Blizzard Entertainment, Inc. et al v. Lilith Games (Shanghai) Co. Ltd. et al

Filing 265

ORDER by Judge Breyer granting in part and denying in part 216 Motion to Dismiss by Lilith; denying 228 Motion to Dismiss by uCool Defendants. (crblc2S, COURT STAFF) (Filed on 3/8/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BLIZZARD ENTERTAINMENT, INC.,
et al.,
Plaintiffs,

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v.
United States District Court
Northern District of California

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LILITH GAMES (SHANGHAI) CO.
LTD., et al.,
Defendants.

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Case No. 15-cv-04084-CRB
ORDER
(1) GRANTING IN PART AND
DENYING IN PART LILITH’S
MOTION TO DISMISS, WITH
LEAVE TO AMEND
(2) DENYING UCOOL
DEFENDANTS’ MOTION TO
DISMISS

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Much like Plaintiffs’ popular games, this copyright case has turned into quite the
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saga. The latest expansion pack, Plaintiffs’ Second Amended Complaint (“SAC”), adds
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allegations against Defendant Lilith’s game Soul Hunters, as well as several parties related
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to Defendant uCool: David Guo, Huwa IP Holdings Ltd. (“HIPH”), and Huwa, Inc.
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(collectively, “the uCool Defendants”). Lilith and the uCool Defendants move separately
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to dismiss parts of the SAC. Lilith moves to dismiss all allegations against its game Soul
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Hunters. See Lilith’s MTD (dkt. 216). The uCool Defendants move to dismiss some of
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the allegations against their game Heroes Charge—namely, those relating to Diablo III,
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Starcraft II, and Heroes of the Storm. See uCool’s MTD (dkt. 228). For the reasons
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discussed below, Lilith’s motion is GRANTED IN PART and DENIED IN PART, with
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leave to amend. uCool’s motion is DENIED.
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United States District Court
Northern District of California

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I.

BACKGROUND
A.

Factual Background

According to the SAC, Plaintiff Blizzard is a game developer and copyright owner
of some of the most popular computer games of the past decade, including Warcraft III and
World of Warcraft (“the Warcraft games”), Starcraft II (“Starcraft”), Diablo III (“Diablo”),
Hearthstone, and Heroes of the Storm. SAC (dkt. 210) ¶ 19. Blizzard—along with its coPlaintiff Valve—also owns copyrights in hundreds of versions of the user-created “mod”
to Warcraft III known as Defense of the Ancients (“DotA”). Id. ¶ 34. Additionally, Valve
owns copyrights in a stand-alone game modeled on DotA called Dota 2. Id. ¶ 35.
The Warcraft games—as well as DotA and Dota 2—are strategy and role-playing
games set in the same fantastical world, Azeroth, which is populated by all sorts of
“unusual and distinctive” mythical creatures, including “Night Elves,” “Tauren,” and
“Naga.” Id. ¶¶ 22–25. Hearthstone, a digital playing-card game, incorporates characters
and images from the Warcraft games and related products. Id. ¶ 19.
Starcraft and Diablo are different and separate franchises from the Warcraft games,
taking place in their own separate universes. Starcraft is set in outer space and features a
team of space soldiers called “Terran Marines.” Id. ¶ 29. Diablo takes players through a
ghoulish world ruled by characters such as “King Leoric, the Skeleton King.” Id.
Heroes of the Storm, an online multiplayer game, brings together the best-known
characters from the Warcraft games, Starcraft, and Diablo. Id. ¶ 19. Although Heroes of
the Storm was officially released in final form to the public in June 2015, the game was
first made available to the public over a year earlier, in March 2014. Id.; see also FAC
(dkt. 36) ¶ 11.
Defendant Lilith develops mobile games and is the developer, owner, and
distributor of the games Dota Legends and Dot Arena (both names are allegedly references
to DotA and Dota 2). SAC ¶¶ 40–41. Dota Legends and Dot Arena are “substantively
identical.” Id. ¶ 42. Lilith is also the creator and distributor of Soul Hunters, a “reskin” or
“reimplementation” of Dota Legends. Id. ¶ 43. In other words, Soul Hunters is “the same

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basic game” as Dota Legends but with “some changes to some of the game’s artwork” and

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“some additional, new, or different” hero characters. Id.

