Burnett v. Twentieth Century Fox Film Corp.

• Decision Date: 04 June 2007
• Docket Number: No. CV 07-01723 DDP.,CV 07-01723 DDP.
• Citation: 491 F.Supp.2d 962
• Parties: Carol BURNETT, an individual; Whacko, Inc., a California corporation, Plaintiff, v. TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation, Defendants.
• Court: U.S. District Court — Central District of California

491 F.Supp.2d 962

Carol BURNETT, an individual; Whacko, Inc., a California corporation, Plaintiff, v. TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation, Defendants.

No. CV 07-01723 DDP.

United States District Court, C.D. California.

June 4, 2007.

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Gary L. Bostwick and Jean-Paul Jassy of Bostwick & Jassy LLP in Los Angeles, CA, for Twentieth Century Fox Film Corporation.

Marvin G. Burns and also Robert Denton of Lurie, Zepeda, Schmalz and Hogan in Beverly Hills, CA, for the plaintiffs.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

PREGERSON, District Judge.

This matter comes before the Court on Twentieth Century Fox Film Corporation's ("Fox") motions to dismiss for failure to state a claim and special motion to strike pursuant to California's Anti-SLAPP statute. After reviewing the papers submitted by the parties, the Court grants the motion to dismiss, deny the special motion to strike as moot, and adopts the following order.

I. BACKGROUND

Family Guy is a half-hour, animated, comedy television program broadcast on primetime and geared toward an adult audience. Compl. ¶ 10. The show borrows heavily from popular culture, following the exploits of the Griffin family and friends in the fictional suburb of Quahog, Rhode Island. Id. ¶ 9. Family Guy routinely puts cartoon versions of celebrities in awkward, ridiculous, and absurd situations in order to lampoon and parody those public figures and to poke fun at society's general fascination with celebrity and pop culture. See, e.g., Ex. A.

On or about April 23, 2006, Fox aired an episode of "Family Guy" entitled "Peterotica." Id., ¶ 10. Near the beginning of the episode, the Griffin family patriarch, Peter Griffin, an "Archie Bunker"-like character, enters a porn shop with his friends. Id. ¶¶ 9, 10. Upon entering, Peter remarks that the porn shop is cleaner than he expected. Id., ¶ 10; Ex. A. One of Peter's friends explains that "Carol Burnett works part time as a janitor." Id. The screen then switches for less than five seconds to an animated figure resembling the "Charwoman" from the Carol Burnett Show, mopping the floor next to seven "blow-up dolls," a rack of "XXX" movies, and a curtained room with a sign above it reading "Video Booths." Id. As the "Charwoman" mops, a "slightly altered version of Carol's Theme from The Carol Burnett Show is playing." Id. ¶ 10. The scene switches back to Peter and his friends. Id. One of the friends remarks: "You know, when she tugged her ear at the end of that show, she was really saying goodnight to her mom." Id.; Ex. A. Another friend responds, "I wonder what she tugged to say goodnight to her dad," finishing with a comic's explanation, "Oh!" Id.

In response to this Family Guy clip, plaintiffs Carol Burnett and Whacko, Inc., filed this suit against defendant Fox for: (1) copyright infringement; (2) violation of the Lanham Act, 15 U.S.C. § 1125; (3) violation of California's statutory right of publicity, Civil Code § 3344; and (4) common law misappropriation of name and likeness. Defendant now moves to dismiss plaintiffs' claims. Defendant also brings a special motion to strike Burnett's supplemental state law (claims) under California's anti-SLAPP statute, California Code of Civil Procedure § 425.16.

II. LEGAL STANDARD

Dismissal under Rule 12(b)(6) is appropriate when it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations set forth in the complaint. Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir.1987). The court must view all allegations in the complaint in the light most favorable to the non-movant and must accept all material allegations — as well as any reasonable inferences to be drawn from them — as true. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983).

