Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 CHRISTOPHER BOFFOLI Case No.: 25-CV-1528 JLS (VET)

11 Plaintiff, ORDER DENYING DEFENDANT’S 12 v. MOTION FOR RECONSIDERATION 13 (ECF No. 15) 14 LAURIE MCCORMICK 15 Defendant. 16 17 18 Presently before the Court is Defendant’s Motion for Reconsideration (“Mot.,” ECF 19 No. 15), Plaintiff’s Opposition (“Opp’n,” ECF No. 18), and Defendant’s Reply (ECF No. 20 21). The Court vacated the hearing and took the Motion under submission without oral 21 argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 22. Having considered the 22 Parties’ arguments and the applicable law, the Court DENIES the Defendant’s Motion. 23 BACKGROUND 24 The Court incorporates by reference the factual background as detailed in the Court’s 25 April 7, 2026, Order. See ECF No. 14. Thus the Court will only set forth here the 26 procedural history relevant to this Motion. 27 On September 23, 2026, Defendant filed a Motion to Dismiss for Failure to State a 28 Claim. See ECF No. 10. After Plaintiff responded and Defendant replied, this Court 1 granted in part and denied in part the Motion to Dismiss. ECF No. 14. Specifically, the 2 Court granted the Defendant’s Motion as to copyright infringement of the photograph 3 “Banana Racers” which was dismissed without leave to amend. See id. at 13–16. The 4 Court denied the Defendant’s Motion as to the photograph “Papaya Golf.” See id. at 16– 5 17. The Defendant subsequently filed the present Motion. 6 LEGAL STANDARD 7 In the Southern District of California, a party may apply for reconsideration 8 “[w]henever any motion or any application or petition for any order or other relief has been 9 made to any judge and has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i)(1). 10 The moving party must provide an affidavit setting forth, inter alia, “what new or different 11 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 12 such prior application.” Id. “In resolving motions for reconsideration, courts often look to 13 the standard for relief from final judgment set forth in Federal Rules of Civil Procedure 14 59(e) and 60(b), which apply to motions for reconsideration of final appealable orders and 15 relief from judgment.” Evanston Ins. Co. v. Venture Point, LLC, No. 16 220CV01783KJDEJY, 2021 WL 5500486, at *1 (D. Nev. Nov. 23, 2021). 17 “A district court may grant a Rule 59(e) motion if it ‘is presented with newly 18 discovered evidence, committed clear error, or if there is an intervening change in the 19 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (internal quotation 20 marks omitted) (quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en 21 banc)). “Clear error or manifest injustice occurs when ‘the reviewing court on the entire 22 record is left with the definite and firm conviction that a mistake has been committed.’” 23 Young v. Wolfe, CV 07-03190 RSWL-AJWx, 2017 WL 2798497, at *5 (C.D. Cal. June 27, 24 2017) (quoting Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013)). “As 25 the Ninth Circuit has explained the clear error standard, ‘[t]o be clearly erroneous, a 26 decision must strike us as more than just maybe or probably wrong; it must, as one member 27 of this court recently stated during oral argument, strike us as wrong with the force of a 28 five-week old, unrefrigerated dead fish.’” Stanislaus Food Prod. Co. v. USS-POSCO 1 Indus., No. 1:09-CV-00560-LJO, 2012 WL 6160468, at *3 n.2 (E.D. Cal. Dec. 11, 2012) 2 (quoting Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001), overruled on other grounds by 3 Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2002)). 4 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 5 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 6 F.3d 877, 890 (9th Cir. 2000). Ultimately, whether to grant or deny a motion for 7 reconsideration is in the “sound discretion” of the district court. Navajo Nation v. Norris, 8 331 F.3d 1041, 1046 (9th Cir. 2003) (citing Kona Enters., 229 F.3d at 883). A party may 9 not raise new arguments or present new evidence if it could have reasonably raised them 10 earlier. Kona Enters., 229 F.3d at 890 (citing 389 Orange St. Partners v. Arnold, 179 F.3d 11 656, 665 (9th Cir. 1999)). 12 ANALYSIS 13 Defendant asks the Court to reconsider its April 7, 2026, Order to the extent it denied 14 the Defendant’s Motion to Dismiss as to Plaintiff’s claim of copyright infringement of the 15 photograph “Papaya Golf.” See generally Mot. Defendant contends the Court committed 16 clear error by (1) failing to analyze infringement of “Papaya Golf” under the virtual identity 17 theory; (2) failing to filter out unprotectable ideas; concepts, and scènes à faire before 18 comparing the works’ expression; and (3) mistakenly considering the seeds in “Papaya 19 Golf” to be an obstacle or hazard instead of background material. Plaintiff opposed by 20 arguing Plaintiff showed no clear error because (1) the virtual identity standard does not 21 apply to “Papaya Golf” because it is not subject to thin copyright protection; (2) the Court 22 did not fail to filter out unprotectable ideas; and (3) the decision to display the papaya seeds 23 is protectable whether or not they function as a golf obstacle. See generally Opp’n. 24 Defendant did not argue she is entitled to reconsideration of the Court’s Order based 25 on a change in law or the availability of new evidence. Young, 2017 WL 2798497, at *2 26 (citing Smith, 727 F.3d at 956). And to the extent Defendant asks this Court to reconsider 27 its analysis of similarity between “Papaya Golf” and “Papaya Trap,” she may not do so on 28 the present motion. See Mot. at 7–8. “A motion for reconsideration is not an opportunity 1 to renew arguments considered and rejected by the court, nor is it an opportunity for a party 2 to re-argue a motion because it is dissatisfied with the original outcome.” See FTC v. 3 Neovi, Inc., No. 06-CV-1952-JLS JMA, 2009 WL 56130, at *2 (S.D. Cal. Jan. 7, 2009) 4 (quoting Devinsky v. Kingsford, No. 05 Civ.2064(PAC), 2008 WL 2704338, at *2 5 (S.D.N.Y. July 10, 2008)), aff’d, 604 F.3d 1150 (9th Cir. 2010). 