ORDER RE: CBS DEFENDANTS’ MOTION TO DISMISS
Pending before the Court is Defendants CBS Television Distribution, King World Productions, Inc. and Harpo Productions, Inc.’s (collectively the “CBS Defendants’ ”) Motion to Dismiss Plaintiffs’ Jeffery J. Zella and Ross Crystal (“Plaintiffs’ ”) First Amended Complaint, filed on August 24, 2007. Plaintiffs opposed on December 3, 2007, and the CBS Defendants replied on December 10, 2007. The Court finds this matter appropriate for resolution without oral argument and VACATES the January 7, 2008 hearing date. See Fed.R.Civ.P. 78; Local Rule 7-15. The Court GRANTS Defendants’ motion and DISMISSES the CBS Defendants from this case as discussed below.
I. INTRODUCTION AND FACTUAL BACKGROUND
Plaintiffs work in the television and radio media. (Compl. ¶ 25.) In November 2001, Plaintiff Crystal contacted Judy Girard, then the president of the Food Network, about a television show Plaintiffs had created. (Id. ¶ 26.) Plaintiff Crystal sent Ms. Girard a letter on November 30, 2001, submitting for her consideration a copy of a one-page treatment and three-page script for a television show entitled Showbiz Chefs (the “Work”). (Id. ¶28.) Plaintiffs obtained a federal copyright registration for this treatment on December 10, 2001. (Id. ¶ 29, Ex. B.) On December 13, 2001, Ms. Girard rejected Plaintiffs’ idea, but did not return the copy of the treatment and script to them. (Id. ¶30, Ex. C.) On November 5, 2004, the Food Network launched a show called Inside Dish, with host Rachael Ray. (Id. ¶ 34.) 1 Plaintiffs believe that the success of this show sparked interest in creating a syndicated talk show called Rachael Ray. (Id. ¶44.) The show Rachael Ray is a one-hour show distributed by the CBS Defendants that has become a “monster hit” according to Plaintiffs. (Id. ¶ 45.)
Plaintiffs’ treatment of Showbiz Chefs indicates that it is
a 30-minute interview/cooking show featuring celebrities cooking their favorite dishes in their own kitchens. In addition to sharing their favorite recipes, celebrity guests will open their homes to the viewer providing a glimpse into their lifestyles. Along the way, we will gain insights into their latest projects— books, films, television series, etc. Showbiz Chefs will be filmed on lоcation in and around the Los Angeles area and will feature a host/interviewer who will participate with the celebrity guest in the cooking experience. A typical episode may include a quick tour of the home/grounds — a few surprises (such as appearances of another celebrity or family member who may not necessarily be scheduled to appear on the episode) — or a clandestine grocery shopping trip to the local market with the celebrity guest. We inevitably adjourn to the kitchen where the celebrity (with the help of the host turned inept but well meaning sous chef) prepares his/her favorite recipe. The mood is relaxed, informal and fun. We discuss the specific ingredients as well as the history (perhaps a family story) behind the recipe. Showbiz Chefs final segmеnt will feature an interview with the celebrity about his/her latest project in a comfortable setting (somewhere on the grounds) *1127 while the host and celebrity enjoy the celebrity-prepared dish.
(Compl. ¶35, Ex. A.) Plaintiffs’ also submitted to the Food Network a three-page sample script for an episode that hypothetically includes Ray Romano. (Compl., Ex. A.)
