law vastly expanded opportunities to make an artistic

career into a profession and, also, created through the

very market mechanisms that gave the public – i.e.,

pop culture – a say in art and culture.

With copyright law, an artist no longer needed an

an aristocratic or royal patron. Goldstein, Copyright’s

Highway, 371 (“[A]s movable type brought literature

within the reach of everyone, and as the preferences of

a few royal, aristocratic, or simply wealthy patrons

were supplanted by the accumulated demands of mass

consumers, a legal mechanism was needed to connect

consumers to authors and publishers commercially.

*****

From its beginning, copyright law has always

arisen at the intersection of art and technology,

benefitting from concomitant reductions in both the

cost of creating copyrighted works and reductions in

the cost of copying copyrighted works in a manner that

expanded both the number of works and the number

of people who could access them. In this sense,

“[c]opyright was technology’s child from the start.”

Goldstein, Copyright’s Highway, at 29.

And, while copyright law found its inception with

Gutenberg’s printing press and the readily reproduced

written word, copyright law has continually expanded

to new markets and mediums, furthering its purposes.

Id. (“Centuries later, photographs, sound recordings,

motion pictures, videocassette recorders, CDs, DVDs,

computers, and the internet have dramatically

expanded the markets for mechanically or

electronically

reproduced

entertainment

and

information, and increased the role of copyright in

organizing these markets.”).

In this sense, photography – and copyrights in

photography – fit the trend. Photographic technology

dramatically expanded the ability to paint from a

rarefied few to an expressive many. And, in this sense,

photographic copyrights are a good exemplar of the

traits of copyright that attracted the Framers.

Photographic copyrights embody the Framer’s

emphasis on copyright’s place at the intersection of

democratization, individual right, and public good.

After all, photography is democratic in its production

– as a scroll through your own smartphone’s camera

roll will attest.

Via modern technology, nearly

everyone is a photographer with a corpus that’s at

least impressive in volume. Likewise, photography is

democratic in its ready distribution and appreciation

– as the advent of, and inordinate time spent on social

media, will attest.

Photography is no less individualized or

expressive. As this Court recognized over a century

ago, photography, as with “all forms of writing,

printing, engraving, etching, &c.,” is a medium “by

which the ideas in the mind of the author are given

visible expression.” See Burrow-Giles Lithographic

Co. v. Sarony, 111 U.S. 53, 58 (1884). In this sense,

wise jurists on this Court rejected attempts to suggest

photography – an art form that so readily fulfills the

Framer’s vision of what a copyright law could

accomplish for a republic – is in no sense deserving of

second-class citizenship under the law, as this Court

has recognized. See id.

Congress too has demonstrated it shares this view.

When Congress was classifying the visual arts,

Congress placed photography on an equal footing with

the more traditional visual arts.

Congress refused second-class treatment for

photography and, instead, joined photographic

copyrights with the rest of the visual arts in one

omnibus grouping it defined as “pictorial, graphic, and

sculptural works” – i.e., PGS works. 17 U.S.C. § 101

(defining the works).

Congress saw fit to place photography on an equal

footing, right in the midst of all other forms of “twodimensional and three-dimensional works of fine,

graphic, and applied art, photographs, prints and art

reproductions, maps, globes, charts, diagrams,

models,

and

technical

drawings,

including

architectural plans.” Id. In short, photographic

copyrights well embody the fundamental principles

that drew the Framers to copyright law, a view

ratified by Congress when it adopted the medium of

photography as part and parcel of American copyright

law.

II. THE NINTH CIRCUIT’S JURISPRUDENCE ON

PHOTOGRAPHIC COPYRIGHTS DEVIATES FROM

THESE CORE COPYRIGHT PRINCIPLES AND GIVES

PHOTOGRAPHIC COPYRIGHT SECOND-CLASS

TREATMENT.

Yet, the Ninth Circuit has taken a different tactic

for how to handle photographic copyrights by

distorting several key doctrines to undermine

this Court’s rationales and creating Circuit splits.

Despite Congress’ decision to place photographic

copyrights on an equal footing with all other manner

of visual arts under copyright law, the Ninth Circuit

has crafted sui generis doctrines to restrict

photographers from the full measure of protections

that Congress enacted and that the Framers’ timehonored and visionary approach to copyright law

ordains.

Two unwarranted doctrinal innovations in the

Ninth Circuit’s law – all evidence in the opinion below

– have occasioned a radical restriction on the ability of

photographic

holders

–

whether

professionals or amateurs – to protect their

Constitutional rights in their copyrights from nearwholesale appropriation.

First, the Ninth Circuit below and in photography

cases has treated copyrightability and its subsidiary

question of originality as a pure question of law, rather

than a question of fact or of mixed fact and law as the

other Circuits have done. In so doing, the Ninth

Circuit has used ipse dixit analysis to deem works

copyrightable or not as a matter of law, while wholly

ignoring the background facts of their creation

indicating creativity and, importantly, background

facts that were central to this Court’s seminal case on

photographic copyrights and also central to this

Court’s seminal decision on copyrightability generally.

Insofar as the other Circuits has followed this

Court’s rationales, the Ninth Circuit’s pure law

approach to copyrightability in photogrpahy – wholly

ignoring the factual aspects of originality – has

engendered and entrenched Circuit splits.

Second, the Ninth Circuit has fashioned a sui

generis test for infringement of copyrights, requiring

that the photographs be essentially identical, unlike

any other form of visual art, such that minor or

incidental changes in the image of a copyrighted work

are a free pass to infringe a creator’s work. Of course,

the Ninth Circuit’s doctrinal innovation is wholly

untether from the statute or the facts of a work’s

creation because Congress placed photography on an

equal footing and the other Circuits recognize that

expression to determine protection – not painting with

a broad brush to restrict all photography across the

board from robust protection.

Third, the Ninth Circuit has been reworked its

similarity doctrines to avoid and diminish the role of

the jury in determining similarity, contrary to the

longstanding test that was developed by the Second

Circuit, and used consistently by the other Circuits

since, with an eye toward permitting the factfinder

and intended audience of art to determine similarities

– not a single jurist whose aesthetic expertise may or

may not match her juridical wisdom.

III. THE PROCEEDINGS BELOW ARE YET ANOTHER

CASE WHERE THE NINTH CIRCUIT’S DOCTRINES

PROHIBIT MEANINGFUL PROTECTION AND

RIGHTS FOR PHOTOGRAPHERS.

Petitioner Rodney Woodland is an artist

specializing in semi-nude self-photography. His selfphotography can be found in the appendix as

reproduce in the Ninth Circuit’s opinion. Pet.App.23a30a. Critically, he does not find images in the world

and take snapshots of them. Rather, he creates a

scene himself – with lighting, posing, props, costumes,

post-production editing, etc. – to create an image that

would be found nowhere else in nature.

Respondent Montero Lamar Hill is a rapper whose

own social-media began merchandising imagery that

copied key components of Mr. Woodland’s images and

placing them into merchandise for sale via social

media and otherwise. His photography which is

asserted to be infringing can be found side-by-side.

Pet.App.23a-30a.

Mr. Woodland sued in the Central District of

California for copyright infringement. The District

Court granted motions to dismiss, centrally predicated

on pre-existing Ninth Circuit precedent, Rentmeester

v. Nike, Inc., 883 F.3d 1117 (9th Cir. 2018), that limits

photographic

copyrights

selection

and

arrangement. Pet.App.40a-43a.

On appeal, the Ninth Circuit affirmed, again citing

centrally Rentmeester v. Nike, Inc., 883 F.3d 1117

(9th Cir. 2018) and doing a side-by-side comparison

while stating that, somehow, even highly original

aspects of photography are not eligible for copyright

protection:

Contrary to Woodland’s assertions, the

individual elements in photographs—the

poses, lighting, costumes, and makeup—are

not themselves protected from infringement.

Rather, we held in Rentmeester that when

viewed

isolation,

these

objective

elements—even “highly original elements”—

are unprotected. 883 F.3d at 1119. Rather,

“[w]hat is protected by copyright is the

photographer’s selection and arrangement of

the photo’s otherwise unprotected elements.

