David Lloyd Marcus v. ABC Signature Studios, Inc. et al

Filing 44

ORDER Re: DEFENDANTS' MOTION TO DISMISS 35 AND MOTION TO STRIKE AND FOR SANCTIONS 42 by Judge Ronald S.W. Lew: The Court GRANTS Defendants' Motion to Dismiss 35 without leave to amend. Accordingly, the Court DENIES as MOOT Defendants' Motion to Strike and for Sanctions 42 . This matter is closed. The Clerk shall terminate this case. (Made JS-6) (jre)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAVID LLOYD MARCUS, 12 13 Plaintiff, v. 14 ABC SIGNATURE STUDIOS, INC.; KHALOBO INK SOCIETY; 15 KENYA BARRIS; DOES 1-10. 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 17-cv-00148-RSWL-AJWx ORDER Re: DEFENDANTS’ MOTION TO DISMISS [35] AND MOTION TO STRIKE AND FOR SANCTIONS [42] 18 19 Plaintiff David Lloyd Marcus (“Plaintiff”) brought 20 the instant Action against Defendants ABC Signature 21 Studios, Inc. (“ABC”); Khalabo Ink Society (“Khalabo”); 22 and Kenya Barris (“Barris”) (collectively, 23 “Defendants”) alleging copyright infringement, unfair 24 competition, and fraud. Currently before the Court are 25 Defendants’ Motion to Dismiss the Complaint pursuant to 26 Federal Rule of Civil Procedure (“FRCP” or “Rule”) 27 12(b)(6) (“Motion to Dismiss”) [35] and Defendants’ 28 Motion to Strike the Complaint and for Sanctions 1 1 (“Motion to Strike”) [42]. Having reviewed all papers 2 submitted pertaining to these Motions, the Court NOW 3 FINDS AND RULES AS FOLLOWS: Defendants’ Motion to 4 Dismiss is GRANTED without leave to amend and 5 Defendants’ Motion to Strike and for Sanctions is 6 DENIED as MOOT. 7 I. BACKGROUND 8 A. Factual Background 9 In February 2013, former Defendant Overbrook and 10 ANA Alliance sponsored a script writing contest called 11 “Search for America’s Newest Screenwriter.” 12 ¶ 9, ECF No. 1. Compl. On March 20, 2013, Plaintiff submitted 13 a script called Across the Tracks (“Across the Tracks” 14 or “the Script”) to the contest. Id. ¶ 10. In 15 November 2014, Plaintiff submitted the Script to the 16 United States Copyright Office and received the 17 exclusive rights and privileges to the Script. 18 ¶ 17. Id. Plaintiff alleges he never heard from the 19 contest creators on the status of his submission. Id. 20 ¶ 12. 21 Plaintiff alleges that former Defendant Will Smith 22 is the owner of former Defendant Overbrook, the sponsor 23 of “Search for America’s Newest Screenwriter.” 24 ¶ 4. Id. Plaintiff further alleges that Mr. Smith 25 developed a close business relationship with Barris 26 after working with Barris on various television 27 projects. 28 Id. ¶¶ 15-16. In the fall of 2014, ABC released a pilot called 2 1 Black-ish, created by Barris and produced by Khalabo. 2 Id. ¶ 18. Plaintiff alleges Black-ish is virtually 3 identical to Across the Tracks, including the major 4 characters, thematic points, and plot turns. 5 ¶¶ 18-19. Id. Subsequently, Plaintiff initiated an Action 6 in this Court against Defendants alleging copyright 7 infringement under the Copyright Act of 1976, unfair 8 competition under the Lanham Act of 1946, and fraud. 9 10 11 1. Summary of the Works a. Across the Tracks The Script begins with the Johnson family—Dave, his 12 wife, Keisha, and their children, Kimberly and Dave 13 Junior (“DJ”)—driving up to their new home after 14 “leaving their old neighborhood and old friends that 15 looked and talked just like they do.” 16 Jud. Not. (“RJN”), Ex. A at 8. Defs.’ Req. for As the Johnsons pull 17 into their driveway, they notice their new neighbors, a 18 white couple, Tim and Katie Smith, doing yard work. 19 Id. The Smiths greet the Johnsons, and the two 20 families have an awkward exchange as the Smiths try to 21 act stereotypically “black.” Id. at 9-10. The 22 Johnsons go inside and discuss the Smiths’ actions, and 23 instead of being offended, they note how the Smiths 24 were just trying to make the Johnsons feel welcome. 25 Id. at 13. 26 DJ meets the Smiths’ son, Matty, while shooting 27 hoops in the Johnsons’ backyard, and Dave invites Matty 28 and the rest of the Smiths over for a barbeque. 3 Id. at 1 15-16. 2 Tim and Katie take their efforts to appear 3 stereotypically “black” even further when they arrive 4 at the barbeque. “Tim is dressed like a gansta [sic] 5 rapper, and Katie looking like a video girl, with her 6 heels and lip gloss popping.” Id. at 17. As the 7 barbeque progresses, Tim and Katie both acknowledge how 8 ridiculous they have been, attributing it to just 9 wanting their new neighbors to feel welcome and prove 10 that they were not prejudiced. Id. at 20. The 11 Johnsons laugh off the situation, and both families 12 agree to be themselves. 13 Id. at 21. The Smiths’ other son, Kyle, joins the barbeque, 14 and it quickly becomes clear that Kyle will become a 15 love interest for the Johnsons’ daughter, Kimberly. 16 Id. at 18. While enjoying the barbeque, the families 17 discover that Keisha will be starting as a new nurse 18 manager at the hospital at which Katie works as a nurse 19 making Keisha Katie’s boss. 20 Id. at 23-24. The family is confronted by even more overt racism 21 the following day. Matty invites DJ over to the 22 Smiths’ house for a sleepover. Id. at 24. That night, 23 Matty’s friend Chris tells DJ that DJ is only good at 24 violent video games because “[y]ou know about guns 25 right. You’re from the hood aren’t you.” Id. at 28. 26 After hearing that DJ’s father owns a used car 27 dealership, Chris declares that “blacks are good 28 salesmen anyway they go from pimps to sales. 4 They even 1 get to [wear] the same suit. 2 you guys.” 3 Hood skills pay off for Id. at 28. DJ quickly runs over to his house to tell his 4 parents about the encounter. Id. at 27. Dave, while 5 angry, uses it as a teaching moment for his son, 6 emphasizing that “God expects us to do what we are 7 supposed to do, and let him deal with those who offend 8 us.” Id. at 29. Tim and Chris’ father, Eric, come 9 over to apologize to the Johnsons. Id. at 30. Eric 10 makes clear that his son’s behavior was unacceptable, 11 and the Script ends as Dave explains that there is a 12 valuable lesson in owning up to when you are wrong and 13 forgiving those who wrong you. 14 15 b. Id. at 31. Black-ish The pilot episode of Black-ish opens with the main 16 character, Andre Johnson, introducing his family—his 17 wife, Rainbow (“Bow”), four children (teenagers, Andre 18 Jr. and Zoey, and pre-teen twins, Jack and Diane), and 19 his father, Pops. Andre explains that while he grew up 20 in the “hood,” his and his wife’s successes, including 21 his work at an advertising agency and his wife’s work 22 as a doctor, have allowed him to raise his family in an 23 upper-class neighborhood. 24 Having raised his family in a predominantly white 25 area, Andre is concerned that his family may have 26 assimilated too well to the white culture. When Andre 27 drops Andre Jr. off at school, Andre Jr. tells Andre 28 that instead of playing basketball like his father, 5 1 Andre Jr. will be trying out for the field hockey team. 2 Additionally, Andre learns that Andre Jr.’s friends 3 call him “Andy” instead of Andre. Andre Jr. also later 4 informs his family that he wants to have a bar mitzvah. 