450 F.3d 445 (9th Cir. 2006), 04-55615, Marder v. Lopez

Docket Nº:04-55615.
Citation:450 F.3d 445
Party Name:79 U.S.P.Q.2d 1036 Maureen MARDER, Plaintiff-Appellant, v. Jennifer LOPEZ; Sony Music Entertainment, Inc.; Paramount Pictures Corporation, Defendants-Appellees.
Case Date:June 12, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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450 F.3d 445 (9th Cir. 2006)

79 U.S.P.Q.2d 1036

Maureen MARDER, Plaintiff-Appellant,


Jennifer LOPEZ; Sony Music Entertainment, Inc.; Paramount Pictures Corporation, Defendants-Appellees.

No. 04-55615.

United States Court of Appeals, Ninth Circuit.

June 12, 2006

Argued and Submitted Dec. 9, 2005.

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[Copyrighted Material Omitted]

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Robert Helfing, Sedgwick, Detert, Moran & Arnold, Los Angeles, California, for the plaintiff-appellant.

David E. Fink, (argued) White, O'Connor, Curry & Avanzado, Los Angeles, California; Dale M. Cendali, (argued) and Paula E. Ambrosini (briefed) O'Melveny & Myers, New York, New York, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, D.C. No. CV-03-08226-TJH, Terry J. Hatter, Chief District Judge, Presiding. D.C. No. CV-03-08226-TJH

Before: Harry Pregerson, John T. Noonan, and Sidney R. Thomas, Circuit Judges.


PREGERSON, Circuit Judge.

Plaintiff Maureen Marder appeals the dismissal of her claims against Defendants Jennifer Lopez, Paramount Pictures Corporation ("Paramount"), and Sony Music Entertainment, Inc. ("Sony") (collectively, "Defendants"). We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's dismissal under Federal Rule of Civil Procedure 12(b)(6).

I. Factual and Procedural Background

The movie Flashdance, released in 1983, tells the story of a woman construction worker from Pittsburgh, Pennsylvania who performs at night as an exotic dancer.1 she performs an innovative form of dancing that includes a "chair dance," during which she douses herself with water. Her goal is to obtain formal dance training at a university.

Flashdance brought in over $150 million in domestic box office receipts for Paramount. The film has remained popular since its release and it continues to be shown on television and distributed through video sales and rentals.

According to Marder, the Flashdance story was modeled after her life story and career as a nightclub dancer. She claims that she contributed to the creation of Flashdance by providing Paramount with details of her life story with the understanding that Paramount would use this information to create an original screenplay. Marder also claims that she conferred with writer Joe Eszterhas in creating the screenplay.

On December 6, 1982, Marder signed a "General Release" ("Release")2 purporting to discharge Paramount, its subsidiaries, and its executives from claims arising out of the creation of the film. The Release also granted Paramount the right to use Marder's life story to create Flashdance . As consideration, Marder received $2300.

In February 2003, Sony released a music video for the Lopez song, "I'm Glad" ("the Video"). The Video featured Lopez's performance as a dancer and singer. According to Marder, the Video contains re-creations of many well-known scenes from Flashdance . The complaint alleges that Paramount received money "or other consideration from the licensing or other exploitation of the copyrights in the motion picture, Flashdance ."3

Marder filed a complaint with the district court on November 12, 2003. She

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asserted a claim against Paramount for a declaration of her rights as a co-author of Flashdance and a co-owner of the copyright. She also claimed she was entitled to share in the revenues Paramount allegedly received from Sony for the licensing and exploitation of Flashdance in the Video. Finally, she asserted claims against Sony and Lopez based on the Lanham Act, the Copyright Act, and the state law right of publicity and unfair competition.

Defendants filed motions to dismiss Marder's complaint under Federal Rule of Civil Procedure 12(b)(6). The district court granted Defendants' motions to dismiss without opinion. Marder appealed.

II. Standard of Review

A dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo . See Decker v. Advantage Fund, Ltd., 362 F.3d 593, 595-96 (9th Cir. 2004). We must determine whether, "assuming all facts and inferences in favor of the nonmoving party, it appears beyond doubt that [Marder] can prove no set of facts to support [her] claims." Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003).

Generally, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint. See Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003). A court may consider evidence on which the complaint "necessarily relies" if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Warren, 328 F.3d at 1141 n.5, Chambers v. Time Warner, Inc., 282 F.3d 147, 153 n.3 (2d Cir. 2002). The court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

In this case, we may consider the Release Marder signed on December 6, 1982. Paragraph 15 of her complaint states: "Ms. Marder provided only a release of claims against Paramount and various individuals for conduct occurring prior to December 6, 1982." The Release is central to her claim and all parties agree that it is appropriate for consideration.

It is not proper, however, for us to consider the letter submitted by Sony purporting to confirm an agreement between Sony and Paramount permitting Sony's use of elements of Flashdance in the Video.4 that letter was created after Marder's complaint was filed, and therefore could not possibly have been a document

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upon which her complaint "necessarily relie[d]." Paragraphs 20 and 53 of Marder's complaint, however, reference the existence of a "licensing" agreement between Paramount and Sony. Therefore, to the extent the existence of an agreement, oral or written, is alleged in Marder's complaint, we will consider such an agreement. We will not, however, consider the contents of the letter itself.

III. The General Release Precludes Marder From Asserting a Copyright Interest in Flashdance

Both Paramount and Marder agree that California law applies to the interpretation of the Release, as provided by the Release terms. According to the California Supreme Court, a release is the "abandonment, relinquishment or giving up of a right or claim to the person against whom it might have been demanded or enforced . . . and its effect is to extinguish the cause of action." Pellett v. Sonotone Corp., 26 Cal.2d 705, 160 P.2d 783, 787 (1945); see also Cal. Civ. Code § 1541. "In general, a written release extinguishes any obligation covered by the release's terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence." Skrbina v. Fleming Cos., 45 Cal.App.4th 1353, 53 Cal.Rptr.2d 481, 489 (1996).

The interpretation of a release is governed by the same principles applicable to any other contractual agreement. See Benedek v. PLC Santa Monica, LLC, 104 Cal.App.4th 1351, 129 Cal.Rptr.2d 197, 201 (2002). The court must interpret the Release so as to give effect to the parties' mutual intent as it existed when they contracted. See Cal. Civ. Code § 1636; Bank of the W. v....

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