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The uCool Defendants include several entities—uCool, Huwa, and HIPH—as well

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as individual David Guo. Id. ¶¶ 12–16. Together, the uCool Defendants developed,

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marketed, and distributed the mobile game Heroes Charge, with David Guo personally

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directing and supervising these activities. Id. ¶¶ 46–47. Heroes Charge was the subject of

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a separate copyright suit between Lilith and uCool, in which Judge Samuel Conti noted

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“striking similarities between . . . protected elements” of Dota Legends and Heroes

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Charge. Lilith Games (Shanghai) Co. v. uCool, Inc., No. 15-1267, 2015 WL 5591612, at

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*9 (N.D. Cal. Sep. 23, 2015); see also SAC ¶ 45.

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B.

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Two-and-a-half years after the commencement of this case, we are back where we

Procedural Background

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started (perhaps a little wiser but certainly no younger). Along the way, several notable

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things have happened.

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In December 2015, Plaintiffs’ original complaint was dismissed, with leave to

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amend, because Plaintiffs (1) failed to plausibly plead any copyrightable subject matter

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and (2) made only general allegations of infringement without providing specific,

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representative acts of infringement. See First Dismissal Order (dkt. 35) at 9–10. Plaintiffs

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subsequently filed a First Amended Complaint (“FAC”), which not only pled that

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constituent elements of Plaintiffs’ works, including certain characters, were copyrightable,

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but also included a set of exhibits with specific, representative examples of alleged

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infringements. See FAC ¶¶ 14–29, 42–54, Exs. A–D. uCool moved to dismiss the FAC,

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but at a hearing on April 8, 2016, the Court denied uCool’s motion, noting that the FAC

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appeared to have “successfully address[ed]” the shortcomings of the original complaint.

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Trans. of 4/8/16 Hear’g (dkt. 76) at 2. uCool then moved for partial summary judgment on

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the issue of Valve’s ownership of copyrights in DotA, which was denied. See PSJ Order

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(dkt. 162).

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Plaintiffs have now filed a Second Amended Complaint, which differs from their

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FAC in two material respects. First, Plaintiffs have significantly expanded their references

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to Lilith’s game Soul Hunters and made clear that their allegations of infringement include

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Soul Hunters. Compare SAC ¶¶ 39–43 with FAC ¶¶ 31–32. Second, Plaintiffs have added

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other uCool defendants—Huwa, HIPH, and David Guo—whose involvement in the

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alleged infringement was uncovered during discovery. Compare SAC ¶¶ 45–49, 80–111

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with FAC ¶¶ 34–35, 66–74. Aside from these two differences, the SAC, like the FAC,

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alleges that Defendants used in their games specific elements derived from—and

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substantially similar to—elements contained in Plaintiffs’ games, including (1) visual
depictions of, and skills given to, individual characters, (2) in-game icon artwork,

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(3) visual depictions of locations and landmarks, (4) musical compositions, and (5) the

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overall look and feel. Compare SAC ¶¶ 50–68 with FAC ¶¶ 36–54. The SAC also

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includes exhibits with representative examples of alleged infringements, very similar to the

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exhibits attached to the FAC. Compare SAC Exs. A–D with FAC Exs. A–D.

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Both Lilith and the uCool Defendants move to dismiss parts of the SAC, arguing

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primarily that Plaintiffs have not plausibly alleged that Defendants copied and infringed

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Plaintiffs’ games. See Lilith’s MTD; uCool’s MTD.

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II.

LEGAL STANDARDS

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A.

