Martina D. Evans v. Morgan Avery McCoy-Harris et al

NOTICE OF MOTION AND MOTION to Dismiss Plaintiff's Second Amended Complaint Pursuant to Fed. R. Civ. P. 12

C.D. Cal.Feb 15, 2019

DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP Ian C. Ballon (SBN CA 141819) ballon@gtlaw.com Lori Chang (SBN CA 228142) changl@gtlaw.com 1840 Century Park East, Suite 1900 Los Angeles, California 90067-2121 Telephone: (310) 586-7700 Facsimile: (310) 586-7800 Attorneys for Defendant FARAH COCOA BROWN UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA MARTINA D. EVANS, Plaintiff; v. MORGAN AVERY MCCOY-HARRIS, FARAH COCOA BROWN, and DOES 1 through 10, inclusive, Defendants. Case No. 2:17-cv-08345-DMG-AGRx DEFENDANT FARAH COCOA BROWN’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Proposed Order] Date: March 29, 2019 Time: 9:30 a.m. Dept: Courtroom 8C Judge: The Honorable Dolly M. Gee Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 1 of 20 Page ID #:552 i DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page NOTICE OF MOTION AND MOTION TO DISMISS…………………………………………….….1 MEMORANDUM OF POINTS AND AUTHORITIES……….………………………………….…...2 I. INTRODUCTION ...................................................................................................................... 2 II. PLAINTIFF’S SECOND AMENDED COMPLAINT ALLEGATIONS .................................. 3 III. LEGAL STANDARD ................................................................................................................. 6 IV. PLAINTIFF STILL FAILS TO STATE A CLAIM OF COPYRIGHT INFRINGEMENT AGAINST MS. BROWN............................................................................. 6 A. Plaintiff Fails to Plausibly Allege Ms. Brown Had “Access” to Her Screenplays ............ 7 B. Plaintiff Fails to Plausibly Allege That Finding Boaz is “Substantially Similar” to Either of her Screenplays ............................................................................................ 9 1. Plaintiff Has Not Plausibly Alleged Substantial Similarity to Three Weekends in June Because the SAC Fails to Describe this Work at All .......... 10 2. Plaintiff’s Alleged Similarities Between Four Sundays in Spring and Finding Boaz Consist Entirely of Unprotectable Plot Ideas, Generic Characters, or Scènes à Faire ............................................................................ 10 3. The Few Details Alleged Reveal Objective Differences ........................................ 13 V. THE COURT SHOULD DISMISS WITH PREJUDICE ......................................................... 14 VI. CONCLUSION ......................................................................................................................... 15 Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 2 of 20 Page ID #:553 ii DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138 (9th Cir. 2009) .......................................................................................................7, 9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........................................................................................................................6 Astor-White v. Strong, No. 15-6326, 2016 WL 1254221 (C.D. Cal. Mar. 28, 2016), rev’d on other grounds, 733 F. App’x 407 (9th Cir. 2018) ..................................................................................8, 9 Basile v. Warner Bros. Entm’t, Inc., No. 15-5243-DMG, 2016 WL 5867432 (C.D. Cal. Jan. 4, 2016) (Gee, J.), aff’d, 678 F. App’x 604 (9th Cir. 2017) .......................................................................................11, 12, 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................................................................................................6 Benay v. Warner Bros. Entm’t, 607 F.3d 620 (9th Cir. 2010) .............................................................................................................3 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) .........................................................................................9, 10, 11, 12 Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043 (C.D. Cal. 2010) ..........................................................................................12 Cavalier v. Random House, Inc., 297 F.3d 815, 824 (9th Cir. 2002)………………………………………………………………...11 Chappel v. Lab. Corp. of Am., 232 F.3d 719 (9th Cir. 2000) ...........................................................................................................14 Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) .............................................................................................................6 DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015) .........................................................................................................12 Fillmore v. Blumhouse Prods., LLC, No. 2:16-CV-04348-AB, 2017 WL 4708018 (C.D. Cal. July 7, 2017) ..........................................14 Foman v. Davis, 371 U.S. 178 (1962) ........................................................................................................................14 Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 3 of 20 Page ID #:554 iii DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gallagher v. Lions Gate Entertainment Inc., 2:15-cv-02739, 2015 WL 12481504 (C.D. Cal. Sep. 11, 2015) .....................................................11 Gardner v. Chevron Capital Corp., 715 F. App’x 737 (9th Cir. 2018) ...................................................................................................14 Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) ...............................................................................................................15 