Alfred v. Walt Disney Co.

• Decision Date: 13 May 2019
• Docket Number: Case No.: CV 18-8074-CBM-ASx
• Citation: 388 F.Supp.3d 1174
• Parties: Arthur Lee ALFRED II et al., Plaintiff, v. The WALT DISNEY COMPANY, et al., Defendants.
• Court: U.S. District Court — Central District of California

388 F.Supp.3d 1174

Arthur Lee ALFRED II et al., Plaintiff,

v.The WALT DISNEY COMPANY, et al., Defendants.

Case No.: CV 18-8074-CBM-ASx

United States District Court, C.D. California.

Signed May 13, 2019

Avery Ho Yuan Tam, Law Office of James Tam, Monterey Park, CA, Elizabeth M. Thomas, Pro Hac Vice, Ryan Charles Gilman, Pro Hac Vice, Maceau Law Firm, Colorado Springs, CO, for Plaintiff.

Jacob Max Rosen, Munger Tolles and Olson LLP, San Francisco, CA, Jordan Dentler Segall, Melinda E. LeMoine, Munger Tolles and Olson LLP, Los Angeles, CA, for Defendants.

ORDER RE: DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' COMPLAINT [JS-6]

CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE

The matter before the Court is Defendants' Motion To Dismiss Plaintiffs' Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 78.)

I. BACKGROUND

This is a copyright infringement action wherein Plaintiffs assert five "claims" for copyright infringement under the federal Copyright Law Act: (1) "Infringement of Copyright (Reproduction of Copyrighted Work)"; (2) "Infringement of Copyright (Preparation of Derivative Works)"; (3) "Infringement of Copyright (Distribution of Copyrighted Work)"; (4) "Infringement of Copyright (Public Performance of Copyrighted Work"); and (5) "Infringement of Copyright (Public Display of Copyrighted Work)." Plaintiffs allege Defendants' five feature films (i.e., (1) Pirates of the Caribbean: The Curse of the Black Pearl ; (2) Pirates of the Caribbean: Dead Man's Chest ; (3) Pirates of the Caribbean: At World's End ; (4) Pirates of the Caribbean: On Stranger Tides ; and (5) Pirates of the Caribbean: Dead Men Tell No Tales ) infringe Plaintiffs' screenplay entitled Pirates of the Caribbean (the "Screenplay").

II. STATEMENT OF THE LAW

A. Fed. R. Civ. Proc. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Dismissal of a complaint can be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). On a motion to dismiss for failure to state a claim, courts accept as true all well-pleaded allegations of material fact and construes them in a light most favorable to the non-moving party. Manzarek v. St. Paul Fire & Marine Ins. Co. , 519 F.3d 1025, 1031-32 (9th Cir. 2008). A court may consider the allegations contained in the pleadings, exhibits attached to or referenced in the complaint, matters properly subject to judicial notice, and materials whose contents are alleged in the complaint, in ruling on a motion to dismiss. Tellabs, Inc. v. Makor Issues & Rights, Ltd. , 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ; Thomas v. Walt Disney Co. , 337 Fed. App'x. 694, 694-95 (9th Cir. 2009) ; In re Stac Elec. Sec. Litig. , 89 F.3d 1399, 1405 n.4 (9th Cir. 1996).¹ To survive a motion to dismiss, the complaint "must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868, (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). If a complaint cannot be cured by additional factual allegations, dismissal without leave to amend is proper. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

B. Copyright Infringement

"To state a claim for copyright infringement, [Plaintiffs] must plausibly allege two things: (1) that [they] owns a valid copyright in [the work], and (2) that [Defendants] copied protected aspects of [Plaintiffs' work]." Rentmeester v. Nike, Inc. , 883 F.3d 1111, 1116–17 (9th Cir. 2018) (citations omitted). The second element has two distinct components: "copying" and "unlawful appropriation." Id. "When the plaintiff lacks direct evidence of copying, he can attempt to prove it circumstantially by showing that the defendant had access to the plaintiff's work and that the two works share similarities probative of copying." Id. at 1117. "Such proof creates a presumption of copying, which the defendant can then attempt to rebut by proving independent creation." Id.