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A complaint must contain “a short and plain statement of the claim showing that the

Motion to Dismiss

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Accordingly, pursuant to Federal

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Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss an action if the

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complaint fails to allege “sufficient factual matter, accepted as true, to ‘state a claim to

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relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This means that, though a

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complaint need not contain “detailed factual allegations,” it must provide more than “a

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formulaic recitation of the elements of a cause of action,” so as to give the defendant “fair
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notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S.

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at 555; see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“[A]llegations in a

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complaint . . . may not simply recite the elements of a cause of action, but must contain

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sufficient allegations of underlying facts to give fair notice and to enable the opposing

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party to defend itself effectively.”). For purposes of ruling on a Rule 12(b)(6) motion, the

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Court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings

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in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine

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Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).

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B.

Copyright Infringement

To state a claim of copyright infringement, a plaintiff must allege (1) ownership of

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a valid copyright, and (2) illicit copying of constituent elements of the work that are

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original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Here,

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Defendants’ motions largely focus on the second prong. This second prong itself requires

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showing two things: (1) that portions of the plaintiff’s work were in fact copied and

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(2) that the copying amounts to infringement, that is, “unlawful appropriation.” Arnstein

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v. Porter, 154 F.2d 464, 468 (2d Cir. 1946); see also Rentmeester v. Nike, Inc., — F.3d —,

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2018 WL 1055846, at *3 (9th Cir. Feb. 27, 2018). Absent direct evidence of copying,

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factual copying may be established circumstantially by showing that the infringer had

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access to the plaintiff’s copyrighted work and that there exist similarities between the two

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works that are “probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51

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(2d Cir. 2003); Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139–40 (2d Cir. 1992); see

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also Rentmeester, 2018 WL 1055846, at *3. Once factual copying has been established,

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infringement is determined by comparing the works for “substantial similarity” of

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protected elements. Laureyssens, 964 F.2d at 139–40; see also Rentmeester, 2018 WL

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1055846, at *3.

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Substantial similarity entails a two-part analysis consisting of an “intrinsic” test and

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an “extrinsic” test. Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th

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Cir. 1994). The “intrinsic” test asks “‘whether the ordinary, reasonable audience’ would
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find the works substantially similar in the ‘total concept and feel of the works’”—a

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question that must be left to the finder of fact. Cavalier v. Random House, Inc., 297 F.3d

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815, 822 (9th Cir. 2002) (quoting Kouf, 16 F.3d at 1045); see also Swirsky v. Carey, 376

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F.3d 841, 845 (9th Cir. 2004). The “extrinsic” test, meanwhile, is “an objective

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comparison of specific expressive elements.” Cavalier, 297 F.3d at 822. This involves

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breaking works down into their constituent elements, distinguishing between protected and

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unprotected material, and comparing protected elements for proof of copying as measured

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by “substantial similarity.” See Swirsky, 376 F.3d at 845; see also Apple Comput., Inc. v.

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Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir. 1994).
“[W]hen the copyrighted work and the alleged infringement are both before the

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Northern District of California

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court, capable of examination and comparison, non-infringement can be determined on a

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motion to dismiss” on the ground that the works are not substantially similar. Christianson

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v. West Pub. Co., 149 F.2d 202, 203 (9th Cir. 1945). Here, however, Plaintiffs have

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offered only representative examples of the ways in which Defendants’ games are similar

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to their own, not entire works capable of examination and comparison. Accordingly, the

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question before the Court is whether Plaintiffs have plausibly alleged substantial similarity

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and put Defendants on fair notice of their claims. See Baca, 652 F.3d at 1216.

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III.

DISCUSSION

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A.

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Lilith moves to dismiss the allegations against its game Soul Hunters on the

Lilith’s Motion to Dismiss

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grounds that Plaintiffs have neither (1) specifically identified the infringed works nor

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(2) plausibly alleged substantial similarity between each of their games and Soul Hunters,

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and have therefore failed to state a claim of copyright infringement with respect to Soul

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Hunters.

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On the issue of identifying the allegedly infringed works, Lilith’s argument fails.

