Kelly Monroe Kullberg et al v. Pure Flix Entertainment Llc et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.August 10, 2016

LEOPOLD, PETRICH & SMITH A Professional Corporation 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT 37855.docx LOUIS P. PETRICH (State Bar No.038161) ROBERT S. GUTIERREZ (State Bar No.143223) LEOPOLD, PETRICH & SMITH, P.C. 2049 Century Park East, Suite 3110 Los Angeles, California 90067-3274 Tel: (310) 277-3333 • Fax: (310) 277-7444 E-Mail: lpetrich@lpsla.com; rgutierrez@lpsla.com Attorneys for Defendants PURE FLIX ENTERTAINMENT LLC and DAVID A.R. WHITE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION KELLY MONROE KULLBERG, an Individual, and MICHAEL LANDON, JR., an individual Plaintiffs, v. PURE FLIX ENTERTAINMENT LLC, and DAVID A.R. WHITE, an individual, Defendants. CASE NO. 2:16-cv-03949-R-AS NOTICE OF MOTION AND MOTION BY DEFENDANTS PURE FLIX ENTERTAINMENT LLC AND DAVID A. R. WHITE TO DISMISS COMPLAINT PURSUANT TO F.R.CIV.P. RULE 12(b)(6); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Request for Judicial Notice filed concurrently; Notice of Lodging, Proposed Order and Submission of Unpublished Opinions lodged concurrently] DATE: October 3, 2016 TIME: 10:00 a.m. CTRM: 8 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 1 of 32 Page ID #:301 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT PLEASE TAKE NOTICE that on October 3, 2016, at 10:00 a.m., or as soon thereafter as the matter may be heard in the above-entitled court, located at 312 North Spring Street, Courtroom No. 8, Los Angeles, California 90012, Defendants Pure Flix Entertainment LLC and David A. R. White (“Defendants”) will and hereby do move the Court to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants request dismissal of Plaintiffs’ Complaint without leave to amend. Plaintiffs’ Complaint fails to state a claim upon which relief can be granted, on the ground that the sole claim for copyright infringement fails because, as a matter of law, Defendants’ God’s Not Dead is not substantially similar to any protected expression in Plaintiffs’ unpublished screenplay entitled Rise. The Court’s Order Re: Notice To Counsel provides that the Court has waived Local Rule 7-3, such that the parties are not obligated to meet and confer, or file a declaration in connection thereto, for the purposes of preparing and filing dispositive motions, such as a motion to dismiss. This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities filed herewith, the accompanying Request for Judicial Notice, Notice of Lodging, and Proposed Order, the pleadings and papers filed herein, and other argument as the Court may deem proper. DATED: August 10, 2016 /s/ Robert S. Gutierrez LOUIS P. PETRICH ROBERT S. GUTIERREZ LEOPOLD, PETRICH & SMITH, P.C. Attorneys for Defendants Pure Flix Entertainment LLC and David A. R. White Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 2 of 32 Page ID #:302 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 A. Allegations of Complaint ...................................................................... 2 B. Legal Standard ...................................................................................... 2 C. A Court May Dismiss A Copyright Claim For Lack Of Substantial Similarity On A Rule 12(b)(6) Motion ................................................. 2 D. The Court May Take Judicial Notice Of The Two Works ................... 3 II. SUMMARY OF THE WORKS AT ISSUE ................................................... 4 A. Summary Of Plaintiffs’ Rise Screenplay (See Ex. 4 to Complaint) ..... 4 B. Summary Of Defendant’s Film (See Ex. A to RJN) ............................ 7 III. THE COPYRIGHT CLAIM ......................................................................... 11 A. Unlawful Appropriation (“Substantial Similarity Of Protected Expression”) ........................................................................................ 12 B. Extrinsic Test....................................................................................... 14 1. No Similarity As To Plot And Sequences Of Events ............... 14 2. No Similarity As To Characters ............................................... 18 3. No Similarity As To Themes .................................................... 21 4. No Similarity As To Settings .................................................... 21 5. No Similarity As To Mood ....................................................... 22 6. No Similarity As To Pace ......................................................... 23 7. No Similarity As To Dialogue .................................................. 23 IV. CONCLUSION ............................................................................................. 25 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 3 of 32 Page ID #:303 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 ii DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT TABLE OF AUTHORITIES Page(s) Cases Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ........................................... 2 Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010) ..................................................... 11, 13, 14, 18, 20, 21 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) ................................................... 12, 13, 14, 17, 18, 25 Bernal v. Paradigm Talent & Literary Agency, 788 F.Supp.2d 1043 (C.D. Cal. 2010) ..................................................................... 22 Bissoon-Dath v. Sony Computer Entm’t Am., Inc., 694 F.Supp.2d 1071 (N.D. Cal. 2010), aff’d sub nom., Dath v. Sony Computer Entm’t Am., Inc., 653 F.3d 898 (9th Cir. 2011)...................................... 22 Campbell v. Walt Disney Co., 718 F.Supp.2d 1108 (N.D. Cal. 2010) ....................................................................... 3 Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) ................................................................. 11, 12, 14, 17 Christianson v. West Publishing Co., 149 F.2d 202 (9th Cir. 1945) ............................................................................... 3, 12 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994) ....................................................................................... 2 Dumas v. Kipp, 90 F.3d 386 (9th Cir. 1996) ....................................................................................... 2 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ................................... 11, 13 Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (9th Cir. 2006) ................................................................. 4, 11, 13, 14 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 4 of 32 Page ID #:304 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Gable v. Nat’l Broad. Co., 727 F.Supp.2d 815 (C.D. Cal. 2010), aff’d sub nom. Gable v. Nat’l Broad. Co., 438 F.Appx. 587 (9th Cir. 2011) ......................................................... 18 Gadh v. Spiegel, 2014 WL 1778950 (C.D. Cal. April 2, 2014) ............................................................ 3 Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) ........................................... 13 Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989) ................................................................................... 13 Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) ................................................................. 11, 14, 17, 25 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) ..................................................................................... 3 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1994) ................................................................................. 25 Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) ................................................................................. 13 Narrell v. Freeman, 872 F.2d 907 (9th Cir. 1989) ................................................................................... 24 Nelson v. PRN Prods., 873 F.2d 1141 (8th Cir. 1989) ............................................................................. 3, 12 Newton v. Diamond, 388 F. 3d 1189 (9th Cir. 2004) ................................................................................ 13 Olson v. National Broadcasting Co., 855 F.2d 1446 (9th Cir. 1988) ..................................................................... 13, 17, 23 Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57 (2d Cir. 2010) ........................................................................................ 