Rachael Ray is a talk-style show that featured some episodes with celebrities. For example, Plaintiffs’ Complaint mentions: (1) Episode 1161R with Chris Melo-ni in Ray’s kitchen making Bloody Mary Burgers and discussing Meloni’s role on Law and Order: Special Victims Unit; (2) Episode 1143R featuring former President Bill Clinton discussing childhood obesity as he and Ray prepare a meal in Ray’s kitchen; (3) Episode 1154 with cook Paula Deen, the star of her own show on the Food Network and the author of a number of cookbooks, featuring Deen and Ray preparing Mother’s Day meals; (4) Episode 1153R with late-night talk show host Craig Ferguson, “comparing notes” on Scottish cuisine; and (5) Episode 1002 with Oprah Winfrey in which they prepare pizza and discuss current projects. {Id. ¶ 46.) Plaintiffs also point to three additional episodes in their opposition to the CBS Defendants’ motion: (1) Episode 1007 showing Dr. Phil cooking in his home, without Ray, and then cooking with Ray on the set; (2) Episode 2030 showing chef Bobby Flay in his own kitchen without Ray, then with Ray on set, although they do not cook; and (3) Episode 2048 showing chef Nigella Lawson in her own kitchen without Ray, and then cooking on set with Ray. (Compl. ¶ 46; Declaration of Lee S. Brenner (“Brenner Deck”) ¶¶ 4-10, Exs. A-G; Declaration of Allison Rohrer (“Rohrer Decl.”) ¶¶ 3-8, Exs. A-C.)
Plaintiffs allege that the elements contained in Showbiz Chefs are protectable, as well as “the expressive manner in which Plaintiffs selected, arranged, and combined the protectаble and non-protectable elements of the Work.” (Compl. ¶ 51.) Plaintiffs allege that the CBS Defendants had access to Plaintiffs’ Work and that Rachael Ray is substantially similar and infringing, (Id. ¶¶ 51, 52, 54, 55.) The CBS Defendants have moved to dismiss Plaintiffs’ first claim (and only claim) against them for copyright infringement, arguing that, as a matter of law, Showbiz Chefs does not contain protectable elements and it is not substantially similar to Rachael Ray.
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dept.,
In ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint
(e.g.,
those facts presented in briefs, affidavits, or discovery materials).
See Branch v. Tunnell,
III. THE CBS DEFENDANTS’ EVIDENCE AND REQUEST FOR JUDICIAL NOTICE
A. Copies of Episodes of Rachael Ray
Generally, in ruling on a 12(b)(6) motion, a court cannot consider material outside of the complaint, such as facts presented in briefs, affidavits, or discovery materials.
See Branch v. Tunnell,
The CBS Defendants submit DVD copies of each of the Rachael Ray episodes to which Plaintiffs refer in their Complaint, as well as the episodes mentioned in Plaintiffs’ Opposition, which are collectively Episodes 1161R, 1143R, 1154, 1153R, 1002, 1007, 2030, and 2048. (See Brenner Decl. ¶¶ 4-10, Exs. A-G; Rohrer Decl. ¶¶ 3-8, Exs. A-C.) Defendants also submit DVD copies of Episodes 1006 and 1012 as examples of episodes in which no celebrities appear. (Brenner Decl. ¶¶ 4-5, Exs. A-B.)
Plaintiffs allege that the show
Rachael Ray,
as an ongoing series, infringes on Plaintiffs’
Showbiz Chefs,
so the Court may properly consider the content of the show as a documentary facts “whose contents are alleged in [the] complaint,”
Branch,
B. Judicial Notice of Evidence of Other Cooking Shows
On a motion to dismiss, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201.
See Mir, M.D. v. Little Co. of Mary Hosp.,
The CBS Defendants ask the Court to take judicial notice that the following elements of a television show are common and prevalent in public works: (a) a host; (b) guest celebrities, (c) an interview; and (d) a cooking segment. (Request for Judicial Notice (“RJN”) at 1:7-13.) The Court grants this request because these elements are generally known and can be verified simply by watching television for any length of time. Plaintiffs cannot reasonably question the existence or accuracy of these gеneric elements and, in fact, they concede that the Court “may take judicial notice of the fact that there are and have been numerous TV cooking shows and that TV talk show hosts have frequently involved celebrity guest[s] in cooking.” (Opp’n at 13:7-9.)