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Lilith argues that Plaintiffs have not specifically identified which works Soul Hunters

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infringes, alleging only generally that Soul Hunters infringes “the Blizzard Works” and
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“DotA.” See Lilith’s MTD at 6–7, 10–11. Lilith’s co-defendant, however, previously

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made a similar argument, contending that there was “no way . . . to determine from the

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face of the Complaint what works are at issue.” Dkt. 20 at 8. This argument was rejected

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because Plaintiffs’ original complaint adequately “identified numerous allegedly infringed

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copyrights and their respective owners.” See First Dismissal Order at 6. Plaintiffs’ SAC is

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no less clear in identifying what works are at issue. See SAC ¶¶ 19–21, 30–35,

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Schedule A.
Identifying the works at issue, though, is only the first step. To survive dismissal of

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their claims, Plaintiffs must allege facts that plausibly show infringement of their works.

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The meat of Lilith’s motion argues that Plaintiffs fail to meet this standard. In particular,

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Lilith argues that Plaintiffs do not sufficiently allege which elements of their games are

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copyrightable, and which expression(s) from Soul Hunters are substantially similar to any

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protectable elements. See Lilith’s MTD at 7–10, 11–14. Although Lilith’s argument is

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largely unpersuasive, there is merit to its arguments regarding Starcraft and Diablo.
The Ninth Circuit’s “extrinsic” test for substantial similarity involves three steps:

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identifying the sources of alleged similarity, distinguishing between protected and

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unprotected material, and comparing protected elements for substantial similarity. See

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Swirsky, 376 F.3d at 845; Apple, 35 F.3d at 1443. Here, Plaintiffs’ SAC clearly identifies

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the sources of alleged similarity, including (1) visual depictions of individual characters, as

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well as skills and abilities given to them, (2) in-game icon artwork, (3) visual depictions of

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locations and landmarks, (4) musical compositions, and (5) the overall look and feel. SAC

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¶ 52.

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Plaintiffs’ SAC also sufficiently alleges that the sources of alleged similarity

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represent copyrightable subject matter. This step is important because not all elements of a

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copyrighted work are protectable. Unprotected elements include ideas, expressions that

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are indistinguishable from the underlying ideas (merger doctrine), standard or stock

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elements (scènes à faire), and facts. See Apple, 35 F.3d at 1444; see also Gorski, 2014 WL

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3533324, at *4. In particular, a character is protectable only if it (1) generally has
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“physical as well as conceptual qualities,” (2) is “sufficiently delineated to be recognizable

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as the same character whenever it appears,” and (3) is “especially distinctive and contain[s]

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some unique elements of expression.” DC Comics v. Towle, 802 F.3d 1012, 1021 (9th

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Cir. 2015) (citations and internal quotation marks omitted). Plaintiffs’ SAC provides

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several representative examples of plausibly copyrightable characters, depictions of

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landmarks, in-game artwork, and musical compositions. See SAC ¶¶ 23–28, 29, 36, 63–

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67. For example, the SAC alleges that “Illidan Stormrage” is a “Night-Elf-turned-demon”

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who is “usually depicted as a muscular purple-skinned night elf with long black hair and

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intricate tattoos (arcane and tribal in appearance) adorning his torso and arms.” SAC
¶ 25(b). He “wields two long, distinct, bladed weapons,” and when in his “demon form,”

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has “two long, curved horns growing from his head, and two long, frayed, bat-like wings.”

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Id. Similarly, the SAC describes the “Dark Portal,” a magical gate in World of Warcraft

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that features “a dragon head and claws” and “transports characters to the world of

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‘Outland.’” SAC ¶ 26. These types of representative examples are enough at the pleading

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stage. See Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 2d 1114, 1120 (C.D.

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Cal. 2001) (“Copyright claims need not be pled with particularity.”); cf. First Dismissal

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Order at 9–10 (holding that a complaint need only allege representative acts of

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infringement, and dismissing Plaintiffs’ claims for failure to provide such examples).

