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Appeal No. 13-17391 _________________________________________ UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _________________________________________ AMANDA LEWIS, Plaintiff/Appellant, vs. ACTIVISION BLIZZARD, INC., et al., Defendants/Appellees. _________________________________________ On Appeal From the United States District Court for the Northern District of California Hon. Claudia Wilken Case No. 4:12-cv-01096-CW _____________________________________________ APPELLANTS OPENING BRIEF _____________________________________________

Alan E. Engle (SBN 224779) Meador & Engle 155 North Riverview Dr., Suite 313 Anaheim Hills, CA 92808 Telephone: 310.428.6985 alan.engle@meenlegal.com

Stephen Fredkin (SBN 59381) Law Office of Stephen Fredkin 209 Bay Hill Dr. Newport Beach, CA 92660 Telephone: 949.706.2006 litigator1946@gmail.com

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TABLE OF CONTENTS I. PRELIMINARY STATEMENT .................................................................1 II. STATEMENT OF JURISDICTION .........................................................4 III. STATEMENT OF THE ISSUES .............................................................5 IV. PERTINENT STATUTES ........................................................................6 V. STATEMENT OF THE CASE ..................................................................6 VI. SUMMARY OF ARGUMENT ................................................................12 VII. ARGUMENT .........................................................................................14 A. Summary Judgment Should Not Have Been Granted in Favor of Blizzard on the Work for Hire Issue ...................................14 1. Standard of Review on Summary Judgment .................................14 2. Applicable Law and The Decision Below .......................................15 a. Voice acting and musical composition were not the kind of work Lewis was employed to perform and there is no written copyright assignment. .........................18 b. The development of the baby murloc voice and subsequent recording were not within the time and space limits of Lewis job. ..........................................................20 c. Lewis work was only actuated to serve Blizzard in a nominal sense. ........................................................................21 d. The district court did not view the evidence in the light most favorable to the nonmoving party, nor draw reasonable inferences from conflicting facts in favor of the party against whom summary judgment was sought. ..............................................................................22 B. Blizzards Prior Motion to Dismiss Lewis State Law Claims on the Basis of Preemption Should Not Have been Granted ...............................................................................................29 i

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1. Standard of Review on Grant of Motion to Dismiss ......................29 2. Lewis State Law Claim Are Not Subject to Preemption Based On the facts Described in the Complaint .................................30 a. Pleading Standard under Fed. R. Civ. P. 12(b)(6) .................30 b. Under some facts, Lewis claims for voice mis-appropriation and quantum meruit are not preempted by the Copyright Act and should not have been dismissed..31 VII. CONCLUSION .......................................................................................36

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TABLE OF AUTHORITIES

CASES

Page

Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) ............... 14 Balint v. Carson City, 180 F.3d 1047 (9th Cir. 1999) .......................... 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................ 30 Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011) ............. 14 Broam v. Bogan, 320 F.3d 1023 (9th Cir. 2003) ................................ 30, 31 Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (U.S. 1989) ...................................................................... 16, 17 Effects Assocs. v. Cohen, 908 F.2d 555 (9th Cir. 1990) ....................... 19 Garcia v. Google, Inc., 2014 U.S. App. LEXIS 3694 (9th Cir. Feb. 26, 2014) ..................................................................... 19, 21, 32 Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (9th Cir.2010) ................................................................ 29 Kahle v. Gonzales, 487 F.3d 697 (9th Cir. 2007) ................................ 29 Knievel v. ESPN, 393 F.3d 1068 (9th Cir. 2005) ................................. 29 Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006). .......................................................... 21, 29, 31 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)......................... 5 Lovell v. Chandler, 303 F.3d 1039 (9th Cir. 2002) ............................. 5 Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) .................... 33 No Doubt v. Activision Publishing, Inc., 702 F.Supp.2d 1139 (C.D. Cal. 2010) ................................................... 35 Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916 (9th Cir. 2004) ................................................................ 14 iii

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Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc) ............................................. 14 Sanders v. Brown, 504 F.3d 903(9th Cir. 2007) ................................ 30 Simo v. Union of Needletrades, 322 F.3d 602 (9th Cir. 2003) ............................................................... 15, 29 TAP Worldwide, LLC v. Becker, 2010 U.S. Dist. LEXIS 78709 (C.D. Cal. July 12, 2010) ...................... 28 U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009 (9th Cir. 2012) .............................................................. 18, 28 Waits v. Frito-Lay, 978 F.2d 1093 (9th Cir. 1992) .............................. 33, 34 Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003) .............................................................. 30 Weber v. Dep't of Veterans Affairs, 521 F.3d 106 (9th Cir. 2008) ................................................................ 30

STATUTES 17 U.S.C 101 ........................................................................................ passim 17 U.S.C. 201 ...................................................................................... 15, 16 17 U.S.C. 203(b) ................................................................................. 36 17 U.S.C. 204 ...................................................................................... 16 17 U.S.C. 301 ...................................................................................... 33 17 U.S.C. 501 ...................................................................................... 11 28 U.S.C. 504 ..................................................................................... 4 28 U.S.C. 1291 .................................................................................... 5 28 U.S.C. 1338.................................................................................... 4 28 U.S.C. 1367 .................................................................................... 4 28 U.S.C 2107(a) ................................................................................ 5 iv

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Fed. R. Civ. P. 12(b)(6) ........................................................................ 30 Cal. Civil Code 3344 .......................................................................... 32 OTHER AUTHORITIES 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 1.01 (2011)................................................... 31 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 5.03[B][1][b][I] (2011) ................................ 18

