NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARNAUD VERSLUYS, an No. 23-3982 individual; INSTITUTE OF CLASSICS IN D.C. No. EAST ASIAN MEDICINE (ICEAM), 3:21-cv-01694-MO Plaintiffs - Appellants, MEMORANDUM* v.
WHITE PINE CIRCLE LLC, a Massachusetts limited liability corporation; SHARON WEIZENBAUM, Individually and in her official capacity; NADINE ZAECH, an Individual,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 3, 2024 Portland, Oregon
Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.
Dr. Arnaud Versluys and his company Institute of Classics in East Asian
Medicine (“Plaintiffs”) brought claims of copyright infringement and breach of
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. contract against Sharon Weizenbaum, Nadine Zaech, and Weizenbaum’s company,
White Pine Circle, LLC (“Defendants”). The district court granted summary
judgment in favor of Defendants on the ground that Plaintiffs waived “dispositive
arguments as to both claims.” We presume the parties’ familiarity with the facts
and do not discuss them in detail except as necessary to provide context and
resolve the issues on appeal. We review a district court’s grant of summary
judgment de novo, Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th
Cir. 2021), and may affirm “on any basis supported by the record,” Gordon v.
Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
1. We affirm summary judgment for Defendants on the copyright claim
because Plaintiffs failed to “designate specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis
added). More specifically, Plaintiff did not “properly address [Defendants’]
assertion” that the allegedly infringing PowerPoint slides are substantially similar
to Plaintiffs’ copyrighted works. See Fed. R. Civ. P. 56(e). Plaintiffs argue that
their expert reports establish a genuine dispute of material facts, namely, whether
there is substantial similarity between the copyrighted PowerPoint slides and
Defendants’ slides. See Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). But
Plaintiffs repeatedly failed to identify “with reasonable particularity the evidence
2 23-3982 that preclude[d] summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th
Cir. 1996); id. (“[I]t is not our task, or that of the district court, to scour the record
in search of a genuine issue of triable fact.”). And Plaintiffs’ expert reports do not
establish even some “indicia” of substantial similarity. Id. (quoting Brown Bag
Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992)).
For starters, the five examples of “duplicated material” raised in Plaintiffs’
first expert report concern information about pulse diagnosis, but such information
is not protected by the Copyright Act. 17 U.S.C. § 102(b). Only the expression of
such information in Plaintiffs’ copyrighted PowerPoint slides is protected. See
Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1036
(9th Cir. 2015); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp.,
562 F.2d 1157, 1163 (9th Cir. 1977) (“It is an axiom of copyright law that the
protection granted to a copyright work extends only to the particular expression of
the idea and never to the idea itself.”).
Plaintiffs’ rebuttal expert report also does not raise a triable issue. First, the
report points to several teaching materials that are not part of Plaintiffs’
copyrighted works, such as the PowerPoint slides discussing the “Kai/He/Shu”
concept or those discussing the “Three Layers.” These materials are not before us
because “registration is akin to an administrative exhaustion requirement that the
owner must satisfy before suing to enforce ownership rights.” Fourth Est. Pub.
3 23-3982 Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 301 (2019); 17 U.S.C. §
411(a). Second, the report claims that Defendants use the “same classical
[Chinese] quotes” and “same pedagogy” as the copyrighted works. Even assuming
Plaintiffs are entitled to copyright protection for their compilation of quotes and
information “as a whole,” 17 U.S.C. § 101, such protection would be “thin” and
actionable only if Defendants used “the same selection and arrangement” as
Plaintiffs’ compilation. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S.
340, 348–49 (1991); Hanagami v. Epic Games, Inc., 85 F.4th 931, 947 (9th Cir.
2023) (explaining that infringement of a “thin” copyright occurs “only if another
work is ‘virtually identical’ to it”) (quoting Mattel, Inc. v. MGA Ent., Inc., 616
F.3d 904, 914 (9th Cir. 2010)). Plaintiffs’ expert concedes that Defendants
translate the classical quotes “slightly differently” than how they appear in
Plaintiffs’ copyrighted works, and that Defendants “do[] not use all clauses that
Versluys does.” Plaintiffs thus cannot establish infringement under the
compilation theory.
Finally, although similarities exist between Defendants’ diagrams on the
physiology of “the Three Burners” and those in Plaintiffs’ copyrighted works,
Plaintiffs fail to explain how Defendants could “rearrange the design so it is
dissimilar.” See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 740
(9th Cir. 1971). Defendants’ diagrams use concentric shapes and arrows to explain
4 23-3982 physical processes, so finding infringement would effectively give Plaintiffs a
monopoly on expressing these processes in diagrammatic format. See Frybarger v.