5 The pilot spends time at Andre’s work, where he has 6 just been promoted to Senior Vice President, a title 7 reserved primarily for Andre’s white co-workers. When 8 Andre learns that he has been promoted to Senior Vice 9 President of his company’s Urban Division, he is upset 10 that he has been put in charge of “black stuff.” 11 Frustrated with work and his children, Andre makes 12 it his mission to ensure his family remains “black, not 13 black-ish,” even going so far as to make Andre Jr. 14 participate in an African rite of passage ceremony. 15 Bow calls Andre out on his crazy behavior, and after a 16 discussion with his father, Andre discovers that he 17 must admit when he is wrong and find a way to make it 18 right. Andre then accepts his position as Senior Vice 19 President of the Urban Division, making a well-received 20 presentation for a Los Angeles tourism account. The 21 episode ends with Andre throwing a “bro mitzvah” for 22 Andre Jr. to make his son happy while still including 23 part of his culture that he thought his family was so 24 quickly losing. 25 B. Procedural Background 26 On January 6, 2017, Plaintiff filed his Complaint 27 [1]. On April 26, 2017, the parties stipulated and 28 this Court granted Plaintiff leave to file an amended 6 1 complaint within five days of the Court’s order and 2 gave Defendants fourteen days to respond to the amended 3 complaint [29]. Plaintiff did not file an amended 4 complaint within the timeline prescribed. 5 On April 11, 2017, the parties filed a stipulation 6 to dismiss Defendants Overbrook and Will Smith [25]. 7 The Court dismissed Defendants Overbrook and Will Smith 8 on April 20, 2017 [28]. 9 On May 11, 2017, Plaintiff’s counsel filed a Motion 10 to Withdraw as Attorney [31] requesting to be relieved 11 as counsel because of a disagreement that arose between 12 counsel and Plaintiff which rendered counsel’s ability 13 to represent Plaintiff difficult. 14 3:12-16, ECF No. 31. Mot. to Withdraw After the Court granted the 15 Motion to Withdraw [40] on June 7, 2017, the Court 16 continued the hearing on the Motion to Dismiss to allow 17 Plaintiff additional time to either retain new 18 representation or prepare to proceed pro se. To date, 19 Plaintiff has not retained new representation. 20 On May 22, 2017, Defendants filed the instant 21 Motion to Dismiss [35], and on July 17, 2017, 22 Defendants filed a Motion to Strike and for Sanctions 23 [42]. Plaintiff’s Oppositions to both the Motion to 24 Dismiss and Motion to Strike were due on August 1, 25 2017; however, Plaintiff did not file any Oppositions. 26 Defendants’ Replies were due on August 8, 2017, and 27 none were filed. 28 /// 7 1 II. DISCUSSION 2 A. Legal Standard 3 1. 4 Federal Rule of Civil Procedure 12(b)(6) allows a Motion to Dismiss under Rule 12(b)(6) 5 party to move for dismissal of one or more claims if 6 the pleading fails to state a claim upon which relief 7 can be granted. To survive a motion to dismiss on 8 12(b)(6) grounds, a complaint must “contain sufficient 9 factual matter, accepted as true, to state a claim to 10 relief that is plausible on its face.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009)(internal quotation 12 marks omitted). Dismissal can be based on a “lack of a 13 cognizable legal theory or the absence of sufficient 14 facts alleged under a cognizable legal theory.” 15 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 16 (9th Cir. 1990). 17 In ruling on a 12(b)(6) motion, a court may 18 generally consider only allegations contained in the 19 pleadings, exhibits attached to the complaint, and 20 matters properly subject to judicial notice. Swartz v. 21 KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). A court 22 must presume all factual allegations of the complaint 23 to be true and draw all reasonable inferences in favor 24 of the non-moving party. Klarfeld v. United States, 25 944 F.2d 583, 585 (9th Cir. 1991). 26 The question presented by a motion to dismiss is 27 not whether the plaintiff will ultimately prevail, but 28 whether the plaintiff has alleged sufficient factual 8 1 grounds to support a plausible claim to relief, thereby 2 entitling the plaintiff to offer evidence in support of 3 its claim. Iqbal, 556 U.S. at 678; Swierkiewicz v. 4 Sorema N.A., 534 U.S. 506, 511 (2002). While a 5 complaint need not contain detailed factual 6 allegations, a plaintiff must provide more than “labels 7 and conclusions” or “a formulaic recitation of a cause 8 of action’s elements.” Bell Atl. Corp. v. Twombly, 550 9 U.S. 544, 555 (2007)(internal citation omitted). 10 However, a complaint “should not be dismissed under 11 Rule 12(b)(6) ‘unless it appears beyond doubt that the 12 plaintiff can prove no set of facts in support of his 13 claim which would entitle him to relief.’” Balistreri, 14 901 F.2d at 699 (citing Conley v. Gibson, 355 U.S. 41, 15 45-46 (1957)). 16 2. 17 The Court may strike a pleading that contains “any Motion to Strike 18 redundant, immaterial, impertinent, or scandalous 19 matter.” Fed. R. Civ. P. 12(f). Matters are 20 “immaterial” if they have “no essential or important 21 relationship to the claim for relief or the defenses 22 being pleaded” and “impertinent” if they “do not 23 pertain, and are not necessary, to the issues in 24 question.” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 25 1527 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 26 517 (1994). Matters are “scandalous” if they “cast a 27 cruelly derogatory light on a party or other person.” 28 In re 2TheMart.com, Inc. Sec. Litig., 114 F. Supp. 2d 9 1 955, 965 (C.D. Cal. 2000). 2 B. Discussion 3 1. 4 A court “may judicially notice a fact that is not Defendants’ Request for Judicial Notice 5 subject to reasonable dispute because it . . . can be 6 accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” 8 Evid. 201(b). Fed. R. Typically, however, in reviewing a Rule 9 12(b)(6) motion to dismiss, a court is generally 10 “limited to the contents of the complaint.” Sprewell 11 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 12 2001). An exception to this general rule includes 13 material “which is properly submitted as part of the 14 complaint.” Lee v. City of Los Angeles, 250 F.3d 668, 15 688 (9th Cir. 2001). “Even if a document is not 16 attached to the complaint, it may be incorporated by 17 reference into a complaint if the plaintiff refers 18 exclusively to the document or the document forms the 19 basis of the plaintiff’s claim.” United States v. 20 Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). The second 21 exception to this rule includes matters of “public 22 record.” Lee, 250 F.3d at 689; see Cabell v. Zorro 23 Prods., No. 5:15-cv-00771-EJD, 2017 U.S. Dist. LEXIS 24 82413, at *12 (N.D. Cal. May 30, 2017)(holding that in 25 reviewing a motion to dismiss, courts “may also 26 consider material subject to judicial notice”). 27 Defendants request the Court take judicial notice 28 of the following materials: (1) a copy of the Script of 10 1 Across the Tracks from the United States Copyright 2 Office, (2) a DVD copy of the pilot episode of Black3 ish, (3) Plaintiff’s proposed Amended Complaint, and 4 (4) United States Census Bureau data identifying the 5 top fifteen most popular last names in the United 6 States. 