If sufficiently original, the combination of

subject matter, pose, camera angle, etc.,

receives protection, not any of the individual

elements standing alone.” Id. (emphasis in

original). Thus, “[a] second photographer is

free to borrow any of the individual elements

featured in a copyrighted photograph, ‘so long

as the competing work does not feature the

same selection and arrangement’ of those

elements.” Id. at 1120 (quoting Feist, 499 U.S.

at 349).” Pet.App.20a.

REASONS FOR GRANTING THE WRIT

THE FIRST QUESTION PRESENTED ARISES ON A

CIRCUIT SPLIT AND HAS MAJOR IMPLICATIONS

FOR THE LITIGATION OF NEARLY EVERY

The questions presented herein arise on Circuit

splits and/or on significant deviations from this

Court’s precedents and present highly important

questions of copyright law.

As to the first question, this Court has not yet

expressly decided whether copyrightability, and its

subsidiary doctrine of originality, is purely legal,

purely factual, or mixed – and, if mixed, whether legal

or factual issues ultimately predominate.

For comparison, in the realm of copyright’s fair-use

doctrine codified at 17 U.S.C. § 107, the precedent is

clear that fair use is a mixed question of law and of

fact, but a question ultimately reviewed de novo

because it is quintessentially legal in nature. E.g.,

Google LLC v. Oracle Am., Inc., 593 U.S. 1, 24 (2021)

(“We have said, ‘[f]air use is a mixed question of law

and fact.’”); id. at 49 (THOMAS, J., joined by ALITO, J.,

dissenting) (“I agree with the majority that, under our

precedent, fair use is a mixed question of fact and law

and that questions of law predominate.”); Harper &

Row, Publrs. v. Nation Enters., 471 U.S. 539, 560

(1985) (“Fair use is a mixed question of law and fact.”).

In turn, in Google, this Court emphasized that

mixed questions should be treated just so – as both

factual and legal. Google emphasized that in a mixed

question, the lower courts should pay careful

attention to deciding the factual issues factually and

the legal issues legally:

We have explained that a reviewing court

should try to break such a question into its

separate factual and legal parts, reviewing

each according to the appropriate legal

standard. But when a question can be reduced

no further, we have added that “the standard of

review for a mixed question all depends—on

whether answering it entails primarily legal or

factual work.”

Google, 593 U.S. at 24.

In turn, this Court’s seminal Feist decision on

copyrightability, while not expressly deciding whether

copyrightability is a question of law, fact, or of both,

gives considerable guidance in its mode of analysis:

focusing on background facts pertinent to how a

copyrighted work was created and then using those

facts to ascertain whether any human judgments or

creativity entered the creation process.

Feist

reiterated

and

encapsulated

what

originality, the “sine qua non” of copyrightability,

entails:

The sine qua non of copyright is originality. To

qualify for copyright protection, a work must be

original to the author. See Harper & Row,

supra, at 547-549. Original, as the term is used

in copyright, means only that the work was

independently created by the author (as

opposed to copied from other works), and that

it possesses at least some minimal degree of

creativity. 1 M. Nimmer & D. Nimmer,

Nimmer). To be sure, the requisite level of

creativity is extremely low; even a slight

amount will suffice. The vast majority of works

make the grade quite easily, as they possess

some creative spark, "no matter how crude,

humble or obvious" it might be. Id., § 1.08[C][1].

Originality does not signify novelty; a work

may be original even though it closely

resembles other works so long as the similarity

is fortuitous, not the result of copying.

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.

340, 345 (1991). Thus, originality is determined by

way of background facts about whether the work was

copied from preexisting material and how the work’s

author made it, not its facial appearance..

Feist did not merely take a quick glance at the

facial appearance of the work but focused heavily on

the background facts of how the work came into

existence, i.e., was created. Id. at 361-364 (discussing

the backgrounds facts that went into the creation of

the work at issue).

Feist was specifically focused on the question of

whether roughly 1,300 entries in the white pages of a

phone book was original and, so, copyrightable. Id. at

361 (examining the copyrightability of “the names,

towns, and telephone numbers of 1,309 of Rural’s

[telephone book] subscribers” listed in alphabetical

order).

In its analysis of this question, Feist is notable for

what it did not do: Feist did not simply cast a quick

judicial glance at an alphabetical list of names,

dismiss that non-creative as non-creative as a matter

of law, and move on. Id. Rather, Feist exhaustively

detailed the background facts on how the list was

compiled and whether, in that process, any human or

creative judgments were made.

First, Feist looked to content. The roughly 1,300

names, phone numbers, addresses, etc., were not

original because they were purely factual. Id. at 361.

(“[T]hese bits of information are uncopyrightable

facts; they existed before Rural reported them and

would have continued to exist if Rural had never

published a telephone directory. The originality

requirement "rules out protecting . . . names,

addresses, and telephone numbers of which the

plaintiff by no stretch of the imagination could be

called the author.”).

The content of the list was not uncreative because

legal minds viewing it wouldn’t find it aesthetically

important or interesting. Indeed, this Court has

expressly warned lower courts against evaluating

“artistic significance” – characterizing it as a

“dangerous undertaking.” Andy Warhol Found. for

the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 544

(2023) (“A court should not attempt to evaluate the

artistic significance of a particular work.”); Bleistein

v. Donaldson Lithographing Co., 188 U.S. 239, 251

(1903) (HOLMES, J.) (“It would be a dangerous

undertaking for persons trained only to the law to

constitute themselves final judges of the worth of [a

work], outside of the narrowest and most obvious

limits”).

Copyrightability

isn’t

about

artistry

appearance, but rather about what decisions underlie

the work itself. As such, the phonebook’s content was

not copyrightable because that content. By contrast,

consider an instruction manual or a computer

program. 17 U.S.C. § 101 (defining “Literary works”

and “computer programs”; 17 U.S.C. § 102(a)(1)

(“literary works” among copyrightable works).

One might find an instruction manual or the text

of computer program to be every bit as uninteresting

to read – and as artistically insignificant – as 1,300

entries in a phonebook, but the instruction manual

and computer program would be original insofar as

the author actually wrote their content, not just listed

preexisting facts. The difference is not apparent on

the face of the work but rather stems from background

facts detailing how the work was created.

Feist itself gives a good example: the yellow pages

of the phone book were concededly copyrightable, i.e.,

concededly creative in the meaningful sense that

human decision-making underpinned their creation,

regardless of aesthetic merit. Id. at 361 (“Feist

appears to concede that Rural’s directory, considered

as a whole, is subject to a valid copyright because it

contains some foreword text, as well as original

material in its yellow pages advertisements.”).

As to content,

determinative.

the

background

facts

were

Second, Feist examined the selection – i.e., the

process by which the 1,300 names were selected for

inclusion in the phonebook. Here, too, Feist didn’t

analyze the face of the work itself, but rather looked

to the background facts of how the phonebook was

compiled.

This Court noted that the selection of listings in

the phonebook was “mechanical” because the

phonebook company simply took the “data provided by

its subscribers” without making any determination or

exercise of judgment as to who to include or exclude.

Id. at 362 (“It is equally true, however, that the

selection and arrangement of facts cannot be so

mechanical or routine as to require no creativity

whatsoever.”); id. (“In preparing its white pages,

Rural simply takes the data provided by its

subscribers and lists it alphabetically by surname.”).

In addition, the selection was not a creative judgment

of the phonebook company’s employees, but “dictated

by state law, not by Rural” – the phonebook company.

Id. at 363.

Again, the clear guidance from Feist is that the

background factual details about what went into the

work matter a great deal for determining

copyrightability.

Whether it’s Time Magazine’s annual Top 100

Most Influential, a Buzfeed listicle, or a MySpace Top

8, etc., selection certainly can be a decision-ridden,

exercise of judgment. A list of names, like any other

sort of selection, can be (minimally or even highly)

creative depending upon the facts undergirding the

selection.

The differentiator for copyright law purposes, Feist

indicates, is

Third, Feist examine the 1,300 names

“coordination and arrangement”: the phonebook

list’s alphabetical ordering. Id. at 363 (“[T]here is

nothing remotely creative about arranging names

alphabetically in a white pages directory. It is an ageold practice, firmly rooted in tradition and so

commonplace that it has come to be expected as a

matter of course. See Brief for Information Industry

Association et al. as Amici Curiae 10 (alphabetical

arrangement ‘is universally observed in directories

published by local exchange telephone companies’).”).