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I. PRELIMINARY STATEMENT A multi-billion dollar corporation continues to profit enormously from the unassigned creative work of one of its former service representatives, while refusing to acknowledge or compensate the young woman for her unique contribution. Specifically, this is an appeal of a copyright case from 1) a grant of summary judgment in favor of defendantsappellees and from 2) a grant of a motion to dismiss plaintiff-appellants state law claims. Defendants motion for summary judgment was improperly granted because plaintiffs copyrightable work was not made within the scope of his or her employment. 17 U.S.C. 101. Plaintiffs state law claims were improperly dismissed as preempted by the Copyright Act. Plaintiff Amanda Lewis is a former online customer service representative, or game master, for World of Warcraft (WOW), a video game produced by Activision Blizzard and Blizzard Entertainment (collectively, Blizzard). WOW is a Massively Multiplayer Online Role Playing Game (MMORPG), where players collectively inhabit a persistent online game world and cooperate, compete, or fight in real time to achieve various game-related objectives. When players encounter problems, such as becoming physically stuck in the game world or receiving abuse or threats from other players, they can report the issue to a game master to resolve the

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problem. Players pay a monthly subscription fee to access WOW, and Blizzard employs hundreds or thousands of game masters around the world. While employed as a game master at Blizzard, Lewis received an email seeking auditions for voiceover work for various new characters being developed for WOW. Though not part of her job duties, Lewis decided to audition. Her voice was not a good fit for the characters in the audition script; however, Lewis indicated during the audition that she had developed a voice on her own for a potential WOW creature, a female or infantile version of the murloc.1 Lewis baby murloc voice was recorded and favorably received by WOWs producers, who invited Lewis to make additional recordings for the character. As part of those recordings, Lewis also performed an original song of her own creation to be sung by the baby murloc. Lewis was told she would be included in WOWs credits for her contribution. A few months after the recording, a special code was given to attendees of the first BlizzCon, an annual convention for fans of Blizzard games, to obtain an in-game baby murloc pet that used Lewis voice and

Adult murlocs, amphibious fish-man hybrids, were already present in the game as enemy monsters. Baby murlocs, subsequently added to the game using appellants voice, are cute, non-hostile versions of murlocs that can be encountered in the broader WOW world or owned by players as in-game pets.
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song. The baby murloc was a hit and has since become strongly identified with World of Warcraft and its four sequels. Blizzard has awarded players various unique baby murloc pets in association with special events and competitions. The baby murloc has been used in WOW marketing, and Blizzard even sells a stuffed animal version. Baby murloc pets are also occasionally sold on the secondary market--as of March 2014, a redemption code for an original in-game baby murloc pet is being sold on eBay for $3,500. Lewis was eventually terminated by Blizzard for abusing her game master powers in relation to a real-life acquaintance who played WOW. As baby murlocs grew in popularity and were used in sequels to the original WOW, Lewis became upset that she never received the promised credit for her work and that Blizzard continued to exploit it in marketing, special events, and newer versions of WOW. Lewis representatives contacted Blizzard and were assured that she had signed an intellectual property assignment for her work and that Blizzard owned the relevant copyrights. However, in the course of correspondence, Blizzard failed to produce any such assignment, and it became clear that one did not actually exist. Thus, as the creator of the baby murloc voice and song, Lewis filed suit against Blizzard on three causes of
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action: 1) federal copyright infringement, 2) misappropriation of voice under California law, and 3) quantum meruit. Blizzard sought dismissal of Lewis misappropriation of voice and quantum meruit claims shortly after the case was filed, arguing they were preempted by federal copyright law. The district court took the matter under submission and granted Blizzards motion without oral argument. Lewis amended her complaint to allege a sole cause of action for copyright infringement. The parties agreed to early summary judgment briefing on two issues: (a) whether Lewis recordings constituted work for hire as defined by copyright law, which would vest ownership in Blizzard, and (b) whether Lewis work was created as a work of joint authorship with Blizzard. The district court heard argument and found that the song and recordings constituted work for hire within the scope of Lewis employment, and therefore Blizzard held the relevant copyrights. The court did not reach the question of joint authorship. The clerk entered judgment in favor of Blizzard and this appeal was taken. II. STATEMENT OF JURISDICTION The district court had jurisdiction pursuant to 28 U.S.C. 1338 over the copyright cause of action, asserted under 17 U.S.C. 504, and supplemental jurisdiction under 28 U.S.C. 1367 over Lewis other two
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claims. The district court granted summary judgment in favor of Blizzard on Lewis copyright claim on October 17, 2013 and, having dismissed Lewis state law claims on October 22, 2012, directed the clerk to enter judgment in favor of Blizzard. Lewis timely filed a notice of appeal on Monday, November 18, 2013 pursuant to 28 U.S.C 2107(a). The clerk entered judgment on November 21, 2013. Fed. R. App. P. 4(a)(2). This court has jurisdiction pursuant to 28 U.S.C. 1291, as this appeal is from a final decision of the United States District Court for the Northern District of California. The district courts dismissal of Lewis state law claims is appealable as a non-final order merged into the final judgment. An appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment. Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984); see also Lovell v. Chandler, 303 F.3d 1039, 1049 (9th Cir. 2002) III. STATEMENT OF THE ISSUES 1. Did the district court err in granting summary judgment that plaintiff Lewis baby murloc composition and sound recording constituted work for hire under 17 U.S.C 101 because they were created within the scope of [Lewis] employment at Blizzard?