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) ...........................................................................................................3 Marcus v. ABC Signature Studios, Inc., 279 F. Supp. 3d 1056 (C.D. Cal. 2017) .................................................................................. passim Mintz v. Subaru of Am., Inc., 716 F. App’x 618 (9th Cir. 2017) .....................................................................................................7 Moore v. United States, 193 F.R.D. 647 (N.D. Cal. 2000) ....................................................................................................15 MultiCraft Imports, Inc. v. Mariposa USA, Inc., No. CV 16-3975, 2017 WL 5664996 (C.D. Sept. 14, 2017) ..........................................................10 Pham v. Starkey, No. 16-05959-ODW, 2018 WL 287168 (C.D. Cal. Jan. 3, 2018) ..................................................15 Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) .......................................................................................................6, 9 Rentmeester v. Nike, Inc., 883 F.3d 1125 (9th Cir. 2018) .....................................................................................................3, 14 Schkeiban v. Cameron, No. 12-0636-R, 2012 WL 12895722 (C.D. Cal. May 10, 2012) ..................................................8, 9 Shame on You Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123 (C.D. Cal. 2015), aff’d, 690 F. App’x 519 (9th Cir. 2017) ..............11, 13, 14 Silas v. Home Box Office, Inc., 201 F. Supp. 3d 1158 (C.D. Cal. 2016), aff’d, 713 F. App’x 626 (9th Cir. 2018) ......................9, 15 Wild v. NBC Universal, Inc., 788 F. Supp. 2d 1083 (C.D. Cal. 2011), modified, 2011 WL 13272427 (C.D. Cal. June 28, 2011), aff’d, 513 F. App’x 640 (9th Cir. 2013) ................................................................12 Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124 (C.D. Cal. 2007) ......................................................................................9, 15 Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 4 of 20 Page ID #:555 iv DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rules FED. R. CIV. P. 15(a)(2) .........................................................................................................................14 Rule 8 ....................................................................................................................................................15 Rule 12(b)(6) ...........................................................................................................................................6 Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 5 of 20 Page ID #:556 1 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 29, 2019 at 9:30 a.m., or as soon thereafter as the matter may be heard, before the Honorable Dolly M. Gee, Courtroom 8C of the United States District Court for the Central District of California, located at 350 West 1st Street, Los Angeles, CA, 90012, defendant Farah Cocoa Brown, through counsel, will and hereby does respectfully move for an order dismissing plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6). This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities in support thereof, all pleadings and papers on file in this action, and such other written or oral argument as may be properly presented to the Court at the hearing. This motion is made following the conference of counsel pursuant to Local Rule 7-3, which took place on February 5, 2019. Respectfully submitted, DATED: February 15, 2019 GREENBERG TRAURIG, LLP By: Lori Chang Ian C. Ballon Lori Chang Attorneys for Defendant Farah Cocoa Brown Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 6 of 20 Page ID #:557 2 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff, an attorney and alleged screenwriter, filed this suit claiming that Defendant Farah Cocoa Brown, an actress-comedienne, infringed Plaintiff’s copyrights in two screenplays, Four Sundays of Spring and Three Weekends In June, by allegedly promoting and co-starring in the film Finding Boaz. Ms. Brown has already twice moved to dismiss and Plaintiff has already twice amended her complaint. The Court dismissed Plaintiff’s First Amended Complaint (“FAC”) for failing to plausibly allege that Ms. Brown engaged in any copying of her alleged screenplays, finding that only co-defendant Ms. McCoy-Harris, and not Ms. Brown, was alleged to have access to the screenplays. Dkt. 71 at 4. In addition, the Court ruled that Plaintiff failed to plead facts establishing substantial similarities with respect to protectable elements of Plaintiff’s alleged works. Id. at 5. The Second Amended Complaint (“SAC”) is Plaintiff’s third attempt, and third failure, to cure these defects. Despite being given considerable time and a de facto roadmap for pleading her claim from the Court’s prior orders, Plaintiff still fails to plausibly allege facts that state a claim against Ms. Brown. First, Plaintiff’s continued failure to plausibly allege access to her screenplays by Ms. Brown underscores that her claim against Ms. Brown are wholly speculative, lacking in any factual support, and warrants dismissal with prejudice. Indeed, the SAC makes clear that Plaintiff’s purported “belief” that Ms. Brown had greater involvement as a producer of Finding Boaz is based entirely on a press photo of Ms. McCoy Harris with Ms. Brown that was taken at a screening of the film. SAC ¶ 42. But the article itself (SAC Ex. 14) describes Ms. Brown as an “actress” in the film (compared to Ms. McCoy-Harris, who was noted as a “[p]roducer-actress”), and does not give rise to any inference that Ms. Brown was involved in the alleged copying of Plaintiff’s screenplays. In dismissing Plaintiff’s FAC, the Court concluded that it offered “no clear theory” regarding access by Ms. Brown. The SAC fares no better. Plaintiff alleges no facts to support access by Ms. Brown. Instead, the new allegations in the SAC address access only by Ms. Morgan McCoy-Harris and a newly identified third party, Keisha Afrika Oliver, both of whom were alleged to have received copies of Plaintiff’s screenplays when they played “lead” roles in Plaintiff’s prior works. SAC ¶¶ 12-13, 26. Just as before, Ms. Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 7 of 20 Page ID #:558 3 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brown is alleged only to have starred in and promoted Finding Boaz and is not alleged to have had any involvement in Plaintiff’s prior films. As the case law bears out, alleging access by others does not plausibly allege access by Ms. Brown. Plaintiff’s copyright claim should be dismissed against Ms. Brown on this basis alone. Second, Plaintiff’s claim fails for the additional, independent reason that she has not and cannot plead any facts establishing that Finding Boaz is substantially similar to the protectable elements of her screenplays. Plaintiff’s FAC failed to describe her own screenplays or Finding Boaz at all, let alone identify any similarities between them. The SAC points only to high-level similarities in plot, characters, scènes à faire and common literary constructs that the Ninth Circuit has long held are unprotectable under the Copyright Act. Benay v. Warner Bros. Entm’t, 607 F.3d 620, 629 (9th Cir. 2010). The few concrete details alleged by Plaintiff actually demonstrate marked differences between Finding Boaz and her screenplays. The Court can appropriately apply the extrinsic test at the pleading stage and should dismiss Plaintiff’s claim for failing to plausibly allege substantial similarity. See, e.g., Rentmeester v. Nike, Inc., 883 F.3d 1125 (9th Cir. 2018) (affirming the district court’s motion to dismiss with prejudice where the alleged infringing works were not substantially similar). This pro se case is yet another unfortunate example of copyright suits premised “partly upon a wholly erroneous understanding of the extent of copyright protection” and “partly upon that obsessive conviction, so common among authors and composers, that all similarities between their works and any others which appear later must inevitably be ascribed to plagiarism.” Litchfield v. Spielberg, 736 F.2d 1352, 1358 (9th Cir. 1984) (affirming summary judgment of no substantial similarity). Because Plaintiff still fails to allege sufficient facts to state a claim for copyright infringement after multiple opportunities to amend, and because any further amendment would be futile, the SAC should be dismissed with prejudice. II. PLAINTIFF’S SECOND AMENDED COMPLAINT ALLEGATIONS Plaintiff alleges she is the author, screenwriter, and copyright owner of the screenplays Three Weekends in June, a “short,” and Four Sundays in Spring, a feature-length work. SAC ¶¶ 3, 10, 18- 19. Plaintiff further alleges that she federally registered her copyright in these works on September Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 8 of 20 Page ID #:559 4 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10, 2009 and August 26, 2010, respectively. Id. ¶¶ 18-19. Plaintiff claims that the film Finding Boaz infringes her copyrights in both screenplays because it “prominently features significant similarities and/or portions of Plaintiff’s screenplays . . . without authorization from Plaintiff.”1 Id. ¶ 4. The only facts alleged regarding access are aimed at Defendant Morgan McCoy-Harris, who starred in one of Plaintiff’s films. Ms. McCoy-Harris is an actress who played a “lead role” in Four Sundays in Spring. Id. ¶ 12.2 Plaintiff alleges that she shared the script for Four Sundays in Spring with Ms. McCoy-Harris and “provided her with copies of the screenplay at various times” in connection with auditions and production for the film. Id. ¶¶ 26, 28-29. As a result, Plaintiff alleges, Ms. McCoy-Harris had “direct access” to the script. Id. ¶ 52. Plaintiff further alleges that Ms. McCoy-Harris later went on to “writ[e], film[], produc[e], promot[e], and/or screen[]” Finding Boaz. Id. ¶ 32. By contrast, Ms. Brown is not alleged to have received a copy of the screenplays. Nor is she alleged to have been involved in the prior works. Ms. Brown is alleged only to have co-starred in Finding Boaz alongside Ms. McCoy-Harris. Id. ¶ 11. Ms. Brown is an actress and comedienne best known for her role in director Tyler Perry’s sitcom, For Better or Worse. See id. Plaintiff does not allege that Ms. Brown played any role in the creation or filming of her two works, that she ever shared a script for either work with Ms. Brown, or that she ever previously worked with Ms. Brown. In an effort to overcome the deficiencies in her prior complaints—which did not describe Plaintiff’s works or Finding Boaz at all—Plaintiff now sets forth a “chart of [alleged] similarities.” See id. ¶ 53. Notably, the chart compares only Four Sundays in Spring and Finding Boaz; it does not address Three Weekends in June, and there is nothing else in the SAC that discloses what Three Weekends in June is about. See SAC ¶ 53 (chart’s first column referring only to “Original feature”). As best one can piece together from this chart, Four Sundays in Spring tells the story of Jade, who is “distraught” from “dealing with [the] crisis of [a] breakup with [her] longtime boyfriend” and is 1 As in her FAC, Plaintiff provides a link to a YouTube video that she alleges is an “advertisement” or “trailer” for Finding Boaz. SAC ¶ 31. But this link continues to be broken, and no other facts are alleged that would demonstrate infringement on the basis of this trailer. See YouTube, https://www.youtube.com/watch?v=7Yv8sRkf-no (“Video unavailable”) (last visited Jan. 31, 2019). 