The CBS Defendants also ask the Court to judicially notice various specific shows that contain these elements. (Id. at 3 n. 2, Ex. A.) The Court denies this request, however. These shows are not commonly known within this District, nor can their accuracy be verified by the Court, especially since many of them are several years old. Moreover, while Plaintiffs cannot reasonably dispute the generic talk show and cooking show elements of these shows (since one need only watch them to verify that fact), the Court cannot determine whether these shows were ever airеd so as to contribute to the commonplace character of the generic show elements. 3 In any event, for the purposes of determining whether Showbiz Chefs contains protecta-ble elements, the Court need not judicially notice any specific shows containing these generic talk show and cooking show elements because it has judicially noticed the generic character of the elements themselves. Therefore, the Court declines to consider the content of Exhibit A to the CBS Defendants’ Request for Judicial Notice. 4
*1130 IV. ANALYSIS
The CBS Defendants move to dismiss the Complaint against them because, as a matter of law, Showbiz Chefs contains no protectable elements, and there is no substantial similarity between it and Rachael Ray. Plaintiffs oppose on two grounds: (1) the Ninth Circuit does not permit the Court to decide substantial similarity on a motion to dismiss because not аll 150 Rachael Ray episodes are before the Court; and (2) in any event, Rachael Ray is substantially similar to Showbiz Chefs, creating a factual issue that cannot be decided on a motion to dismiss. The Court finds that Showbiz Chefs and Rachael Ray are properly before the Court and the Court can assess substantial similarity as a matter of law. Moreover, the Court holds that Showbiz Chefs and Rachael Ray are not substantially similar as a matter of law and dismisses Plaintiffs’ claim against the CBS Defendants with prejudice.
A. The Court May Assess Copyright Infringement as a Matter of Law on the CBS Defendants’ Motion to Dismiss.
Courts have the power to dismiss complaints that either lack a cognizable legal theory or fail to allege sufficient facts to establish the elements of a valid claim for relief.
Balistreri,
Recently, a court in the Northern District of California found no obstacle to addressing substantial similarity as a matter of law:
[P]laintiffs make much of the procedural argument that decisions as to copyright infringement—and in particular, substantial similarity issues—are not proper on 12(c) motions for judgment on the pleadings. Plaintiffs are correct that many times, the issue of substantial similarity is not amenable to resolution without a trial.... However, summary judgment may be granted’ if the evidence in the record, combined with every inference reasonably drawn in favor of the non-moving party, demonstrates that no reasonable jury could find substantial similarity_It follows, therefore, that judgment on the pleadings may be granted where the facts asserted by the non-moving party in its pleadings—including the attached works themselves—and all reasonable inferences from those facts, show the absence of substantial similarity.
Identity Arts v. Best Buy Ent. Servs. Inc.,
Plaintiffs do not necessarily challenge the Court’s power to rule on the CBS Defendants’ motion to dismiss. Rather, they claim that, because the Court does not have all 150 episodes before it, the above authorities are inapplicable and the Court cannot assess substantial similarity on a motion to dismiss. The Court rejects this contention. Plaintiffs concede that the Court may consider documents incorporated by reference into a complaint.
Branch,
*1132 Plaintiffs’ speculation that some episodes of Rachael Ray not before the Court may contain infringing content does not defeat the CBS Defendants’ motion. First, Plaintiffs claim they have viewed “many, but not all” of those episodes. If true, as masters of their Complaint, Plaintiffs must allege the best facts for their case. Presumably, Plaintiffs have done so by alleging the contеnt of the episodes they believe most substantially resemble Showbiz Chefs, and have even augmented that showing with three additional episodes to which they refer in their opposition brief. That they now suggest that the Court review every episode to save their claims would waste substantial judicial resources undertaking a task Plaintiffs should have undertaken themselves. The Court will not perform Plaintiffs’ work for them and review all 150 episodes to select those which infringe on Plaintiffs’ copyrights.
Plaintiffs cite no authority that the Court may not base its ruling on the eight episodes presented to it. In fact, in
Funky Films, Inc. v. Time Warner Entertainment Co.,
the Ninth Circuit considered a copyright infringement claim involving the television show
Six Feet Under.