Int’l Bus. Machines Corp., 812 F.2d 525, 530 (9th Cir. 1987) (finding no
infringement where similarities in expression are “indispensable” due to “technical
requirements” of the medium); see also Evergreen Safety Council v. RSA Network
Inc., 697 F.3d 1221, 1229 (9th Cir. 2012) (scenes a faire doctrine applies due to
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ARNAUD VERSLUYS, an No. 23-3982 individual; INSTITUTE OF CLASSICS IN D.C. No. EAST ASIAN MEDICINE (ICEAM), 3:21-cv-01694-MO Plaintiffs - Appellants, MEMORANDUM* v.
WHITE PINE CIRCLE LLC, a Massachusetts limited liability corporation; SHARON WEIZENBAUM, Individually and in her official capacity; NADINE ZAECH, an Individual,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Michael W. Mosman, District Judge, Presiding
Argued and Submitted December 3, 2024 Portland, Oregon
Before: CALLAHAN, NGUYEN, and SUNG, Circuit Judges.
Dr. Arnaud Versluys and his company Institute of Classics in East Asian
Medicine (“Plaintiffs”) brought claims of copyright infringement and breach of
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. contract against Sharon Weizenbaum, Nadine Zaech, and Weizenbaum’s company,
White Pine Circle, LLC (“Defendants”). The district court granted summary
judgment in favor of Defendants on the ground that Plaintiffs waived “dispositive
arguments as to both claims.” We presume the parties’ familiarity with the facts
and do not discuss them in detail except as necessary to provide context and
resolve the issues on appeal. We review a district court’s grant of summary
judgment de novo, Desire, LLC v. Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th
Cir. 2021), and may affirm “on any basis supported by the record,” Gordon v.
Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009). We have jurisdiction
pursuant to 28 U.S.C. § 1291 and affirm.
1. We affirm summary judgment for Defendants on the copyright claim
because Plaintiffs failed to “designate specific facts showing that there is a genuine
issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (emphasis
added). More specifically, Plaintiff did not “properly address [Defendants’]
assertion” that the allegedly infringing PowerPoint slides are substantially similar
to Plaintiffs’ copyrighted works. See Fed. R. Civ. P. 56(e). Plaintiffs argue that
their expert reports establish a genuine dispute of material facts, namely, whether
there is substantial similarity between the copyrighted PowerPoint slides and
Defendants’ slides. See Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). But
Plaintiffs repeatedly failed to identify “with reasonable particularity the evidence
2 23-3982 that preclude[d] summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th
Cir. 1996); id. (“[I]t is not our task, or that of the district court, to scour the record
in search of a genuine issue of triable fact.”). And Plaintiffs’ expert reports do not
establish even some “indicia” of substantial similarity. Id. (quoting Brown Bag
Software v. Symantec Corp., 960 F.2d 1465, 1472 (9th Cir. 1992)).
For starters, the five examples of “duplicated material” raised in Plaintiffs’
first expert report concern information about pulse diagnosis, but such information
is not protected by the Copyright Act. 17 U.S.C. § 102(b). Only the expression of
such information in Plaintiffs’ copyrighted PowerPoint slides is protected. See
Bikram’s Yoga College of India, L.P. v. Evolation Yoga, LLC, 803 F.3d 1032, 1036
(9th Cir. 2015); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp.,
562 F.2d 1157, 1163 (9th Cir. 1977) (“It is an axiom of copyright law that the
protection granted to a copyright work extends only to the particular expression of
the idea and never to the idea itself.”).
Plaintiffs’ rebuttal expert report also does not raise a triable issue. First, the
report points to several teaching materials that are not part of Plaintiffs’
copyrighted works, such as the PowerPoint slides discussing the “Kai/He/Shu”
concept or those discussing the “Three Layers.” These materials are not before us
because “registration is akin to an administrative exhaustion requirement that the
owner must satisfy before suing to enforce ownership rights.” Fourth Est. Pub.
3 23-3982 Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 301 (2019); 17 U.S.C. §
411(a). Second, the report claims that Defendants use the “same classical
[Chinese] quotes” and “same pedagogy” as the copyrighted works. Even assuming
Plaintiffs are entitled to copyright protection for their compilation of quotes and
information “as a whole,” 17 U.S.C. § 101, such protection would be “thin” and
actionable only if Defendants used “the same selection and arrangement” as
Plaintiffs’ compilation. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S.