6 However, Defendant does argue this Court committed three clear errors of law, an 7 appropriate basis for a motion for reconsideration. See, e.g., McDowell v. Calderon, 197 8 F.3d 1253, 1255 (9th Cir. 1999). 9 First, Defendant argues the Court failed to analyze infringement of “Papaya Golf” 10 under a selection and arrangement theory that requires “virtual identity.” Because 11 Defendant did not contend that this Court should apply the virtual identity standard until 12 the present motion, this argument is waived. See Motion to Dismiss, ECF No. 10-1 at 6 13 (“Plaintiff fails to allege substantial similarity in protected expression.”); id. at 11 (“As 14 shown above, Defendant’s papaya and banana photographs are not substantially similar to 15 Plaintiff’s photographs.”). However, even if this argument had not been waived and was 16 properly before the Court, the Court finds no clear error in applying the substantial 17 similarity standard. 18 Defendant argues Ets-Hokin controls here. There, the Ninth Circuit affirmed 19 summary judgment after requiring virtual identity between advertising photographs of a 20 blue vodka bottle. Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763, 765 (9th Cir. 2003). The 21 court emphasized that when photographing a certain product for advertising purposes and 22 “the range of protectable expression is narrow, the appropriate standard for illicit copying 23 is virtual identity.” Id. at 766 (quoting Apple Computer Corp. v. Microsoft Corp., 35 F.3d 24 1435, 1442 (9th Cir. 1994). 25 However, photographs are not limited to thin copyright protection as a matter of law. 26 Rentmeester v. Nike, Inc., 883 F.3d 1111, 1120 (9th Cir. 2018). “[T]he greater the range 27 of creative choices that may be made, the broader the level of protection that will be 28 afforded to the resulting [work].” Id. More recently, the Ninth Circuit did not require the 1 virtual identity standard when comparing photographs of Michael Jordan. Id. at 1121– 2 1122. Instead, the court required “disparities that no ordinary observer of the two works 3 would be disposed to overlook.” Id. at 1122. 4 Rentmeester is the controlling precedent in this case. The photographs at issue are 5 not limited to a certain product or a certain context, unlike the subject matter in Ets-Hokin. 6 Within the context of fine art photography, see Motion to Dismiss, ECF No. 10-1, at 1, 7 there are a great range of creative choices available. See Rentmeester, 883 F.3d at 1120. 8 As stated in the Order, the Court correctly noted both images depict a golfer on a papaya, 9 depict papaya seeds depicting a golf obstacle, are centered on one golfer, and are 10 surrounded by a dark background. Order at 17. Accordingly, the Court finds that it was 11 not clearly erroneous to apply the substantial similarity standard laid out in Rentmeester. 12 Second, Defendant argues the Court committed clear error by failing to expressly 13 filter unprotectable elements before comparison. Mot. at 4. In support, Defendant cites 14 Rentmeester, stating that “[b]efore [a] comparison can be made, the court must ‘filter out’ 15 the unprotectable elements of the plaintiff’s work . . . .” 883 F.3d at 1118. However, 16 “[p]hotographs cannot be dissected into protected and unprotected elements in the same 17 way.” Id. at 1119. Instead “photos can be broken down into objective elements that reflect 18 the various creative choices the photographer made in composing the image.” Id. 19 In its Order, the Court correctly compared the protected creative choices made by 20 Plaintiff and Defendant in their respective photographs. Order at 16–17. As discussed 21 above, “Papaya Golf” and “Papaya Trap” have a broad range of expression available to 22 them. The Court was not required to expressly “filter out” the idea of the photograph before 23 determining that the differences in detail are easily overlooked. Accordingly, the Court 24 finds that it was not clearly erroneous in its application of the extrinsic test. 25 Finally, Defendant argues the Court committed clear error by not filtering the idea 26 of depicting papaya seeds as a golf hazard before comparing the photographs. Mot. at 5– 27 7. To the extent this is a more specific application of Defendant’s second argument above, 28 this Court finds no clear error. To the extent Defendant argues it was a clear error of law 1 || to find similar protectable elements between “Papaya Golf” and “Papaya Trap,” this Court 2 finds no such clear error. As the Court expressly concluded in its Order, “[t]he 3 ||selection and arrangement of elements between ‘Papaya Trap’ and ‘Papaya Golf’ are 4 || similar enough that ‘the ordinary observer, unless he set out to detect the disparities, would 5 || be disposed to overlook them.’” Order at 17 (quoting Peter Pan Fabrics, Inc. v. Martin 6 || Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)). Beyond the unprotectable idea of 7 ||combining a papaya and golf, the Court correctly concluded Plaintiff sufficiently alleged 8 ||‘“Papaya Trap” was substantially similar to “Papaya Golf.” Jd. Accordingly, the Court 9 finds it was not clearly erroneous to find sufficient similarities between the two 10 || photographs. 1] CONCLUSION 12 In light of the foregoing, the Court DENIES the Defendant’s Motion for 13 || Reconsideration (ECF No. 15). 14 IT IS SO ORDERED. 15 Dated: September 21, 2026 . 16 ja Janis L. Sammartino 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28