The policy concerns here are particularly acute because Plaintiffs allege that an entire show—made up of individual episodes—infringes on their copyright. Finding that the Court must have all episodes before it to rule on a motion to dismiss would essentially give Plaintiffs a free pass to the summary judgment stage. In other words, future plaintiffs alleging copyright infringement in ongoing works (i.e., book series or television series), could evade dismissal simply by alleging infringement from common elements by citing only a handful of specific examples in the Complaint. The decision in Funky Films implicitly precluded this result. The Court is satisfied that the eight episodes submitted by Defendants accurately reflect the content of the Rachael Ray show sufficiently to rule on the CBS Defendants’ motion.
B. Plaintiffs Have Failed to State a Claim fоr Copyright Infringement Over Rachael Ray.
To state a claim for copyright infringement, Plaintiffs must allege: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”
Feist Publ’ns, Inc. v. Rural Tele. Serv. Co.,
Here, the CBS Defendants do not meaningfully challenge Plaintiffs’ allegations of access because, even if access is present, Plaintiffs cannot state a claim if substantial similarity is lacking.
See, e.g., Krofft Tele. Prods, v. McDonald’s Corp.,
To assess substantial similarity as a matter of law, the Court must apply the objective “extrinsic test.”
Funky Films,
1. The Generic Elements of a Talk/Cooking Show Are Not Protectable.
In applying the extrinsic test, the Court “must take care to inquire only whether the
protectable elements, standing alone,
are substantially similar.”
Funky Films,
Plaintiffs here do not claim that the individual generic elements of cooking shows and talk shows—i.e., a host, guest celebrities, an interview, and a cooking segment—are protectable elements of
Showbiz Chefs.
Nor сould they, since “[n]o one can own the basic idea for a story. General plot ideas are not proteet-
*1134
ed by copyright law; they remain forever the common property of artistic mankind.”
Berkic v. Crichton,
Plaintiffs’ unscripted program does not alter this analysis. For example, in
Bethea v. Burnett,
the court reviewed the two “plots” of the reality-based shows
C.E.O.
and
The Apprentice.
[a]t the most abstract level, or at the level of “ideas,” there is some similarity between C.E.O. and The Apprentice. For example, Plaintiffs claim that the “plot” of both reality television programs is similar because both programs depict a group of dynamic contestants from varied backgrounds competing in business challenges in a dynamic corporate environinent for promotions and benefits and, ultimately, a real job as a top-level executive of a corporation ..., However, Plaintiffs’ allеged similarity is nothing more than a string of generic “ideas” which is not protected by copyright law.
Id.
at *11. Notably, courts have denied protection to the generic elements of a host and of conducting interviews about particular topics.
See, e.g., id.
at *13 (noting that “Plaintiffs cannot copyright the idea of having a well-known business leader, or even more specifically Donald Trump, host a reality television program.”);
Bell,
The stock elements of a host, guest’ celebrities, an interview, and a cooking segment can also be characterized as unprotected
scenes a faire,
or “situations and incidents which flow naturally from [the] basic plot premise” of a cooking- and home-related talk show.
Berkic,
*1135 Here, any similarities from Plaintiffs’ Showbiz Chefs and the CBS Defendants’ Rachael Ray axe scenes a faire that naturally flоw from the interview and talk-show format. For example, discussion of the celebrity’s current projects is a natural outgrowth of a talk show. So is a tour of the celebrity’s home, including the kitchen, especially in the context of a “lifestyle” show like Rachael Ray. Cooking segments may individualize the talk-show structure somewhat, but they still represent the outgrowth of the generic talk show, especially when the host can, in fact, cook. The alleged specific similarities of two shows with cooking, interviewing celebrities, and discussing celebrity projects are scenes a faire not protected by copyright law.
Similarly, the doctrine of “merger” precludes protection for these elements expressed in the standard form of a talk show. “[W]hen the idea and the expression are indistinguishable, or ‘merged,’ the expression will only be protected against nearly identical coрying.”