7 See RJN. With regards to the copy of the Across the Tracks 8 script, while Plaintiff did not attach the Script to 9 the Complaint, the Complaint “refers exclusively to the 10 document,” and, in this copyright infringement suit, 11 Plaintiff’s copyrighted script “forms the basis of 12 [his] claim.” Ritchie, 342 F.3d at 908. Additionally, 13 “Courts routinely take judicial notice of documents 14 from the Copyright Office.” Basile v. Twentieth 15 Century Fox Film Corp., No. CV144263DMGJPRX, 2014 WL 16 12521340, at *2 (C.D. Cal. Aug. 19, 2014), aff’d, 678 17 F. App’x 576 (9th Cir. 2017). Because the Script is 18 the basis for Plaintiff’s claims and Defendants 19 obtained it from the Copyright Office, the Court GRANTS 20 Defendants’ request for judicial notice of the Script. 21 Likewise, because the pilot episode of Black-ish 22 forms the basis for Plaintiff’s copyright claim as the 23 allegedly infringing work, the Court also GRANTS 24 Defendants’ request for judicial notice of the DVD of 25 the pilot episode of Black-ish. See id. (taking 26 judicial notice of DVD of allegedly infringing work); 27 Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108, 1111 28 n.3 (N.D. Cal. 2010)(same). 11 1 Defendants request judicial notice of Plaintiff’s 2 proposed Amended Complaint filed along with the 3 parties’ stipulation asking the Court to grant leave 4 for Plaintiff to file the Amended Complaint [26]. 5 Courts may “take judicial notice of court filings 6 and other matters of public record.” Reyn’s Pasta 7 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 8 (9th Cir. 2006). As such, the Court GRANTS Defendants’ 9 request for judicial notice of Plaintiff’s proposed 10 Amended Complaint. 11 Finally, Defendants seek judicial notice of United 12 States Census Bureau data identifying the top fifteen 13 most popular last names in the United States. “United 14 States census data is an appropriate and frequent 15 subject of judicial notice.” Hollinger v. Home State 16 Mut. Ins. Co., 654 F.3d 564, 571-72 (5th Cir. 2011) 17 (citing United States v. Esquivel, 88 F.3d 722, 726-27 18 (9th Cir. 1996)). Therefore, the Court GRANTS 19 Defendants’ request for judicial notice of this Census 20 Data. 21 2. 22 As a preliminary matter, Plaintiff did not file an Defendants’ Motion to Dismiss 23 Opposition to Defendants’ Motion to Dismiss. Pursuant 24 to Local Rule 7-12, “failure to file any required 25 document, or the failure to file it within the 26 deadline, may be deemed consent to the granting or 27 denial of the motion.” C.D. Cal. R. 7-12. 28 Accordingly, the Court GRANTS Defendants’ Motion 12 1 without reaching the merits, simply based on 2 Plaintiff’s failure to oppose the Motion. See Ghazali 3 v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)(per curiam) 4 (affirming grant of an unopposed motion to dismiss 5 under local rule by deeming pro se litigant’s failure 6 to oppose as consent to granting motion). Despite 7 this, the Court will discuss the merits of Defendants’ 8 Motion to Dismiss. 9 Defendants seek dismissal of the four causes of 10 action Plaintiff alleges against them in the Complaint: 11 (1) copyright infringement, (2) unfair competition 12 under the Lanham Act, (3) declaratory relief, and 13 (4) injunctive relief. Plaintiff’s proposed Amended 14 Complaint only includes a copyright infringement claim 15 against Defendants; however, Plaintiff has not filed 16 the proposed Amended Complaint. Therefore, the 17 Complaint is the operative pleading, and the Court 18 addresses the copyright infringement, unfair 19 competition, and declaratory and injunctive relief 20 claims contained in the Complaint in turn below.1 21 22 a. Plaintiff’s Copyright Infringement Claim To maintain a claim for copyright infringement, a 23 plaintiff must show “(1) ownership of a valid 24 copyright, and (2) copying of constituent elements of 25 the work that are original.” Feist Publ’ns, Inc. v. 26 27 28 1 The ¶¶ 39-52. Defendants Defendants Complaint also includes a claim for fraud. See Compl. However, this claim is only asserted against former Overbrook and Will Smith. The Court dismissed these on April 20, 2017 [28]. 13 1 Rural Tel. Servs. Co., 499 U.S. 340, 361 (1991). 2 Copying may be established by demonstrating (1) “that 3 the [defendant] had access to plaintiff’s copyrighted 4 work” and (2) “that the works at issue are 5 substantially similar in their protected elements.” 6 Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th 7 Cir. 2002). 8 “There is ample authority for holding that when the 9 copyrighted work and the alleged infringement are both 10 before the court, capable of examination and 11 comparison, non-infringement can be determined on a 12 motion to dismiss.” Christianson v. West Pub. Co., 149 13 F.2d 202, 203 (9th Cir. 1945). “If after examining the 14 works themselves, th[e] Court determines that there is 15 no substantial similarity, then the plaintiff [] can 16 prove no facts in support of his claim which would 17 entitle him to relief—the standard for dismissal under 18 Rule 12(b)(6).” Boyle v. Stephens, Inc., 97 Civ. 1351 19 (SAS), 1998 U.S. Dist. LEXIS 1968, at *12 (S.D.N.Y. 20 Feb. 23, 1998); see Zella v. E.W. Scripps Co., 529 F. 21 Supp. 2d 1124, 1131 (C.D. Cal. 2007). 22 i. 23 24 Plaintiff Has Alleged a Reasonable Possibility of Access to the Script Plaintiff must first allege that Defendants had 25 access to his copyrighted work. 26 at 822. See Cavalier, 297 F.3d Proof of access requires only “an opportunity 27 to view or to copy plaintiff’s work.” Sid & Marty 28 Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 14 1 1162 (9th Cir. 1977). “Access must be more than a bare 2 possibility and may not be inferred through speculation 3 or conjecture.” Gaste v. Kaiserman, 863 F.2d 1061, 4 1066 (2d Cir. 1988). One way to show access is through 5 “evidence that a third party with whom both the 6 plaintiff and defendant were dealing had possession of 7 plaintiff’s work.” Kamar Int’l, Inc. v. Russ Berrie & 8 Co., 657 F.2d 1059, 1062 (9th Cir. 1981). 9 Defendants do not discuss the access element of 10 Plaintiff’s copyright claim in their Motion to Dismiss. 11 However, Defendants do note that they have also filed a 12 Motion to Strike [42], which discusses Plaintiff’s 13 meritless argument for access. 14 n.2. See Mot. to Dismiss 1:9 Attached to Defendants’ Motion to Strike is the 15 Declaration of Richard O’Sullivan, in which Mr. 16 O’Sullivan declares that Will Smith did not have access 17 to Plaintiff’s Script. See Decl. of Richard 18 O’Sullivan, ECF No. 42-1. 19 “[W]hen the legal sufficiency of a complaint’s 20 allegations is tested by a motion under Rule 12(b)(6), 21 ‘review is limited to the complaint.’” Lee, 250 F.3d 22 at 688 (quoting Cervantes v. City of San Diego, 5 F.3d 23 1273, 1274 (9th Cir. 1993)). Further, “factual 24 challenges to a plaintiff’s complaint have no bearing 25 on the legal sufficiency of the allegations under Rule 26 12(b)(6).” Id. In his Complaint, Plaintiff alleges 27 that he submitted the Script to the script writing 28 contest Overbrook sponsored. 