Miller v. Easy Day Studios Pty Ltd.

• Decision Date: 16 September 2021
• Docket Number: 20cv02187-LAB-DEB
• Court: U.S. District Court — Southern District of California
• Parties: ZACHARY MILLER, an individual, Plaintiff, v. EASY DAY STUDIOS PTY LTD, an Australian proprietary limited company; REVERB COMMUNICATIONS, INC., a California corporation; and DOES 1-25 INCLUSIVE, Defendants.

ZACHARY MILLER, an individual, Plaintiff, v. EASY DAY STUDIOS PTY LTD, an Australian proprietary limited company; REVERB COMMUNICATIONS, INC., a California corporation; and DOES 1-25 INCLUSIVE, Defendants.

No. 20cv02187-LAB-DEB

United States District Court, S.D. California

September 16, 2021

ORDER:

(1) GRANTING IN PART AND DENYING IN PART DEFENDANTS' REQUEST FOR JUDICIAL NOTICE;

(2) GRANTING PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE;

(3) GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS; AND

(4) DENYING MOTION TO STRIKE.

Honorable Larry Alan Burns United States District Judge

Plaintiff Zachary Miller, a professional skateboarder, was paid by Defendants Easy Day Studios Pty Ltd (“Easy Day”) and Reverb Communications, Inc (“Reverb”) (collectively, “Defendants”) to assist in developing a video game, called Skater XL. Miller believed that the extent of his agreement with Defendants was to model various clothing outfits, which would then be captured by a technique called photogrammetry and applied to a generic character in the video game. Miller alleges that he didn't consent to the use of his image or likeness in the game, yet one of the characters in it appears to be his exact replica.

Miller has sued Defendants, alleging unauthorized use of his image and likeness in the video game and its marketing and promotion. On January 15, 2021, Easy Day filed a Motion to Dismiss (Dkt. 13) and Motion to Strike the Complaint (Dkt 12). Reverb joined in Easy Day's motions. (Dkt. 15-16.) The Court has read and considered the motion, opposition, and reply documents submitted in connection with these motions and finds that Miller fails to state a claim under the Lanham Act. The Court GRANTS Defendants' Motion to Dismiss and DENIES as moot Defendants' Motion to Strike.

I. REQUEST FOR JUDICIAL NOTICE

In ruling on a Rule 12(b)(6) motion, courts generally may not look beyond the four corners of the complaint, with the exceptions of documents incorporated by reference into the complaint and any relevant matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Under the doctrine of incorporation by reference, courts may consider not only documents attached to the complaint, but also documents whose contents are alleged therein, provided the complaint “necessarily relies” on those documents or their contents, and the documents' authenticity and relevance are undisputed. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010) (internal citations omitted). This rule “prevent[s] plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their claims are based.” Swartz, 476 F.3d at 763 (alterations and internal quotation marks omitted).

Courts may also “judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Proper subjects of judicial notice include court records in a related litigation, see United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992), legislative documents, see Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012), and publicly accessible websites, see Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th Cir. 2010).

A. Defendants' Request

Defendants request that the Court take judicial notice of the following: (1) the contents of the Skater XL videogame; (2) text messages exchanged between Miller and Easy Day's Director of Marketing, Jeff Goforth; (3) screenshots on Instagram related to user “@cyread”; (4) screenshots on Facebook related to user “@tylurgrom”; and (5) Skater XL's sales webpage on the Steam videogame platform. (Dkt. 12-2.) Miller doesn't dispute the authenticity of any of these items.

Here, Miller's claims center on the alleged inclusion of his image and likeness in the Skater XL video game. He refers to the contents of Skater XL and attaches various digital images from the video game within his Complaint. Because Skater XL is the focal point of Miller's entire Complaint and its contents as described in Paragraphs 3 through 5 of the Declaration of Dain Hedgpeth are undisputed, the Court GRANTS Defendants' request for judicial notice of Skater XL. See Keller v. Elecs. Arts, Inc., No. C 09-1967 CW, 2010 WL 530108, at *5 n.2 (N.D. Cal. Feb. 8, 2010), aff'd sub nom. In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013) (“Because Plaintiff refers to the video games in his complaint, the Court GRANTS EA's request for judicial notice of them.”).

The Court similarly GRANTS Defendants' request as to the text message exchange between Miller and Jeff Goforth included in the Declaration of Jeff Goforth. (Dkt. 12-4, Exs. 1-2.) Miller references this exchange in his Complaint (Dkt. 1 (“Compl.”) ¶ 10), and necessarily relies on it for his allegations of Defendants' wrongdoing. See Abe v. Hyundai Motor Am., Inc., No. SACV19699JVSADSX, 2019 WL 6647938, at *3 (C.D. Cal. Aug. 27, 2019) (“[T]he Court grants Hyundai's request for judicial notice of the full text message exchange with Plaintiff, . . . as the FAC necessarily relies upon its contents.”).