Apple Computer, Inc. v. Microsoft Corp.,
Here, there are only a finite number of ways in which to express the idea of a talk/cooking show with celebrities. Placing the host in a studio, inviting celebrity guests into the studio, and discussing current projects is naturally expressed by having thе sort of common talk show format present in Rachael Ray. Presenting segments in which the host and celebrities cook in the studio is also only one of a limited number of ways to express the idea of a cooking show. As the court in dick dark stated, the formats of Showbiz Chefs and Rachael Ray may look similar, but so does every talk show to some extent. Extending copyright protection over the generic format of a cooking'talk show would stretch the bounds of copyright law beyond what it was intended to cover. As a result, Plaintiffs cannot establish infringement over these basic elements of a talk show/cooking show.
2. Any Protectable Elements in Plaintiff’s Show Are Dissimilar to Rachael Ray.
Even assuming some elements of Plaintiffs’ Show are protectable,
Showbiz Chefs
is not substantially similar to
Rachael Ray.
Again, the Court must apply the objective “extrinsic test” and determine whether there are “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in
Showbiz Chefs
and
Rachael Ray. Funky Films,
a. Plot
“Plot” is defined at the “sequence of events by which the author-expresses his theme or idea” that is sufficiently concrete to warrant a finding of substantial similarity if it is common in both works. 4 Nimmer on Copyright § 13.03[A][l][b], at 13-42 (2003). Although not a “plot,” the sequencing of Showbiz Chefs and Rachael Ray contain no true similarity outside of the commonplace elements discussed above. The only commonalities are the talk show format that features a host, guest celebrities, and cooking. Rachael *1136 Ray contains segments on shopping, gift-giving, parenting, relationships, and fashion, along with cooking segments, either with Rachael Ray alone or with a guest, but always in the studio. Showbiz Chefs, however, features segments set almost exclusively in the celebrity’s home, whether the host and celebrity are in an interview, eating, or cooking (exсept for a clandestine trip to the supermarket). While Rachael Ray sometimes includes a segment of a celebrity cooking alone in his or her home, this acts as more of an introduction to the segments set in the studio, rather than the centerpiece of the show. In short, the ordering of segments in Rachael Ray does not resemble the ordering in Showbiz Chefs.
b.Theme
Showbiz Chefs contains no real discerna-ble theme, while Rachael Ray is more of a “lifestyle” show that includes cooking segments. For example, host Rachael Ray dispenses household advice on myriad topics like shopping, fashion, and parenting, while at the same time inviting celebrities to discuss these topics or to share their own experiences. The “theme” includes what the CBS Defendants call a “can do” attitude, i.e., “if you try, you can do it” and presenting solutions to everyday problems. (Mot. at 21:19-21.) As the CBS Defendants describe the show, “Rachael Ray provides this inspirational ‘сan do’ message and advice to those who need help — e.g., to mothers who do not think that they have the time or ability to make a family dinner, to women with low self-esteem and bad shopping habits, to those who need to redecorate their homes, to those who do not know how to cook a healthy meal for their children, to those who need to buy gifts on a tight budget, to those who need wedding advice, and to those who need fashion advice,” (Id. at 21:20-27.)
The Court agrees with the CBS Defendants’ essential point that the Rachael Ray show is more of a general lifestyle show than simply a cooking show featuring celebrities. Showbiz Chefs, in contrast, is much more specialized, seeking apparently to entertain the audience with celebrity interviews and perhaps impart some knowledge of cooking in the process. The themе seems to be an invitation to look inside celebrity homes, and perhaps get a glimpse of celebrity lifestyles. The focus, however, is not on the lifestyles of the viewers or audience. As such, the themes of the two shows appear to differ substantially.
c.Dialogue
The dialogue in Raphael Ray does not resemble the dialogue in Plaintiffs’ three-page script for Showbiz Chefs.
d.Mood
The CBS Defendants implicitly concede that the mood of
Rachael Ray
and
Showbiz Chefs
is almost identical. Plaintiffs describe
Showbiz chefs
as “relaxed, informal and fun.” (FAC, Ex. A.)
Rachael Ray
evokes a similar mood. The upbeat mood flowing from a cooking/talk show, however, is merely another example of
scenes a faire
and merger, common to all cooking/talk shows (indeed, it is difficult to imagine a somber show of this nature).
