678 F. App'x 604
9th Cir.2017Background
- Basile appeals pro se from a district court order dismissing his copyright infringement action.
- Basile alleged defendants’ films The Dark Knight Rises and Jupiter Ascending infringed his works Crisis on Jupiter and The World of Jupiter.
- The district court dismissed for lack of substantial similarity between protected elements and film elements; general concepts deemed unprotected.
- The court relied on Ninth Circuit law that non-identical, unprotectable elements and scenes-a-faire concepts cannot sustain infringement.
- The court found no reversible error in dismissing without leave to amend due to futility; it properly took judicial notice of the films and rejected Basile’s exhibits as irrelevant to substantial similarity.
- The district court granted Basile’s motions to transmit and deny other motions related to supplementing the record; the disposition affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substantial similarity is shown for copyright infringement | Basile | Defendants | No substantial similarity |
| Whether titles or general concepts can sustain infringement | Basile | Defendants | Titles/concepts unprotectable; not infringed |
| Whether dismissal without leave to amend was proper as futile | Basile | Defendants | Yes, futile to amend |
| Whether the district court properly noticed the films and excluded Basile's exhibits | Basile | Defendants | Proper judicial notice; exhibits irrelevant |
| Whether the district court erred in due process assertion about exhibits | Basile | Defendants | No error |
Key Cases Cited
- Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) (scenes-a-faire cannot sustain infringement)
- Shaw v. Lind heim, 919 F.2d 1353 (9th Cir. 1990) (copying a title does not establish substantial similarity)
- Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) (factors to determine substantial similarity)
- Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (9th Cir. 2006) (absent direct copying, must show substantial similarity)
- Steckman v. Hart Brewing, Inc., 143 F.3d 1293 (9th Cir. 1998) (leave to amend if amendment would be dismissed)
- Chodos v. West Publ’g Co., 292 F.3d 992 (9th Cir. 2002) (standard of review for amendment/review)
- Aceves v. Allstate Ins. Co., 68 F.3d 1160 (9th Cir. 1995) (relevance of exhibits; standard of review)
- Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005 (9th Cir. 2012) (judicial notice standards and review)
- Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010) (de novo review of Rule 12(b)(6) dismissal)