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2. Did the district court err in dismissing Lewis state law right of publicity and quantum meruit claims on the ground that they were preempted by federal copyright law? IV. PERTINENT STATUTES 17 U.S.C 101. Definitions. . A "work made for hire" is (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. V. STATEMENT OF THE CASE Beginning in early 2005 Amanda Lewis was employed as a game master for Blizzards on-line multiplayer fantasy game World of Warcraft,
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a customer support position for which she was initially paid $10 per hour. Excerpts of Record (ER) 223. Lewis role, like hundreds or thousands of other game masters, was to assist players when they had difficulties within the online computer game, such as becoming stuck in the virtual game environment, having their virtual items stolen, or being the subject of threats or harassment from other players. ER 61, 129. The Introduction to the WoW Game Master Training Manual states, As a member of this [InGame Customer Support] team, you will be providing excellent customer support within the World of WarCraft [sic] in an efficient and timely manner. Our team will serve as observers of the world, yet not participants, and as representatives of Blizzard Entertainment we will provide courteous and quality customer service to the best of our ability. ER 127. Wow players in the U.S. pay a monthly subscription fee of about $15. ER 61 They can petition a game master by opening a ticket from the game menu. ER 62. The game masters job is to resolve the problem or, potentially, to escalate the matter to more senior customer support staff, as when there are security breaches, racist remarks, or threats of physical violence against a player. ER 62. As noted in the WoW Game Master Training Manual, In World of Warcraft a player merely clicks a button in his interface, types a short description or problem, sends the petition to the
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GM department, and then continues to enjoy the game until a Game Master can resolve his issue in game! ER 129. Lewis employment as a Game Master had nothing to do with the creation of copyrightable content. ER 61. Lewis performed well at her job and received promotion to a customer support Specialist, and a raise to $12 per hour. ER 137. Her employee review notes that, Amanda consistently has average to better than average productivity. While at work she devotes her time to working and it shows clearly in the amount of work she is able to get done each night. Id. On July 7, 2005, Lewis was cced on an email from Micky Neilson of Blizzard regarding voice auditions for upcoming WOW content.2 ER 93-94. The email addresses some organizational matters and notes that over 120 game masters had volunteered for voice auditions. Id. The email further states that it is directed only to those who wish to participate and others should please disregard and let me know so I can remove you from the list. Id. Finally, the email states, DISCLAIMER: We are not casting for SPECIFIC parts at this time, we are simply looking to put together a list of talent to use in future projects. What the heck does that mean, you ask
2

Blizzard typically uses professional voice actors for work in WOW. Nielsons email suggests that they decided to also solicit Blizzard employees for such work, presumably to reduce the expense of hiring outside talent. [Ex. 8]
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again?...Well, it simply means you should not expect to hear Youre hired! on the day of the audition. ER 94, bold added. Mr. Nielson sent a follow-up email on July 18, 2005 to the second group of auditionists, including some relevant instructions and an audition schedule. ER 96-97. Among other things, the email notes, If you have a work-related excuse, I will reschedule you. Id., emphasis added. Lewis attended the audition, and while she was not a good fit for any of the scripted voices used in the audition, she mentioned that she had created a voice for a female version of the murloc, an aquatic fish-man hybrid monster common in WOW. ER 63. She performed the voice, which was recorded, and WOWs producers reacted favorably. As a result, Lewis was called back during time-off from her game master job to do vocal work for a new creature, the baby murloc, which would be given to attendees of the upcoming BlizCon convention as a special in-game pet. 3 ER 64, 110. The baby murloc was apparently inspired by Lewis performance in her initial audition.

WOW players can own various in-game pets, often immature versions of WOW monsters. Such pets can be bought from vendors, found as loot, or obtained via redemption codes from giveaways or special events. The original baby murloc, Murky, was given to attendees of the first BlizzCon. Other baby murlocs using Lewis voice were later provided to participants of other WOW-related special events. [FAC at 4?]
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Lewis was aware that her baby murloc song and vocalizations would be used for an in-game pet given away at BlizzCon, and she gave verbal permission for such use provided that she receive credit for her work. ER 63. Lewis was never listed in WOWs credits. In the Spring and Summer of 2006, Lewis was accused of misusing her game master powers in connection with a personal dispute, and she was terminated from Blizzard. In January 2007, Blizzard released The Burning Crusade, the first of (currently) four sequels to the World of Warcraft. The Burning Crusade incorporated baby murlocs using Lewis voice as part of the game world and a quest chain, not just as in-game pets. Er 56. The following sequels, Wrath of the Lich King and Cataclysm, also contained baby murlocs using Lewis voice. Id. Lewis had never given Blizzard permission for such use and was surprised and frustrated by Blizzards continued use of her voice for a character that had become emblematic of the WOW franchise.4 ER 63. In November 2010, Lewis counsel contacted Blizzard on her behalf and was assured that Lewis had signed an agreement granting Blizzard