See Rice,
*1137 e.Setting
The setting of the two shows is generally different. Showbiz Chefs takes place exclusively within a celebrity’s home (and perhaps a trip to the market), while Rachael Ray takes place in a studio with a live studio audience, which plays a role in the format of the show. Sometimes Rachael Ray episodes contain segments of celebrities cooking in their own homes, but, as noted above, the celebrities are alone and these scenes are minor introductions to the larger in-studio segments with the celebrities. While this may result in some overlap between the shows, it is not enough for a reasonable jury to find that the shows are substantially similar,
f.Characters
The central “characters” in each show are the hosts and the celebrities. As discussed above, the generic idea to have a host is not protectable,
see Bethea,
g.Sequence of Events
As discussed in the context of plot, the segment sequencing in Rachael Ray does not resemble the structure of Showbiz Chefs. Showbiz Chefs includes two large segments in which the host cooks with and then interviews the celebrity in the celebrity’s home. Plaintiffs have not pointed out any episodes of Rachael Ray in which this sequence occurs, and in fact, the topics in each Rachael Ray episode change and the show does not follow any set format. Some episodes feature no celebrities at all. No reasonable jury could conclude that the sequence of events in the two shows is substantially similar.
Each factor relevant to the extrinsic test militates so strongly in the CBS Defendants’ favor that no reasonable jury could conclude that Rachael Ray and Showbiz Chefs are substantially similar.
3. Plaintiffs Have Failed to State a Claim under Metcalf v. Bochco.
Plaintiffs concede that
Showbiz Chefs
contain a number of generic elemеnts that are not protectable. (Opp’n at 13:7-18.) The Court has also concluded that any potentially protectable elements of
Showbiz Chefs
are not substantially similar to
Rachael Ray.
Despite this, Plaintiffs contend that, even if the component parts of
Showbiz Chefs
are not protectable (or, if the protectable elements are dissimilar to
Rachael
Ray), “the particular sequence in which they place a number of elements (each of which individually may be unpro-tect[a]ble) can itself be a protect[a]ble element,” citing
Metcalf v. Bochco,
In Metcalf, the Ninth Circuit determined that “[t]he particular sequence in which an author strings a significant number of unprotectable elements can itself be *1138 a protectable element.” Id. at 1074 (“Each note on a scale, for example, is not protect-able, but a pattern of notes in a tune may earn copyright protection.”) (emphasis added). This holding was based on the “striking” similarities between the plaintiffs’ and defendants’ works:
Both the Metcalf and Bochco works are set in overburdened county hospitals in inner-city Los Angeles with mostly black staffs. Both deal with issues of poverty, race relations and urban blight. The works’ main characters are both young, good-looking, muscular black surgeons who grew up in the neighborhood where the hospital is located. Both surgeons struggle to choose between the financial benefits of private practice and the emotional rewards of working in the inner city. Both are romantically involved with young professional women when they arrive at the hospital, but develop strong attractions to hospital administrators. Both new relationships flourish and culminate in a kiss, but are later strained when the administrator observes a display of physical intimacy between the main character аnd his original love interest. Both administrators are in their thirties, were once married but are now single, without children and devoted to their careers and to the hospital. In both works, the hospital’s bid for reaccreditation is vehemently opposed by a Hispanic politician.
Id. at 1073-74. As a result of this resemblance, a jury “could easily infer that the many similarities between plaintiffs’ scripts and defendants’ work were the result of copying, not mere coincidence.” Id. at 1075.
Many courts have been reluctant to expand this concept beyond the clear-cut case presented in
Metcalf. See, e.g., Identity Arts,
Here, Plaintiffs fail to point to any string of unprotected elements in
Rachael Ray
that resembles
Showbiz Chefs
in the sort of magnitude contemplated by the
Metcalf
court. Rather, Plaintiffs point out random similarities between
Showbiz Chefs
and
Rachael Ray
to support their
Metcalf
claim. Courts have routinely rejected
Metcalf
claims over random similarities.