340, 348–49 (1991); Hanagami v. Epic Games, Inc., 85 F.4th 931, 947 (9th Cir.
2023) (explaining that infringement of a “thin” copyright occurs “only if another
work is ‘virtually identical’ to it”) (quoting Mattel, Inc. v. MGA Ent., Inc., 616
F.3d 904, 914 (9th Cir. 2010)). Plaintiffs’ expert concedes that Defendants
translate the classical quotes “slightly differently” than how they appear in
Plaintiffs’ copyrighted works, and that Defendants “do[] not use all clauses that
Versluys does.” Plaintiffs thus cannot establish infringement under the
compilation theory.
Finally, although similarities exist between Defendants’ diagrams on the
physiology of “the Three Burners” and those in Plaintiffs’ copyrighted works,
Plaintiffs fail to explain how Defendants could “rearrange the design so it is
dissimilar.” See Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 740
(9th Cir. 1971). Defendants’ diagrams use concentric shapes and arrows to explain
4 23-3982 physical processes, so finding infringement would effectively give Plaintiffs a
monopoly on expressing these processes in diagrammatic format. See Frybarger v.
Int’l Bus. Machines Corp., 812 F.2d 525, 530 (9th Cir. 1987) (finding no
infringement where similarities in expression are “indispensable” due to “technical
requirements” of the medium); see also Evergreen Safety Council v. RSA Network
Inc., 697 F.3d 1221, 1229 (9th Cir. 2012) (scenes a faire doctrine applies due to
“limited ways to portray [] basic scenarios” of dangerous driving situations and
“simplistic nature of [] diagrams”). Because Plaintiffs have failed to show that
these similarities are not “inevitable,” Kalpakian, 446 F.2d at 742, it appears that
monopoly protection for such an idea or concept “can only be secured, if it can be
secured at all, by letters-patent.” Bikram’s Yoga, 803 F.3d at 1037 (quoting Baker
v. Selden, 101 U.S. 99, 105 (1879)).
2. We also affirm summary judgment for Defendants on the breach of
contract claim because the Proprietary Rights Agreement (“Agreement) that
Defendants were required to sign is an illegal restraint of trade. Under Oregon
law, a contract in restraint of trade is enforceable only if it meets three
requirements: (1) it must be “partial or restricted” in respect to “time or place;” (2)
it must be on some good consideration; and (3) it must be reasonable and not
“interfere with the interests of the public.” Nike, Inc. v. McCarthy, 379 F.3d 576,
584 (9th Cir. 2004) (quoting Eldridge v. Johnston, 245 P.2d 239, 250 (Or. 1952)).
5 23-3982 The Agreement meets neither the first nor third requirement.
The Agreement states that “all information provided during [Dr. Versluys’
pulse diagnosis training series] is proprietary information” and that participants in
the series cannot “disclose the proprietary information . . . under any circumstances
or by any means, to any third person without the express written consent of Dr.
Arnaud Versluys.” The Agreement therefore has no limiting principle as to the
length of time or place in which it applies.
The Agreement also unreasonably interferes with the interests of the public
because it deprives the public of accessing pulse diagnosis. See Eldridge, 245 P.2d
at 250–51. Although it states that participants “may use the proprietary
information for their own personal practice,” the Agreement simultaneously
prohibits participants from disclosing proprietary information “under any
circumstances or by any means, to any third person without the express written
consent of Dr. Arnaud Versluys.” Contrary to Plaintiffs’ reading of the
Agreement, the contract does not actually allow participants to use proprietary
information in their personal practice. The Agreement is therefore unreasonable in
scope.
Plaintiffs also argue that Oregon law favors severing unlawful parts of a
contract and that the district court erred in not doing so. Under Oregon law, “when
an ‘agreement is partly legal and partly illegal, if the legal may be separated from
6 23-3982 the illegal, the legal part will be enforced.’” Montara Owners Ass’n v. La Noue
Dev., LLC, 353 P.3d 563, 568 (Or. 2015) (quoting Eldridge, 245 P.2d at 251).
Here, however, there is no “separable provision” that would allow the rest of the
Agreement to be legally enforceable, as the first clause of the Agreement provides
that all information is proprietary, and both the second and third clauses prohibit
disclosure of this information “without the express written consent of Dr. Arnaud
Versluys.” See W.J. Seufert Land Co. v. Greenfield, 496 P.2d 197, 199 (Or. 1972)
(en banc).
The judgment of the district court is AFFIRMED.
7 23-3982