Among other things, Lewis baby murloc vocalizations introduced an element of levity and fun to a game genre generally associated with hardcore gamers, often young males. Though discovery has not yet been provided on the issue, it is believed that Lewis work helped to expand the demographic appeal of WOW beyond traditional gamers.
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copyright to her work. Blizzard has produced no such agreement and now seeks to rely on the argument that Lewis original song and recording were works for hire made within the scope of her employment, thereby vesting copyright ownership in Blizzard. On March 5, 2012, Lewis filed suit asserting three causes of action: copyright infringement under 17 U.S.C. 501, et seq.; unauthorized use of voice under Cal. Civil Code 3344; and quantum meruit. On April 26, 2012, Blizzard filed a motion to dismiss Lewis state law and quantum meruit claims as preempted by federal copyright law. ER 264. The district court took the matter under submission and granted Blizzards motion without argument on October 22, 2012. ER 37-50. Lewis filed a first amended complaint asserting a sole cause of action for copyright infringement. ER 255-263. The parties engaged in limited discovery and the district court granted a joint request for early summary judgment briefing on two issues: whether Lewis work constituted work for hire under the Copyright Act and whether Blizzard should be regarded as joint author of the work. On October 17, 2013, the district court granted Blizzards summary judgment motion on the work for hire issue and, therefore, did not address the question of joint authorship. ER 4-15. The court wrote,
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Because the baby murloc recordings are a work made for hire, as explained above, Blizzard is the sole copyright holder in the recordings. Accordingly, there is no need to address whether the recordings are a joint work under the Copyright Act. ER 14-15. Lewis appeals from the district courts grant of Blizzards motion for summary judgment and from its prior grant of Blizzards motion to dismiss. VI. SUMMARY OF ARGUMENT Lewis situation is no different than that of a receptionist or a clerical worker at an animation studio who is invited to do voiceover work for a movie. The district courts decision that Lewis work constitutes work for hire eviscerates the within the scope of his or her employment requirement of the statute. While Lewis was an employee at Blizzard, this should not distract from the fact that creating copyrightable content, much less an original song, was in no sense within the scope of her employment. Lewis was employed full time at Blizzard as a customer service representative. She was not required to audition for or perform voice work as part of her job. Even after her voice work generated interest from WOWs producers, she was not required to make any recordings as part of her job. She came in during her time-off to make the recordings and signed no intellectual property assignment agreement of the type common among
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actors, artists, or other creative workers. When she was hired as a game master she was not presented with and did not sign such an agreement because, among other things, it simply was not contemplated that she would do such work within the scope of her employment as a customer service representative at Blizzard. The district courts interpretation renders the work for hire statutes explicit within the scope of his or her employment requirement mere surplusage. Moreover, the courts premature decision is contrary to established summary judgment procedures with regard to burdens and contested factual evidence. At the very least, it was clear error to grant Blizzards motion for summary judgment. The district court also erred in granting Blizzards motion to dismiss Lewis state law voice misappropriation and quantum meruit claims as preempted by federal copyright law. The extent to which state law right of publicity claims are preempted by copyright law is complex and fact specific, and California has a strong interest in not having its statutory right of publicity framework casually disregarded by federal courts, particularly via a motion to dismiss decided without argument. In this case, the state law claims were plead as an alternative to copyright infringement in the event that Blizzard prevails on its defense that the work at issue is not
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copyrightable. The district court should not have dismissed Lewis state law claims, and certainly should not have done so prior to any development of the factual record. The claims should be reinstated. If Blizzard is able to establish that the claims are subject to preemption based on a full factual record, so be it, but Blizzards motion should not have been granted before such a record could be developed. VII. ARGUMENT A. Summary Judgment Should Not Have Been Granted in Favor of Blizzard on the Work for Hire Issue 1. Standard of Review on Summary Judgment A district courts decision to grant summary judgment or a summary adjudication motion is reviewed de novo. See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir. 2002) (en banc). On review, the appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See Olsen v. Idaho State Bd. Of Medicine, 363 F.3d 916, 922 (9th Cir. 2004); Acosta v. City of Costa Mesa, 718 F.3d 800, 822 (9th Cir. 2013). The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a
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genuine issue for trial. See Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). Summary judgment is not proper if material factual issues exist for trial. See Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003). 2. Applicable Law and The Decision Below The legal standard for a work for hire is set forth in the initial Definitions section of the Copyright Act. 17 U.S.C. 101. This case concerns part (1) of the definition of work for hire, which relates to work prepared by an employee, rather than part (2), which relates to specially commissioned works, typically by independent contractors. Part (1) defines work for hire as (1) a work prepared by an employee within the scope of his or her employment. Id., emphasis added. The issue of whether a work is a work for hire is significant because under the Copyright Act, In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, andowns all of the rights comprised in the copyright. 17 U.S.C. 201(b). Thus, if Lewis work is work for hire, then Blizzard owns the copyright and she cannot maintain an action for infringement.