3 Randolph v. Dimension Films, 630 F.Supp.2d 741 (S.D. Tex. 2009) ......................................................................... 3 Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) ..................................................................... 14, 17, 21 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 5 of 32 Page ID #:305 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 iv DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT See v. Durang, 711 F.2d 141 (9th Cir. 1983) ................................................................................... 14 Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990) ................................................................................. 13 Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977) ................................................................................. 14 In re Stac Electronics Securities Litigation, 89 F.3d 1399 (9th Cir. 1996) ..................................................................................... 3 Thomas v. Walt Disney Co., 337 Fed.Appx. 694 (9th Cir. 2009) ........................................................................... 3 Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1986) .................................................................................. 4, 25 Weygand v. CBS, Inc., 1997 WL 377980 (C.D. Cal. May 21, 1997) ........................................................... 23 White v. Twentieth Century Fox Corp., 572 Fed.Appx. 475 (9th Cir. 2014) ........................................................................... 3 Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996) .......................................................................... 13, 22, 25 Zella v. The E.W. Scripps Co., 529 F.Supp.2d .......................................................................................................... 12 Zella v. The E.W. Scripps Co., 529 F. Supp.2d 1124 (C.D. Cal. 2007) ............................................................ 2, 3, 25 Constitutional Provisions 17 U.S.C. § 102(b) .............................................................................................. 2, 12, 18 17 U.S.C. § 505 ............................................................................................................. 25 Rules & Statutes Federal Rules of Evidence Rule 12(b)(6) ....................................................................... 3 Federal Rules of Evidence Rule 201 .............................................................................. 4 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 6 of 32 Page ID #:306 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 v DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Treatises M. & D. Nimmer, Nimmer On Copyright (2016) Volume 4: § 13.01[A] ..................................................................................................................... 12 § 13.01[B] ............................................................................................................... 11, 12 § 13.03[A] ..................................................................................................................... 13 § 13.03[A][1] ................................................................................................................ 12 § 13.03[A][l][b]............................................................................................................. 13 § 13.03[A][2] ................................................................................................................ 13 § 13.03[D] ..................................................................................................................... 13 § 3.03[E][3] ................................................................................................................... 14 Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 7 of 32 Page ID #:307 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 1 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs’ Complaint contains a single claim for copyright infringement based on the contention that the 2014 motion picture God’s Not Dead (the “Film”) copied copyrightable portions of Plaintiff Kelly Monroe Kullberg’s screenplay entitled Rise (the “Screenplay”) intended for a motion picture to be directed by Plaintiff Michael Landon, Jr. Cmpt. ¶¶ 10-13. Rise is a four-year story exclusively centered on a Christian woman and her transformation and relationships with others as she leaves the sheltered family farm and experiences peer pressures, temptations and atheistic forces at Harvard University. She pursues an inappropriate relationship with a married professor who can secure her academic and professional future, in the course of which she publicly debates him about his atheistic views, and ultimately finds her way back to herself after a spiritual reawakening while working at a center for elderly adults with special needs. In sharp contrast, God’s Not Dead is a two-week, multi- strand story about a Christian student who is challenged by his philosophy professor to either convince his classmates that God is not dead or else receive a bad grade – after the student refuses the professor’s request to sign a piece of paper stating that God is dead. Unlike Rise, there are numerous storylines that do not involve the protagonist, all exploring how a character’s belief or non-belief in God affects their relationships with others. Defendants Pure Flix Entertainment LLC and David A.R. White (collectively “Defendants”) move for dismissal of Plaintiffs’ sole claim for copyright infringement on the ground that God’s Not Dead is not substantially similar to any protected expression in Rise. The Ninth Circuit has made clear that when the plaintiff’s copyrighted work and the alleged infringing work are both before the Court, non- infringement because of a lack of substantial similarity can be determined on a motion to dismiss regardless of any alleged access to the plaintiff’s work by the defendant. For the sake of this Motion only, this Motion assumes that Defendants did have access Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 8 of 32 Page ID #:308 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 2 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT to Rise at a relevant time, and demonstrates that God’s Not Dead is not substantially similar to any protected expression in Rise. A. Allegations of Complaint Plaintiffs allege that the Rise Screenplay was registered for copyright in the U.S. Copyright office on November 12, 2013. Cmpt., ¶ 13 & Ex. 2 thereto. Plaintiffs allege that Defendants had access to the Screenplay through at least two individuals, Woody White and Ted Baehr (Cmpt., ¶¶ 14-16, 19, 38, 44) and that Defendants based God’s Not Dead on what they allegedly had been told by others about the Rise Screenplay (Cmpt., ¶¶ 19-20, 44). Based on these allegations, Plaintiffs’ allege a single claim for copyright infringement. B. Legal Standard A motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in a complaint. A claim may be dismissed if it does not allege facts sufficient to raise a right to the relief requested. A plaintiff’s allegations must rise above the level of mere speculation and must be plausible on their face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555- 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While for purposes of a motion to dismiss all allegations of material fact in the complaint are taken as true, a court “is not required to accept legal conclusions in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9 th Cir. 1994); Zella v. The E.W. Scripps Co., 529 F. Supp.2d 1124, 1127-8 (C.D. Cal. 2007). When amendment of a complaint would be futile, dismissal should be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9 th Cir. 1996). C. A Court May Dismiss A Copyright Claim For Lack Of Substantial Similarity On A Rule 12(b)(6) Motion A trial court should dismiss a copyright infringement claim pursuant to Rule 12(b)(6) where either the evidence demonstrates that no reasonable jury could find the Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 9 of 32 Page ID #:309 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 3 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT two works at issue are substantially similar or the court determines that any such similarities pertain only to unprotected elements in the works. Christianson v. West Publishing Co., 149 F.2d 202, 203-204 (9 th Cir. 1945) (affirming grant of 12(b)(6) motion based on comparison of the works); White v. Twentieth Century Fox Corp., 572 Fed.Appx. 475 (9 th Cir. 2014) (affirming