Again, Feist did not rest with the observation of

the work’s alphabetical ordering standing alone, but

also turned to background facts and the context of the

a “firmly rooted” industry tradition. On this too, this

Court used facts about the creation and context of the

work to understand whether any modicum of

creativity could be discerned.

It’s not just Feist. Burrow-Giles Lithographic Co.

v. Sarony, 111 U.S. 53 (1884), a case repeatedly cited

and extensively discussed in Feist, is in accord. The

copyrightability of a photograph of Oscar Wilde was

upheld because of the “finding of fact” in regard to how

the Oscar Wilde photography was created.

Notably, this Court held that the underlying

“finding of fact” about how the photograph was

created, not the mere ultimate output, was what was

used to decide copyrightability:

The third finding of facts says, in regard to

the photograph in question, that it is a "useful,

new, harmonious, characteristic, and graceful

picture, and that plaintiff made the same . . .

entirely from his own original mental

conception, to which he gave visible form by

posing the said Oscar Wilde in front of the

camera, selecting and arranging the costume,

draperies, and other various accessories in said

photograph, arranging the subject so as to

present graceful outlines, arranging and

disposing the light and shade, suggesting and

evoking the desired expression, and from such

disposition, arrangement, or representation,

made entirely by plaintiff, he produced the

picture in suit."

These findings, we think, show this

photograph to be an original work of art, the

product of plaintiff’s intellectual invention, of

which plaintiff is the author[.]

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,

60 (1884).

In short, this Court recognized the copyrightability

of posing, of costume, of camera angles, and of light

and shade insofar as they were chosen by an artist as

essential “findings of fact” for the determination of

copyrightability. Id.

By contrast below, the Ninth Circuit held

otherwise below: “Contrary to Woodland’s assertions,

the individual elements in photographs—the poses,

lighting, costumes, and makeup—are not themselves

protected from infringement. Rather, we held in

Rentmeester that when viewed in isolation, these

objective elements—even “highly original elements”—

are unprotected.” Pet.App.20a. And, unlike either

Feist or Burrows-Giles, the Ninth Circuit below and

in Rentmeester focused exclusively on the output, not

the background facts of creation, to determine

whether an aspect of a work was copyrightable.

Notably absent from the analysis wholesale are any of

the factual aspects of copyrightability.

Notably, there is no definitive answer on this

question from the lower courts or this Court, merely

reading the tea leaves of the rationales from cases like

Feist and Burrow-Giles – with the Circuits reading

Feist differently.

Some say originality and copyrightability are a

question of law, some say it’s a question of fact, and

some say it’s a mixed question.

The split is acknowledged.

E.g., Gaiman v.

McFarlane, 360 F.3d 644, 648-49 (7th Cir. 2004) (“We

have found only a handful of appellate cases

addressing the issue, and they are split.”); Varsity

Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 480

(6th Cir. 2015) (“As an initial matter, we note that

courts are divided about whether copyrightability is a

question of law or fact.”); CMM Cable Rep, Inc. v.

Ocean Coast Props., Inc., 97 F.3d 1504, 1517 (1st Cir.

1996) (“noting that ‘whether a work is original is

treated by some courts as a question of fact and others

as a question of law”).

The First Circuit characterizes copyrightability as

sometimes a fact question and sometimes a law

question. Harney v. Sony Pictures TV, Inc., 704 F.3d

173, 183 n.9 (1st Cir. 2013) (“"originality can be a

question of fact for the jury[.]”); CMM Cable Rep, Inc.

v. Ocean Coast Props., Inc., 97 F.3d 1504, 1517 (1st

Cir. 1996) (“While we do not dispute that the question

of originality can be a question of fact for the jury, it

is not necessarily so.”).

The Fourth Circuit sees copyrightability as a

question of fact. Metro. Reg’l Info. Sys. v. Am. Home

Realty Network, Inc., 722 F.3d 591, 595 n.9 (4th Cir.

2013) (“Furthermore, originality is usually considered

a question of fact,; thus, we may reverse the district

court’s finding here only if it is clearly erroneous[.]”).

The Sixth Circuit views copyrightability as either

a mixed question or a pure question of law. ACT, Inc.

v. Worldwide Interactive Network, Inc., 46 F.4th 489,

498 (6th Cir. 2022) (“Copyrightability is either a

mixed question of law and fact or a pure question of

law, so in any event should be reviewed de novo.”)

The Tenth Circuit sees copyrightability as a mixed

question. E.g., Zahourek Sys. v. Balanced Body Univ.,

LLC, 965 F.3d 1141, 1143 (10th Cir. 2020) (“[W]e

consider the copyrightability of the Maniken as a

mixed question of law and fact.”); Enter. Mgmt. Ltd.

v. Warrick, 717 F.3d 1112, 1117 n.5 (10th Cir. 2013)

(mixed question).

The Circuit are divided. This Court should resolve

the split. It’s of profound importance to how copyright

disputes are addressed and resolved – how they are

pleaded, how they are treated in discovery, how they

are tried.

II. THE SECOND QUESTION PRESENTED ARISES ON

A CIRCUIT SPLIT ABOUT THE TREATMENT OF

PHOTOGRAPHIC COPYRIGHTS.

Applying Feist and Burrow-Giles discussed above,

it would seem clear the underlying facts of what an

author did in creating a copyrighted work – how much

it expressed that particular author’s creativity –

would go to the extent of its copyrightability. Here,

the split is between the First Circuit and the Ninth

Circuit.

The Ninth Circuit below and in Rentmeester has

held that individual elements cannot contribute to

copyrightable – even if they are highly original and

unique.

Pet.App.20a (“Contrary to Woodland’s

assertions, the individual elements in photographs—

the poses, lighting, costumes, and makeup—are not

themselves protected from infringement. Rather, we

held in Rentmeester that when viewed in isolation,

these objective elements—even “highly original

elements”—are unprotected.”).

The First Circuit has expressly recognized a more

nuanced approach, however, that the protection of

those elements is fact-dependent, depending upon

whether they were staged by the photographer or

merely found:

Courts have recognized originality in the

photographer’s selection of, inter alia, lighting,

timing, positioning, angle, and focus. See,

e.g., Leigh, 212 F.3d at 1215; Mannion v. Coors

Brewing Co., 377 F. Supp. 2d 444, 450-51 n.37

(S.D.N.Y. 2005); Kisch, 657 F. Supp. at

382. Photographers make choices about one or

more of those elements even when they take

pictures of fleeting, on-the-spot events.

Additional factors are relevant when the

photographer does not simply take her subject

"as is," but arranges or otherwise creates the

content

by,

for

example,

posing

her [*181] subjects or suggesting facial

expressions. See, e.g., Rogers v. Koons, 960

F.2d 301, 307 (2d Cir. 1992) ("Elements of

originality in a photograph may include posing

the subjects, lighting, angle, selection of film

and [**15] camera, evoking the desired

expression, and almost any other variant

involved."); Mannion, 377 F. Supp. 2d at 450 &

n.37 (collecting cases listing "potential

components of a photograph’s originality").

Harney v. Sony Pictures TV, Inc., 704 F.3d 173, 18081 (1st Cir. 2013.).

The First Circuit is right insofar as elements of

posing, costuming, etc., were recognized over a

century ago as relevant considerations for the extent

of copyright protection:

The third finding of facts says, in regard to

the photograph in question, that it is a "useful,

new, harmonious, characteristic, and graceful

picture, and that plaintiff made the same . . .

entirely from his own original mental

conception, to which he gave visible form by

posing the said Oscar Wilde in front of the

camera, selecting and arranging the costume,

draperies, and other various accessories in said

photograph, arranging the subject so as to

present graceful outlines, arranging and

disposing the light and shade, suggesting and

evoking the desired expression, and from such

disposition, arrangement, or representation,

made entirely by plaintiff, he produced the

picture in suit."

These findings, we think, show this

photograph to be an original work of art, the

product of plaintiff’s intellectual invention, of

which plaintiff is the author[.]

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53,

60 (1884).

CONCLUSION

This Honorable Court should grant review.