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The district court found that the baby murloc song and recording should be regarded as work for hire under the Copyright Act. Er 14-15. This was error. While this is in many ways a simple case, the district courts analysis of work for hire, particularly in the context of strongly contested facts, sets a dangerous precedent with regard to creative work authored by employees of content-producing companies outside of their normal duties. Taken to its natural conclusion, the district courts reasoning would effectively erase the within the scope of his or her employment requirement of work for hire, rendering any copyrightable work created by an employee of a content-producing company, regardless of the nature of her employment, as work for hire. This would abrogate the fundamental principle that copyright vests in the initial author of a work, as well as the statutory writing requirement for copyright transfer. 17 U.S.C. 201(a) (Copyright in a work protected by this title vests initially in the author or authors of the work.); and 17 U.S.C. 204 (A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyanceis in writing and signed by the owner.). The leading work for hire case under the Copyright Act is the Supreme Courts decision in Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (U.S. 1989). While Reid is instructive, it is directed primarily to
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part (2) of the definition of work for hire and focuses on the question of whether Reid was an employee or independent contractor when he created the sculpture at issue. To reach its decision the Supreme Court applied the law of agency, as reflected in the Restatement (Second) of Agency 228 (1958), and determined Reid was an independent contractor and therefore owned the copyright. Id. at 753 (Because Reid was an independent contractor, whether [the work] is a work for hire depends on whether it satisfies the terms of 101(2). This petitioners concede it cannot do.) In the present case, the issue is not whether Lewis was an employee of Blizzard but whether the copyrighted works were created within the scope of her employment. Drawing on Reid, the Ninth Circuit recently reversed summary judgment in favor of defendants in a within the scope of employment case, discussing the issue as follows: Reid cited to section 228 of the Restatement (Second) of Agency as a source of these common law principles, id. at 740, and courts have accordingly adopted section 228's three-prong test for determining when a work is made by an employee "within the scope" of employment: "(a) it is of the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [employer]." Avtec Sys., Inc. v. Peiffer, 21 F.3d 568, 571 (4th Cir. 1994) (quoting Restatement 228); accord Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177, 186 (2d Cir. 2004) (same); see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 5.03[B][1][b][I] (2011)....We join our sister circuits in adopting this approach.
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U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012), alterations original. The cited passage from Nimmer on Copyright notes, the literary efforts of an employee, if not rendered within the scope of his or her employment, remain the property of the employee. This is true, even if the subject matter of the work thus created by the employee bears upon or arises out of the employee's activities for his employer, as long as the work was not produced pursuant to his duties as an employee. 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright 5.03[B][1][b][I] (2011). a. Voice acting and musical composition were not the kind of work Lewis was employed to perform and there is no written copyright assignment. The scope of employment analysis is straightforward in light of the facts discussed above. Lewis was employed full time at Blizzard as a game master, an on-line customer support representative. ER 61. As a game master, Lewis acted as a problem solver, a moderator, a record keeper, game mechanics expert, and a knowledge base for WOW players. ER 129. Her day to day functions and duties for Blizzard was [sic] to act as a customer support problem solver. ER 61. As Module 1 of Blizzards Game Master Training Manual notes under Job Description, Game Masters [sic] are customer service specialists with expert knowledge of the game
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who are be [sic] present as characters within World of Warcrafts epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. ER 129. While working as a game master, Lewis received a solicitation to audition for a voice role within the game. ER 61. This would be like moving from the gift shop to the sound stage. Lewis was not required to audition as part of her duties as a game master, but she saw the opportunity as a way to demonstrate her talent and potentially advance her career, at Blizzard or elsewhere. ER 155, 167. Lewis showed up for the audition (and subsequent recordings) outside her normal graveyard shift hours. ER 193. She participated in the hope she would receive recognition or reward. The Ninth Circuit has repeatedly stated that the best way to ensure a party owns the copyright in creative work they commission is to get a signed writing. Effects Assocs. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990) (Section 204's writing requirement is not unduly burdensome; it necessitates neither protracted negotiations nor substantial expense. The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn't have to be the Magna Charta; a oneline pro forma statement will do.); Garcia v. Google, Inc., 2014 U.S. App.
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LEXIS 3694, *14 (9th Cir. Feb. 26, 2014). Blizzard has produced hundreds of such assignments (and little else) signed by creative talent who have worked on WOW and its sequels. However, Blizzard apparently did not anticipate it would solicit its game masters to make a creative contribution to the gamesuch work was simply outside the scope of their employment. Lewis was not presented with the paperwork Blizzard requires professionals to sign when doing such work. Nevertheless, Lewis baby murloc song and vocal recordings were a hit with WOW fans, and Blizzard continues to exploit them without even giving Lewis credit. ER 269. b. The development of the baby murloc voice and subsequent recording were not within the time and space limits of Lewis job. As indicated, Lewis attended the audition and recording sessions outside normal work hours. ER 193. Additionally, she developed the distinctive voice on her own at home and presented it at her initial audition, where it was not part of the supplied script. ER 63, 64. While the recordings took place on Blizzards campus, they were done in an area distinct from where Lewis worked as a game master. Er 167-174. It is only because Blizzard is a large enough company to have a campus where it maintains recording facilities that the recordings were done in any proximity to Lewis regular work. If Blizzard did not have an on-campus recording studio,
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Lewis would have done the recordings in another location. In any event, the recordings were made in a place distinct from where Lewis performed her regular job duties. Id. The district court deemphasized the importance of Lewis creation of the voice outside of her normal work. Because the voice that Plaintiff allegedly created is merely an idea -- and, thus, is not copyrightable it does not matter when or where she conceived of it. ER 14. However, as Chief Judge Kozinski explained in a opinion issued last month, even if voice without more cannot be copyrighted, that doesn't answer the question of whether the artist's creativity, expressed through her voice or image, is protected by copyright. Just because someone's voice--its particular timbre and quality--can't be copyrighted, doesn't mean that a performance made using that voice can never be protected. In fact, many vocal performances are copyrighted. See, e.g., Laws v. Sony Music Entm't, Inc., 448 F.3d 1134, 1141 (9th Cir. 2006). Garcia v. Google, et al., 2014 U.S. App. LEXIS 3694 (9th Cir. February 26, 2014) (en banc review requested). c. Lewis work was only actuated to serve Blizzard in a nominal sense. Lewis created the voice for a female murloc while off duty, for her own amusement. ER 63. She did not know that she would be asked to audition for voice work, that the audition would have a favorable result, and
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that her work would be used within WOW. While in some sense any work an employee does at an employers request is actuated to serve the employer, whether within or outside the scope of employment, Lewis auditioned and performance were done to advance her own interests. She hoped to potentially to secure a new type of position at Blizzard or elsewhere, where she could do creative work instead of enforcing in-game chat policies or returning digital swords and armor to players whose accounts had been hacked.5 d. The district court did not view the evidence in the light most favorable to the nonmoving party, nor draw reasonable inferences from conflicting facts in favor of the party against whom summary judgment was sought. The district courts opinion focuses largely on a single piece of evidence, an ambiguous subordinate clause in the Game Master Job Description portion of Module 1 of the Game Master Training Manual. The paragraph, quoted in the district courts opinion, states: Game Masters are customer service specialists with expert knowledge of the game who are [] present as characters within World of Warcrafts epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. In this capacity, GMs serve as the direct link between Blizzard and its customers. Additionally, GMs are responsible for in-game customer support, helping manage our While not directly relevant to this appeal, there is a vast secondary market for WOW goods and gold, and Blizzard has made extensive efforts to guard against and remedy security breaches in WOW.
5