grant of 12(b)(6) motion due to lack of substantial similarity); Nelson v. PRN Prods., 873 F.2d 1141, 1143-44 (8th Cir. 1989) (same); Thomas v. Walt Disney Co., 337 Fed.Appx. 694 (9 th Cir. 2009) (same); Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 69 (2d Cir. 2010) (same); Zella, 529 F.Supp.2d at 1130-31 (granting 12(b)(6) motion due to lack of substantial similarity); Campbell v. Walt Disney Co., 718 F.Supp.2d 1108 (N.D. Cal. 2010) (same); Gadh v. Spiegel, 2014 WL 1778950, *4 (C.D. Cal. April 2, 2014) (same); Randolph v. Dimension Films, 630 F.Supp.2d 741, 749 (S.D. Tex. 2009) (same). D. The Court May Take Judicial Notice Of The Two Works In ruling on a Rule 12(b)(6) motion, a court “may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9 th Cir. 2001) (citation omitted). A court can also consider the contents of the parties’ works by taking judicial notice of them even if they are not attached to the complaint. In re Stac Electronics Securities Litigation, 89 F.3d 1399, 1405, n.4 (9 th Cir. 1996) (“Documents whose contents are alleged in a complaint and whose authority no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss.”) (internal quotation marks and brackets omitted); Zella, 529 F.Supp.2d at 1128; Campbell, 718 F.Supp.2d at 111, n.3. Plaintiffs have attached a copy of the Rise Screenplay to their Complaint (as Exhibit 4), and the Court may therefore consider the Screenplay in ruling on Defendants’ Motion to Dismiss. In an application filed with this Motion, Defendants Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 10 of 32 Page ID #:310 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 4 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT request that the Court take judicial notice of a DVD of the God’s Not Dead Film, as there can be no disagreement or question about its authenticity. See Defendant’s Request for Judicial Notice (“RJN”) pursuant to Rule 201 of the Federal Rules of Evidence, 3:20-28. II. SUMMARY OF THE WORKS AT ISSUE There is no substitute for reviewing Plaintiffs’ Screenplay and Defendants’ Film, for they are the sole evidence of substantial similarity or lack thereof. Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1075 (9 th Cir. 2006) (“determination of substantial similarity requires a detailed examination of the works themselves”); Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986) (“the works themselves, not descriptions or impressions of them, are the real test for claims of infringement,” and “in copyright infringement cases, the works themselves supersede and control contrary descriptions of them.”). However, a brief summary of the works may assist the Court’s analysis. A. Summary Of Plaintiffs’ Rise Screenplay (See Ex. 4 to Complaint) Rise is the story of a young Christian woman named Emma Anderson who leaves her family’s farm in Iowa to attend Harvard University. At Harvard, Emma meets her roommate Sophia, a polar opposite from a privileged background and devoid of Emma’s pureness. To help pay her college expenses, Emma interviews at an off-campus farm house called The Ark that cares for elderly people with special needs. There she meets married couple Jim and Vera who run The Ark, and notices a kind older gentleman named Sam who helps the residents. In her Sociology class, Emma has an encounter with guest speaker Professor Thomas Hawkins. When called on, she says she doesn’t agree with the thesis of his book, The God Illusion, that God is a construct. After class, Hawkins tells Emma that she could be in the running to be one of his three Senior Scholars who are awarded scholarships to graduate school. Emma later meets a Sophomore named Colin and they develop a quick friendship. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 11 of 32 Page ID #:311 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 5 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Emma learns from her younger brother that their father has met another woman and is divorcing their mother. She retreats to the fire escape and cries. Given her vulnerable state, she succumbs to Sophia’s request to join her at a college party. Colin is happy to find Emma at the party and later takes advantage of her when she’s had too much to drink. She cries the next morning, realizing what has happened. The story then jumps two years to a wine and cheese reception during Emma’s Junior year at Harvard, where she and two other students are celebrated as Professor Hawkins’ new Senior Scholars. Emma has transformed into a harder, sexy woman who now drinks and wears make-up and sexy clothing. She accepts Hawkins’ invitation to have dinner with him after the reception, during which he gives her an open invitation to join him in Paris. He takes her to his private office off-campus and gives her a key to use whenever she wants. He makes advances on her but she leaves before things can escalate. Emma soon takes Sophia to Hawkins’ private office, and remarks about how much she has changed, almost beyond recognition to her family. Emma and Professor Hawkins’ two other Senior Scholars (Fiona and Jivan) participate in a book launch party at the Faculty Club for Hawkins’ new book. Before the forum begins, Hawkins gives Emma a gift from his recent trip to Paris, a black night gown. Emma also meets Hawkins’ wife and daughter, adding to her discomfort. To Hawkins’ dismay, Emma tells the CSPAN moderator that she disagrees with Hawkins’ theory that God is a construct. Senior Scholar Fiona comes to Hawkins’ rescue and ends the discussion, suggesting a longer debate on a later occasion. Following much publicity, a debate is held a few nights later, during which Hawkins discusses reasons for not believing in God. He also brings up the hypocrisy of freshman fundamentalists who give in to their hormones, and Emma believes he knows that she lost her virginity her first year at Harvard. Emma is left speechless, prompting the college newspaper headline, “Hawkins is back.” Emma soon learns that, without her consent, another debate has been scheduled. She tells Hawkins to cancel the debate, but he makes it conditional on her resuming Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 12 of 32 Page ID #:312 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 6 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT their relationship. Emma angrily refuses. She researches the older man she saw at The Ark. She discovers that his name is Sam Reisling and that he is a former Professor of Medicine at Harvard who used to teach Hawkins. Emma visits Reisling at The Ark elder care facility and tells him of her encounters with Hawkins. Reisling invites her to spend the Spring and Summer at The Ark to reconnect with God and the person that she used to be. Emma agrees, and she performs various physical chores during her stay there. Jivan, one of the other Senior Scholars, and Emma’s roommate Sophia visit her at The Ark. Jivan tells Emma that two more debates have been scheduled between her and Hawkins. Emma initially refuses but finally agrees to one more debate after Sophia confides that she is pregnant and wants her and Emma to both be brave and do good things. Emma prepares at The Ark for the next debate, which is about God’s existence. At the debate, she responds to Hawkins’ argument that the value of a person can be measured in economic terms by asking him if a human life is worth about the value of a silk nightgown or an engraved silver key ring, privately referring to the gifts he gave her. Emma then stumps an already uncomfortable Hawkins by asking how he explains love. Senior Scholar Fiona again comes to Hawkins’ rescue, announcing that the next debate will be after the summer break. Emma spends the summer at The Ark and receives support and encouragement from Reisling. When she returns to campus for her Senior year, she is required to take Hawkins’ SocioBiology class in order to graduate. Despite her excellent school work, he gives her a low grade and tells her that he will adjust the grade if she initiates cancelling the next debate. She refuses, and later complains to Reisling once again about Hawkins’ behavior. Reisling tutors Emma intensively for the final debate. He later takes her on a visit to the Harvard Archives and explains to her that Harvard’s by-laws stated that the students’ main end was to know God and Jesus. He tells her that Hawkins had gotten off an ethics violation accusation by a female undergraduate and that Harvard had concealed plagiarism by Hawkins because his teachings and Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 13 of 32 Page ID #:313 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 