15 Compl. ¶ 9. Plaintiff 1 alleges that Will Smith is the director of Overbrook 2 and that Mr. Smith and Barris worked together 3 professionally and have developed a close personal 4 relationship. Id. ¶¶ 4, 15. Plaintiff then concludes 5 that Mr. Smith allowed Barris access to the Script, 6 which Barris used as the basis for Black-ish. 7 ¶ 46. Id. These allegations suggest that a third party, 8 Mr. Smith and Overbrook, with whom both Plaintiff and 9 Barris were dealing, had possession of Plaintiff’s 10 work. Such allegations, while circumstantial, show a 11 reasonable possibility that Defendants had access to 12 Plaintiff’s script and therefore are sufficient to 13 survive a motion to dismiss. Shame on You Prods. v. 14 Banks, 120 F. Supp. 3d 1123, 1149 (C.D. Cal. 2015)(“To 15 satisfy its burden of pleading access, plaintiff must 16 allege facts ‘from which a reasonable finder of fact 17 could infer that the defendant had a reasonable 18 opportunity to copy his or her work.’” (quoting Grubb 19 v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir. 1996))). 20 21 22 ii. Across the Tracks and Black-ish Are Not Substantially Similar In addition to alleging access to the Script, 23 Plaintiff must also allege that Across the Tracks and 24 Black-ish are substantially similar. The test for 25 substantial similarity is broken into two parts: 26 intrinsic test and an extrinsic test. an Shaw v. 27 Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990). “[T]he 28 intrinsic test, which examines an ordinary person’s 16 1 subjective impressions of the similarities between two 2 works, is exclusively the province of the jury.” Funky 3 Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 4 1072, 1077 (9th Cir. 2006). Courts, in examining 5 substantial similarity as a matter of law, apply the 6 “extrinsic test,” which focuses on “articulable 7 similarities between the plot, themes, dialogue, mood, 8 setting, pace, characters, and sequence of events of 9 the two works.”2 Id. As part of the extrinsic test, 10 the court should only determine whether “the 11 protectible elements, standing alone, are substantially 12 similar.” Williams v. Crichton, 84 F.3d 581, 588 (2d 13 Cir. 1996). Because copyright law only protects 14 expression of ideas, not the ideas themselves, stock 15 scenes, general plot ideas, and scenes-a-faire 16 (situations and incidents that flow naturally from a 17 basic plot premise) are not protected. Cavalier, 297 18 F.3d at 823. 19 In his Complaint, Plaintiff alleges that “all the 20 major characters, thematic points, and plot turns were 21 virtually identical to those of the Script Across the 22 Tracks.” Compl. ¶ 19. He specifically points to the 23 “overarching theme of the juxtaposition of an upwardly 24 25 26 27 28 2 Because a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests, if the Court determines that there is no substantial similarity as a matter of law, it has the power to dismiss a plaintiff’s case. See Zella, 529 F. Supp. 2d at 1133 n.8; see also Silas v. HBO, Inc., 201 F. Supp. 3d 1158, 1171 (C.D. Cal. 2016)(“A court may dismiss a complaint on a 12(b)(6) motion, however, for failing to satisfy the extrinsic test.”). 17 1 mobile African American family moving into a 2 predominately Anglo community and the main characters 3 and their characteristics and personality traits are 4 virtually identical.” Id. ¶ 21. The Court looks to 5 these allegations, the Script, and the DVD of the pilot 6 episode of Black-ish, to determine whether Plaintiff 7 has sufficiently pled that the two works are 8 substantially similar. See Idema v. Dreamworks, Inc., 9 162 F. Supp. 2d 1129, 1178 (C.D. Cal. 2001), aff’d in 10 part, dismissed in part, 90 F. App’x 496 (9th Cir. 11 2003), as amended on denial of reh’g (Mar. 9, 12 2004)(“With these principles in mind, the Court must 13 therefore engage in an ‘analytic dissection’ and 14 comparison of the works at hand . . . .”). 15 16 1) Plot Plaintiff, in his Complaint, makes only conclusory 17 allegations related to the similarities in the plots of 18 the two works. See Compl. ¶ 19 (“[P]lot turns were 19 virtually identical to those of the Script Across the 20 Tracks.”). In his proposed Amended Complaint, 21 Plaintiff alleges that the plots of the two works are 22 substantially similar because they both involve “an 23 upwardly mobile African American family moving into and 24 living amongst a predominately white neighborhood and 25 the perceptions of the family by and between themselves 26 and their neighbors and co-workers.”3 Am. Compl. ¶ 30. 27 28 3 While Plaintiff has at no point filed this proposed Amended Complaint, the allegations contained in the proposed 18 1 While Plaintiff may allege that this idea “was a 2 radical and new departure from the traditional themes 3 of African American centered television comedies,” this 4 plot, which as Defendants point out has been 5 “repeatedly explored in film and television series,” 6 including The Jeffersons, Diff’rent Strokes, and The 7 Fresh Prince of Bel-Air, is simply a “basic plot idea . 8 . . not protected by copyright law.” Cavalier, 297 9 F.3d at 824. 10 While both works involve African American families 11 living in predominantly white areas, the concrete 12 elements of the two works are not substantially 13 similar. See Berkic v. Crichton, 761 F.2d 1289, 1293 14 (9th Cir. 1985)(holding that the court must look at 15 “the actual concrete elements that make up the total 16 sequence of events and the relationships between the 17 major characters”). Across the Tracks focuses almost 18 exclusively on the Johnson family’s interactions with 19 their new white neighbors, the overt racism that arises 20 in these interactions, and the Johnsons’ use of their 21 faith to deal with this racism. The pilot episode of 22 Black-ish does not once mention the Johnsons’ 23 neighbors, and the plot does not include any 24 25 26 27 28 Amended Complaint are relevant to the analysis of whether the two works are substantially similar and whether, if Plaintiff is allowed to amend his Complaint, he will be able to sufficiently plead a claim for copyright infringement. Therefore, the Court, in performing its comparison of the two works, looks at Plaintiff’s allegations in both the Complaint and proposed Amended Complaint. 19 1 interactions with neighbors. In Black-ish, it appears 2 that the Johnson family has been living in the 3 predominantly white neighborhood for some time, and the 4 focus of the plot is the struggles the main character, 5 Andre, endures as he realizes his family has 6 assimilated almost too well into the majority culture 7 while forgetting their own minority culture in the 8 process. For example, Andre scoffs at his son’s 9 intention to join the field hockey team and desire to 10 be called “Andy” rather than Andre. Across the Tracks 11 makes no mention of the Johnson family losing sight of 12 their culture as they continue to interact with their 13 white neighbors. Instead, the Johnsons in Across the 14 Tracks seem to embrace their neighbors’ attempts at 15 “acting black,” recognizing it as their neighbors’ way 16 of trying to make them feel comfortable in a new 17 neighborhood. 