2 Plaintiff also alleges that non-party Keisha Afrika Oliver was the “lead actress” in Three Weekends in June and that Plaintiff provided Ms. Oliver “with a copy of the Infringed Short screenplay.” Id. ¶ 13. But Plaintiff fails to connect these alleged facts to Ms. Brown, who is not alleged to have had any involvement in the prior films. Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 9 of 20 Page ID #:560 5 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “desperate to find a husband before her biological clock runs out.” Id. She “enlists the help of her friends and sister” (Stephanie, Shane, and Ivory) to help her find a husband, and together they “undertake a course of four events during ‘Four Sundays In Spring’” such as “attend[ing] a widow’s support group to find a husband” and “see[ing] a fortune teller.” Id. By contrast, Finding Boaz is the story of Torrey Young, who is “dealing with the crisis of [a] failed engagement” and is “desperate to meet a man.” Id. She “accepts help from her cousin, Nell,” who “enrolls [her] and [her] friends in ‘How to Catch a Man School’” and has Torrey “dress[ing] up [and] taking a trip to the hardware store to attract a husband.” Id. Through their journey of trying to find a man for Torrey, Nell “teaches Torrey about beauty secrets, men, life in general, etc.” Id. Besides these generalized characterization of the overall plotlines, the chart alleges that Four Sundays in Spring and Finding Boaz are substantially similar because they both: feature a “professional, classy” African-American protagonist whose marital status is “single”; are set in the “contemporary” tri-state area of Maryland, Virginia, and Washington, D.C.; are in “English”; use dialogue exhibiting “tones of endearment”; include “friends” alongside the main character; employ “unconventional (yet comical)” antics; and utilize both “casual and wedding attire.” Id. The remaining new allegations (and exhibits) in the SAC are irrelevant. They describe Plaintiff’s process of casting for Four Sundays in Spring, her vacillation over selecting Ms. McCoy- Harris as the lead for the film, and the actions she took after concluding that Finding Boaz (allegedly) infringed her copyrights—such as sending emails and cease-and-desist letters. See id. ¶¶ 20-27, 33- 42. Based on these sparse allegations and generic “similarities,” Plaintiff claims that Ms. Brown engaged in the “blatant and purposeful infringement of the copyright in Plaintiff’s screenplays.” Id. ¶ 1. The SAC repeatedly lumps together “Defendants” without distinguishing between Ms. McCoy- Harris and Ms. Brown, alleging that “Defendants have filmed, edited, produced, promoted, advertised, marketed, screened, submitted to festivals, sold, distributed and profited from and/or received and solicited funds and/or donations” for Finding Boaz. Id. ¶ 4. Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 10 of 20 Page ID #:561 6 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. LEGAL STANDARD To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A “formulaic recitation of the elements of a cause of action” will not suffice, and a plaintiff must offer “more than labels and conclusions” in support of her claim. Twombly, 550 U.S. at 555. On a motion to dismiss, the court must accept the complaint’s factual allegations, but is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). As with any other type of claim, courts may dismiss copyright claims at the pleading stage when those claims are deficient on their face. See Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir. 2018) (affirming dismissal at the pleading stage of copyright infringement claim). IV. PLAINTIFF STILL FAILS TO STATE A CLAIM OF COPYRIGHT INFRINGEMENT AGAINST MS. BROWN To state a claim for copyright infringement, a plaintiff must plausibly allege: (1) that she owns a valid copyright and (2) that the defendant copied protected elements of the copyrighted work. Rentmeester, 883 F.3d at 1116-17; Marcus v. ABC Signature Studios, Inc., 279 F. Supp. 3d 1056, 1064 (C.D. Cal. 2017). The second element of this test has two distinct components: “copying” and “unlawful appropriation.” Rentmeester, 883 F.3d at 1117. Proof of copying is critical because “independent creation is a complete defense to copyright infringement.” Id. “No matter how similar the plaintiff’s and the defendant’s works are, if the defendant created his independently, without knowledge of or exposure to the plaintiff’s work, the defendant is not liable for infringement.” Id. A plaintiff lacking direct evidence of copying can attempt to show it “circumstantially by showing that the defendant had access to the plaintiff’s work and that the two works share similarities probative of copying.” Id. at 1124. To show unlawful appropriation, on the other hand, “the similarities between the two works must be ‘substantial’ and they must involve protected elements of the plaintiff’s work.” Id. at 1117. As with her prior complaints, the SAC fails to plausibly allege either access by Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 11 of 20 Page ID #:562 7 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ms. Brown or substantial similarity between protected elements of her works and Finding Boaz. Plaintiff therefore fails to state a claim of copyright infringement against Ms. Brown. A. Plaintiff Fails to Plausibly Allege Ms. Brown Had “Access” to Her Screenplays A plaintiff claiming copyright infringement must plausibly allege that the defendant “had access to his copyrighted work.” Marcus, 279 F. Supp. 3d at 1064; see also Mintz v. Subaru of Am., Inc., 716 F. App’x 618, 621 (9th Cir. 2017) (“To establish copyright infringement under federal law, [plaintiff] must plausibly allege that [defendant] had access to her copyrighted work[.]”). Access means “an opportunity to view or to copy plaintiff’s work.” Marcus, 279 F. Supp. 3d at 1064. To establish access, “a plaintiff must show a reasonable possibility, not merely a bare possibility, that an alleged infringer had the chance to view the protected work.” Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143 (9th Cir. 2009). Plaintiff does not allege direct copying by Ms. Brown. Nor does Plaintiff plausibly allege that Ms. Brown had access to the script for either Three Weekends in June and Four Sundays in Spring. The Court dismissed Plaintiff’s FAC for this precise reason, concluding that it failed to offer any clear theory of access by Ms. Brown. Order [Doc. # 71] at 4. Plaintiff alleges nothing new that would give rise to an inference of access by Ms. Brown. Instead, the SAC adds repeated allegations that Plaintiff directly gave Ms. McCoy-Harris a copy of the script for Four Sundays in Spring. See SAC ¶ 26 (“On September 29, 2010, Plaintiff emailed [Ms. McCoy-Harris] and attached a copy of the script for [Four Sundays in Spring].”); id. ¶ 28 (“In addition to initially providing Defendant McCoy Harris with an original script on September 29, 2010, Plaintiff also provided her with copies of the screenplay at various times throughout production.”); id. ¶ 29 (“On January 3, 2011, after Christmas break, Plaintiff provided the entire cast and crew, including . . . Defendant McCoy Harris with a revised script.”). Plaintiff also alleges that she directly provided the screenplay for Three Weekends in June to an individual named Keisha Afrika Oliver, who Plaintiff cast as the lead for the film version. Id. ¶ 13. In notable contrast, Plaintiff does not allege anything to suggest that Ms. Brown ever had access to the screenplay for either Three Weekends in June or Four Sundays in Spring before the creation of Finding Boaz. Instead, Plaintiff’s limited factual allegations concerning Ms. Brown are focused almost exclusively on her acting role in Finding Boaz rather than any possibility of access. Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 12 of 20 Page ID #:563 8 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See id. ¶¶ 11, 32. But as the case law reflects, alleging access by others is insufficient on its own to plausibly allege access by Ms. Brown because inferring such access would be entirely speculative. For example, in Schkeiban v. Cameron, No. 12-0636-R, 2012 WL 12895722 (C.D. Cal. May 10, 2012), the court held that the plaintiff failed to state a claim for copyright infringement because he failed to plausibly allege access by the defendant. Id. at *1. The plaintiff alleged only that he “sent his script . . . to several individuals and entities i[n] the film industry,” but did not allege that he shared the script with any of the defendants or otherwise allege how they would have had access to it. Id. The wholly speculative implication of plaintiff’s allegations was that “one or more of these third parties passed the script along to defendants.” Id. The court rejected these allegations as insufficient, explaining that “[a]ccess may not be inferred through mere speculation or conjecture” and “[t]here must be reasonable possibility of [the defendant] viewing plaintiff’s work, not a bare possibility.” Id. Because the plaintiff “pled no facts indicating that it was reasonably possible that defendants had access to the work but rather merely speculate[d] that it occurred,” the copyright infringement claim was dismissed. Id. at *1-2. Similarly, in Astor-White v. Strong, No. 15-6326, 2016 WL 1254221 (C.D. Cal. Mar. 28, 2016), rev’d on other grounds, 733 F. App’x 407 (9th Cir. 2018), the court dismissed a claim for copyright infringement because the plaintiff “fail[ed] to allege facts that plausibly show that Defendants had access to his work.” Id. at *4. The plaintiff had alleged that he “provided his treatment3 to only three individuals, none of whom are alleged to have been involved in the creation of [the allegedly infringing TV show] or to otherwise have any relationship with Defendants.” Id. These allegations did not support “even a ‘bare possibility,’ let alone a ‘reasonable possibility,’ that Defendants had access to the treatment,” and the complaint was accordingly dismissed. Id. As in Schkeiban and Astor-White, Plaintiff has at most only alleged access by others – not by Ms. Brown. Without any factual allegations supporting an inference that Ms. Brown herself had access to Plaintiff’s screenplays, such an inference is at best “mere speculation or conjecture.” Schkeiban, 2012 WL 12895722, at *1. The “bare possibility” that Ms. Brown, in some hypothetical and unalleged scenario, might have had the chance to view Plaintiff’s screenplays is not enough; 3 A treatment is a “preparatory version of a screenplay, including descriptions of sets and of the camerawork required.” Treatment, OED ONLINE, Oxford Univ. Press (Dec. 2018), www.oed.com/view/Entry/205393 (last visited Feb. 1 2019). Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 13 of 20 Page ID #:564 9 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 there must be a “reasonable possibility” based on the facts alleged. Art Attacks Ink, LLC, 581 F.3d at 1143. Plaintiff has not met this standard and dismissal of Plaintiff’s claim is warranted as to Ms. Brown. See Schkeiban, 2012 WL 12895722, at *1; Astor-White, 2016 WL 1254221, at *4. B. Plaintiff Fails to Plausibly Allege That Finding Boaz is “Substantially Similar” to Either of her Screenplays Plaintiff’s failure to plausibly allege substantial similarity between Finding Boaz and either of her screenplays is a separate and independent ground for dismissal. “[D]etermining whether works are substantially similar involves a two-part analysis consisting of the ‘extrinsic test’ and the ‘intrinsic test.’” Rentmeester, 883 F.3d at 1118. The extrinsic test may be applied at the