Respectfully submitted,

Andrew Grimm

Counsel of Record

DIGITAL JUSTICE

FOUNDATION

15287 Pepperwood Drive

Omaha, Nebraska 68154

(531) 210-2381

Andrew@DigitalJustice

Foundation.org

Andy Nelson

SALIENT COUNSEL PC

26522 La Alameda #180

Mission Viejo, CA 92691

Michael Shapiro

LAW OFFICE OF

MICHAEL SHAPIRO

11500 W. Olympic Blvd,

#400

Los Angeles, CA 90064

APPENDIX

APPENDIX CONTENTS

APPENDIX A: NINTH CIRCUIT OPINION ...................... 3a

APPENDIX B: DISTRICT COURT OPINION................... 32a

APPENDIX C: ORDER DENYING REHEARING ............. 45a

APPENDIX A:

NINTH CIRCUIT OPINION

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODNEY WOODLAND,

Plaintiff-Appellant,

No.

MONTERO

LAMAR

HILL, AKA Lil Nas X;

DOES, 1-10, Inclusive,

23-55418

D.C. No.

2:22-cv-03930AB-MRW

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

________________

SUMMARY*

________________

[….]

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

on Hill’s Instagram page are too similar to those from

his own profile.

This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

We affirm the district court’s order dismissing his

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 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 photos

are not substantially similar.

BACKGROUND

Rodney Woodland describes himself as a visual

artist, photographer, figure model, and online content

creator. He posts many original photographs of

himself semi-naked—or more precisely, naked with

his groin area strategically covered or obscured—in

various poses and backgrounds on Instagram. The

photos at issue were posted on his Instagram account

between August 2018 and July 2021. Each of

Woodland’s twelve posts garnered between eight and

seventy-five “likes.”

Montero Lamar Hill, otherwise known as Lil Nas

X, is a well-known recording artist who actively uses

Instagram to promote his music and tour dates. He,

too, posts photographs of himself semi-naked in a wide

array of poses and backgrounds. Between March and

October 2021, Hill posted eight photographs on

Instagram that Woodland claims infringed on twelve

of his copyrighted photographs. Hill’s posts on

Instagram receive hundreds of thousands, and

sometimes millions, of “likes.”

In June 2022, Woodland sued Hill for copyright

infringement, declaratory relief, accounting, and

unjust enrichment. After Woodland filed his amended

complaint, the district court dismissed all of

Woodland’s claims but granted him leave to amend.

After Woodland filed his second amended

complaint, alleging only a copyright infringement

claim, the district court dismissed the claim without

leave to amend. The district court found that: (1)

Woodland failed to allege any facts to show a

reasonable possibility that Hill viewed Woodland’s

photos on Instagram, and (2) Hill’s photos and

Woodland’s photos were not substantially similar.

On appeal, Woodland argues that the district court

erred on both grounds. We have jurisdiction under 28

U.S.C § 1291.

STANDARD OF REVIEW

We review the district court’s order granting a

motion to dismiss for failure to state a claim de novo.

See McGinity v. Procter & Gamble Co., 69 F.4th 1093,

1096 (9th Cir. 2023). We must “accept all factual

allegations in the complaint as true and construe the

pleadings in the light most favorable to the nonmoving

party.” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204,

1208 (9th Cir. 2020) (quoting Curtis v. Irwin Indus.,

Inc., 913 F.3d 1146, 1151 (9th Cir. 2019)). From there,

we “decide whether the complaint articulates ‘enough

facts to state a claim to relief that is plausible on its

face.’” Starz Ent., LLC v. MGM Domestic Television

Distrib., LLC, 39 F.4th 1236, 1239 (9th Cir. 2022)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

DISCUSSION

To survive a motion to dismiss, Woodland must

state a plausible claim for copyright infringement. To

prove copyright infringement, a plaintiff must satisfy

two prongs: “(1) ownership of a valid copyright, and (2)

copying of constituent elements of the work that are

original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

Inc., 499 U.S. 340, 361 (1991). Because Hill does not

dispute that Woodland’s photos are his original works,

the question here is whether Woodland’s operative

complaint plausibly alleges the second prong.

Our circuit bifurcates the second prong into “two

distinct components: ‘copying’ and ‘unlawful

appropriation.’” Rentmeester, 883 F.3d at 1117

(quoting Sid & Marty Krofft Television Prods., Inc. v.

McDonald’s Corp., 562 F.2d 1157, 1164–65 (9th Cir.

1977)). Plaintiffs must first show that the defendant

copied the work at issue. See Skidmore, 952 F.3d at

1064. Without copying, there is no copyright violation

because, unlike in the patent context, copyright law

does not grant authors a monopoly on protected works.

See 2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER

ON COPYRIGHT § 8.01[A] (2024). So if a different author

independently creates the same work without relying

on the original work, that “is a complete defense to

After a plaintiff shows that the defendant copied

the work, the plaintiff must then prove “unlawful

appropriation.” Hanagami v. Epic Games, Inc., 85

F.4th 931, 941 (9th Cir. 2023). Copyright law “does not

forbid all copying” because Congress did not want to

stifle creativity and creation by categorically

cordoning off large swaths of areas as off-limits.

Rentmeester, 883 F.3d at 1117 (emphasis added). A

plaintiff’s work. Instead, protection extends only to the

plaintiff’s “particular expression” of those ideas.

Krofft, 562 F.2d at 1163 (emphasis added); see also 17

U.S.C. § 102(b) (stating that copyright protection does

not “extend to any idea, procedure, process, system,

method of operation, concept, principle, or discovery”).

A defendant may copy the unprotected “‘ideas’ or

‘concepts’ used in the plaintiff’s work,” but may not

copy the protected expression of those ideas and

concepts. Rentmeester, 883 F.3d at 1117. To show

unlawful appropriation, the plaintiff must prove that

the defendant copied enough of the protected

expression in the work “to render the two works

‘substantially similar.’” Id. (quoting Mattel, Inc. v.

MGA Ent., Inc., 616 F.3d 904, 914 (9th Cir. 2010)).

As explained below, Woodland fails to establish

either copying or unlawful appropriation, and we

affirm the district court on both grounds.

Woodland fails to plausibly allege

copying because he cannot show Hill

had “access” to his photographs.

Because direct evidence that a defendant copied a

plaintiff’s work “is rarely available” (as in our case),

Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987),

a plaintiff often proves copying circumstantially by

showing: (1) “that the defendant had access to the

plaintiff’s work and” (2) “that the two works share

similarities probative of copying,” Rentmeester, 883

F.3d at 1117.1

To show circumstantial evidence of “access,” the

plaintiff may generally either provide (a) “evidence of

a ‘chain of events . . . between the plaintiff’s work and

defendants’ access to that work’ or” (b) “evidence that

‘the plaintiff’s work has been widely disseminated.’”

Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980,

985 (9th Cir. 2017) (quoting Three Boys Music Corp. v.

Bolton, 212 F.3d 477, 482 (9th Cir. 2000), overruled in

part on other grounds by Skidmore, 952 F.3d at 1066–

69)).

Woodland concedes that his works are not widely

disseminated, given that his Instagram photos

received between eight and seventy-five “likes” only.

So he must plead “evidence of a ‘chain of events’”

linking Hill’s access to his works. Unicolors, 853 F.3d

at 985 (quoting Three Boys Music, 212 F.3d at 482).

The chain of events must raise “a reasonable

The “similarities probative of copying” element is different

from “substantially similar” under the unlawful appropriation

analysis, despite their similarity in wording. The former imposes

a much more forgiving standard, as the probative “similarities

between the two works need not be extensive.” Rentmeester, 883

F.3d 1117. Because Woodland’s failure to plausibly plead “access”

dooms his claim of copying and we later analyze whether the

photos are “substantially similar” in addressing unlawful

appropriation, we do not discuss the “similarities probative of

copying” element.

10a

possibility” for Hill to have viewed his work— “not

merely a bare possibility.” Art Attacks Ink, LLC v.

MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir. 2009);

see also Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir.

2016). A theory of access cannot be “mere speculation

or conjecture.”2 Three Boys Music, 212 F.3d at 482.

A. Today’s social media and digital platforms

like Instagram could make it easier to

show “access” to copyrighted materials.