18 The climaxes of the plots in both works are also 19 dissimilar. The climax of Across the Tracks occurs 20 when DJ faces racist comments at a sleepover, and his 21 parents are then confronted with the aftermath of these 22 comments. The climax of Black-ish occurs when Bow puts 23 a stop to Andre’s crazy antics in trying to make sure 24 his family remains “black, not black-ish.” While Andre 25 faces some indirect racism with his co-worker trying to 26 “act black” around Andre, the pilot does not focus on 27 overt racism and instead focuses on Andre’s fear that 28 his family is not “black enough.” 20 Although the two 1 works “at a high level of generality” are similar, 2 including the experiences of a black family living in a 3 predominantly white area, these similarities only exist 4 in the basic plots and are not protected. See Berkic, 5 (“No one can own the basic idea for a story. General 6 plot ideas are not protected by copyright law . . 7 . .”); see also Silas, 201 F. Supp. 3d at 1174 (“[N]one 8 of the alleged similarities [in the two plots] are 9 substantially similar in their protectible objective 10 details.”). 11 Finally, Plaintiff alleges in his proposed Amended 12 Complaint that the storylines of the adult characters 13 receiving promotions is “identical.” Am. Compl. ¶ 36. 14 Plaintiff’s allegations regarding these “identical” 15 storylines are vague, but despite these allegations, it 16 is hard to see how these storylines are substantially 17 similar. Black-ish focuses on Andre’s promotion to 18 Senior Vice President of the Urban Division and the 19 conflict that ensues when he learns he has been put in 20 charge of “black stuff.” The script of Across the 21 Tracks had yet to explore Keisha’s workplace, but she 22 did not receive a promotion; rather, she obtained a 23 better job at a different hospital. Further, there is 24 nothing in Across the Tracks that suggests Keisha 25 obtained the job because the hospital assumed she would 26 better understand “black culture,” like Andre’s boss in 27 Black-ish. Instead, it appears likely that Across the 28 Tracks would explore Keisha’s struggles of coming into 21 1 a new workplace where she is the new boss, specifically 2 the boss of her new neighbor, Katie Smith. Even if 3 both characters did receive internal promotions and the 4 two shows explored the characters’ reactions to those 5 promotions, basic plot ideas are “not protected by 6 copyright law.” 7 Campbell, 718 F. Supp. 2d at 1112. Therefore the plots of the two works are not 8 substantially similar. 9 10 2) Theme “A work’s theme is its overarching message.” 11 Silas, 201 F. Supp. 3d at 1180. “[T]here is no 12 protection for stock themes or themes that flow 13 necessarily from a basic premise.” Id.; Cavalier, 297 14 F.3d at 823. 15 Defendants argue that Plaintiff’s alleged theme, 16 “the juxtaposition of an upwardly mobile African 17 American family moving into a predominately Anglo 18 community,” is merely a description of an underlying 19 plot idea, which copyright law does not protect. Mot. 20 to Dismiss 11:20-24; see Berkic, 761 F.2d at 1293 21 (“General plot ideas are not protected by copyright 22 law; they remain forever the common property of 23 artistic mankind.”). The Court agrees with Defendants’ 24 assessment as Plaintiff’s alleged theme does not 25 encompass an overarching message. See Kouf v. Walt 26 Disney Pictures & Television, 16 F.3d 1042, 1045 (9th 27 Cir. 1994)(describing one work’s theme as a 28 “celebrat[ion] [of] family values” and another work’s 22 1 theme as “the triumph of good over evil”); cf. Silas, 2 201 F. Supp. 3d at 1180 (“[T]he alleged theme of ‘fast 3 paced and lavish lives of professional football 4 players’ is an underlying plot idea, not a theme.”). 5 Instead, it describes the basic plot of the two works, 6 and such generic ideas are not protectable expressions 7 courts will consider in an extrinsic analysis. See 8 Silas, 201 F. Supp. 3d at 1180. 9 Plaintiff alleges in the proposed Amended Complaint 10 that the theme of “the juxtaposition of the white 11 majority community attempting to appear cool, hip, and 12 at peace with their new African American neighbors is 13 copied by Blackish from Across the Tracks.” 14 ¶ 30. Am. Compl. Plaintiff notes the similarities of the 15 neighbors in Across the Tracks and the colleagues in 16 Black-ish who attempt “to talk with swagger or ‘act 17 Black.’” 18 Id. Importantly, “acting black” is not a theme but 19 rather an underlying plot idea because it is not an 20 underlying message in the works. 21 3d at 1180. Silas, 201 F. Supp. Further, in Black-ish, while Andre’s co- 22 workers do use dialogue in an attempt to “act black,” 23 these interactions are extremely brief and are not a 24 large point of contention. Rather, Andre, while a bit 25 annoyed, seems to brush off these interactions. On the 26 other hand, these interactions are the main focus of 27 the plot in Across the Tracks; the Johnson family 28 spends the entire script dealing with the Smiths’ 23 1 effort to dress, talk, and act “black” to make the 2 Johnsons feel more comfortable. 3 The only similarity is the idea of “acting black”; 4 none of the actual dialogue or instances of “acting 5 black” in the two works are similar. The Smiths in 6 Across the Tracks show up to the Johnsons’ barbeque 7 having completely transformed their style in an effort 8 to “act black.” The Script states, “Tim is dressed 9 like a gansta [sic] rapper, and Katie is looking like a 10 video girl, with her heels and lip gloss popping.” 11 RJN, Ex. 1 at 17. In Black-ish, Andre’s co-worker 12 refers to him as “Dr. Dre” and “Driggity Dre” in an 13 effort to show comradery. These instances are 14 “[s]cenes-à-faire, or situations and incidents that 15 flow necessarily or naturally” from the basic plot 16 premise of a black family living and working in a 17 predominantly white area, and they are not protected. 18 Cavalier, 297 F.3d at 823. 19 Plaintiff alleges that the theme of “moving into 20 the majority culture [and] constantly feel[ing] that 21 they are oddities and out of place” is prevalent in 22 both works. Am. Compl. ¶ 31. The alleged theme of 23 feeling out of place also naturally arises from the 24 plot and cannot qualify as a protectable element of the 25 work. Benay v. Warner Bros. Entertainment, Inc., 607 26 F.3d 620, 627 (9th Cir. 2010)(holding “fish-out-of 27 water” theme naturally arises from two works’ shared 28 plot of an American war veteran who travels to Japan). 24 1 Because this “theme” arises from the basic plot idea, 2 it is not protected, and the Court must therefore 3 disregard this non-protectable element in looking at 4 Plaintiff’s ability to plead substantial similarity. 5 Cavalier, 297 F.3d at 822-23 (“[W]hen applying the 6 extrinsic test, a court must filter out and disregard 7 the non-protectible elements in making its substantial 8 similarity determination.”). 9 Finally, as Defendants note in their Motion, “the 10 actual themes of the two works are markedly different.” 11 Mot. to Dismiss 14:8. In Across the Tracks, the 12 primary theme is relying on your faith to help you 13 overcome racism, while in Black-ish the theme is 14 staying true to one’s heritage, or “keeping it real.” 15 Black-ish does not reference the Johnsons’ religion nor 16 does it use religion as the family’s coping mechanism 17 for conflict. While both families may be dealing with 18 the struggles of being a minority in a majority 19 culture, the message in each work is distinct. 