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Finally, the SAC compares the alleged protected elements in Plaintiffs’ games to

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elements of Soul Hunters. See SAC Exs. A–B. For example, the SAC compares a

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depiction of “Illidan Stormrage” in World of Warcraft to a Facebook ad for Soul Hunters.

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See SAC Ex. A at 7. The ad shows a character that—like Illidan—carries two long, bladed

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weapons and has two curved horns growing from its head:

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Lilith argues that these “comparison[s] of bare images” are not enough because they fail to
detail the protected elements of each character and compare them specifically to those in

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Soul Hunters. See Lilith’s MTD at 9–14; Lilith’s Reply (dkt. 237) at 8–9. But Lilith’s

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proposed standard is not the pleading standard. Rule 8 requires not “detailed factual

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allegations” but rather only enough factual matter to show that a claim is “plausible on its

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face” and to give the defendant “fair notice.” Twombly, 550 U.S. at 555, 570. Here, with

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respect to most of Plaintiffs’ games, Lilith cannot reasonably argue that the SAC and its

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exhibits fail to provide fair notice or enough factual matter showing that Plaintiffs’ claims

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are plausible on their face. In particular, the SAC and its exhibits allege several

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representative examples of Soul Hunters infringing the Warcraft games, DotA, and Dota 2.

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See SAC Exs. A and B. And though Lilith suggests that Plaintiffs provide no specific

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allegations of Soul Hunters infringing Hearthstone and Heroes of the Storm, see Lilith’s

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MTD at 8, Plaintiffs in fact do provide representative examples of infringement with

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respect to both games. See SAC Ex. A at 4 and 9.

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Moreover, to the extent that there are different versions of these games—that is,

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different versions of the Warcraft games, DotA, Dota 2, Hearthstone, and Heroes of the

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Storm—Plaintiffs need not provide examples of infringement with respect to each version.

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Although each version of Plaintiffs’ games constitutes a separate work, see 17 U.S.C.

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§ 101, here Plaintiffs have sufficiently alleged that the copyrightable elements in their

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games are consistent across different versions. See, e.g., SAC ¶ 22 (“The creatures that
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inhabit the Warcraft universe are depicted visually within the games and appear

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consistently throughout the Warcraft games.”). Therefore, in this case, what particular

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version any alleged representative example of infringement comes from is not especially

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relevant: to the extent that Plaintiffs have sufficiently alleged infringement with respect to

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one version of one of their games, they have sufficiently alleged infringement with respect

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to every version of that game. See id. at 1023–24. Because Plaintiffs sufficiently allege

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representative examples with respect to at least one version of the Warcraft games, DotA,

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Dota 2, Hearthstone, and Heroes of the Storm, they state a plausible claim of infringement

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against Soul Hunters with respect to these games.

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With respect to Diablo and Starcraft, however, Lilith’s argument has more merit.

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Lilith argues that Plaintiffs do not plausibly allege substantial similarity between Soul

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Hunters and Diablo and Starcraft. See Lilith’s MTD at 7–8. Lilith is right: although the

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SAC plausibly alleges copyrightable elements in both Starcraft and Diablo, it contains no

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specific examples (representative or otherwise) of Soul Hunters allegedly infringing these

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copyrightable elements. See SAC ¶¶ 29, 59. The SAC indicates that Diablo and Starcraft

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are entirely different franchises from the Warcraft games; they are set in different

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universes and have different characters. Id. ¶ 29. Nothing in the SAC suggests that any of

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the representative examples of Soul Hunters infringing Plaintiffs’ other games (Warcraft,

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DotA, Dota 2, Hearthstone, Heroes of the Storm) extend to Diablo or Starcraft.

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The SAC does specifically allege that characters from Dot Arena (another Lilith

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game) infringe Diablo and Starcraft. See id. ¶ 59. But the SAC also notes that Dot Arena

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and Soul Hunters have different artwork and characters. See id. ¶ 43. Accordingly,

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plausible allegations against Dot Arena do not equate to plausible allegations against Soul

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Hunters.

