NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE ACT GROUP, INC., an Arizona corporation,
Plaintiff

- counter

defendant

- Appellee,

v. WATERFURNACE INTERNATIONAL, INC., an Indiana corporation, Defendant,
and JAMES HAMLIN and JODI HAMLIN, husband and wife,
Defendants

- counter

claimants

- Appellants. No. 16

- 15973
D.C. No. 2:12

- cv - 00567

- SMM

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding Argued and Submitted September 13, 2017 San Francisco, California Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON, **

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

NOV 1 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

- 15973

District Ju dge.
A fter a six

- day jury trial, judgment was entered in favor of ACT Group, Inc. on ACT’s claims of infringement of its copyrighted sales training materials . Jody and James Hamlin appeal trial rulings on admissibility of certain evidence, omission
of a r equested jury instruction , and sufficiency of evidence to support the verdict.
Mr. Hamlin also appeal s the dismissal of his counterclaim for wrongful appropriation of his likeness

. 1. T he District Court ’s imposition of sanction s on the ACT Group for its
failure to properly disclose certain documents and witnesses under Fed. R. Civ. P. 37(c)(1) , was not an abuse of discretion. See Yeti by Molly, Ltd. v. Deckers Outdoor Corp. , 259 F.3d 1101, 1106 (9t h Cir. 2001) ( “[A]lthough we review every discovery sanction for an abuse of discretion, we give particularly wide latitude to the district

court ’ s discretion to issue sanctions under Rule 37(c)(1).” (citation omitted) )

. B y limiting ACT’s witnesses’ trial testimony to the scope of those witnesses’ deposition testimony , and by permitting ACT to offer only documents previously disclosed or relied on by one of the parties in summary judgment briefing, the trial court fashioned an appropriate sanction within its broad discretion

. 2. Appel lants claim error in the District Court’s failure to include a jury

** The Honorable Janet Bond Arterton, United States District Judge for the District of Connecticut, sitting by designation.3 16

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instruction that “ expressions that are common, stock, or standard to a particular
matter are not p rotectable under copyright law. ” The District Court’s formulation of its jury charge on or iginality, which tracked the Ninth Circuit Manual of Model Civil Jury Instructions, was directed to the central jury question of whether the manner in which the words were selected and arranged was sufficiently creative to be an original expression subject to copyright protection. That charge “ adequately

cover [ed] the issues presented,” “ correctly state [d] the law, ” and was not

“ misleading

. ” Gantt v. City of Los Angeles , 717 F.3d 702, 706 (9th Cir. 2013) (internal quotation marks and citation omitted). T he parties in their closing
arguments forcefully addressed their opposing positions on the protect a bility of the word and phrase arrangements in ACT’s sales training materials. Appellants’ requested additional language would have sidetracked the jurors’ fo cus on this issue and improperly changed the tenor of the charge , as the D istrict Court appropriately
concluded

. See Satava v. Lowry , 323 F.3d 805, 811 (9th Cir. 2003) (“[A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”).
3. Substantial evidence supports the jury’s verdict awarding damages for copyright infringement of AC T ’ s sales training materials

. See Transgo, Inc. v. Ajac Transmission Parts Corp. , 768 F.2d 1001, 1013

– 14 (9th Cir. 1985) . Even though4 16

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many common phrases already in the public domain were used , ACT’s selection, arrangement, and expression of these words and phrases were copyright protectable

. S ee Satava , 323 F.3d at 811

. There was also substantial evidence that Hamlin actually copied ACT’s training materials

. S ee Smith v. Jackson , 84 F.3d 1213, 1218 (9th Cir. 1996) ( “plaintiff may establish copying by showing that defendant had access to plaintiff’s work and that the two works are substantially similar in ide a and in expression of the idea ” (internal quotation marks and citation omitted) ).
4. The District Court did not err in granting summary judgment on
H amlin’s counterclaim for wrongful appropriation of his likeness for commercial

purposes in light of the lack of evidence that the use of Hamlin’s likeness resulted
in any economic harm to him, or economic benefit to ACT

. See In re Estate of Reynolds , 327 P .3d 213, 215 ( Ariz. Ct. App. 2014)

. AFFIRMED