Defendants also seek judicial notice of two Instagram screenshots evincing Miller's connection to user “@cyread, ” as well as a Facebook post by Miller in which he tags user “@tylurgrom” in a photograph. (Dkt. 12-5 (“Freund Decl.”), Exs. 1-3.) Defendants contend that because users “@cyread” and “@tylurgrom” are referenced in the Complaint, these exhibits are the proper subject of judicial notice. (Dkt. 12-2 ¶¶ 4-5.) But the specific screenshots and posts that Defendants ask the Court to judicially notice were never referenced or described in the Complaint. Defendants cite to Young v. Greystar Real Estate Partners, LLC, No. 3:18-cv-02149-BEN MSB, 2019 WL 4169889, at *2 (S.D. Cal. Sept. 3, 2019), and Wright v. Buzzfeed, Inc., No. 2:18-cv- 02187-CAS (AFMx), 2018 WL 2670642, at *1 n.1 (C.D. Cal. June 4, 2018), for the proposition that photographs and social media posts can be judicially noticed, but overlook the fact that those cases concerned photos and posts on social media that were specifically referenced and described in the complaint. Young, 2019 WL 4169889, at *2 (“Moreover, ‘the complaint specifically describes the posts (and photograph) by reference to a social media caption . . .); Wright, 2018 WL 2670642, at *1-2 (taking judicial notice of the disputed “subject photographs” in the complaint over which the plaintiff allegedly had a copyright and “were initially published on plaintiff's Instagram account”). Nor are these screenshots and posts “generally known within the trial court's territorial jurisdiction” or capable of “accurate[ ] and read[y] determin[ation] from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). The Court DENIES Defendants' request as to these exhibits.

Finally, the Court GRANTS Defendants' request for judicial notice of the Skater XL sales webpage on the Steam website. Miller doesn't oppose this request or otherwise contend that the document is inaccurate. See Pac. Overlander, LLC v. Kauai Overlander, No. 18-cv-2142-KAW, 2018 WL 3821070, at *2 (N.D. Cal. Aug. 10, 2018) (“[I]n general, websites and their contents may be judicially noticed.”); Wible v. Aetna Life Ins. Co., 375 F.Supp.2d 956, 965-66 (C.D. Cal. 2005) (taking judicial notice of the contents of Amazon.com web pages describing books related to the case).

B. Miller's Request

In his Opposition, Miller requests that the Court take judicial notice of various screenshots from Easy Day's and Reverb's respective websites. (Dkt. 18-6 ¶¶ 1- 3; Dkt. 18-2, Exs. 1-3.) Public websites are the proper subjects of judicial notice if their contents are related to the disputed issues and their authenticity is not in question. See Caldwell v. Caldwell, 2006 WL 618511, at *4 (N.D. Cal. 2006) (“The court agrees with the proposition that, as a general matter, websites and their contents may be proper subjects for judicial notice.”). The Court GRANTS Miller's request for judicial notice of Exhibits 1 through 3 of the Declaration of Matthew Miller.

II. BACKGROUND

Miller is a “well-known professional skateboarder and has been for over thirteen (13) years.” (Compl. ¶ 8.) Throughout his career, he has been hired to “appear[ ] in promotional campaigns and magazine editorial photographs” for various high-profile companies, including Quicksilver, DC Shoes, and Nixon. (Id. ¶¶ 8-9.) In April 2019, Defendants proposed to Miller that he model different clothing outfits for motion capture and use in a skateboarding-themed video game. (Id. ¶ 10.) Defendants explained that the motion capture was for a “generic” character in the video game that wouldn't resemble Miller or have any identifiable characteristics. (Id.) Defendants assured Miller that the video game “won't have your name anywhere or anything if you're worried about that.” (Id.) On July 13, 2019, following the motion capture session, Easy Day's Director of Marking, Jeff Goforth, asked Miller via text message about his height, explaining that he “[j]ust need[ed] to make sure the scaling of the character is correct.” (Dkt. 12-4, Ex. 2.) Miller responded that his height is 5'8” and asked, “What does it look like? Haha, ” to which Mr. Goforth responded, “Thanks man. Let me see if I can get a screenshot for you.” (Id.) Defendants paid Miller two hundred and fifty dollars for his work. (Compl. ¶ 10.)

Defendants' video game, named Skater XL, was released a short time later. (Compl. ¶ 11.) In the game, users can simulate skateboarding tricks...