20 Therefore, the themes of the two works are not 21 substantially similar. 22 23 3) Characters Plaintiff alleges that aspects of the characters in 24 the two works are very similar. He notes that the two 25 families share the same last name, Johnson, and each 26 family has a son named after the father (Dave and Dave 27 Jr. in Across the Tracks and Andre and Andre Jr. in 28 Black-ish). Am. Compl. ¶ 32. 25 Plaintiff also alleges 1 that the two mothers are very similar because they both 2 work in the medical field, with the mother in Across 3 the Tracks working as a nurse manager and the mother in 4 Black-ish working as a doctor. Id. Plaintiff claims 5 that the teenage daughter characters are “virtually 6 identical” because they are both “constantly too busy 7 on [their] cell phone[s] to be involved in any family 8 discussions revolving around [them].” 9 Id. ¶ 34. As Defendants note, the cast of characters in the 10 two works are very different. In Black-ish, Andre and 11 his wife, Bow, have four children, a teenage son, a 12 teenage daughter, and pre-teen twins. In Across the 13 Tracks, Dave and his wife, Keisha, have two kids, a 14 teenage son and a teenage daughter. There is a 15 grandfather character in Black-ish, while there is no 16 grandfather character in Across the Tracks. 17 Additionally, the Smiths, the Johnsons’ neighbors in 18 Across the Tracks, play a significant role, while there 19 are no neighbor characters in Black-ish. See Benay, 20 607 F.3d at 627 (noting that characters in one work did 21 not have a parallel in the other work). 22 Additionally, the similarities that Plaintiff 23 alleges are incidental and do not reach the level of 24 substantially similar. The fact that the families in 25 both works have the last name Johnson and both have son 26 characters who are “juniors” is of no consequence, 27 particularly where, as here, the names are generic. 28 See CK Co. v. Burger King Corp., 92 Civ. 1488 (CSH), 26 1 1994 U.S. Dist. LEXIS 13934, at *22 (S.D.N.Y. Sep. 29, 2 1994)(“The fact that characters have identical names 3 and have similar roles in two works does not 4 necessitate a finding of substantial similarity.”). 5 Further, Plaintiff’s allegations regarding the 6 similarities of the characters personalities are not 7 protectable. “[O]nly distinctive characters are 8 protectible, not characters that merely embody 9 unprotected ideas.” Benay, 607 F.3d at 626. 10 Accordingly, “[n]o character infringement claim can 11 succeed unless plaintiff’s original conception 12 sufficiently developed the character, and defendants 13 have copied this development and not merely the broader 14 outlines.” Smith v. Weinstein, 578 F. Supp. 1297, 1303 15 (S.D.N.Y. 1984), aff’d, 738 F.2d 419 (2d Cir. 1984). 16 The character trait of teenage daughters being too busy 17 on their cell phones is “too abstract to warrant 18 copyright protection.” 19 Supp. 3d at 1164. Shame on You Prods., 120 F. It is a surface-level description of 20 a character and does not make either daughter 21 distinctive; it merely describes the majority of 22 today’s teenagers. Id. (holding that stock characters 23 do not invoke copyright protection). Other than being 24 typical teenage girls, the two characters are quite 25 different. Kimberly in Across the Tracks learned to 26 cook from her mother and prepares dinner for the whole 27 family. There is no suggestion that Zoey in Black-ish, 28 who regularly sasses her father, would ever be 27 1 interested in cooking a dinner for her whole family. 2 See Hogan v. DC Comics, 48 F. Supp. 2d 298, 309-10 3 (S.D.N.Y. 1999)(“In determining whether characters are 4 similar, a court looks at the totality of [the 5 characters’] attributes and traits . . . .” (quoting 6 Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d 7 Cir. 1986))). Additionally, Across the Tracks has set 8 up a love interest for Kimberly, while there is no 9 equivalent love interest for Zoey. 10 The fact that both mother characters work in the 11 medical field is another example of a non-distinct 12 trait that cannot be copyrighted. The two women only 13 work in the same field; they do not share the exact 14 same profession, and even if they did, such similarity 15 would not be protected. See Eaton v. NBC, 972 F. Supp. 16 1019, 1029 (E.D. Va. 1997)(holding that basic human 17 traits including occupation “are too general or too 18 common to deserve copyright protection”). Plaintiff’s 19 allegations of similarities that only involve working 20 in the same field, are “far from the level of 21 specificity and distinctiveness required for characters 22 to be protected by copyright.” Gadh v. Spiegel, No. CV 23 14-855-JFW (PJWx), 2014 U.S. Dist. LEXIS 64081, at *15 24 (C.D. Cal. Apr. 2, 2014). 25 Finally, the main characters, Andre in Black-ish 26 and Dave in Across the Tracks, are distinct as well. 27 Andre is a successful advertising executive who is 28 distraught when he realizes that his family has become 28 1 too assimilated to the majority culture in which they 2 live. He then comedically goes above and beyond to 3 make sure his children, most specifically his son, 4 Andre Jr., appreciate their black culture. Dave, on 5 the other hand, owns a used car dealership and is a man 6 of strong faith who relies on God to give him guidance 7 about the racism his family is facing. Besides working 8 hard to provide a good life for their families, the two 9 men do not share many attributes. Any similarities 10 “flow naturally from the works’ shared premises” and 11 are thus not protected. 12 Benay, 607 F.3d at 627. Accordingly, there are no substantial similarities 13 between the characters in the two works. 14 15 4) Dialogue Plaintiff fails to make any allegations in his 16 Complaint regarding the similarity of the works’ 17 dialogue. However, in his proposed Amended Complaint, 18 he alleges that “specific words and phrases are said if 19 [sic] a virtually identical way.” Am. Compl. ¶ 35. 20 “[E]xtended similarity of dialogue [is] needed to 21 support a claim of substantial similarity.” Olson v. 22 Nat’l Broad. Co., 855 F.2d 1446, 1450 (9th Cir. 1988). 23 Plaintiff alleges three instances of what he claims are 24 “virtually identical” dialogue. Plaintiff points to an 25 instance where characters in both works refer to 26 “seeing color.” Am. Compl. ¶ 35. Bow in Black-ish 27 refers to how her twins do not “see color,” while the 28 Script notes that the neighbors still “saw color.” 29 Id. 1 The reference in Across the Tracks to how the neighbors 2 “saw color” is a script note, not dialogue, and is thus 3 irrelevant to the Court’s analysis. 