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online community, and assisting with the creation of content during the ever ongoing development of the game. ER 5. Perhaps due to a misapprehension about the nature of a game masters actual job, the court found that the phrase assisting with the creation of content during the ever ongoing development of the game was sufficient to render creating and recording original copyrightable work within the scope of [Lewis] employment. This conclusion is contrary to the factual record regarding what the game master job actually is and serves to elevate an ambiguous subordinate phrase in a hastily written paragraph with two grammatical errors into the sine qua non of the case. Further, taken to its natural conclusion, the district courts decision would effectively enable employers to claim ownership of any copyrightable work done by employees, regardless of the nature of their job, solely by inserting an ambiguous throwaway line somewhere in an unsigned training manual. This is reversible error. That which is taken out of context can be put back in context. Module 1 of the Game Master Training Manual contains a number of more accurate descriptions of the game master job and its scope. ER 126. Welcome and congratulations on your new position as Game Master, and integral part of the In-Game Customer Support Team. Id. Game Masters [sic] are customer service specialists with expert knowledge of the game
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who are be [sic] present as characters within World of Warcrafts epic fantasy setting to provide assistance and guidance to players while also coordinating world functionality. Id. at 129. In World of Warcraft a player merely clicks a button in his interface, types a short description or problem, sends the petition to the GM department, and then continues to enjoy the game until a Game Master can resolve his issue in game! Id. In addition to using a GodTool to resolve problems, Game Masters can use an invisible in-game character when necessary to resolve the problem. This invisible character helps the GM test game functionality, verify harassment, abuse, exploits and hacks, allows us to speak with entire parties [groups of players seeking a common objective] at the same time, and assists in solving problems that need to be seen first hand. Id. Lewis declaration notes that, A Game Master is a customer service representative for WOW that helps players with in-game problems. A Game Masters duties do not involve providing copyrightable content for WOW, though game masters [sic] would occasionally make suggestions about game content in the form of potential solutions for in-game problems. ER 61. No aspect of my employment as a Game Master involved the creation of artistic content for WOW, such as sound recordings or the creation or performance of original compositions. Id. at 63.
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Despite the substantial factual record, the district court mistakenly found that, producing content is very similar to the other duties that game masters were routinely expected to perform. ER 11. And that, game masters did not simply interact with Blizzards customer but also engaged directly with game content. Id. The district courts misapprehension of the game master job is reflected in its comments during oral argument: THE COURT: YEAH. SO SHE'S ACTING OUT HER CHARACTER IN THE GAME -MR. FREDKIN: CORRECT. THE COURT: -- PARTICIPATING IN THE GAME AS A CHARACTER, RIGHT? MR. FREDKIN: CORRECT. CORRECT. SOMETIMES THE COURT: SO THAT SEEMS PRETTY SIMILAR -(SIMULTANEOUS COLLOQUY.) MR. FREDKIN: THEY CAN'T MOVE -THE COURT: THAT SEEMS PRETTY SIMILAR TO PARTICIPATING IN THE GAME AS A BABY MURLOC, DOES IT NOT? MR. FREDKIN: NO, YOUR HONOR. LET ME EXPLAIN SOMETHING. THE BABY MURLOC IS AN INDEPENDENT CHARACTER THAT WASN'T CONTROLLED BY THE GAME MASTER. THE COURT: NO, I KNOW THAT. MR. FREDKIN: IT'S A SEPARATE ENTITY. THE COURT: I UNDERSTAND THAT. BUT IF YOU'RE PLAYING A GAME AND YOU SEE A BABY MURLOC AND YOU TURN AROUND AND SEE A PERSON BEING A GAME MASTER CUSTOMER SERVICE PERSON TELLING YOU HOW TO DO STUFF WITHIN THE GAME, THAT SEEMS RATHER SIMILAR TO ME. ER 21-22. The district court seems to confuse the fact that when necessary a game master can enter the virtual game world with special powers to
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facilitate solving customer-support problems with the furniture of the game world itself. As noted above, a game master entering the world in the form of a player is almost always invisible and interacts with actual players as a professional customer support representative, not as some part of the game. The Manual notes, You will be issued a business account which contains GM powers that are used to help facilitate you [sic] job as a customer service representative. These powers should only be used in conjunction with work related issues and should never be used for other any purposes. ER 121. The district courts misapprehension concerning the nature of the game master job is likely at the root of its mistaken decision that the baby murloc song and recordings were within the scope of Lewis employment. Even laboring under such a misapprehension, however, the district court improperly disregarded competing evidence put forward by Lewis and failed to draw natural, and favorable, inferences. Returning to the ambiguous subordinate clause in Module 1 of the Game Master Training Manual on which the district court relies, the relevant paragraph first gives a description of the job and then states, Additionally, GMs are responsible for in-game customer support, helping manage our online community, and assisting with the creation of content during the ever ongoing development of the game. ER 129. Now, instead of
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and assisting with the creation of content, the clause could have said and creating original copyrightable audio-visual work for the game. This would remedy the fact that assisting with the creation of content is inherently vague and can be readily understood not to involve the creation of original copyrightable material. For examples, a game master could receive multiple petitions that a quest was bugged and was preventing players from progressing in the game. They could then assist[] with the creation of content by telling a supervisor that, e.g., the quest was too high of a level for the relevant game area, or that a monster was not performing as intended, or that there was some environmental barrier impeding players path to the intended goal. Game masters are the employees who interact most directly with WOW players when they encounter problems, and they inevitably receive feedback regarding players experiences and problems with the game. Flagging such problems helps with the creation of content, but it does not involve the creation of original musical works or voice recordings or any other copyrightable content. In fact, the phrase and assisting with the creation of content encompasses so much that it cannot be read to countenance the legal transfer of intellectual property rights, especially when it appears as a throwaway line at the end of a list in an unsigned training manual. What if
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the clause read instead, and assisting with making WOW a better game, or and assisting Blizzard in achieving a positive return on investment, or and assisting with other stuff? Each of these phrases, given their generality, would be applicable to Lewis work as a game masterthey would also be applicable to any other job at Blizzard, including, say, that of a security guard, or chief financial officer, or shipping clerk, or a voice actor. Blizzards insertion of a vague and broad clause in a training manual did not somehow render the creation of an original song or voice recordings within the scope of [Lewis] employment as a game master. As discussed above, the conclusion that an employees creative work not directly related to her job duties does not constitute work for hire is well supported by case law. In a recent case, TAP Worldwide, LLC v. Becker, 2010 U.S. Dist. LEXIS 78709 (C.D. Cal. July 12, 2010), the district court, after significant discussion of relevant authorities, found that an exemployees software program that benefitted his employer was made outside the scope of his job duties. Because the work was not the kind the author was employed to perform and was not made during his regular work hours, his former employer was not likely to prevail on its copyright claim. As in Tap Worldwide, two of the three elements required under U.S. Auto Parts Network, 692 F.3d at 1015, are not present here, and therefore,
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Lewisnot Blizzardowns the copyright in the composition and recordings she created. The fact that she happened to be employed by Blizzard at the time in another capacity is insufficient to deprive her of copyright ownership. And even if this Court were to disagree, at the very least Lewis has surely demonstrated a material dispute of fact exists and it was therefore improper for the district court to grant summary judgment in favor of Blizzard. Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003). B. Blizzards Prior Motion to Dismiss Lewis State Law Claims on the Basis of Preemption Should Not Have been Granted 1. Standard of Review of Grant of Motion to Dismiss Dismissals under Fed. R. Civ. P. 12(b)(6) for failure to state a claim are subject to de novo review. See Kahle v. Gonzales, 487 F.3d 697, 699 (9th Cir. 2007); Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Further, the Ninth Circuit review[s] de novo whether a federal law preempts a state law, as well as the district court's interpretation of state law. Laws v. Sony Music Entm't, Inc., 448 F.3d 1134, 1137 (9th Cir. 2006). Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1152 (9th Cir.2010).