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Thus, the SAC fails to state a plausible claim that Soul Hunters infringes Diablo and

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Starcraft, and Lilith’s motion is GRANTED with respect to these two games. To be clear,

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only the Diablo and Starcraft claims against Soul Hunters are dismissed; those against

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Lilith’s other games are not.
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B.

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uCool’s Motion to Dismiss

The uCool Defendants move to dismiss claims against Heroes Charge relating to
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Starcraft, Diablo, and Heroes of the Storm. They argue that (1) “aggregating” Plaintiffs’
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games is not a legally cognizable theory, (2) Heroes Charge is not substantially similar to
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Diablo or Starcraft, and (3) Plaintiffs cannot plead access to Heroes of the Storm because
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Blizzard released it to the public after Heroes Charge was released. These arguments fail.
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“Aggregation” Theory

The uCool Defendants argue first that Plaintiffs are not allowed to “mix-and-match
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elements from multiple works to manufacture substantial similarity.” uCool’s MTD at 7.
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This argument mischaracterizes Plaintiffs’ allegations. Plaintiffs allege that the uCool
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Defendants infringed several of Plaintiffs’ games—including Warcraft, Starcraft, and
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Diablo—by copying protected elements in each of those games. See SAC ¶¶ 1, 52, 59.
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Plaintiffs are not relying on an “aggregation” theory. See id.; see also Opp. (dkt. 235) at
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9–10.
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2.

Infringement of Diablo and Starcraft

Plaintiffs clearly and specifically allege that the depictions of “War Chief” and
“Rifleman” in Heroes Charge are substantially similar to (and thus infringe) protected
expression in Diablo and Starcraft—namely, “King Leoric” from Diablo and “Terran
Marine” from Starcraft, respectively. See SAC ¶ 59.
The uCool Defendants, however, note that “War Chief” and “Rifleman” are merely
two characters out of 135 characters in Heroes Charge, and therefore, there is no
substantial similarity. See uCool’s MTD at 10, 14. It appears that the uCool Defendants
are arguing that their alleged copying is de minimis—that is, the alleged copying is so
trivial that it does not rise to the level of substantial similarity. See Newton v. Diamond,
388 F.3d 1189, 1192–93 (9th Cir. 2004); Ringgold v. Black Entm’t Television, Inc., 126
F.3d 70, 74–75 (2d Cir. 1997). But the uCool Defendants get the rule backwards. The
relevant inquiry is not whether a substantial portion of the defendant’s work was derived
from the plaintiff’s work but whether protectable material in the plaintiff’s work was
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substantially appropriated. See Worth v. Selchow & Righter Co., 827 F.2d 569, 570 n.1

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(9th Cir. 1987). “A taking may not be excused merely because it is insubstantial with

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respect to the infringing work.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.

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539, 565 (1985) (emphasis in original). Thus, that the uCool Defendants may not have

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appropriated 133 other characters from one of Plaintiffs’ games does not mean Plaintiffs

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have failed to plausibly allege that the uCool Defendants copied protectable expression in

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Diablo and Starcraft. Moreover, because Plaintiffs are not required to plead every instance

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of infringement, their claims are not necessarily limited to “War Chief” and “Rifleman.”

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Cf. Perfect 10, 167 F. Supp. 2d at 1120 (“Requiring a statement of each and every example

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would defeat the regime established by Rule 8.”).

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The uCool Defendants also contend that “King Leoric” and “Terran Marine” are

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“generic” and therefore not copyrightable. uCool’s MTD at 12. The uCool Defendants

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may be correct that “skeleton kings” and “space soldiers”—stock characters in the video

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game context—constitute unprotected expression under the scènes à faire doctrine. See

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Capcom, 2008 WL 4661479, at *6. But Plaintiffs allege a variety of features that are not

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“generic” in the video game context. For example, the SAC describes King Leoric as

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having “long white hair and beard, distinctive armor, a red loincloth and a spiky gold

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crown.” SAC ¶ 29. Additionally, the SAC describes Terran Marine as wearing “a

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distinctive set of giant blue space armor with huge, oversized shoulder pads, a fully-

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enclosed helmet with round tubes protruding from it, and a yellow faceplate.” Id. It also

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emphasizes Terran Marine’s “comically oversized rifles that are often at least one-half the

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size of the entire suit of armor.” Id. Finally, the SAC provides visual depictions of both

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King Leoric and Terran Marine, which highlight Plaintiffs’ particular expression of the

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idea of “skeleton kings” and “space soldiers.” Id.

