Order Granting Defendants’ Motion to Dismiss, Epikhin et al. v. Game Insight N.A., et al., 5:14-cv-4383 (Judge Lucy Koh)

Cat videos are one of the most popular types of user-uploaded Internet videos. It is unsurprising, then, that there is now cutting-edge copyright case law about a cat-themed video game. In a case about who owns the copyright to the game “Cat Story,” Judge Koh recently issued an order dismissing the case because the plaintiff failed to deposit copies of the game at issue itself with the Copyright Office. As her opinion shows, this is something that plaintiffs need to get right.

The central issue of the case was who owned the copyright to the mobile app video game Cat Story. Before Cat Story was developed, Plaintiffs had started developing a similar game called “PussyVille.” Allegedly, Defendants offered to help develop PussyVille for a share of the app’s profits, subsequently obtained some of the PussyVille source code, and then used that code to make Cat Story.

When Plaintiffs registered their copyrights to prepare for litigation, they did not have access to the Cat Story source code. And, due to a dispute with two of the Defendants, they also did not have access to the PussyVille files.  So instead, Plaintiffs registered the source code for “Fairy Farm,” a game that PussyVille was allegedly based on, meaning that Plaintiff was trying to rely on material that was two derivatives removed from the asserted copyright in Cat Story. Plaintiffs also registered images from Cat Story that were allegedly derived from PussyVille. Thus, even though Plaintiffs listed their registrations as “PussyVille” and “Cat Story,” they did not deposit the actual source code of either game.

Defendants argued that Plaintiffs’ copyright claim must be dismissed because Plaintiffs had not properly registered the PussyVille or Cat Story source code. Judge Koh agreed. Starting from the registration requirement that “is a ‘precondition to [a copyright] suit’” (quoting Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998), Judge Koh explained that a valid registration requires a deposit “of ‘bona fide copies of the original work,” not a “reconstruction.” Looking again to the 9th Circuit in Kodadek, Judge Koh noted that “’if it were otherwise . . . the possibilities for fraud would be limitless.’” (Citations omitted.) Even if the Cat Story code was based on the Fairy Farm code by way of PussyVille, the Fairy Farm source code was not a “bona fide copy” of either the Cat Story or PussyVille code. And the images taken from Cat Story were admittedly not taken from the original source code, which Plaintiffs did not even have access to.

Plaintiffs contended that their registrations were valid because there is a presumption that copyright registrations are valid, and Defendants had failed to rebut that presumption. But Judge Koh concluded that, by Plaintiffs’ own admission, they did not have access to the original works and therefore could not have deposited either images identical or derived from the original. Thus, their attempts to register the copyrights for “PussyVille” and “Cat Story” were invalid. Judge Koh also refused Plaintiffs’ request that the court employ its power to correct “minor inaccuracies” in copyright registrations, noting that she could not do so where the proper works were never registered at all.

Accordingly, Judge Koh dismissed Plaintiffs’ copyright claim. And, because that was Plaintiffs’ only federal question claim, she declined to exercise supplemental jurisdiction over Plaintiffs’ remaining state law claims. Judge Koh’s decision is certainly a setback for the Plaintiffs, since it prevents the Plaintiffs from a direct claim of copyright infringement against the alleged theft and improper derivation of Plaintiff’s alleged copyrighted material. However, there may be other ways to skin a cat, as for example through an assertion that PussyVille and Cat Story are derivative works of the Fairy Farm code, assuming that Plaintiffs can establish substantial similarity between Fairy Farm code and the PussyVille code and/or the Cat Story code through discovery. And of course, even failing that, the Plaintiffs’ dispute against the defendants still has another life it can play out in state court pursuing breach of contract and trade secrets misappropriation causes of action. This cat and mouse game is far from over.