Woodland tries to plead “access” by alleging that

Hill, as an Instagram user, had a reasonable

possibility of viewing Woodland’s photos on that social

media platform.3 As explained later, Woodland

Woodland argues that his burden of proof to show access is

lower because, in his view, Hill’s photos are very similar to

Woodland’s. This is the reverse application of the now-abrogated

“inverse ratio rule.” The inverse ratio rule permitted a lower

showing of similarity when the plaintiff had strong proof of

access. See, e.g., Three Boys Music, 212 F.3d at 485. Our en banc

court rejected the inverse ratio rule in Skidmore, 952 F.3d at

1069, but Woodland claims that the reverse application of that

rule survived our decision in Skidmore. While at least some of

our reasons in Skidmore for abrogating the inverse ratio rule

extend equally to its reverse application, we need not decide

whether Skidmore also abolished the reverse of the inverse ratio

rule. Even if the reverse application of the rule remains intact, it

does not help Woodland because the similarities between his and

Hill’s works are limited.

Based on the facts that Hill uses Instagram and Woodland

posts photos on it, Woodland says he pleaded “direct access.” But

11a

ultimately fails to raise a reasonable possibility that

Hill viewed his works and thus had “access” to the

copyrighted photos. But Woodland’s theory highlights

how today’s online platforms like Instagram can

theoretically make it easier to show “access” in a

Our access doctrine developed “offline” as we

addressed copyright claims involving videotapes,

books, and other physical items. See, e.g., Rice v. Fox

Broad. Co., 330 F.3d 1170, 1178 (9th Cir. 2003)

(finding no access where home video sold only 17,000

copies); Three Boys Music, 212 F.3d at 482 (explaining

that plaintiffs could successfully prove access by

showing their music “was widely disseminated

through sales of sheet music, records, and radio

performances” (quoting PAUL GOLDSTEIN, GOLDSTEIN

ON COPYRIGHT § 8.3.1.1, at 91 (1989))). In the offline

world, it can be difficult to show access if the

copyrighted material did not sell well. For example, we

affirmed that a plaintiff who sued Jane Fonda for

allegedly lifting copyrighted material from her novel

did not show access because the plaintiff’s book had

sold fewer than 1,000 copies. Jason v. Fonda, 526 F.

neither of those alleged facts amounts to direct evidence that Hill

saw Woodland’s work. At best, they can only be circumstantial

evidence that Hill may have stumbled upon Woodland’s work.

12a

Supp. 774, 776 (C.D. Cal. 1981), adopted and aff’d by

Jason v. Fonda, 698 F.2d 966, 967 (9th Cir. 1982).

We start by stating the obvious: the Internet

makes it easier than ever to reach an artist’s

copyrightable works. With a couple of clicks of the

mouse or a few taps to the screen, artists can upload

their works to a website or a platform like Spotify,

YouTube, or Instagram, making them available to

millions or billions of individuals around the world—

including copycats.

We briefly addressed access in this online context

in Art Attacks. See 581 F.3d at 1145. In that case, the

plaintiffs alleged that because they posted their

artistic designs to their standalone website, the

designs were sufficiently widely disseminated. Id. We

acknowledged that the Internet provides an

opportunity “to reach a wide and diverse audience” but

held that the plaintiffs failed to show wide

dissemination. Id. Our decision in Art Attacks

highlights that availability should not be confused

with access. It is not easy to stumble upon a single

webpage amid the “vast quantity of material on the

Internet.” United States v. Am. Libr. Ass’n, Inc., 539

U.S. 194, 208 (2003). Although the designs in Art

Attacks were publicly available to anyone on the

Internet, the mere publication to a standalone

webpage did not amount to wide dissemination that

13a

would have made it easy for the defendants to

encounter the designs. 581 F.3d at 1145.

Online platforms like Instagram, Spotify, and

YouTube, however, are different from the plaintiffs’

webpage in Art Attacks. While standalone websites

make content available to anyone in the world, digital

platforms do that and more. Digital platforms create

online communities and actively connect content

creators with content consumers. Platforms like

Instagram are designed to facilitate the discovery and

sharing of available content by using algorithms to

recommend tailored content to consumers. No longer

do people have to search for specific content in the vast

expanse of the Internet; in today’s digital landscape,

social media networks and other platforms continually

push individualized content to consumers based on

each individual’s preferences, usage, and habits. And

by expanding a content creator’s reach, these digital

platforms can increase the chances that other people

will see—i.e., have access to—the creator’s

copyrighted content.

Consider the proverbial pajama-clad blogger from

the early 2000s who would share his musings on his

personal Internet blog while sitting in his mother’s

basement. Unless someone intentionally searched for

that blog website, almost no one (except perhaps his

hapless mother who encouraged him to go outside and

find gainful employment) would have likely viewed his

14a

blog posts, even though theoretically they were

available to everyone. But in the age of Twitter/X and

other content-sharing platforms, that erstwhile

blogger’s reach could multiply dramatically as others’

“views” and “likes” on Twitter/X may push his posts to

a larger audience under that platform’s algorithm.

Indeed, content from an ordinary person with a few

followers can now go “viral” and reach millions of

people.

It is no wonder why, then, in the “digitally

interconnected world” of online platforms “the concept

of ‘access’ is increasingly diluted.” Skidmore, 952 F.3d

at 1068. To sum up, social media and other digitalsharing platforms could make it easier for plaintiffs to

show that defendants had access to their materials—

but only if they can show that the defendants had a

reasonable chance of seeing their work under that

platform’s algorithm or content-sharing policy. That is

a big “if”—and, as explained below, Woodland has

fallen short here.

B. Woodland fails to plausibly plead that Hill

had “access” to his Instagram photos.

While Instagram may make a user’s content more

widely accessible, it is not enough to simply allege that

Hill is an active user of Instagram and thus had a

reasonable possibility of viewing Woodland’s photos.

As the district court explained, there are over a billion

15a

users and many more posts on Instagram. The mere

fact that Hill uses Instagram and that Woodland’s

photos are on Instagram raises no more than a “bare

possibility” that Hill viewed Woodland’s photos. Art

Attacks, 581 F.3d at 1143.

Perhaps recognizing this reality, Woodland offers a

chain of events to bolster his claim that Hill had a

reasonable possibility of viewing Woodland’s photos

on Instagram. Woodland contends that Instagram’s

recommendation algorithm increased the chances that

Hill viewed Woodland’s works. According to

Woodland, because the content that Hill and

Woodland post to their respective Instagram profiles

“shares in sub-genres of similar content, involving

artistic nude Black male modeling,” Instagram’s

algorithm

would

likely

have

recommended

Woodland’s posts to Hill. Woodland asks us to take

judicial notice of various informational pages

published by Instagram to support this theory.

But Woodland’s theory is rooted in speculation.

Even if we took judicial notice and accepted the

information as true, Instagram’s purported policy does

not support Woodland’s theory. None of the documents

support the contention that similar profile content

alone would cause Instagram to promote a profile’s

posts to users. See, e.g., How Instagram Feed Works,

INSTAGRAM,

https://help.instagram.com/1986234648360433/ (last

16a

visited May 8, 2025). Rather, Woodland’s sources

explain that Instagram suggests posts based on the

accounts that users follow; the posts users like, share,

and comment on; users’ history of connecting with

accounts; and how popular a particular post is and

how others have interacted with that post. See id. We

need not decide today what precise facts a plaintiff

must allege about a digital platform’s algorithm or

content-sharing policy to show “access.” But we can

say that Woodland has not sufficiently pleaded that

Hill had access to his Instagram photos, given that he

does not plausibly allege that Hill followed, liked, or

otherwise interacted with posts or accounts connected

to or similar to Woodland. And because Woodland has

failed to show access, he has not adequately alleged

copying.

C. Woodland cannot shore up his copying

claim by alleging “serial infringement.”

Undeterred by his failure to show access (and thus

copying), Woodland says that we must not miss the

forest for the trees and contends that this is a case of

“serial infringement.” Hill allegedly copied not one or

two of Woodland’s photos, but twelve. The sheer

number of allegedly similar photos, Woodland says,

raises an inference of copying that helps his claim

survive the motion to dismiss.

17a

Woodland does not cite the Copyright Act or any of

this court’s precedent to support the idea that alleging

multiple copied works helps plaintiffs state a

His argument also fails as a logical matter. Even

assuming Hill’s works share similarities with

Woodland’s, that does not necessarily show access.

The mere existence of multiple works does not prove

access. When there is no direct evidence of copying, a

plaintiff must meet his burden by either pleading wide

dissemination or a chain of events that raises a

reasonable possibility that the defendant viewed the

work. Woodland has done neither.

II.

Woodland also fails to show unlawful

appropriation.