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Plaintiffs plausibly allege protectable expression in Diablo and Starcraft that “War Chief”

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and “Rifleman” infringe.

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3.

Access to Heroes of the Storm

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The uCool Defendants contend that it is not plausible that they had access to Heroes

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of the Storm because Heroes of the Storm was not “published” until June 2015, and Heroes

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Charge was released in August 2014. See uCool’s MTD at 15; see also SAC ¶ 45. The

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uCool Defendants attach multiple exhibits to their reply showing that Heroes of the Storm

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was “published” in June 2015, including a copy of Blizzard’s registration with the

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Copyright Office and complaints in other court proceedings. See Reply (dkt. 240) at 13–

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15 and exhibits. Plaintiffs allege that Heroes of the Storm “first was released to the public

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in March 2014.” SAC ¶ 19; see also FAC ¶ 11.

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When ruling on a motion to dismiss, a court may take judicial notice of registrations

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with the Copyright Office as well as court documents already in the public record. See

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Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); Vigil v. Walt Disney Co., 1995 WL

22

621832, at *1–2 (N.D. Cal. Oct. 16, 1995). Whether the June 2015 publication date is true

23

or not, however, is not determinative at this stage. First, proof of access is not necessary to

24

show copying. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000)

25

(“in the absence of any proof of access, a copyright plaintiff can still make out a case of

26

infringement by showing that [the works are] ‘strikingly similar’”). Moreover, that Heroes

27

of the Storm was “published” in June 2015 does not, as a practical matter, necessarily

28

contradict Plaintiffs’ claim that the game was “first . . . released to the public” in March
13

1

2014. For example, certain members of the public may have been allowed to test the game

2

before it was “published” and widely released in June 2015. In fact, in their FAC,

3

Plaintiffs alleged:

4

Beginning in March 2014, Blizzard released to members of the
public the game “Heroes of the Storm,” an online multiplayer
game that brings together Blizzard’s best-known characters
from each of its major game franchises. Heroes of the Storm
was released to the public in final form in June 2015 and was
highly publicized for years before its release.

5
6
7

FAC ¶ 11. Because the pleadings at this stage are construed in the light most favorable to
8

the Plaintiffs, uCool’s argument fails. Finally, Plaintiffs’ SAC provides a number of
9

specific, representative examples of alleged infringement between Heroes Charge and
10

Heroes of the Storm. See, e.g., SAC Ex. A at 1–2, 4, 16. Plaintiffs therefore have stated a
11
United States District Court
Northern District of California

plausible claim of copyright infringement. Cf. First Dismissal Order at 10 (holding that “a
12

plausible claim would require that Plaintiffs submit a representative sampling of infringed
13

content”). uCool’s motion is accordingly DENIED.
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15
16

IV.

CONCLUSION
For the foregoing reasons, Lilith’s motion to dismiss is GRANTED IN PART and

17

DENIED IN PART. Lilith’s motion is granted only with respect to allegations that Soul
18

Hunters infringes Diablo and Starcraft. With respect to all other allegations against Soul
19

Hunters, Lilith’s motion is denied without prejudice. uCool’s motion is DENIED without
20

prejudice.
21

Plaintiffs are given leave to amend their Diablo and Starcraft allegations. Any
22

amended complaint shall be filed by March 29, 2018. Extensions of time in which to file
23

motions to dismiss will not be granted except on a particularized showing of good cause.
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IT IS SO ORDERED.
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Dated: March 8, 2018
26

CHARLES R. BREYER
United States District Judge

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