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All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Conclusory allegations and unwarranted inferences, however, are insufficient to defeat a motion to dismiss. See Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). 2. Lewis State Law Claim Are Not Subject to Preemption Based On the Facts Described in the Complaint a. Pleading Standard under Fed. R. Civ. P. 12(b)(6) Motions to dismiss are viewed with disfavor. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). A claim may be dismissed under Fed. R. Civ. P. 12(b)(6) only if it does not state a claim upon which relief can be granted. When considering a motion to dismiss, the plaintiff's complaint is liberally construed and all allegations of material fact are to be taken as true, as well as any reasonable inferences drawn from them, and construed in the light most favorable to Plaintiff. Broam at 1028. A complaint need not contain detailed factual allegations; rather, it must plead enough facts to state a claim to relief that is plausible on its face. Weber v. Dep't of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). [O]nce a claim has been
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stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Bell Atl. Corp. v. Twombly at 563. b. Lewis Claims for Voice Misappropriation and Quantum Meruit are Not Preempted by the Copyright Act. The issue of preemption of state law right of publicity claims in the context of federal copyright law is complex and fact specific. See generally 1-1 Nimmer on Copyright 1.01 at 1-36. Nimmer writes, The interplay between copyright pre-emption and the right of publicity has seen more volatility than just about any other doctrine canvassed throughout this tretise. Tremendous disarray punctuates the cases. Id. at [B][3][b][i]. The Ninth Circuit has adopted a two part test to consider questions of preemption of state law in the context of copyright: We must first determine whether the subject matter of the state law claim falls within the subject matter of copyright as described in 17 U.S.C. 102 and 103. Second, assuming that it does, we must determine whether the rights asserted under state law are equivalent to the rights contained in 17 U.S.C. 106, which articulates the exclusive rights of copyright holders. Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1137-38 (9th Cir. 2006). In relevant part, Californias right of publicity statute provides:

