Honda Secures a Dismissal Of A Ferrofluid Artist's Copyright Claims

By Tamlin H. Bason  

A copyright infringement claim's failure to identify either the protectable elements of the plaintiff's work or the portions of the defendants' work that allegedly infringed the plaintiff's work did not adequately state a claim for infringement, the U.S. District Court for the Central District of California ruled May 31 (Muromura v. Rubin Postaer and Associates, C.D. Cal., No. 2:12-cv-09263-DDP-AGR, 5/31/13).

The court awarded Honda Motor Co. and Honda's advertising agency a dismissal of an artist's copyright infringement claim. The artist alleged that a Honda commercial used elements that were substantially similar to her copyrighted work. But, the complaint failed to identify what elements were allegedly similar, and thus it did not adequately state a claim for copyright infringement, the court said.

Plaintiff Makes Ferrofluid Sculptures

Sachiko Muromura is an artist whose primary medium is ferrofluid. Although liquid in appearance, ferrofluid responds strongly to magnetic fields. Artists such as Muromura create ferrofluid sculptures by manipulating the substance with magnets in order to form one design after another. The process is generally photographed and filmed.

In 2001, Muromura created and registered with the Copyright Office a ferrofluid sculpture titled “Protrude Flow.” The work consisted of a video and still images of ferrofluid designs.

In 2009, Muromura was approached by an advertising agency, Rubin Postaer and Associates. RPA wanted to use Muromura's works in connection with a planned advertising campaign that would highlight Honda's own ferrofluid research. RPA paid $10,000 to rent one of Muromura's works.

In 2010, Muromura claims that she learned that Honda was using her Protrude Flow work in its advertisements. Muromura contacted RPA and was told that none of her works were being used. Still, RPA agreed to pay Muromura an additional $10,000 as a “creative consultant fee.”

Muromura filed a complaint against RPA and Honda, alleging that Honda's advertisements infringed her copyrights in Protrude Flow. The defendants moved to dismiss.

Protectable Elements Not Identified

Muromura argued that her artwork “contains images or a series of images that are substantially similar to the Internet and television advertisements” that the defendants used. The problem with this argument, Judge Dean D. Pregerson said, is that it fails to specify how the defendants' advertisements are substantially similar--and thus infringe--the protectable elements of Muromura's work.

“Absent identification of any specific expressive elements in either Plaintiff's artwork or RPA's allegedly infringing advertisements, Plaintiff cannot possibly establish that the two works are extrinsically substantially similar,” the court said.

The court dismissed the complaint after determining that Muromura had not adequately stated a claim for copyright infringement.

Muromura was represented by David A. Makman of Makman and Matz, San Mateo, Calif. The defendants were represented by Monique N. Bhargava of Winston and Strawn, Chicago.