pleading stage, and “[a] court may dismiss a complaint on a 12(b)(6) motion . . . for failing to satisfy [it].” Silas v. HBO, Inc., 201 F. Supp. 3d 1158, 1171 (C.D. Cal. 2016), aff’d, 713 F. App’x 626 (9th Cir. 2018); see also Rentmeester, 883 F.3d at 1118 (“Only the extrinsic test[] may be decided by the court as a matter of law . . . so that is the only test relevant . . . on a motion to dismiss.”). The extrinsic test “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression.” Rentmeester, 883 F.3d at 1118. Because only the protectable elements matter, the court must “‘filter out’ the unprotectable elements of the plaintiff’s work” such as “ideas and concepts, material in the public domain, and scènes à faire (stock or standard features that are commonly associated with the treatment of a given subject).” Id. “The protectable elements that remain are then compared to corresponding elements of the defendant’s work to assess similarities in the objective details of the works.” Id. In other words, the court compares “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.” Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985); see also Marcus, 279 F. Supp. 3d at 1065-66 (disregarding similarity in general plot, looking instead at “concrete elements of the two works” to determine substantial similarity). The Court “must take care to inquire only whether the protectable elements, standing alone, are substantially similar.” Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1133 (C.D. Cal. 2007) (citation omitted, emphasis in original). Plaintiff fails to plausibly allege substantial similarity between Finding Boaz and the protectable elements of her works because: (1) the SAC altogether fails to describe Three Weekends Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 14 of 20 Page ID #:565 10 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in June; (2) the similarities alleged between Four Sundays in Spring and Finding Boaz relate entirely to unprotectable elements; and (3) the few details alleged about Four Sundays in Spring and Finding Boaz show that they are objectively different. 1. Plaintiff Has Not Plausibly Alleged Substantial Similarity to Three Weekends in June Because the SAC Fails to Describe this Work at All The Court can quickly dispense with Three Weekends in June, Plaintiff’s short screenplay, as a basis for her claim. Plaintiff’s “chart of similarities” addresses only her feature-length screenplay Four Sundays in Spring. See SAC ¶ 53 (chart’s first column referring only to “Original feature”). It does not address or describe Three Weekends in June at all, and the SAC is entirely devoid of allegations establishing what this work is about. The Court previously dismissed Plaintiff’s first amended complaint for this same reason. Order [Doc. # 71] at 5. The SAC still fails to offer any description of Three Weekends in June, precluding the Court from applying the extrinsic test to compare it to Finding Boaz. That alone warrants dismissal. See MultiCraft Imports, Inc. v. Mariposa USA, Inc., No. CV 16-3975, 2017 WL 5664996, at *3-4 (C.D. Sept. 14, 2017) (granting motion to dismiss copyright claim where plaintiff failed to allege “specific facts about each side’s works,” thereby precluding the Court from applying extrinsic test). 2. Plaintiff’s Alleged Similarities Between Four Sundays in Spring and Finding Boaz Consist Entirely of Unprotectable Plot Ideas, Generic Characters, or Scènes à Faire Without attaching the actual works to her complaint, Plaintiff’s self-serving, conclusory descriptions in a chart alleged in the SAC reflect purported similarities between to Four Sundays in Spring and Finding Boaz that are largely high-level plot ideas, generic characters, or situations, incidents, or scenes which flow naturally from the basic plot premise—none of which are protectable. “General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.” Berkic, 761 F.2d at 1293. Even plot ideas that seem quite specific are not protectable. For example, in Marcus v. ABC Signature Studios, Inc., the plaintiff alleged that the defendants’ TV show Black-ish was substantially similar to his copyrighted script Across the Tracks because they both shared the plot of “an upwardly mobile African American family moving into and living amongst a predominately white neighborhood and the perceptions of the family by and between themselves and their neighbors and co-workers.” 279 F. Supp. 3d at 1065-66. The court Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 15 of 20 Page ID #:566 11 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disregarded this as “simply a ‘basic plot idea . . . not protected by copyright law’” and dismissed the plaintiff’s copyright infringement claim at the pleading stage. Id. at 1066 (quoting Cavalier v. Random House, Inc., 297 F.3d 815, 824 (9th Cir. 2002)). Similarly, in Gallagher v. Lions Gate Entertainment Inc., 2:15-cv-02739, 2015 WL 12481504 (C.D. Cal. Sep. 11, 2015), the court dismissed a copyright infringement claim at the pleading stage where the plaintiff’s book and the defendants’ allegedly infringing film were both based on the plot of “five young adults venturing off to a cabin in the wilderness and being manipulated in varying degrees by a third party.” Id. at *3-14. The court disregarded this “vague, abstracted idea of a general plot” as unprotectable. Id. at *3. Here, Plaintiff points to the fact that Four Sundays in Spring and Finding Boaz both allegedly revolve around an African-American woman who is desperate to marry after a prior failed relationship and undertakes “unconventional (yet comical) antics” to find a husband.4 See id. ¶ 53 (chart). This high-level plot idea—a romantic comedy based on an African-American woman seeking a husband—is even more generic than the plot in Marcus or Gallagher; it is