The scope of review on a motion to dismiss for failure to state a claim is generally limited to the content of the complaint. Pegasus Holdings v. Veterinary Centers of America, Inc., 38 F.Supp.2d 1158, 1159-60 (C.D.Cal.1998). The Court may, however, consider exhibits submitted or referenced in the complaint and matters that may be judicially noticed pursuant to Federal Rule of Evidence 201. Id. Indeed, "documents specifically referred to in a complaint, though not physically attached to the pleading, may be considered where authenticity is unquestioned." Daly v. Viacom, Inc., 238 F.Supp.2d 1118, 1121-22 (N.D.Cal.2002) (considering television program referenced in, but not attached to, complaint).

Leave to amend should not be granted where the complaint is futile. In re Silicon Graphics, Inc. Sec. Litig., 183 F.3d 970, 991 (9th Cir.1999).

Federal district courts may exercise supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy ...." 28 U.S.C. § 1367(a). Courts "may decline to exercise supplemental jurisdiction over a claim under subsection (a) if.... (3) the district court has dismissed all claims over which it has original jurisdiction ...." 28 U.S.C. § 1367(c)(3). See also Ove, 264 F.3d at 822 (upholding district court's refusal to exercise supplemental jurisdiction over state claims after dismissing federal claims, including dismissal of § 1983 claim for failure to state a claim).

III. DISCUSSION

A. Plaintiffs' First Claim for Relief

Plaintiffs' first claim of relief alleges that Fox infringed plaintiffs' copyrighted material. Defendant contends that even assuming arguendo that plaintiffs possess valid copyrights, plaintiffs' first claim of relief is barred as a matter of law by the doctrine of fair use.

The Copyright Act of 1976 protects the fair use of another's copyrighted work:

... [T]he fair use of a copyrighted work ... for purposes such as criticism [and] comment ... is not an infringement of copyright. In determining whether the use of a made work in any particular case is a fair use the factors to be considered shall include:*

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use on the potential market for or value of the copyrighted work....

17 U.S.C. § 107. The fair use doctrine calls for a "case-by-case analysis." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). "The text [of 17 U.S.C. § 107] employs the terms `including' and `such as' in the preamble paragraph to indicate the `illustrative and not limitative' function of the examples given." Id. Courts must consider and weigh all four factors. Id. The Court may conduct a fair use analysis, as a matter of law, where the facts are presumed or admitted. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); see also Fisher v. Dees, 794 F.2d 432, 435-36 (9th Cir.1986)(finding fair use where the material facts were not at issue or were admitted; judgments pertaining to fair use "are legal in nature" and are to be made by the court).

1. The Purpose and Character of the Use

The first factor, the "purpose and character of the use," addresses "whether the new work merely `supercedes the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message, in other words, whether and to what extent the new work is transformative.'" Campbell, 510 U.S. at 579, 114 S.Ct. 1164 (internal citations omitted).

Among the various forms of "transformative use" is that of parody. See id. A parody is a "`literary or artistic work that imitates the characteristic style of an author or a work for comic effort or ridicule,' or as a `composition in prose or verse in which the characteristic turns of thought and phrase or class of authors are imitated in such a way as to make them appear ridiculous.'" Id. at 580, 114 S.Ct. 1164. "[P]arody has an obvious claim to transformative value" because "[l]ike less ostensibly humorous forms of criticism, it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Id. at 579, 114 S.Ct. 1164. "For purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author' composition to create a new one, that, at least in part, comments on that author's works." Id. at 580, 114 S.Ct. 1164.

In Campbell, the Supreme Court found that hip-hop band 2-Live Crew's rendition of "Pretty Woman" was a parody because it targeted the original song and commented "on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies." Id. at 583, 114 S.Ct. 1164. Relying on Campbell in Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 802 (9th Cir.2003), the Ninth Circuit remarked: "No doubt, 2-Live Crew could have chosen another song to make such a statement. Parody only requires that the plaintiff's copyrighted work is at least in part the target of the defendant's satire,' not that the plaintiff's work be the irreplaceable object for its form of social commentary." Id. (internal citations omitted) (emphasis added).

In their opposition to the motion to dismiss, plaintiffs argue that Family Guy's use of the Charwoman in the Peterotica episode "does not constitute parody in the strict legal sense" and thus cannot be considered "transformative." (Pls. Opp. at 7). In support of this argument, plaintiffs assert that the target of the Family Guy parody was not the Charwoman character as such, but Carol...