7 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT prominence brought money to the university. Upset that Hawkins could be allowed to stay at Harvard despite his behavior, Reisling left the university and started The Ark. Hawkins gives Emma another undeserved low grade on an assignment and tells her that he is dropping her scholarship. He offers to adjust the grade and restore her scholarship if she initiates cancelling the debate. Emma again refuses. She returns to The Ark and has a spiritual awakening which puts her at ease for the final debate, on the subject of what it means to be human and if God and the soul are real. During the debate, she responds to Hawkins’ references to evil and suffering by citing the goodness and beauty that is also in the world. There is no winner of the final debate. The Dean tells Emma that she was graded unfairly by Hawkins and that he will make sure she gets her scholarship. She tells him that instead she is going home to be a helper and a healer. Colin apologizes to Emma for his behavior three years earlier. Emma and Sophia return to The Ark. Emma reunites with her father, who later drives her and Sophia to Iowa where Sophia will likely give birth. Hawkins sits in the dark auditorium, staring at Harvard’s Veritas shield. B. Summary Of Defendant’s Film (See Ex. A to RJN) God’s Not Dead (“GND”) is a multiple-storyline film set over a short two-week span, involving a Christian freshman student, Josh Wheaton, who is challenged on his first day of class by an atheist Philosophy Professor, Jeffrey Radisson, to prove that God is not dead. Everyone in Josh’s class agrees to Radisson’s request to sign a piece of paper stating that God is dead – except for Josh, who cites the fact that he is a Christian. Radisson tells Josh that, as a consequence, he must spend 20 minutes of the next three class sessions making his case to the class. The class will decide if Josh has won the argument. Radisson tells Josh that if he fails to convince his classmates that God is not dead, he will immediately lose 30% of his grade in the class. Josh’s girlfriend Kara tells Josh that she will not allow him to jeopardize his admission to a top law school – and their future – by accepting Radisson’s challenge. A young Muslim woman, Ayisha, overhears their discussion with piqued interest. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 14 of 32 Page ID #:314 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 8 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT A liberal atheist blogger, Amy Ryan, is dating self-described “upwardly mobile, charming, successful” boyfriend Marc Shelley. See Ex. A to RJN, at 47:57-48:2. 1 She ignores repeated phone calls from her doctor as she ambushes Duck Dynasty personality Willie Robertson and his wife about their slaughter of animals and the praying they do in their show. They politely defend their religious lifestyle. Josh visits a local church as he grapples with Radisson’s challenge. There he meets Reverend Dave who tells him that accepting the challenge may be the only exposure the students will ever have to God and Jesus. Inspired by Biblical citations offered by Reverend Dave, Josh decides to accept Radisson’s challenge. At his first presentation, Josh sets the framework by announcing that God is “on trial,” with Radisson as the prosecutor, Josh as the defense attorney, and the class as the jury. He devotes the first lecture to evidence of God’s existence. Radisson gets the upper hand when Josh cannot respond to Radisson’s reference to theoretical physicist Stephen Hawking’s theory of a self-designing universe. After class, Radisson warns Josh that he will destroy his academic future if he humiliates him in front of the class, and Kara breaks up with Josh when she discovers that he ignored her demand to sign the piece of paper and avoid risking a bad grade. Ayisha’s younger brother discovers that she is secretly listening to Christian teachings on her smartphone. She vehemently instructs him not to tell their father. Amy finally meets with her doctor and is told she has cancer. She breaks the news to boyfriend Marc right after he tells her he made partner at his firm. He immediately breaks up with her because her illness interferes with his plans. Marc’s sister Mina is Radisson’s girlfriend. She tells Marc that he should visit their mother, but he refuses because she has dementia and he says he doesn’t see the point. While preparing in the library for his second presentation, Josh is approached by a Chinese student, Martin, who is curious about Josh’s reason for accepting 1 Citations to the Film are to the time code on the DVD, attached as Ex. A to the Request for Judicial Notice. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 15 of 32 Page ID #:315 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 9 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Radisson’s challenge. Josh explains that he doesn’t want anyone to get talked out of believing in God. Reverend Dave is preparing to drive to Disneyworld with Reverend Jude, but their plans are delayed because their rental car fails to start. Radisson and Mina discuss an upcoming dinner party they are hosting for Radisson’s colleagues. They acknowledge that their differing beliefs about God’s existence – Mina is a Christian, Radisson is an atheist – is a constant issue in their relationship. At the dinner party, Mina is publicly humiliated by Radisson for serving a bad bottle of wine – and is chastised for expressing her belief in God and her sympathy for Josh and the challenge Radisson imposed on him. She abruptly excuses herself from the dinner party. A second rental car fails to start, further delaying the Reverends’ road trip. Chinese student Martin tells his father about the class discussion about God’s existence, and his father instructs him to agree with whatever his professor tells him. After studying on his own, Josh gets the upper hand in his second class presentation by describing Hawking’s theory of a self-designing universe, premised on the law of gravity, as circular reasoning. Josh cites mathematician/scientific philosopher John Lennox’s critique of Hawking’s reasoning as “nonsense” and also cites Hawking’s own insistence that philosophy is dead – embarrassing Radisson in the process. Josh counters the claim that evolution has replaced God, by referring to passages from the Book of Genesis about the creation of life. After class, Josh asks Radisson why he is so adamant that God does not exist. Radisson tells him that his mom died a painful death from cancer when he was a boy, and that he cannot believe in a God who would allow that to happen. Mina consults with Reverend Dave about her rocky relationship with Radisson, and he tells her that her self-worth does not hinge on the approval of others. Ayisha is assaulted by her angry Muslim father when he catches her listening to Christian teachings. He throws her out of their home, and both are left crying. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 16 of 32 Page ID #:316 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Martin talks to his dad on the phone again about the class discussion about God’s existence. His father scolds him to stop the conversation because the phone might be tapped and his brother’s chances of studying abroad could be in jeopardy. Amy blogs about her cancer diagnosis and has an emotional breakdown. Mina visits Radisson on campus and tells him that she’s leaving him. Ayisha is counseled by Reverend Dave, who tells her that God will honor her for the risks she has taken in embracing Christianity. In his third class presentation, Josh addresses the issue of evil, arguing that God gave people free will and will one day destroy evil. After grilling by Josh, Radisson yells that he hates God because God took everything away from him. Josh asks how he could hate someone who doesn’t exist. The class is then asked to render their verdict, and they unanimously find that God is not dead. Afterwards, Martin tells Josh that he has persuaded him to follow Jesus, and Josh invites Martin to a local concert by the Christian band the Newsboys. Reverend Dave and Reverend Jude are finally able to start their drive to Florida after their third rental car starts. Reverend Jude says that all they needed was faith. Marc visits his dementia-stricken mom and is surprised when she tells him that his “perfect life” is because the devil is trying to keep him from turning to God, and that one day it will be too late. Radisson reads an old letter from his deceased mom about God being in control even though she was dying. He is inspired to find Mina who he believes is at the Newsboys concert. Amy ambushes the Newsboys for an interview minutes before they take the stage. She ridicules their religious beliefs but then reveals that she is dying. They offer her a chance to find God. She is receptive as they pray for her. On his way to find Mina at the concert, Radisson is hit by a car. Reverend Dave witnesses the accident and helps him find his way to God seconds before he dies. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 17 of 32 Page ID #:317 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 11 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT At the concert, Willie Robertson appears on the big screen and addresses the “squabble” on campus about God’s existence. The Newsboys tell everyone to text “God’s Not Dead” to all the contacts on their smart phones. In a culmination of the relatedness of the film’s different storylines, Martin’s father is perplexed when he gets the text, the two Reverends are happy to receive the text, and Marc scoffs at the text. The Newsboys dedicate their song “God’s Not Dead” to Josh. III. THE COPYRIGHT CLAIM To establish a prima facie case of copyright infringement, a plaintiff must present substantial evidence of: “(1) ownership of a valid copyright, and (2) [the defendant’s] copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). For the second element, a plaintiff must show both (a) that the defendant actually copied from the plaintiff’s work, and (b) that what defendant copied was original “protected” expression. Id. (“Not all copying, however, is copyright infringement.”); 4 M. & D. Nimmer, Nimmer on Copyright (“Nimmer”), § 13.01[B] at 13-8.1 to 13-10 (2016); Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624 (9 th Cir. 2010); Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1081-82 (9 th Cir. 2006); Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044, n.2 (9th Cir. 1994). Ideas, facts, and scénes-á-faire are not protected. Feist, 499 U.S. at 344-45 (“The most fundamental axiom of copyright law is that ‘[n]o author may copyright his ideas or the facts he narrates.’”); Cavalier, 297 F.3d at 823 (“Scenes-a-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a finding of infringement.”). Where non-literal copying of “protected expression” is alleged, the issue is whether the defendant’s work is “substantially similar” to expression in the plaintiff’s work. Id.; 4 Nimmer, §13.03[A][1] at 13-40 to 13-40.1. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 18 of 32 Page ID #:318 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 12 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Where, as here, the lack of similarity between the parties’ respective works is obvious, judgment as a matter of law is appropriate notwithstanding the presence of potential factual disputes, such as whether Defendants had access to Plaintiffs’ work. For purposes of this Motion only, Defendants will assume arguendo that Plaintiffs own a valid U.S. copyright to the Rise Screenplay and that Defendants had access to Plaintiffs’ Screenplay. 4 Nimmer, § 13.01[A] at 13-7 to -8. What remains to be determined is the issue of “copying” of protected expression, which requires that Plaintiffs properly allege and prove two distinct elements: actual copying and unlawful appropriation. 4 Nimmer, § 13.01[B] at 13-8.1 to -10. Plaintiffs’ copyright claim should be dismissed because, as a matter of law, Defendants’ Film is not substantially similar to protected expression in Plaintiffs’ Screenplay. See, e.g., Christianson, 149 F.2d at 203-204 (9 th Cir. 1945) (affirming grant of 12(b)(6) motion based on comparison of the works); Zella v. The E.W. Scripps Co., 529 F.Supp.2d at 1130-31 (granting 12(b)(6) motion based on lack of substantial similarity). A. Unlawful Appropriation (“Substantial Similarity Of Protected Expression”) Unlawful appropriation focuses on the legal issue of whether any alleged copying extended beyond unprotectible facts, concepts or ideas (17 U.S.C. § 102(b)) to a plaintiff’s protectible expression, that is “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). Neither “access” nor actual copying is relevant to whether a defendant’s work is substantially similar to protected expression in a plaintiff’s work. 4 Nimmer, § 13.03[D] at 13-90 to -92.1. Thus, even if a court assumes that a defendant had access to a plaintiff’s work, there is no infringement as a matter of law if the two works are not substantially similar. See Benay, 607 F.3d at 625 (no infringement even if access is assumed); Funky Films, 462 F.3d at 1075 n.1, 1081-82 (same); Newton v. Diamond, 388 F. 3d 1189, 1192-93 (9th Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 19 of 32 Page ID #:319 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 13 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Cir. 2004) (“even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial”). When, as in this case, non-identical works are compared, the “substantial similarity” inquiry involves a legal or policy issue: How far beyond the literal may a plaintiff’s copyright monopoly extend?” Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 201 (9th Cir. 1989); 4 Nimmer, § 13.03[A] at 13-38.1 to -39. If a plaintiff were allowed to extend his monopoly too far, liability would be imposed for the “use” of unprotected ideas and facts – rather than protected expression – in violation of the First Amendment and copyright policy. Feist, 499 U.S. at 344-48, 349-50; Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539, 556, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (the idea/expression dichotomy strikes a constitutional balance between copyright and free speech interests). Because storytelling necessarily relies on the use of facts, ideas, clichés, scénes-á-faire, conventions of story-telling and filmmaking not original to its author (see Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002)), a plaintiff’s dramatic work is only protected from nearly verbatim copying of factual material or from the comprehensive non-literal copying of its “story” or “pattern,” the original arrangement of characters, their relationships and the essential sequence of events. 4 Nimmer, § 13.03[A][l][b] at 13-41 to -43; Williams v. Crichton, 84 F.3d 581, 588-91 (2d Cir. 1996); Berkic, 761 F.2d at 1293-94; Olson v. National Broadcasting Co., 855 F.2d 1446, 1450 (9th Cir. 1988); Shaw v. Lindheim, 919 F.2d 1353, 1363 (9th Cir. 1990); 4 Nimmer, § 13.03[A][1] & [2] at 13-40 to -43 & 13-53 to -59. To determine “substantial similarity” between works that are not literally similar, the Ninth Circuit employs an “extrinsic” (objective) and an “intrinsic” (subjective) test, originated in Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157 (9th Cir. 1977) (“Krofft”). 4 Nimmer, § 3.03[E][3] at 13-104 to –118.3. The extrinsic test is to be applied by a court before the trier of fact evaluates the intrinsic test. Prompt dismissal of Plaintiffs’ Complaint, with Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 20 of 32 Page ID #:320 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 14 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT prejudice, is warranted under the extrinsic test in this case. B. Extrinsic Test Under the extrinsic test, the court must first “list and analyze” “specific criteria” (eight factors for literary and dramatic works) in each work on an objective basis and then compare the works with reference to those factors to determine if they are substantially similar in protected “expression.” Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1174 (9th Cir. 2003); Krofft, 562 F.2d at 1164; Kouf, 16 F.3d at 1045. “[T]his question may often be decided as a matter of law.” Krofft, 562 F.2d at 1164. See also Benay, 607 F.3d at 624 (“[w]e have frequently affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity”) (citations omitted); Funky Films, 462 F.3d at 1081-82; Cavalier, 297 F.3d at 824; Kouf, 16 F.3d at 1045; Berkic, 761 F.2d at 1293; See v. Durang, 711 F.2d 141, 144 (9th Cir. 1983). 