undoubtedly unprotectable. See, e.g., Marcus, 279 F. Supp. 3d at 1066 (“Although the two works ‘at a high level of generality’ are similar . . . these similarities only exist in the basic plots and are not protected.” (quoting Berkic, 761 F.2d at 1293)); Basile v. Warner Bros. Entm’t, Inc., No. 15-5243-DMG, 2016 WL 5867432, at *6 (C.D. Cal. Jan. 4, 2016) (Gee, J.), aff’d, 678 F. App’x 604 (9th Cir. 2017) (finding no infringement of plot line based on plaintiff’s characters, described as having a “‘Supreme being bloodline’ who can save their home planets,” which resembles other well-known characters like Luke Skywalker and Superman); Shame on You Prods., Inc. v. Elizabeth Banks, 120 F. Supp. 3d 1123, 1151 (C.D. Cal. 2015) (rejecting as an unprotectable general plot idea similarities between works “which flow directly from the basic premise of a walk of shame” where the works featured “a female lead character living in a big city, who breaks up with her boyfriend, gets drunk, spends a ‘one-nighter’ with a man she just met who works as a busboy/bartender, wakes up disoriented the next morning at his place, puts on the bright dress she was wearing the night before, and embarks on a walk of shame through the city to get to an important event,” where she “makes it to her important event, but nonetheless reveals the embarrassing truth of her misadventures the night before, and 4 Indeed, most of Plaintiff’s lengthy three-page chart simply reiterates the alleged similarity in plot—albeit using slightly different formulations and referring to the plot variously as a “story line,” “synopsis,” “logline,” or “story.” See SAC ¶ 53. Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 16 of 20 Page ID #:567 12 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ultimately finds meaningful romance with a man who helped her through her troubles”), aff’d, 690 F. App’x 519 (9th Cir. 2017). Plaintiff also claims that some secondary characters in Four Sundays in Spring and Finding Boaz are similar, but the wholly generic characters she describes are not protectable either. “Only characters that are ‘especially distinctive’ are protected by copyright law.” Basile, 2016 WL 5867432, at *7; see also DC Comics v. Towle, 802 F.3d 1012, 1019 (9th Cir. 2015) (“We have held that copyright protection is available only for characters that are especially distinctive.”). “Generalized character types,” on the other hand, “are not protected by copyright law.” Bernal v. Paradigm Talent & Literary Agency, 788 F. Supp. 2d 1043, 1069 (C.D. Cal. 2010). Plaintiff alleges that both works have similar characters who are African-American, female, and single, with four “leads” who are “friends” in a romantic comedy, and include among the supporting cast a “ladies man” character, a “mama’s boy with an Oedipus complex,” and a “pastor” who “cares for” or is “concerned about” about church. SAC ¶ 53 (chart). Far from being “especially distinctive,” these characters are hopelessly generic and are simply not protectable. See Basile, 2016 WL 5867432, at *8 (concluding that characters matching “archetypes frequently found in film and literature” were “not sufficiently ‘distinctive’ to be protectable”); Bernal, 788 F. Supp. 2d at 1069-70 (concluding that female character who was “confident,” “a workaholic,” a “fabulous cook,” single with no children, and “often act[ed] as a source of support for her friends in need” was not distinctive, nor was “a homeless airline pilot who roams the neighborhood” and has a “mysterious past”). As this Court explained, “characters with traits that ‘flow naturally from the works’ shared premises’ may not serve as a basis for infringement.” Basile, 2016 WL 5867432, at *7. Copyright law also offers no protection for “situations and incidents which flow naturally from a basic plot premise”—so-called scènes à faire. Berkic, 761 F.2d at 1293; see also Wild v. NBC Universal, Inc., 788 F. Supp. 2d 1083, 1099 (C.D. Cal. 2011) (explaining that scènes à faire are “scenes that necessarily result from the choice of a setting or situation” (citation omitted)), modified, 2011 WL 13272427 (C.D. Cal. June 28, 2011), aff’d, 513 F. App’x 640 (9th Cir. 2013). Plaintiff claims, for example, that the “[a]ntics” in both Four Sundays in Spring and Finding Boaz include a character “being chased, running away, etc,” SAC ¶ 53 (chart), but the idea of the lead in a romantic Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 17 of 20 Page ID #:568 13 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 comedy “being chased” by, or “running away” from, potential suitors is commonplace for the genre itself (e.g., Runaway Bride (1999) embraced this concept in its title). See Marcus, 279 F. Supp. 3d at 1066 (considering, on motion to dismiss, prevalence of plot devices as reflected in well-known TV series such as The Jeffersons, Diff’rent Strokes, and The Fresh Prince of Bel-Air). Plaintiff also claims that both works feature “Wedding”-related or “Family and Friends” scenes and dialogue, SAC ¶ 53 (chart), but this too is common fare for “Faith-Based” romantic comedies (e.g., My Big Fat Greek Wedding (2002)), and flows naturally from a storyline involving a lead character “dealing with the crisis of failed engagement” (SAC ¶ 53, describing a “pivotal moment” in Finding Boaz). Altogether, the alleged similarities reflect generic and standard literary constructs associated with Other purported “similarities” in “casting” (same actress Keisha Afrika Lucas), “dialogue” (“contemporary, English with tones of endearment, family and friends relations”), “setting” (“contemporary, present day” in D.C., Maryland, Virginia), “genre” (“faith-based; romance/comedy”), “fashion” (“contemporary, casual and wedding attire”), and use of “comic devices” (“lead character in a humorous role by changing appearance with wigs, etc.,” “very colorful” and “over the top characters”)— constitute generic concepts that are “too common in literary and artistic works to be protected by copyright.” Basile, 2016 WL 5867432, at *12; see also Shame on You Prods, 120 F. Supp. 3d at 1151 (concluding that “[t]he Ninth Circuit is particularly cautious in finding substantial similarity where a list of perceived similarities emphasizes random similarities scattered throughout the works”) (citation and brackets omitted). 