4 The two examples Plaintiff provides of actual 5 dialogue, which he alleges are “identical,” are also 6 insufficient to show substantial similarity. Plaintiff 7 notes that both works refer to “being black.”4 8 Compl. ¶ 35. Am. This two-word phrase, which is used once 9 in each work, can in no way be construed as “extended 10 similarity of dialogue.” See Shame on You Prods., 120 11 F. Supp. 3d at 1156 (noting that any overlap in 12 dialogue in the two works was “isolated and involve[d] 13 common words or phrases,” which did not support a claim 14 for substantial similarity). Further, short, stock 15 phrases are not protectable. See Southco, Inc. v. 16 Kanebridge Corp., 390 F.3d 276, 285-287 (3d Cir. 17 2004)(recognizing the longstanding principle of 18 copyright law that words and short phrases are not 19 copyrightable). Therefore, even if this phrase could 20 be considered “extended similarity of dialogue,” it 21 still could not support a claim for substantial 22 similarity because the phrase is not a protected 23 element the Court considers when examining claims for 24 copyright infringement. 25 Cavalier, 297 F.3d at 822-23. Finally, Plaintiff points to a line of dialogue in 26 27 4 In Black-ish, Andre states, “I need my family to be black Am. Compl. ¶ 35. In Across the Tracks, Dave states, “Do you mind being black for a second again[?]” Id. 28 again at home.” 30 1 each work where the father character states that his 2 family can learn from their mistakes.5 The dialogue, 3 while similar in the abstract, is not identical, and 4 the message of learning from one’s mistake is a message 5 shared in countless works. Such stock dialogue, 6 “containing little in the way of original expression,” 7 cannot be protected. See Narell v. Freeman, 872 F.2d 8 907, 911 (9th Cir. 1989). 9 Of note, Andre in Black-ish frequently provides 10 voiceover narratives throughout the episode, while 11 Across the Tracks does not have any voiceovers. See 12 Silas, 201 F. Supp. 3d at 1181 (noting the difference 13 in use of, or lack of, voiceovers in the two works). 14 This distinction is yet another way of showing how the 15 dialogue in the two works, both in content and type, is 16 dissimilar. 17 For the foregoing reasons, the three instances of 18 dialogue Plaintiff alleges are “virtually identical,” 19 one of which is not even dialogue, are insufficient to 20 allege substantial similarity. See Silas, 201 F. Supp. 21 3d at 1181 (finding that one instance of similar 22 dialogue was insufficient to survive motion to 23 dismiss). 24 5) Mood, Setting, and Pace 25 26 27 28 5 In Black-ish, Andre states, the “lesson we learned today is that a man always admits when he is wrong,” while in Across the Tracks, Dave states, “We can all learn a valuable lesson today, own up to being wrong, but if someone owns up to his wrong, you have to be man enough to forgive them.” Am. Compl. ¶ 35. 31 1 Plaintiff does not make any allegations regarding 2 the two works’ similarities in mood, setting, and pace. 3 However, even a surface-level examination of these 4 elements shows that the two works are not substantially 5 similar. 6 While both works are billed as comedies, Across the 7 Tracks takes on a more serious mood with the overt 8 racism and clear movement towards a message of family 9 strength and emphasis on religion as the Johnson family 10 deals with the inappropriate behavior of their 11 neighbors. Black-ish is much more light-hearted, even 12 ending the episode with the family dancing at Andre 13 Jr.’s “bro mitzvah.” Thus, the moods of the two works 14 are not substantially similar. See Olson, 855 F.2d at 15 1451 (holding that while both works were described as 16 comedies and thus had similar moods, this was 17 insufficient to demonstrate substantial similarity). 18 The setting of Across the Tracks is not clearly 19 defined in the Script, while Black-ish is set in Los 20 Angeles. Even if both works were set in Los Angeles, 21 this similarity would not be protectable under 22 copyright law. Alexander v. Murdoch, 2011 U.S. Dist. 23 LEXIS 79503, at *21 (S.D.N.Y. July 14, 2011)(finding 24 that the shared setting of Los Angeles was not 25 protectable under copyright law). Therefore, there is 26 no substantial similarity between the setting of the 27 two works. 28 As Defendants note in their Motion, the pace of the 32 1 two works is very different. Mot. to Dismiss 16:17-18. 2 In determining the pace of a work, courts look at the 3 time period within which the works are set. See Capcom 4 Co., Ltd. v. MKR Group, Inc., No. 08-0904-RS, 2008 U.S. 5 Dist. LEXIS 83836, at *10 (N.D. Cal. Oct. 20, 2008). 6 The majority of Across the Tracks takes place in one 7 day, with the last scene occurring the following night. 8 Additionally, the scenes all take place in and around 9 the Johnsons’ home. 10 are linear. The pace is slow and the scenes Black-ish is fast-paced as it cuts back 11 and forth between different parts of the Johnsons’ home 12 and Andre’s work place. Additionally, Black-ish 13 clearly takes place over a number of days. During the 14 pilot episode, Andre obtains the promotion, creates two 15 different presentations for work, and plans a “bro 16 mitzvah” for Andre Jr. At the very least, the pilot 17 episode takes place over the course of a couple of 18 days. See Kouf, 16 F.3d at 1046 (noting two works were 19 dissimilar when one took place over 24 hours and the 20 other took place over a series of days). Thus, there 21 is no substantial similarity in the pace of the two 22 stories. 23 Ultimately, Across the Tracks and Black-ish share 24 similarities only in the abstract: both works involve 25 black families living in predominantly white areas and 26 their experiences as they navigate living in these 27 areas. Plaintiff’s Complaint alleges nary a similarity 28 that is protectable under the copyright law. 33 See Funky 1 Films, 462 F.3d at 1081. Even a review of Plaintiff’s 2 proposed Amended Complaint does nothing to cure the 3 defects in his pleading of copyright infringement. 4 Plaintiff’s allegations in the proposed Amended 5 Complaint are again generic ideas that flow from the 6 basic plot of the two works, not specific, 7 copyrightable elements. See Shame on You Prods., 120 8 F. Supp. 3d at 1148 (noting that the court, in 9 evaluating the extrinsic test, only looks at 10 protectable elements of the works). 11 Finally, this Court has reviewed both of the works 12 in detail, including examining the potential 13 “similarities between the plot, themes, dialogue, mood, 14 setting, pace, characters, and sequence of events in 15 two works.” Kouf, 16 F.3d at 1045. Any similarities, 16 including characters “acting black,” the lessons of 17 owning up to your mistakes, and the two families 18 feeling out of place in a predominantly white area, 19 “flow necessarily and naturally from the basic plot 20 premise.” See Cavalier, 297 F.3d at 823. 21 Consequently, Plaintiff cannot allege that the two 22 works are substantially similar, and the Court GRANTS 23 Defendants’ Motion to Dismiss as to Plaintiff’s 24 copyright infringement claim. 25 /// 26 27 b. Plaintiff’s Unfair Competition Claim Plaintiff also asserts a claim for unfair 28 competition, alleging that Defendants “have made, and 34 1 will continue to make a false and misleading 2 designation about the origin of [Black-ish] in 3 violation of the Lanham Act.” Compl. ¶ 34. As 4 Defendants note, the U.S. Supreme Court in Dastar Corp. 5 v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) 6 dealt with the relationship between designation of 7 origin claims under the Lanham Act and copyright 8 claims. Mot. to Dismiss 23:4-7. In Dastar, the 9 plaintiffs alleged that the defendant purchased video 10 tapes from the plaintiffs, copied and edited the tapes, 11 and then distributed the tapes as its own product. 