201 F. Supp. 3d 1158
C.D. Cal.2016Background
- Plaintiffs allege copyright infringement of OffSeason materials (Trailer, 10 Minute Trailer, Screenplay, Treatment) and related works by Defendants, arising from Bailers, a HBO series.
- Plaintiffs allege ownership of four copyright works based on the same plot/characters; materials registered with the Copyright Office.
- Defendants movant to dismiss contend Bailers and the Materials are not substantially similar under the extrinsic test; intrinsic similarities are insufficient.
- Defendants request judicial notice and consideration of materials outside the complaint (the Bailers series and the Materials) for the 12(b)(6) ruling.
- Court allows consideration of the Materials and Bailers content as documentary facts and denies some requests for judicial notice of common genre elements.
- Case involves high-access theory (inverse ratio rule) due to alleged access to the Materials by Defendants; the Court applies that framework to evaluate substantial similarity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Materials and Bailers are substantially similar under the extrinsic test | Silas/Littleton contend substantial similarity exists in protectible elements. | Defendants argue only unprotectible elements and differences exist; no substantial similarity. | No substantial similarity; dismissal granted. |
| Whether the inverse ratio rule applies given high access | Plaintiffs argue high access justifies a lower proof standard. | Defendants argue standard analysis suffices; inverse ratio may apply. | Inverse ratio rule applies; extrinsic similarity not shown. |
| Whether the court may consider the Materials and Bailers content for ruling | Court should compare Bailers script to Materials, not Bailers TV series. | Court may consider Materials and Bailers as referenced and publically verifiable. | Court may consider Materials and Bailers content as documentary facts. |
| Whether Plaintiffs’ purported similarities in plot, setting, and characters show protectible expression | Plaintiffs identify multiple similarities across plot, setting, characters. | Similarities are unprotectible ideas or generic elements; not substantial. | Protectible elements are not substantially similar; claims fail. |
Key Cases Cited
- Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) (extrinsic/intrinsic similarity framework for copyright)
- Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) (scenes-a-faire and protectible expression limits)
- Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) (intrinsic vs extrinsic similarity; jury question on theme/feel)
- Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (Metcalf: many generic similarities can satisfy extrinsic test)
- DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015) (three-part test for protected character elements)