1. No Similarity As To Plot And Sequences Of Events As the summaries of the works demonstrate (see Section II, supra), there is no similarity of plot and sequence of events between Rise and God’s Not Dead. God’s Not Dead is a two-week story of a Christian freshman who is the one student in his college philosophy class who refuses the professor’s request to sign a piece of paper stating that God is dead and is then forced to defend God’s existence in three successive class sessions, with his grade in the class hinging on whether he can persuade his classmates that God is not dead. The freshman convinces all the students in his philosophy class that God is not dead. The Film has multiple storylines exploring myriad relationships: Christian student (Josh) versus atheist professor (Radisson); Christian student (Josh) versus shallow girlfriend (Kara); Christian girlfriend (Mina) versus atheist boyfriend (Radisson); liberal blogger with cancer (Amy) versus atheist boyfriend (Marc); liberal blogger (Amy) versus devout Christians (Willie and Korie Robertson; the Newsboys); atheist son (Marc) versus Christian mom with dementia (Miss Shelley); Christian-aspiring Muslim daughter (Ayisha) versus rigid and intolerant father; carefree and content Reverend (Jude) Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 21 of 32 Page ID #:321 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 15 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT versus uptight and unsatisfied Reverend (Dave); open-minded foreign student (Martin) versus close-minded father – almost all interrelated by either their joint attendance at a Christian concert at the end of the Film or their reaction (at the end of the Film) to receiving the same “God is not dead” text on their smart phones – and culminating in the antagonist’s dramatic death-scene conversion from atheism to acceptance of God. The myriad storylines do not all involve the protagonist, Josh. In contrast, Rise is a four-year story, supplemented by several flashbacks to earlier years, about a young Christian woman who transforms from a gentle and modest young Christian woman into a harder, sexy woman who begins to doubt herself and her faith as she pursues an inappropriate relationship with a married professor who can help secure her academic and professional future, and who ultimately has a spiritual reawakening that allows her to find her way back to herself and God. There are far fewer storylines, and they all involve Emma – either her relationship with her professor (Hawkins), other students (Sophia, Jivan, Colin), persons at The Ark (Jim, Vera, Sam), or her family (mother, father, siblings) – and the antagonist (Hawkins) neither dies nor comes to believe in God. Emma does not convince all the students in any of her classes that God is not dead. Plaintiffs strive to claim similarity of plot and sequence of events by purporting to compare the following stages of story structure: “Set Up,” “Opportunity,” “Turning Point,” “Change of Plans,” “Complications,” “Set Back,” “Final Push,” “Climax,” and “Aftermath.” See Cmpt., ¶ 22 at 7:25-9:25. Not only is this comparison breakdown not recognized by the Ninth Circuit, but Plaintiffs’ comparisons are either meaningless, unprotectible scénes-á-faire, or plainly inaccurate. The “Set Up” of a Christian college student at a secular university aspiring to attend graduate school (Cmpt., ¶ 22 at 8:5-8) is an unprotectible scénes-á-faire, akin to two different crime movies featuring police officers aspiring to fight crime. The claimed “Opportunity” of a student satisfying a general education requirement by taking a freshman philosophy class with an atheist professor (Cmpt., Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 22 of 32 Page ID #:322 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 16 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT ¶ 22 at 8:9-13) is an inaccurate description of Rise, which instead involves a student (Emma) taking a SocioBiology class (also referred to in the Screenplay as Ethics) from an atheist professor during her Senior year. See Ex. 4 to Cmpt., at 33, 75, 79. The so-called “Turning Point” of a student being cold-called about whether God exists and then choosing to challenge the atheist professor’s assertion that God is dead (Cmpt., ¶ 22 at 8:14-22) is not an accurate description of God’s Not Dead. While Emma is cold-called about God’s existence in Rise (see Ex. 4 to Cmpt., at 30-31), Josh is not cold-called in God’s Not Dead but instead draws attention to himself by rejecting the professor’s request to sign a piece of paper stating that God is dead. See Ex. A to RJN, at 13:54-14:11. Moreover, the dynamic is entirely different in the two works. Professor Radisson (GND) presents Josh at the outset with the dilemma of either betraying his Christian beliefs by signing the piece of paper, or risking a bad grade if he does not successfully defend his belief in God’s existence in the course of three class presentations. See Ex. A to RJN, at 14:26-57. Rise’s Professor Hawkins, on the other hand, does not present Emma with a dilemma at the outset. She initially disagrees with his atheistic ideas when he is guest speaking in her Sociology class (i.e., nothing is at risk for her), and her later arguments against his atheistic ideas are made in response to questions posed by a CSPAN moderator and in later debates suggested by another Senior Scholar and Hawkins’ publicist. See Ex. 4 to Cmpt., at 29-33, 64-67, 73-74. Plaintiffs’ “Change of Plans” description – i.e., a Christian student challenging an atheist professor “in three (3) debates between the professor and the student” (Cmpt. ¶ 22 at 8:23-27) – is simply a restatement of the so-called “Turning Point” and mischaracterizes God’s Not Dead because Josh does not “debate” Professor Radisson. In fact, Professor Radisson specifically refers to Josh’s “presentations” and “lectures,” not “debates.” See Ex. A to RJN, at 34:-7-16 (“Mr. Wheaton . . . will be presenting his case in favor of a supreme celestial dictator, otherwise known as God.”); 16:36-38 (“in preparation for Mr. Wheaton’s lecture”); 41:29-32 (“Well, I look forward to next Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 23 of 32 Page ID #:323 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 17 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT week’s lecture.”). For his part, Josh refers to the exercise as a trial. See id. at 35:17- 27 (“We’re going to put God on trial, with Professor Radisson as the prosecutor, and me as the defense attorney, and you as the jury.”). The claimed “Complications” comparison of both Hawkins (in Rise) and Radisson (in GND) threatening the student’s academic success if they continue with their arguments (Cmpt., ¶ 22 at 9:2-8) is unprotectible scénes-á-faire, as a professor would be expected to seek to prevent the possibility of being humiliated or humbled by a student. Stock characters or character traits are not protectible. Rice, 330 F.3d at 1175; Kouf, 16 F.3d at 1046; Olson, 855 F.2d at 1451-52. Plaintiffs’ attempted “Set Back,” “Final Push” and “Climax” comparisons (Cmpt., ¶ 22 at 9:9-21) – where both Josh and Emma experience increasing confidence and success in their conflict with the antagonist – is a staple of story- telling in the age-old struggle of the protagonist overcoming obstacles to finally hold his/her own against the antagonist. As a matter of law, copyright law does not protect basic plot ideas. Cavalier, 297 F.3d at 824; Berkic, 761 F.2d at 1293. Plaintiffs also falsely state that both antagonists’ “win[] the third debate.” Cmpt., ¶ 22 at 9:20-21. Not only is there no “debate” in God’s Not Dead, but the Rise Screenplay specifically states “NOT A CLEAR ‘WINNER’” of the third debate. See Ex. 4 to Cmpt., at 160. Finally, Plaintiffs erroneously claim that the “Aftermath” experienced by Professor Hawkins (in Rise) and Professor Radisson (in GND) is the same. Cmpt., ¶ 22 at 9:22-23. Not only is there nothing in the Rise Screenplay that supports Plaintiffs’ claim that Professor Hawkins “becomes open to Christianity” (see id., Rise column), but, even if there was, this would not be similar to Professor Radisson’s “I don’t want to die, I’m so scared” death-scene acceptance of God (in GND) as he lies on a wet street in the rain after being hit by a car. See Ex. A to RJN, at 1:40:53-57. Plaintiffs also falsely claim that the “Aftermath” of both Rise and God’s Not Dead is that “many other supporting characters become Christians.” Cmpt., ¶ 22 at 9:24-25. While that is true for God’s Not Dead (with the Chinese Martin and Muslim Ayisha Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 24 of 32 Page ID #:324 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 18 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT characters becoming Christians), there is no evidence in the Rise Screenplay that any formerly non-Christian characters become Christians. The mere fact that both works involve a Christian student presenting arguments against an atheist professor does not suffice to demonstrate copyright infringement. It is nothing more than an idea that is not protected by copyright. 