Woodland’s copyright claim falters for another

reason: he has failed to show unlawful appropriation

because none of Hill’s photographs are substantially

similar to Woodland’s.

A. Woodland must show that the selection

and arrangement of the objective

elements of his photographs—not the

individual elements in isolation—are

substantially similar to Hill’s.

To show unlawful appropriation, a plaintiff “must

demonstrate that the works share substantial

18a

similarities.” Hanagami, 85 F.4th at 941 (emphasis in

original). “Our circuit uses a two-part test to assess

substantial similarity:” (1) the extrinsic test, which

compares objective similarities in protectable

expression, and (2) the intrinsic test, which evaluates

similarity from the point of view of a reasonable

observer. Id. While “the intrinsic test is reserved

exclusively for the trier of fact,” Williams v. Gaye, 895

F.3d 1106, 1119 (9th Cir. 2018), the extrinsic test “may

be decided by the court as a matter of law,”

Rentmeester, 883 F.3d at 1118 (citing McCulloch v.

Albert E. Price, Inc., 823 F.2d 316, 319 (9th Cir. 1987)).

And because a plaintiff must satisfy both the extrinsic

and intrinsic tests, failure to meet the extrinsic test is

fatal. See id.

Only copying of protectable expression leads to

unlawful appropriation, so the first step in the

extrinsic test is to “distinguish between the protected

and unprotected material in a plaintiff’s work.” Gray

v. Hudson, 28 F.4th 87, 96 (9th Cir. 2022) (quoting

Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004)).

Photographs are not easily “dissected into protected

and unprotected elements.” Rentmeester, 883 F.3d at

1119. To start, we look to the “objective elements that

reflect the various creative choices the photographer

made in composing the image—choices related to

subject matter, pose, lighting, camera angle, depth of

field, and the like.” Id.; see also Ets-Hokin v. Skyy

19a

Spirits, Inc., 225 F.3d 1068, 1077 (9th Cir. 2000)

(discussing objective elements of a photograph).

Contrary to Woodland’s assertions, the individual

elements in photographs—the poses, lighting,

costumes, and makeup—are not themselves protected

from infringement. Rather, we held in Rentmeester

that when viewed in isolation, these objective

elements—even “highly original elements”—are

unprotected. 883 F.3d at 1119. Rather, “[w]hat is

protected by copyright is the photographer’s selection

and arrangement of the photo’s otherwise unprotected

elements. If sufficiently original, the combination of

subject matter, pose, camera angle, etc., receives

protection, not any of the individual elements

standing alone.” Id. (emphasis in original). Thus, “[a]

second photographer is free to borrow any of the

individual elements featured in a copyrighted

photograph, ‘so long as the competing work does not

feature the same selection and arrangement’ of those

elements.” Id. at 1120 (quoting Feist, 499 U.S. at 349).

We do not have a “well-defined standard for

assessing when similarity in selection and

arrangement becomes ‘substantial,’” Rentmeester, 883

F.3d at 1121, but the result in Rentmeester is

instructive. In Rentmeester, which was also decided on

a motion to dismiss, the plaintiff sued Nike for

infringing his photo of “Michael Jordan in a leaping

pose inspired by ballet’s grand jeté.” Id. The court

20a

determined that while Nike had borrowed the “general

idea or concept embodied in the [plaintiff’s] photo”—

Michael Jordan in a leaping, grand jeté-inspired

pose—Nike “produced an image that differs from

Rentmeester’s photo in more than just minor details.”4

Id. at 1121. We noted differences in the positions of

Jordan’s limbs, the backgrounds and foregrounds, the

presence or lack of sun, and the position of the

basketball hoop and Jordan’s body in the frame. Id. at

1121–22. The photos were “as a matter of law not

substantially similar.” Id. at 1125.

Woodland tries to distinguish Rentmeester from

this case. He says that unlike here, once Michael

Jordan’s image was filtered out of the photos in

Rentmeester, no similarities remained. But that is

true here, where any likeness in Woodland’s and Hill’s

works is found largely in the subjects’ poses. He also

points out that Rentmeester limited its holding to

photographs of “recognizable subject matter.” 883 F.3d

Woodland unsuccessfully argues that the district court

erroneously focused on the differences between Hill’s and

Woodland’s photographs rather than their similarities. True,

courts may not excuse substantial similarity by later pointing out

differences between the works. See L.A. Printex Inds., Inc. v.

Aeropostale, Inc., 676 F.3d 841, 852 (9th Cir. 2012) (“[N]o

plagiarist can excuse the wrong by showing how much of his work

he did not pirate.” (quoting Sheldon v. Metro-Goldwyn Pictures

Corp., 81 F.2d 49, 56 (2d Cir. 1936))). But as we did in

Rentmeester, courts may identify differences in the works to

explain why there is no substantial similarity.

21a

at 1120 n.2. We used “recognizable” to distinguish

subject matter found in reality from “abstract

photographic works” that cannot be readily recognized

as “facts.” See id. at 1120, 1120 n.2. We did not use

recognizable as a synonym for a public figure as

Woodland suggests.

Ultimately, the “photos’ selection and arrangement

of elements must be similar enough that ‘the ordinary

observer, unless he set out to detect the disparities,

would be disposed to overlook them.’” Rentmeester,

883 F.3d at 1121 (quoting Peter Pan Fabrics, Inc. v.

Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)

(Hand, J.)).

B. None of Hill’s works are substantially

similar to Woodland’s.

Because Hill’s photos share few similarities with

Woodland’s—and certainly no more similarities than

shared by Nike’s and Rentmeester’s photos—none are

substantially similar.

22a

To start with Woodland’s work titled “Lit by

Larimer,” Hill’s photograph shares almost nothing in

common with Woodland’s. The photos both depict a

Black man folded in on himself, but the similarities

stop there. The objective elements in the photos—the

men’s poses, colors, lighting, backgrounds, etc.—are

different, and so the selection and arrangement of

these elements also widely differ.

23a

Hill’s allegedly infringing photo here does not

share substantial similarity with the selection and

arrangement of features in Woodland’s work

“Horizon.” The commonalities go no further than the

depiction of a man reclining on his side with certain

body parts strategically covered—a common pose in

photos of male models and actors. In any event, the

models’ specific poses differ, particularly in the

placement of arms and hands. Additionally, the

backgrounds, colors, lighting, perspectives, and

accessories on the main subject vary widely.

Woodland’s work “Morning Fog” and Hill’s photo do

not share substantial similarities, either. Granted, the

photos both portray a naked Black man with a bright

light obscuring his groin in front of a blue sky-like

background, but the way that idea is expressed in the

24a

selection and arrangement of elements is not similar.

There are other differences: (1) the positioning of

arms, (2) Hill’s face is visible, while Woodland’s is

obscured, and (3) Hill’s skin glistens, while Woodland

is surrounded by blue shadow.

None of Woodland’s photos depicting a subject

draped in chains—“Unknown Soulja,” “Bound Not

25a

Broken,” and “Juneteenth” (top row)—share

substantial similarities with Hill’s photo of himself

wrapped in chains. The idea in each of the photos is

the same—the provocative image of a Black man in

chains. But that idea is not protected—indeed, it is a

common motif in many pieces of art. Only the

expression through the selection and arrangement of

objective elements receives copyright protection. And

in looking at the selection and arrangement, we

conclude there is little in common. The physical

features of the subjects, arrangements of the chains,

backgrounds, lighting, angles, colors, and positions of

the subjects in the frames all differ.

The only similarity between Woodland’s work titled

“To the Moon” and Hill’s photo is the depiction of a

26a

man in an atmospheric setting with his head angled

away from the camera and feet nearer to the viewer.

In all other respects, the photos differ in color, subject,

pose, lighting, spacing, and background.

These two photos do not share substantial

similarity. Woodland’s subject seems to be lying back

or falling onto a cloth-covered surface. Sure, Hill

positioned his arms similarly to those of Woodland’s

subject, who is also a Black man with feet near the

viewer, but the left arm of Woodland’s subject cuts out

of frame at the elbow. Hill’s facial expression and the

position of his lower body differ from that of

Woodland’s subject, and none of the other elements in

the photo—background, lighting, angle, and color—

are similar.

27a

Woodland’s work “Tiedye” and Hill’s photo share

nothing in common beyond depicting a man standing

with arms outstretched—an unprotectable idea. When

the expression of that idea varies so widely in nearly

all respects (as here), there is no substantial

similarity.

