United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
United States Court of Appeals For The Ninth Circuit
*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
2765
2768 FLEISCHER STUDIOS v. A.V.E.L.A., INC.
COUNSEL
OPINION
I.
II.
III.
....
Id. at 920.
AFFIRMED.
I respectfully dissent.
FLEISCHER STUDIOS v. A.V.E.L.A., INC. 2783
The beginning and the ending of this story are undisputed.
Max Fleischer created the lovable character Betty Boop in the
1930s. In 1941, he sold to Paramount Pictures the copyright
to certain cartoons and to the character Betty Boop herself.
Max Fleischer died in 1972.
First, it is true that Plaintiff did not raise the Harvey Films
chain of title in its opening brief. But its failure in that regard
is perfectly understandable. The district court had ruled in
Plaintiff’s favor on every link in the UM&M chain except
one. Plaintiff thus challenged only the portion of the district
court’s opinion in which Plaintiff lost. That strategy makes
particular sense because Defendants had never before
2
The majority reaches that result by concluding that the doctrine of indi-
visibility does not apply in these circumstances. I am uncertain whether
the doctrine of indivisibility applies here. Compare Kaplan v. Fox Film
Corp., 19 F. Supp. 780, 781-82 (S.D.N.Y. 1937) (stating that indivisibility
does not apply in circumstances similar to the circumstances here), with
Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 886 (9th Cir. 2005)
(en banc) (suggesting that indivisibility applied before the 1976 change in
copyright laws). Even if the majority is correct, however, Plaintiff never-
theless prevails for the reasons stated in text.
2786 FLEISCHER STUDIOS v. A.V.E.L.A., INC.
advanced the argument made in their answering brief. Fur-
thermore, after Defendants did advance a new argument,
Plaintiff immediately retorted, in its reply brief, that even if
the doctrine of indivisibility applied, Plaintiff prevails via the
Harvey Films chain of title.3 I see nothing to be gained from
encouraging litigants to protect against the waiver doctrine by
asserting, pro forma, in their opening briefs any and all possi-
ble theories of victory, in the possible event that the opposing
party will raise a completely new argument in its answering
brief.
D. Conclusion
4
Because of the potential interplay between the doctrines, the district
court ruled on the trademark claims only after it had rejected Plaintiff’s
copyright claim. In light of the district court’s errors concerning the copy-
right claim, I would vacate the district court’s trademark decision and
remand for reconsideration, if necessary, in light of the correct copyright
analysis.