17 USC §102(b) (“In no case does copyright protection … extend to any idea, … concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). The extrinsic test compares “[n]ot the basic plot ideas for stories,” but the “actual concrete elements” that comprise the works’ stories. Berkic, 761 F.2d at 1293-94 (“No one can own the basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.”). See Benay, 607 F.3d at 625 (“In applying the extrinsic test, we look ‘beyond the vague, abstracted idea of a general plot.’ [citation omitted] Though the [plaintiff’s] Screenplay and the [defendants’] Film share the same basic plot premise, a closer inspection reveals that they tell very different stories.”). A single idea or event (or even a series of ideas or abstract events) is not sufficient to raise an issue of fact as to substantial similarity of plot or sequence of events. Id. (no triable issue of fact as to similarities even though both the plaintiff’s and the defendants’ works “deal with criminal organizations that murder healthy young people, then remove and sell their vital organs to wealthy people in need of organ transplants”); Gable v. Nat’l Broad. Co., 727 F.Supp.2d 815, 844 (C.D. Cal. 2010) (no substantial similarity of plot where elements were dissimilar when viewed in context and where those that did “bare some commonality . . . [did] not occur in the same sequence”), aff’d sub nom. Gable v. Nat’l Broad. Co., 438 F.Appx. 587 (9 th Cir. 2011). There is no similarity of plot or sequence of events between the two works. 2. No Similarity As To Characters The lead character in each work is a Christian college student. That abstract description is the full extent of any similarity between these characters. Josh (in Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 25 of 32 Page ID #:325 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 19 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT GND) is a college freshman who is comfortable in his own skin from start to finish. He never wavers in his Christian convictions and never changes the person that he is. Emma (in Rise), on the other hand, transforms from a humble and gentle woman who doesn’t drink or wear make-up or fashionable clothing to a harder woman who drinks regularly, wears make-up and sexy clothing, and has an inappropriate relationship with a married professor. Her change is so dramatic that she tells her roommate Sophia that her family “barely recognized” her, and tells her friend, “I don’t even know if I believe in God, Jivan!” See Ex. 4 to Cmpt., at 56, 91. Emma needs a spiritual reawakening before she is able to continue debating her professor and find her way back to the person that she was. The fact that Professor Hawkins’ wife Leah (in Rise) and Professor Radisson’s girlfriend Mina (in GND) are both former students of the professors does not make them substantially similar. Leah is a volunteer with Harvard’s Bach Society, has an 11-year-old daughter, and is cheated on by her husband. Mina, in contrast, is not married, has no children, and is not a victim of cheating. Plaintiffs falsely state that both Leah and Mina are lapsed Christians who turn their lives back to God. While Mina tells Radisson that she is starting to wonder if she is “unequally yoked” (see Ex. A to RJN, at 56:14-20) – because she is a Christian and he is an atheist – she leaves him because he is verbally abusive and condescending. She never lost her faith, and she and Radisson talk about how her Christianity has been a constant issue in their relationship. See id. at 56:37-57:20. Similarly, nothing in Rise suggests that Leah is a lapsed Christian or that she turns her life back to God. She is simply portrayed as a nice and caring woman from start to finish. See Ex. 4 to Cmpt., at 18-19, 58-59, 161. Plaintiffs erroneously claim that both Rise’s Professor Hawkins and GND’s Professor Radisson are famous, charming and arrogant atheists with a Christian wife. Cmpt., ¶ 25 at 11:6-9. GND’s Radisson is not famous, charming or married. Moreover, Rise’s Hawkins is a serial adulterer whereas Radisson is not. Also, Radisson dies after being hit by a car and accepts God just seconds before his death. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 26 of 32 Page ID #:326 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 20 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT See Ex. A to RJN at 1:39:15-1:43. In contrast, Hawkins does not die and there is no evidence that he changes his atheistic views. Plaintiffs incorrectly claim that Jivan (in Rise) and Martin (in GND) both provide encouragement to the protagonist and eventually come to choose Christianity. Cmpt., ¶ 25 at 11:17-23. Martin does not provide encouragement to Josh, but rather questions why he is defending God’s existence in the first place. See Ex. A to RJN, at 49:18-50:37. Also, there is no indication in Rise that Jivan chooses Christianity simply because he supports Emma during her debates against her atheist professor. Plaintiffs also incorrectly claim that Sam Reisling (in Rise) and Reverend Dave (in GND) are local pastors who support the protagonist in their “debates.” Cmpt., ¶ 25 at 11:24-26. Reisling is not a pastor but rather a former Professor of Medicine at Harvard who left teaching to open a center for elderly people with special needs. See Ex. 4 to Cmpt., at 78, 132. He actively tutors Emma to prepare her for her final debate and attends two of the debates. See id. at 103, 117-121, 123-129, 140-141, 160. Reverend Dave, on the other hand, does not tutor Josh for any of his class presentations and does not attend any of them. Contrary to Plaintiffs’ claim (Cmpt., ¶ 25 at 12:2-3), Jim and Vera (in Rise) are not substantially similar to Willie and Korie Robertson (in GND). The former are a fictional “55-ish couple” who manage the special needs center The Ark, and Vera suffers a stroke (see Ex. 4 to Cmpt., at 24, 107), whereas the latter play themselves – real-life television personalities in their early forties. See Ex. A to RJN, at 6:10-18; 18:06-20:55. The fact that both couples have faith and may both live in a rural area does not make them substantially similar. See Benay, 607 F.3d at 626 (“only distinctive characters are protectable, not characters that merely embody unprotected ideas”), citing Olson, 855 F.2d at 1451-53. Referring to Rise’s Vera and GND’s Miss Shelley (Marc and Mina’s mother), Plaintiffs erroneously claim that both works feature, as a purported “sage,” a “wise elderly woman [who] has great insight, but loses her voice and becomes mute.” Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 27 of 32 Page ID #:327 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 21 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Cmpt. ¶ 25 at 12:4-6. Miss Shelley does not lose her voice. She speaks at the beginning of the Film (about liking her chicken and about Mina not wearing a wedding ring), and at the end of the Film (about the devil’s power over her son Marc). See Ex. A to RJN, at 6:45-7:55; 1:30:23-1:31:23. Also, a stock character (a wise elderly woman) is not protectible. Rice, 330 F.3d at 1175; Benay, 607 F.3d at 626. God’s Not Dead features the Christian band Newsboys, two Reverends (Dave and Jude), an atheist businessman (Marc) who is the “meanest person [he] know[s]” (see Ex. A to RJN, at 1:30:04-08), a liberal atheist blogger (Amy) diagnosed with cancer, and a Muslim girl (Ayisha) and a Chinese student (Martin) who convert to Christianity. There are no counterparts for these important characters in Rise. Rise features the protagonist’s roommate (Sophia) and the protagonist’s family members as important characters. There are no such counterparts in God’s Not Dead. There is no substantial similarity of characters in the two works. 3. No Similarity As To Themes The main theme of God’s Not Dead is that God is not dead, love is all around, and one’s belief or non-belief in God has a profound effect on relationships with others. In contrast, Plaintiffs state that the theme of Rise is “Christians rising to stand up for their faith, regardless of the consequences of their decision.” Cmpt. ¶ 22 at 8:2- 4. The themes of the two works are not similar. 