12 U.S. at 26-27. 539 The plaintiffs sued under the Lanham 13 Act alleging that the defendant’s “passing off” of the 14 tapes as its own resulted in a “false designation of 15 origin” of the tapes. Id. at 29. The Court focused on 16 the definition of “origin” under the Lanham Act to 17 determine whether it included the “entity that 18 originated the ideas that ‘goods’ embody or contain.” 19 Id. at 32. 20 In holding that “origin” did not include the 21 originator of the ideas but instead refers to the 22 producer of the actual good itself, the Court noted 23 that including the originator of the ideas in the 24 “origin” definition would put the Lanham Act in 25 conflict with copyright law. Id. at 34 (“[I]n 26 construing the Lanham Act, we have been ‘careful to 27 caution against misuse or over-extension’ of trademark 28 and related protections into areas traditionally 35 1 occupied by patent or copyright.” (quoting TrafFix 2 Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 3 (2001))). Ultimately, the Court concluded that because 4 the defendant was the producer of the actual video 5 tapes it sold, it was therefore the “origin” of those 6 tapes, and the plaintiffs could not prevail on their 7 Lanham Act claim. 8 Id. at 38. Courts in the Central District have relied on this 9 ruling and dismissed plaintiffs’ claims for violation 10 of the Lanham Act. See Whitehead v. Millennium Films, 11 No. CV 15-03564-RGK (AGRx), 2016 U.S. Dist. LEXIS 12 187805, at *7 (C.D. Cal. May 4, 2016)(dismissing claim 13 under Lanham Act where plaintiff alleged defendant made 14 a false claim of creation as to the plaintiff’s 15 script); Friedman v. Zimmer, No. CV 15-502 GHK (Ex), 16 2015 U.S. Dist. LEXIS 143941, at *16 (C.D. Cal. July 17 10, 2015)(granting motion to dismiss Lanham Act claim 18 based on allegation that movie score infringed 19 plaintiff’s copyright in a musical composition). 20 Here, Plaintiff’s unfair competition claim under 21 the Lanham Act is essentially a duplicate of his 22 copyright claim. He does not allege that Defendants 23 stole his physical script, repackaged it as their own, 24 and then sold it. Rather, he is alleging that 25 Defendants stole the ideas in the Across the Tracks 26 script. See Compl. ¶ 34. Because Plaintiff does not 27 allege that Defendant misappropriated his tangible 28 goods, he cannot proceed with his unfair competition 36 1 claim. See Dastar, 539 U.S. at 38. The Court 2 therefore GRANTS Defendants’ Motion to Dismiss as to 3 Plaintiff’s unfair competition claim. 4 5 c. Plaintiff’s Claim for Declaratory Relief Plaintiff’s allegations regarding his claim for 6 declaratory relief are succinct and essentially only 7 seek a judicial determination that Defendants infringed 8 Plaintiff’s copyright in Across the Tracks. 9 54-55. Compl. ¶¶ As noted above, Plaintiff does not have a 10 viable claim for copyright infringement. “[A]bsent a 11 viable underlying claim,” Plaintiff is not entitled to 12 the declaratory relief he requests. See Shaterian v. 13 Wells Fargo Bank, N.A., 829 F. Supp. 2d 873, 888 (N.D. 14 Cal. 2011)(dismissing claim for declaratory relief 15 after dismissing underlying claims upon which plaintiff 16 sought declaratory relief). Accordingly, the Court 17 GRANTS Defendants’ Motion to Dismiss as to Plaintiff’s 18 declaratory relief claim. 19 20 d. Plaintiff’s Claim for Injunctive Relief Plaintiff’s final claim is a claim for injunctive 21 relief. As with his declaratory relief claim, 22 Plaintiff premises his claim for injunctive relief on 23 Defendants’ alleged infringement of Plaintiff’s 24 copyright. However, “[i]njunctive relief is a remedy 25 and not, in itself, a cause of action.” Biederman v. 26 Nw. Tr. Servs., No. CV 15-02283-AB (JCx), 2015 U.S. 27 Dist. LEXIS 82221, at *5 (C.D. Cal. June 24, 2015). 28 Because the Court has dismissed Plaintiff’s other 37 1 claims, he does not have any claim for which he can 2 seek injunctive relief. Massacre v. Davies, No. 3 13-cv-04005 NC, 2014 U.S. Dist. LEXIS 114787, at *17 4 (N.D. Cal. Aug. 18, 2014)(dismissing prayer for 5 injunctive relief “because [plaintiff] has not pled a 6 cause of action that could entitle him to that 7 relief”). As such, the Court GRANTS Defendants’ Motion 8 to Dismiss as to Plaintiff’s injunctive relief claim. 9 10 3. Leave Amend Would be Futile Federal Rule of Civil Procedure 15(a) provides that 11 a party may amend their complaint once “as a matter of 12 course” before a responsive pleading is served. 13 R. Civ. P. 15(a). Fed. After that, the “party may amend the 14 party’s pleading only by leave of court or by written 15 consent of the adverse party and leave shall be freely 16 given when justice so requires.” Id. Leave to amend 17 lies “within the sound discretion of the trial court.” 18 United States v. Webb, 655 F.2d 977, 979 (9th Cir. 19 1981). The Ninth Circuit has noted “on several 20 occasions . . . that the ‘Supreme Court has instructed 21 the lower federal courts to heed carefully the command 22 of Rule 15(a), F[ed]. R. Civ. P., by freely granting 23 leave to amend when justice so requires.’” Gabrielson 24 v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 25 1986)(quoting Howey v. United States, 481 F.2d 1187, 26 1190 (9th Cir. 1973))(citations omitted). 27 In motions to dismiss a copyright infringement 28 claim, courts have held that “[b]ecause substantial 38 1 similarity is ‘a defect that cannot be cured by an 2 amended complaint,’” dismissal without leave to amend 3 is proper. Schkeiban v. Cameron, No. CV 12-0636-R 4 MANX, 2012 WL 5636281, at *1 (C.D. Cal. Oct. 4, 2012), 5 aff’d, 566 F. App’x 616 (9th Cir. 2014); see Campbell, 6 718 F. Supp. 2d at 1116. 7 Here, while Plaintiff attached his proposed Amended 8 Complaint to the parties’ stipulation to extend time to 9 file an Amended Complaint [26], Plaintiff never filed 10 the proposed Amended Complaint. However, the 11 allegations in the proposed Amended Complaint do 12 nothing to change the fact that Plaintiff cannot plead 13 substantial similarity. As noted above, a comparison 14 of the plot, themes, dialogue, mood, setting, pace, 15 characters, and sequence of events of the two works 16 failed to reveal any substantial similarities. This 17 defect cannot be cured by amendment, see Silas, 201 F. 18 Supp. 3d at 1184, and thus, granting Plaintiff leave to 19 amend would be futile. Therefore, the Court GRANTS 20 Defendants’ Motion to Dismiss without leave to amend. 21 22 23 4. Defendants’ Motion to Strike and for Sanctions is DENIED as MOOT In light of the Court’s GRANT of Defendants’ Motion 24 to Dismiss, the Court DENIES as MOOT Defendants’ Motion 25 to Strike and for Sanctions. 26 /// 27 /// 28 /// 39 1 2 III. CONCLUSION Based on the foregoing, the Court GRANTS 3 Defendants’ Motion to Dismiss [35] without leave to 4 amend. Accordingly, the Court DENIES as MOOT 5 Defendants’ Motion to Strike and for Sanctions [42]. 6 This matter is closed. The Clerk shall 7 terminate this case. 8 IT IS SO ORDERED. s/ RONALD S.W. LEW 9 DATED: September 13, 2017 10 HONORABLE RONALD S.W. LEW Senior U.S. District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 40

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