"To prove unlawful appropriation, ... the similarities between the two works must be substantial and they must involve protected elements of the plaintiff's work." Id. "[W]hether works are substantially similar involves a two-part analysis consisting of the extrinsic test and the intrinsic test." Id. at 1118 (internal quotations and citations omitted). A plaintiff must satisfy both components, and therefore a lack of extrinsic similarity is fatal to a plaintiff's copyright case as a matter of law. White v. Twentieth Century Fox Corp. , 572 F. App'x 475, 476-77 (9th Cir. 2014) (citing Funky Films, Inc. v. Time Warner Entertainment , 462 F.3d 1072, 1081 (9th Cir. 2006) ).²

The extrinsic test "is objective in nature. ‘[I]t depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed.’ The extrinsic test focuses on ‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events’ in the two works. In applying the extrinsic test, this court ‘compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.’ " Funky Films , 462 F.3d at 1081 (citations omitted). "Familiar stock scenes and themes that are staples of literature are not protected." Cavalier v. Random House, Inc. , 297 F.3d 815, 823 (9th Cir. 2002). In addition, "[s]cenes-à-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a finding of infringement." Id. "Therefore, when applying the extrinsic test, a court must filter out and disregard the non-protectable elements in making its substantial similarity determination." Id. at 822-23.³ The Court need not explain in its analysis every alleged similarity in a copyright infringement case and may properly disregard alleged similarities that are not protectable. White , 572 F. App'x at 477 (citing Funky Films , 462 F.3d at 1077 ("[W]e filter out and disregard the non-protectable elements in making [our] substantial similarity determination.")).⁴

III. DISCUSSION

A. Judicial Notice

Defendants request that the Court take judicial notice of the following:

1. The motion picture Pirates of the Caribbean: The Curse of the Black Pearl (Rosen Decl. Ex. 1);

2. The motion picture Pirates of the Caribbean: Dead Man's Chest (id. , Ex. 2);

3. The motion picture Pirates of the Caribbean: At World's End (id. , Ex., Ex. 3);

4. The motion picture Pirates of the Caribbean: On Stranger Tides (id. , Ex., Ex. 4);

5. The motion picture Pirates of the Caribbean: Dead Men Tell No Tales (id. , Ex., Ex. 5); and

6. Excerpts from the book Pirates of the Caribbean: From the Magic Kingdom to the Movies (2005) by Jason Surrell (id. , Ex. 6); and

7. two DVDs containing audio and video footage of Disney's Pirates of the Caribbean theme park rides at Walt Disney World as it existed in July and August 2005 (Parras Decl. ¶¶ 3-6, Exs. 1 & 2).

(Dkt. No. 79 ("RJN").) Plaintiffs did not file an objection to Defendants' request for judicial notice.

The Court GRANTS Defendants' RJN as to the motion pictures and DVDs which include audio and/or visuals of the Disneyland and Disney World Pirates of the Caribbean theme park rides because they are incorporated by reference into the Complaint. (See Compl. ¶¶ 51, 52.)⁵ The Court DENIES Defendants' RJN as to the book Pirates of the Caribbean: From the Magic Kingdom to the Movies (2005) by Jason Surrell (Ex. 6) because neither the book nor its contents are alleged or referenced in the Complaint.

B. Copyright Infringement

Defendants move to dismiss Plaintiffs' copyright infringement claims solely on the ground the parties' works are not substantially similar as a matter of law.⁶

(1) Inverse Ratio Rule

Plaintiffs contend the Court must apply the inverse ratio rule in analyzing whether the works are substantially similar because Defendants have admitted access to the Screenplay. Under the "inverse ratio rule," "a lower standard of proof of substantial similarity is required when a high degree of access is shown." Skidmore for Randy Craig Wolfe Tr. v. Led Zeppelin , 905 F.3d 1116, 1130 (9th Cir. 2018) (internal quotations and citation omitted). However, the rule "assists only in proving copying, not in proving unlawful appropriation," and "[t]he showing of substantial similarity necessary to prove unlawful appropriation does not vary with the degree of access the plaintiff has shown." Id. Therefore, "[t]he inverse ratio rule has no bearing" in analyzing whether the works are substantially similar for purposes of determining unlawful appropriation. Rentmeester , 883 F.3d at 1125. Accordingly, the inverse ratio rule is irrelevant here in determining whether the parties' works are substantially similar under the extrinsic test.

(2) Substantial Similarity

To determine whether there is substantial similarity among the parties' works, the Court must apply an extrinsic analysis of "articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events" in the works. Funky Films , 462 F.3d at 1081. The Court's objective comparison of the parties' works under the extrinsic test is set forth below.

a. Plot and Sequence of Events

The Complaint alleges a single purported similarity as to the plot of the works: "Supernatural ‘cursed’ pirates or ‘skull faced’ pirates." (Compl. Ex. 5.) The idea of cursed pirates is scenes-a-faire and unprotectable. Even if such an idea could be protectable, the Complaint alleges that the Screenplay incorporated "the basic elements of the Pirates of the Caribbean ride." (Compl. ¶ 26.) The Disney theme park rides on...