The Ninth Circuit Affirms Order Dismissing Complaint for Copyright Infringement

In Woodland v. Hill, No. 23-55418, 2025 U.S. App. LEXIS 11911, — F.4th —, 2025 WL 1417103 (9th Cir. May 16, 2025), the Ninth Circuit Court of Appeals, in a published decision, affirmed the dismissal with prejudice of a copyright complaint. In the process, it offered some interesting observations on the access element of copyright infringement in light of evolving technology.

In this case, Rodney Woodland, a freelance artist, sued Montero Lamar Hill (aka Lil Nas X), for alleged infringement based on semi-nude photographs posted by each respective man on Instagram (as the opinion observed in an aside, “as one apparently does on Instagram these days.”). Woodland claimed Hill’s images infringed his copyrights, alleging Hill’s poses, styling, and compositions were suspiciously reminiscent of Woodland’s own semi-nude photographs. The Ninth Circuit affirmed the district court’s dismissal with prejudice on the grounds that Woodland had failed to prove both copying and unlawful appropriation.

On the issue of copying, Woodland relied heavily on Instagram’s ubiquity, arguing that the platform’s algorithms would naturally lead to Hill viewing Woodland’s content. But the Ninth Circuit held that Instagram’s vast user base (over a billion users) alone is insufficient to show a reasonable likelihood of access. The court emphasized that while digital platforms like Instagram could make it easier to show access to copyright materials, the allegations here (in which Woodland admitted his works received only between eight and 75 likes each) fell short.

In an interesting footnote, the Ninth Circuit addressed Woodland’s argument that his burden of proof to show access was lower because Hill’s photos purportedly were very similar to Woodland’s. The court observed:

This is the reverse application of the now-abrogated “inverse ratio rule.” The inverse ratio rule permitted a lower showing of similarity when the plaintiff had strong proof of access. See, e.g., Three Boys Music, 212 F.3d [477,] 485 [(9th Cir. 2000)]. Our en banc court rejected the inverse ratio rule in Skidmore [v. Led Zeppelin], 952 F.3d [1051,] 1069 [(9th Cir. 2020)], but Woodland claims that the reverse application of that rule survived our decision in Skidmore. While at least some of our reasons in Skidmore for abrogating the inverse ratio rule extend equally to its reverse application, we need not decide whether Skidmore also abolished the reverse of the inverse ratio rule. Even if the reverse application of the rule remains intact, it does not help Woodland because the similarities between his and Hill’s works are limited.

Although it is questionable whether the Ninth Circuit would be open to adopting the reverse application of the inverse ratio rule, after having soundly rejected the inverse ratio rule (say that five times fast), technically, this footnote leaves open the possibility.

The court further rejected Woodland’s fallback argument that the alleged “serial infringement” of multiple images implied copying. The Ninth Circuit rejected this argument, observing that quantity alone, without demonstrable proof of access, remains insufficient.

Next, on the question of unlawful appropriation, the court reaffirmed that copyright law protects a specific “selection and arrangement” of elements, not individual poses, props, or ideas themselves. In comparing Hill’s and Woodland’s photographs, the court concluded there was no substantial similarity. Common artistic themes, such as provocative poses or specific visual tropes (here, chains or strategic covering of nudity), do not automatically gain copyright protection.

The court’s opinion is a reaffirmation of prior decisions, especially the opinion in Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) (also a photography copyright infringement case), in which the Ninth Circuit held that photographs of the same basic subject matter (i.e., an idea; in Rentmeester, of Michael Jordan in a leaping pose inspired by ballet’s grand jeté) is not sufficient by itself to establish unlawful appropriation; rather, the plaintiff in that case was required to show that the infringer copied the selection and arrangement of otherwise non-protectible elements.

The Woodland case, however, is interesting for its acknowledgment that the Ninth Circuit’s access doctrine developed “offline” in the context of videotapes, books, and other physical objects. The court acknowledged that social media platforms such as Instagram do much more than make works available to a wide audience, as mere websites do; Instagram and similar platforms facilitate the reach of works through mechanisms like sharing and algorithms that connect works with the maximum number of potential viewers. “To sum up, social media and other digital-sharing platforms could make it easier for plaintiffs to show that defendants had access to their materials—but only if they can show that the defendants had a reasonable chance of seeing their work under that platform’s algorithm or content-sharing policy.” The problem with Woodland’s allegations was simply that his particular reach, as alleged in the complaint, fell short of establishing access.