3. The Few Details Alleged Reveal Objective Differences What precious little else is disclosed in Plaintiff’s chart shows that Four Sundays in Spring and Finding Boaz are objectively different when appropriately considering the concrete details of the works. The lead in Four Sundays in Spring, “Stephanie” believes her love life is cursed due to past transgressions and is determined to “reverse the curse.” SAC ¶ 53 (chart). No similar backstory is alleged to be present in Finding Boaz. Stephanie’s friends propose various schemes to her to find a husband, such as “attend[ing] a widow’s support group” or “see[ing] a fortune teller.” Id. Plaintiff does not allege that Finding Boaz uses similar scenes or devices. Instead, Finding Boaz allegedly sees the main character “Torrey” enrolling with her friends in “How to Catch a Man School” which Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 18 of 20 Page ID #:569 14 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 includes learning about “beauty secrets,” “men,” and “life in general,” as well as “dress[ing] up [and] taking a trip to the hardware store to attract a husband.” Id. In short, the handful of concrete details revealed in Plaintiff’s chart show that Four Sundays in Spring and Finding Boaz are actually quite different. V. THE COURT SHOULD DISMISS WITH PREJUDICE Without plausible allegations to support either access by Ms. Brown or substantial similarity between protectable elements of Plaintiff’s screenplays and Finding Boaz, Plaintiff’s claim necessarily fails and this Court should dismiss it—this time with prejudice. Although a court may grant leave to amend freely when justice so requires, FED. R. CIV. P. 15(a)(2), “repeated failure to cure deficiencies by amendments previously allowed justifies dismissal with prejudice.” Gardner v. Chevron Capital Corp., 715 F. App’x 737, 738 (9th Cir. 2018); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (explaining that “denial of an opportunity to amend is within the discretion of the District Court” for reasons “such as . . . repeated failure to cure deficiencies by amendments previously allowed”). Plaintiff has already had two opportunities to amend her complaint, and the SAC represents her third failed attempt to maintain this baseless lawsuit—at great expense to all involved. Given her repeated failures to cure, Plaintiff should not be given another opportunity. The court may and should also dismiss with prejudice when further amendment “would be futile.” Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000); see also Shame on You Prods., Inc. v. Banks, 120 F. Supp. 3d 1123, 1173 (C.D. Cal. 2015) (granting motion to dismiss copyright infringement claim with prejudice, noting that “[d]enial of leave to amend is appropriate if the amendment would be futile”). Given the apparent differences between Plaintiff’s screenplays and Finding Boaz, any further amendment would be futile in plausibly alleging substantial similarity. The Court can dismiss with prejudice on this basis. See Rentmeester, 883 F.3d at 1125 (affirming dismissal with prejudice where any amendment “would have been futile,” the works were “not substantially similar,” and “[n]one of the new allegations [plaintiff] proposed to add would have changed that dispositive fact”); Fillmore v. Blumhouse Prods., LLC, No. 2:16-CV-04348-AB, 2017 WL 4708018, at *10 (C.D. Cal. July 7, 2017) (granting motion to dismiss with prejudice where Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 19 of 20 Page ID #:570 15 DEFENDANT FARAH COCOA BROWN’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “Plaintiff has failed to demonstrate that Plaintiff’s Manuscript and Defendants’ Film are substantially similar regarding protectable elements”); Zella, 529 F. Supp. 2d at 1130-31 (granting motion to dismiss with prejudice where works at issue were not substantially similar); Silas, 201 F. Supp. 3d. at 1184 (dismissing with prejudice and denying leave to amend where works at issue were not substantially similar). The Court should not entertain further pleadings merely because Plaintiff is proceeding pro se. “Although [courts] construe pleadings liberally in their favor, pro se litigants” nonetheless are “bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); see also Pham v. Starkey, No. 16-05959-ODW, 2018 WL 287168, at *1 (C.D. Cal. Jan. 3, 2018) (“Although pro se pleadings are held to a less stringent standard than pleadings drafted by lawyers . . . pro se litigants must comply with the same procedural standards as represented litigants[.]”). Plaintiff has failed to comply with federal pleading standards by plausibly alleging entitlement to relief. The Court has already afforded Plaintiff some leeway but should not indulge her further. See, e.g., Moore v. United States, 193 F.R.D. 647, 653 (N.D. Cal. 2000) (denying motion for leave to file third amended complaint and dismissing action with prejudice for pro se plaintiff’s failure to comply with Rule 8). VI. CONCLUSION The Court should dismiss Plaintiff’s SAC with prejudice, or at a minimum dismiss Plaintiff’s copyright infringement claim with prejudice as to Ms. Brown. Dated: February 15, 2019 GREENBERG TRAURIG, LLP By: Lori Chang Ian C. Ballon Lori Chang Attorneys for Defendant Farah Cocoa Brown Case 2:17-cv-08345-DMG-AGR Document 77 Filed 02/15/19 Page 20 of 20 Page ID #:571