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(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consentshall be liable for any damages sustained by the person or persons injured as a result thereof. Cal. Civ. Code 3344. Assuming Blizzard is correct that preemption applies and that Lewis song and/or vocal work is de minimus or lacks sufficient originality and is therefore not subject to copyright protection, Blizzard would then have carte blanche to continue exploiting Lewis voice, even though Californias right of publicity statute specifically covers unauthorized use of voice without regard to whether the work qualifies for copyright protection. Voice, in and of itself, is not subject to copyright protection. Garcia v. Google, Inc., 2014 U.S. App. LEXIS 3694 at *11 (9th Cir. Feb. 26, 2014). Thus, a finding that preemption applies, particularly in the context of a motion to dismiss, is equivalent to stating that California cannot enact a statue to protect an individuals right of publicity with regard to her voice even when doing so protects rights not equivalent to and not assertable as exclusive rights under copyright law. This is an overbroad interpretation of the scope of preemption and is inconsistent with Californias strong interest and influential history in protecting rights of publicity.
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Californias interest can be preserved and this no rights scenario avoided simply by adhering to the terms of the Copyright Acts preemption section, 17 U.S.C 301. Section (b) of the statute provides, Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to.(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or Id. If Lewis claims fail under the Copyright Act as not original or de minimus or because they involve merely exploitation of her voice, then she has no exclusive rights within the general scope of copyright as specified by section 106. Id. In that case, by its terms the statute would not preempt any rights or remedies under the common law or statutes of any State. Id. In Waits v. Frito-Lay, the Ninth Circuit noted that, We rejected copyright preemption in Midler because voice is not a subject matter of copyright: A voice is not copyrightable. The sounds are not fixed. As a three-judge panel, we are not at liberty to reconsider this conclusion, and even if we were, we would decline to disturb it. 978 F.2d 1093, 1102 (9th Cir. 1992), citing Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). As the Waits court notes, [T]he legislative history of section 114 indicates the express intent of Congress that the evolving common law rights of
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'privacy,' 'publicity,' and trade secretsremain unaffected [by the preemption provision] as long as the causes of action contain elements, such as an invasion of personal rightsthat are different in kind from copyright infringement. H. R. Rep. No. 1476, 94th Cong., 2d Sess. 132, reprinted in 1976 U.S.C.C.A.N. 5659, 5748. Waits' voice misappropriation claim is one for invasion of a personal property right: his right of publicity to control the use of his identity as embodied in his voice. Waits v. Frito-Lay at 1100. To the extent Blizzards use of Lewis voice is not actionable due to the nature of the work, such use nevertheless impinges on Lewis rights of publicity, including having her voice exploited by an employer who fired her and did not give her promised credit for her work. There is a dispute in the case whether Lewis work, or some part of it, properly falls within the subject matter of federal copyright law. While Lewis argues that the work at issue is copyrightable, Blizzards Answer to the First Amended Complaint, filed after Lewis right of publicity and quantum meruit claims were dismissed as preempted, asserts the affirmative defense that, To the extent Plaintiff possesses any rights in any of the worked alleged in the FAC, such works lack sufficient originality to constitute a copyrightable work. ER 251. Blizzard asserts that Lewis vocal work is insufficient in scope or originality to qualify for copyright protection. While Lewis disagrees with this contention, to the extent that
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Blizzards argument carries the day, Lewis state law and quantum meruit claims would remain viable. In other words, if Lewis loses on her copyright claim on the basis that the works at issue are not copyrightable, then she should be able to continue with her claims for misappropriation of voice and quantum meruit. While Lewis concedes that she cannot win on all three of her claims, it is entirely possible for her to prevail on her state law claims and not her copyright claim, and vice versa. This conclusion is supported by a recent case, where the copyright preemption arguments advanced by Activision Publishing, Activision Blizzards sister corporation, were rejected. In No Doubt v. Activision Publishing, Inc., 702 F.Supp.2d 1139 (C.D. Cal. 2010), the court provides extensive discussion of preemption of right of publicity claims and concludes that, where the plaintiff's claims are based on a noncopyrightable personal attribute rather than a copyrightable performance, the Copyright Act does not preempt the claims. Id. at 1144. Again, to the extent Ms. Lewis' vocal work and expressions are not protected by copyright, her voice is protected under California law. While some cases, such as Laws, appear to limit right of publicity claims in the context of vocal work, depending on how the facts develop in this case, it would be entirely possible for Lewis work to fall within the statutory exception to
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preemption under 17 U.S.C. 203(b). In any event, the district court acted with undue haste in granting Blizzards motion to dismiss in the absence of any factual record. VII. CONCLUSION For each of the foregoing reasons, appellant Amanda Lewis respectfully request that this Court reverse the District Courts Order Granting Summary Judgment and reverse the District Courts Order dismissing Lewis state law claims. DATED: March 26, 2014 MEADOR & ENGLE /s/ Alan E. Engle ALAN E. ENGLE (SBN 224779) Attorney for Plaintiff-Appellant Amanda Lewis

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STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Defendant-Appellant Amanda Lewis states there are no related cases pending in this Court.

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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I certify that Appellants brief is proportionately spaced, has a typeface of 14 points, and contains 8345 words. DATED: March 26, 2014 MEADOR & ENGLE /s/ Alan E. Engle ALAN E. ENGLE (SBN 224779) Attorney for Plaintiff-Appellant Amanda Lewis

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CERTIFICATE OF SERVICE I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Meador & Engle, 155 N. Riverview Dr., Suite 313, Anaheim Hills, CA 92808. I hereby certify that on March 27, 2014, I electronically filed the foregoing with the Clerk of the Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. /s/ Alan E. Engle ALAN E. ENGLE

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