28a

Woodland’s photo titled “Polkadot Pose” has little

in common with Hill’s photo other than that each

photo shows a naked Black man whose front body is

hidden from view. The poses, backgrounds, colors,

lighting, angles, and accessories on the main subject

are different.

29a

While Hill’s work shares some elements in common

with Woodland’s photos “SEE SAW” and “At Rest,”

these similarities do not rise to the level of substantial

similarity. Unlike Hill, Woodland’s subject in SEE

SAW has folded his arms across his chest, and his

right knee is folded at a sharp angle. The subject is in

front of a yellow wall and a white door, resting on a

stool, and the bottom of the subject’s body is in

shadow. Hill’s body, by contrast, is glistening and none

of him is in shadow.

Woodland’s subject in At Rest has bent his left knee

instead of his right. In further contrast to Hill’s photo,

the subject is lying on a stool covered with a sheet. The

light in Woodland’s photo is above the subject and

creates shadows, while Hill’s photo does not feature a

source of light. Both of Woodland’s photos are realistic,

while the setting of Hill’s photo features fantastical

elements. In sum, as in Rentmeester, these

30a

differences—despite some similarities in the photos—

are dispositive, and Woodland has failed to show that

Hill unlawfully appropriated his photos. See 883 F.3d

at 1121.

CONCLUSION

We AFFIRM the district court’s order granting the

motion to dismiss Woodland’s second amended

complaint without leave to amend.

31a

APPENDIX B:

DISTRICT COURT OPINION

JS-6

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

RODNEY WOODLAND,

Plaintiff,

Case NO. 2:22-cv-03930AB-MRWx

ORDER GRANTING

DEFENDANT’S

SECOND MOTION TO

MONTERO

LAMAR

DISMISS

HILL, aka, LIL NAS X,

and

DOES

1-10,

inclusive,

Defendants,

INTRODUCTION

Before the Court is Defendant Hill’s (“Defendant”)

Motion to Dismiss Plaintiff’s Second Amended

Complaint (“SAC,” Dkt. No. 39). Plaintiff filed an

opposition (Dkt. No. 40.) Defendant filed a Reply (Dkt.

No. 41.) The Court heard oral argument on February

32a

10, 2023 and took the matter under submission. For

the foregoing reasons, Defendant’s Motion is

GRANTED.

II.

BACKGROUND

Plaintiff’s alleges as follows. Plaintiff is an adult

freelance visual artist, photographer, figure model,

and creator of online content that is available on his

Instagram page and website. SAC ¶¶ 5, 9. Defendant

is a well-known recording artist and Instagram

content poster who garners millions of views for his

posts. Id. ¶¶ 6, 10. Without Plaintiff’s consent,

Defendant published a series of Instagram posts,

advertisements, album covers, and merchandise that

copied, appropriated, and mimicked twelve of

Plaintiff’s copyrighted photographs. Id. ¶ 11-12.

As a result, Plaintiff in his First Amended

Complaint (“FAC”) brought claims for (1) copyright

infringement, (2) declaratory relief, (3) accounting,

and (4) unjust enrichment. Id. ¶¶ 17-30. Defendant

moved to dismiss the FAC for failure to state a claim,

which the Court granted on December 8, 2022,

granting Plaintiff leave to amend.

On December 28, 2022, Plaintiff filed his SAC,

alleging only copyright infringement. Defendant now

moves to dismiss the SAC in its entirety.

III.

LEGAL STANDARD

33a

Federal Rule of Civil Procedure 8 requires a

plaintiff to present a “short and plain statement of the

claim showing that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2). Under Federal Rule of Civil

Procedure 12(b)(6), a defendant may move to dismiss

a pleading for “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To defeat a Rule 12(b)(6) motion to dismiss, the

complaint must provide enough factual detail to “give

the defendant fair notice of what the. . . claim is and

the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). The complaint

must also be “plausible on its face,” that is, it “must

contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. at 570). A plaintiff’s “factual

allegations must be enough to raise a right to relief

above the speculative level.” Twombly, 550 U.S. at

555. “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a

sheer possibility that a defendant has acted

unlawfully.” Id. Labels, conclusions, and “a formulaic

recitation of the elements of a cause of action will not

do.” Twombly, 550 U.S. at 555.

A complaint may be dismissed under Rule 12(b)(6)

for the lack of a cognizable legal theory or the absence

of sufficient facts alleged under a cognizable legal

34a

theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d

696, 699 (9th Cir. 1988). When ruling on a Rule

12(b)(6) motion, “a judge must accept as true all of the

factual allegations contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007). But a court

is “not bound to accept as true a legal conclusion

couched as a factual allegation.” Iqbal, 556 U.S. at 678

(2009) (internal quotation marks omitted).

The court generally may not consider materials

other than facts alleged in the complaint and

documents that are made a part of the complaint.

Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996).

However, a court may consider materials if (1) the

authenticity of the materials is not disputed and (2)

the plaintiff has alleged the existence of the materials

in the complaint or the complaint “necessarily relies”

on the materials. Lee v. City of Los Angeles, 250 F.3d

668, 688 (9th Cir. 2001) (citation omitted). The court

may also take judicial notice of matters of public

record outside the pleadings and consider them for

purposes of the motion to dismiss. Mir v. Little Co. of

Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Lee, 250

F.3d at 689-90.

IV.

DISCUSSION

Defendant seeks to dismiss Plaintiff’s SAC in its

entirety because (1) Plaintiff fails to plausibly allege

that copying occurred, and (2) Plaintiff fails to

35a

plausibly allege copying of protected expression under

the Ninth Circuit’s extrinsic test. Specifically,

Defendant argues Plaintiff has not shown Defendant

had access to Plaintiff’s Photos under a chain of events

or widespread dissemination theory. Defendant

further argues Plaintiff has failed to show there were

any substantial similarities between the protected

elements of Plaintiff’s and Defendant’s Photos. The

Court finds Plaintiff has failed to plausibly plead

access and substantial similarity, and therefore has

failed to state a claim for copyright infringement.

A. Copyright Infringement

To state a claim for copyright infringement,

Plaintiff must allege that (1) he owns a valid copyright

in the Photos, and (2) Defendant copied protected

aspects of Plaintiff’s Photos. Skidmore as Tr. for

Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051,

1064 (9th Cir. 2020). “The second prong of the

infringement analysis contains two separate

components: copying and unlawful appropriation.” Id.

“Unfortunately, [courts] have used the same term—

‘substantial similarity’—to describe both the degree of

similarity relevant to proof of copying and the degree

of similarity necessary to establish unlawful

appropriation. The term means different things in

those two contexts.” Rentmeester v. Nike, Inc., 883

F.3d 1111, 1117 (9th Cir. 2018), overruled on other

grounds by Skidmore, 952 F.3d 1051.

36a

To allege actionable copying, Plaintiff must plead

facts plausibly showing that the works in questions

are either (1) “strikingly similar” or (2) “substantially

similar and that [Defendant] had access to [Plaintiff’s

Photos].” Malibu Textiles, Inc. v. Label Lane Int’l, Inc.,

922 F.3d 946, 952 (9th Cir. 2019). “On the other hand,

the hallmark of unlawful appropriation is that the

works share substantial similarities.” Skidmore, 952

F.3d at 1064. “In our circuit, we use a two-part test to

determine whether the defendant’s work is

substantially similar to the plaintiff's copyrighted

work.” Id. “The first part, the extrinsic test, compares

the objective similarities of specific expressive

elements in the two works. Crucially, because only

substantial similarity in protectable expression may

constitute actionable copying that results in

infringement liability, it is essential to distinguish

between the protected and unprotected material in a

plaintiff’s work.” Id. (citations omitted.) “The second

part, the intrinsic test, test[s] for similarity of

expression from the standpoint of the ordinary

reasonable observer, with no expert assistance.” Id.

Defendant argues that Plaintiff failed to plausibly

allege

access

and

unlawful

appropriation.

Accordingly, the Court focuses its discussion on these

elements.

37a

1. Access1

To allege access, “a plaintiff must show a

reasonable possibility, not merely a bare possibility,

that an alleged infringer had the chance to view the

protected work.” Art Attacks Ink, LLC v. MGA Ent.

Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). As explained

in the prior dismissal Order, Plaintiff may

demonstrate access either by “(1) establishing a chain

of events linking the plaintiff's work and the

defendant's access, or (2) showing that the plaintiff's

work has been widely disseminated.” Id. Because

Plaintiff concedes he is not attempting to show

widespread dissemination, he must prove access

under the chain of events theory.

Plaintiff argues the time frame of the Photos’

publications established a chain of events because all

of Defendant’s Photos were published after Plaintiff’s

Photos. However, there is no pattern between the

dates of publication, as the time gaps range between

months and years following the publication of

Plaintiff’s Photos. The mere passage of time between

the two sets of Photos does not create an inference that

Plaintiff requested this Court allow limited discovery to

prove his claim of access. However, Iqbal, 556 U.S. at 678,

requires a showing of plausibility before a plaintiff can reach

discovery, and as Plaintiff has failed to plausibly plead Defendant

had access to Plaintiff’s Photos, he is not entitled to even a limited

discovery.

38a

Defendant (or even someone who knew Defendant)

would have seen Plaintiff’s content. This fact suggests

only that Plaintiff’s Photos were published at some

point in time prior to Defendant’s Photos, a fact

necessary for any copyright infringement claim, as

Defendant aptly points out in its Motion to Dismiss.

Mot. at 9.

Furthermore, the fact that Defendant “actively

uses the social media site” where the Photos were

published is not sufficient to plausibly show he

accessed the images. There are over a billion users on

Instagram, with the most popular accounts garnering

millions of “likes” on a single post. 75 is the maximum

number of likes Plaintiff received on the Photos which

Defendant allegedly copied. Without more, there is no

way to infer that Defendant was any more likely to

have accessed Plaintiff’s Photos than any of the other

millions of Instagram users. Design Basics, LLC v.

Lexington Homes, Inc., 858 F.3d 1093, 1108 (7th Cir.

2017) (“We decide only that the existence of the

plaintiff’s copyrighted materials on the Internet, even

on a public and ‘user friendly’ site, cannot by itself

justify an inference that the defendant accessed those

materials.”) While of course it is possible that

Defendant could have potentially viewed Plaintiff’s

Instagram content, Plaintiff has not put forth any

evidence or alleged any facts showing Defendant was

39a

plausibly among the accounts which the Photos

actually reached.

2. Substantial Similarity

Defendant next alleges Plaintiff failed to allege

substantial similarity under this Circuit’s extrinsic

test.

The Court employs a two-part test to determine

whether there is a substantial similarity between

Plaintiff’s and Defendant’s works: (1) the extrinsic

test, which “assesses the objective similarities of the

two works, focusing only on the protectable elements

of the plaintiff’s expression,” and (2) the intrinsic test,

which “test[s] for similarity of expression from the

standpoint of the ordinary reasonable observer, with

no expert assistance.” Skidmore as Tr. For Randy

Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th

Cir. 2020). “Only the extrinsic test’s application may

be decided by the court as a matter of law.”

Rentmeester v. Nike, Inc., 883 F.3d 1111, 1118 (9th

Cir. 2018), overruled on other grounds by Skidmore as

Tr. For Randy Craig Wolfe Tr. v. Led Zeppelin, 952

F.3d 1051 (9th Cir. 2020). Accordingly, the Court

focuses on this first part of the test only.

Plaintiff

alleges

Defendant

unlawfully

appropriated

Plaintiff’s

works

creating

substantially similar content that “copied at least the

40a

original elements” of Plaintiff’s Photos, such as the

“rendition, timing, and creation of the subject.” SAC

¶¶ 7, 9. In its prior Order, this Court ruled Plaintiff

did not plausibly allege unlawful appropriation

because he failed to “identify concrete elements based

on objective criteria” required by the extrinsic test.

Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485

(9th Cir. 2000), overruled on other grounds by

Skidmore, 952 F.3d 1051. Here, Plaintiff attempts to

cure this deficiency by providing a detailed account of

his creative inspirations for each photograph, such as

“slavery in the United States” and a “summer sunset.”

SAC ¶¶ 7-8. However, “[c]opyright law only protects

expression of ideas, not the ideas themselves.”

Cavalier v. Random House, Inc., 297 F.3d 815, 823

(9th Cir. 2002). Plaintiff does not point to any

protectable expression in his photographs, such as the

camera angles, timing, or shutter speed. Instead, he

alleges similarities in such elements as “subject pose,”

“facial expressions,” and “nudity.” (SAC ¶ 13.)

However, as the Court explained in its prior Order,

Plaintiff does not have a protectable interest in the use

of nude bodies, specific poses, or any other natural

features of the human body. See Folkens v. Wyland

Worldwide, LLC, 882 F.3d 768, 775 (9th Cir. 2018)

(“But when, as here, the only areas of commonality are

elements first found in nature, expressing ideas that

nature has already expressed for all, a court need not

permit the case to go to a trier of fact.”). Furthermore,

41a

the expression of these elements is not substantially

similar, as the photographs depict different people,

against different backgrounds, with different lighting

techniques. Plaintiff has done nothing more than

provide the same “formulaic recitation of the

protectable elements of a photograph,” Dkt. No. 37,

that this Court has already deemed insufficient to

support a claim for copyright infringement.

Plaintiff’s reliance on Columbia Pictures Indus.,

Inc. v. Miramax Corp., 11 F. Supp. 2d 1179 (C.D. Cal.

1998) does not change the Court’s analysis. In that

case, the court considered two movie posters and

determined “Plaintiffs have a protectable interest in

idea and expression based on the total ‘look and feel’”

of the posters. Columbia Pictures, 11 F. Supp. 2d at

1185. The court ultimately found the defendant’s

poster was “substantially similar to the expressive

ideas contained” in the plaintiff’s poster based on

similarities in factors such as “color,” “manner of

expression,” the poster background, and the subject

matters’ “size” and “stances.” Id. at 1186. However,

none of the similarities in that case are present in the

case at bar, as the two different subjects are generally

depicted in different sizes, poses, background colors,

and with different facial expressions. Additionally, as

previously noted, Plaintiff does not have a protectable

interest in factors such as subject pose and facial

expression, and Plaintiff has failed to show that

42a

Columbia Pictures controls over more recent Ninth

Circuit decisions, such as Rentmeester or Skidmore.

Plaintiff further recites a list of creative choices

which courts have found to be “potentially protectable”

and which Plaintiff used in creating his Photos,

relying on Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d

1068, 1076–1077 (9th Cir. 2000) to support his

assertion that his creative choices were original. Opp’n

at 9. However, simply noting that he used creative

choices which are “potentially protectable” does not

bolster his argument regarding the similarities

between his choices and Defendant’s. Id. The cases

Plaintiff relies on to show he made certain creative

choices only support the assertion that Plaintiff’s

Photos are “sufficiently original to be copyrightable,”

Opp’n at 8, an assertion which Defendant does not

dispute. As this showing of originality is not sufficient

to overcome his burden of proving substantial

similarity, his claim for copyright infringement must

fail.

CONCLUSION

Defendant/ Accordingly, Defendant’s motion to

dismiss Plaintiffs’ complaint for failure to state a

claim is GRANTED.

Courts may deny leave to amend at their discretion

due to “undue delay, bad faith or dilatory motive on

43a

the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of

allowance of the amendment, futility of amendment,

etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). This is

Plaintiff’s third attempt to plead a viable complaint,

and nothing about the SAC and Plaintiff’s briefing

suggests that the Plaintiff can plead the facts to state

any plausible claim. In light of these circumstances,

the Court will dismiss the action without leave to

amend.

Dated: April 3, 2023

________________s/_______________________

HONORABLE ANDRÉ BIROTTE JR. UNITED

STATES DISTRICT COURT JUDGE

44a

APPENDIX C:

ORDER DENYING REHEARING

FILED

JUL 24 2025

MOLLY C. DWYER, CLERK

U.S.COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODNEY WOODLAND,

No.

23-55418

D.C. No.

2:22-cv-03930-AB-MRW

Central District of California

Los Angeles

Plaintiff-Appellant,

MONTERO

LAMAR

ORDER

HILL, AKA Lil Nas X;

DOES, 1-10, Inclusive,

Defendants-Appellees.

Before: GOULD, BENNETT, and LEE, Circuit

Judges.

The petition for panel rehearing, Dkt. No. 67, is

DENIED.

45a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.