See, e.g., Flynn v. Surnow,
Plaintiffs’ claimed similarities between Rachael Ray and Showbiz Chefs consist of randomly selected similarities of generic elements: “Showbiz Chefs paints a television show where in each episode the host engages a celebrity in a home or restaurant setting, with cooking that is personal *1139 to the guest and provides the audience a glimpse into their lifestyles.” (Opp’n at 11:4-6.) 9 These random elements (i.e., a talk show, cooking, a host, a celebrity, and kitchens) appear at different points in Showbiz Chefs and Rachael Ray and Plaintiffs cannot merely cobble them together to make a Metcalf argument. To do so would give Plaintiffs a monopoly over these generic elements expressed as a television talk show featuring celebrity guests and cooking. Therefore, the Court rejects Plaintiffs’ attempt to bring their claim under Metcalf
V. CONCLUSION
The Court finds that it may rule on Plaintiffs’ copyright claim against the CBS Defendants as a matter of law. They have attached to their Complaint the one-page synopsis and three-page script for Showbiz Chefs, so the Court may consider it on a motion to dismiss. The Court may also consider the Rachael Ray show, as its content comprises the basis for Plaintiffs’ claim and the CBS Defendants have, provided copies of episodes. The Court holds that no reasonable jury could conclude that Rachael Ray is substantially similar to any protectable elements of Showbiz Chefs or to the order in which Plaintiffs have presented non-protectable elements in Showbiz Chefs.
Therefore, the Court GRANTS the CBS Defendant’s Motion to Dismiss and DISMISSES with prejudice Plaintiffs’ first claim for copyright infringement against them. Because Plaintiffs allege no other claims against the CBS Defendants, the Court DISMISSES Defendants CBS Television Distribution, King World Productions, Inc. and Harpo Productions, Inc. from this case.
IT IS SO ORDERED.
Notes
. Inside Dish is not the subject of the instant motion.
. The "content” of the ongoing Rachael Ray show are its episodes, which the Court may properly consider under the rule in Branch. Plaintiffs concеde that the episodes provide the infringing content by citing specific episodes in their Complaint as examples of infringement. (Compl. ¶¶ 45-46.)
. The CBS Defendants’ citations to contrary authority does not persuade the Court to rule otherwise.
See, e.g., Sobhani v. @radical.media Inc.,
. For these same reasons, the Court also declines to notice Exhibits B, C, D, E, F, G, and H attached to the CBS Defendants’ Request *1130 for Judicial Notice, and Exhibit A attached to the CBS Defendants’ Notice of Lodging, as these exhibits also purport to evidence the commonplace and generic nature of the talk show and cooking show elements.
. Plaintiffs attempt to discount the CBS Defendants' reliance on this case because it was a motion for judgment on the pleadings, not a motion to dismiss. However, the legal standard for these motions is identical, the only difference being the stage in the case at which they are brought.
See Qwest Commc’ns Corp.
v.
City of Berkeley,
. The Eleventh Circuit has explained the rationale behind the Ninth Circuit’s "incorporation by reference” doctrine as follows:
[T]he rationale is that when a plaintiff files a complaint based on a document but fails to attach that document to a complaint, the defendant may so attach the document, and *1132 therefore, the document, as one that could have or rather in fairness should have been attached to the complaint, is considered part of the pleadings and thus may be reviewed at the pleading stage without converting the motion into one fоr summary judgment. In short, the theory is that such a document is not "outside the pleadings,” and thus it may be considered at the 12(b)(6) stage without a transformation into the summary judgment posture[.]
Bryant v. Avado Brands, Inc.,
. The CBS Defendants do not challenge Plaintiffs' allegations that they own a valid copyright in Showbiz Chefs.
. The substantial similarity inquiry generally requires the application of both an “extrinsic test” and "intrinsic test.”
Funky Films,
. The Court notes that this description of Showbiz Chefs is misleading at best. Plaintiffs’ treatment and script does not depict a show set in any "home”, but specifically in the celebrity’s home, and does not mention a restaurant setting at all.