4. No Similarity As To Settings God’s Not Dead is set at fictional Hadleigh University. License plates on cars reveal that the university is located in Louisiana. See Ex. A to RJN at 11:31, 18:12; 57:31. The fact that contemporary personalities Willie and Korie Robertson from the Duck Dynasty television show play themselves in the Film establish a present day setting. Rise, on the other hand, is set at Harvard University in Cambridge, Massachusetts and there is no reliable barometer to measure when the story takes place. Rise has several scenes at two farmhouses: the Ark in Concord, Massachusetts, and a family farmhouse in rural Iowa, and several scenes on the fire escape (a secret Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 28 of 32 Page ID #:328 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 22 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT garden sanctuary of sorts) located outside Emma’s dorm room. There are no farmhouse or fire escape scenes in God’s Not Dead. Also, God’s Not Dead has prominent scenes in a hospital and a concert venue. There are no such settings in Rise. The fact that both works have scenes on a college campus does not make them substantially similar. Williams, 84 F.3d at 589 (finding that settings were scénes-á- faire that flowed from the concept of a dinosaur zoo); Bernal v. Paradigm Talent & Literary Agency, 788 F.Supp.2d 1043, 1071 (C.D. Cal. 2010) (no substantial similarity of settings where both works were set in a suburban neighborhood). 5. No Similarity As To Mood God’s Not Dead presents the spectrum of tone and feeling: light-hearted and amusing (e.g., the two Reverends’ encounters with the car rental employee in their quest to drive to Disneyworld; the good-natured humor of Willie and Korie Robertson in the course of an ambush interview by Amy), serious and somber (Amy’s cancer diagnosis), dark and disturbing (Ayisha’s assault and rejection by her father; Professor Radisson’s condescension to girlfriend Mina; Marc’s callous rejection of Amy when she reveals she has cancer), emotionally riveting (Miss Shelley’s powerful words to son Marc as if possessed by a higher spirit), tense and dramatic (the intensity of Josh’s interactions with Radisson; Radisson’s death scene acceptance of God; Amy’s emotional breakdown), uplifting and hopeful (Reverend Dave’s support and counseling to Mina and Ayisha; the students’ unanimously siding with Josh and finding that God is not dead; the Newsboys’ upbeat concert performance and the hope they provide to Amy). Rise’s tone, on the other hand, is not only more consistently serious, but also more controversial, as it touches such hot button issues as loss of virginity (if not outright date rape), adultery, sexual harassment, and drinking to numb reality, all of which are experienced by or directly impact the protagonist (Emma). See Bissoon-Dath v. Sony Computer Entm’t Am., Inc., 694 F.Supp.2d 1071, 1085- 86 (N.D. Cal. 2010) (no substantial similarity of mood where one work had a pervasive dark mood lacking in the other work), aff’d sub nom., Dath v. Sony Computer Entm’t Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 29 of 32 Page ID #:329 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 23 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT Am., Inc., 653 F.3d 898 (9 th Cir. 2011). There is no substantial similarity in the mood of the two works. 6. No Similarity As To Pace God’s Not Dead transpires over a short two-week time period – just long enough for the protagonist to make presentations in three successive meetings of his philosophy class. Rise, in contrast, is set over the course of four years. God’s Not Dead also has a faster pace than Rise, and proceeds in a linear fashion, with multiple inter-related storylines propelling the story forward. Rise, in contrast, relies on multiple flashbacks and moves forwards and backwards in time, including scenes when the protagonist (Emma) was a young girl. God’s Not Dead does not employ flashbacks and offers only a “two-weeks-in-the-life-of” view of the protagonist (Josh). There is no similarity in the pace of the two works. See Weygand v. CBS, Inc., 1997 WL 377980, at *8 (C.D. Cal. May 21, 1997) (no substantial similarity of pace where one work spanned several years and the other work spanned about one year). 7. No Similarity As To Dialogue There must be “extended similarity of dialogue” “to support a claim of substantial similarity based upon this issue.” Olson, 855 F.2d at 1450. There is no such similarity in dialogue between the two works. Plaintiffs falsely claim that the statement “God is good” and the response “all the time” is repeated several times by “pastoral” supporters of the protagonist in both works. Cmpt., ¶ 24(a) at 10:7-8. In God’s Not Dead, the statement “God is good” is made three times by one of the Reverends, followed by the other Reverend’s response, “all the time.” Each time, the response is followed by the statement, “and all the time” and the response, “God is good.” See Ex. A to RJN, at 11:35-41; 52:28-34; 1:29:05-12. In contrast, the statement “God is good” is made only one time in Rise by an Ark resident, followed by the response “all the time” by the Ark founder (not a pastor). See Ex. 4 to Cmpt., at 28. On one other occasion, the Ark founder prays, “We thank you, Lord, that you are good,” followed by the Ark residents’ response, “all the time.” See id. at 128. On Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 30 of 32 Page ID #:330 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 24 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT neither occasion is it followed by the statement, “and all the time” and response, “God is good.” Moreover, “God is good, all the time, and all the time, God is good” is a popular Christian chant, and is recited in the video for singer-songwriter/pastor Don Moen’s song God is Good All the Time. See https://www.youtube.com/watch?v=gt- OouIx8Lk. 2 See also Narrell v. Freeman, 872 F.2d 907, 911 (9 th Cir. 1989) (“Ordinary phrases are not entitled to copyright protection.”). The statement “God is dead” (Cmpt., ¶ 24(b) at 10:9) dates at least as far back as German philosopher Friedrich Nietzsche’s statement in the late 1800’s that “God is dead.” See, e.g., https://en.wikipedia.org/wiki/God_is_dead. 3 Moreover, given that the title of the Film is “God’s Not Dead,” a character in the Film stating “God is dead” is to be expected, and is therefore unprotectible scénes-á-faire. The simple fact that both Rise and God’s Not Dead make passing references to some of the same philosophers or writers (e.g., George Santayana, Professor John Lennox, C.S. Lewis, St. Augustine, Stephen Hawking) (Cmpt., ¶¶ 24(c),(f)-(i)) does not demonstrate substantial similarity, as this is unprotectible scénes-á-faire for two works involving the subject of philosophy, akin to two movies about the Civil War both containing references to Robert E. Lee, Stonewall Jackson, Ulysses S. Grant, and George Custer. Plaintiffs’ claim that both works make references to the Book of Job, the big bang theory, moral law, God as “dictator,” or God as a “fairytale” (Cmpt., ¶¶ 24(d)-(e), (j)-(l)) similarly fails to demonstrate substantial similarity, as these claimed similarities also constitute unprotectible scénes-á-faire for two stories addressing the issue of God’s existence, akin to two movies about a U.S. presidential election both containing references to “party platform,” “Planned Parenthood,” and the “NRA.” 2 Defendants respectfully request that the Court take judicial notice of the YouTube video “God Is Good All The Time” accessible at https://www.youtube.com/watch?v= gt-OouIx8Lk for the limited purpose of demonstrating that the phrase “God is good all the time” is commonly known in the Christian community. See RJN at 4:1-6. 3 Defendants also respectfully request that the Court take judicial notice of the Wikipedia article for the entry “God is dead” accessible at https://en.wikipedia.org/ wiki/God_is_dead for the limited purpose of demonstrating that the phrase “God is dead” is commonly known. See RJN at 4:1-6. Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 31 of 32 Page ID #:331 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 25 DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS’ COMPLAINT * * * In summary, there is no substantial similarity between the two-week story in the God’s Not Dead Film and the four-year, flash-back driven character journey in the Rise Screenplay. Plaintiffs’ alleged similarities are no more than abstractions, so vague and generic that their Complaint is subject to dismissal. Williams, 84 F.3d at 583-87 (comparing four works of children fiction with novel and film Jurassic Park); Walker, 784 F.2d at 46 (comparing book Fort Apache and film Fort Apache: The Bronx); Zella, 259 F.Supp.2d at 1138 (comparing treatment and script with television show Rachael Ray). See also Kouf, 16 F.3d at 1046 (comparing plaintiff’s screenplay with film Honey, I Shrunk the Kids); Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9 th Cir. 1994) (comparing musical play with film E.T.–The Extra Terrestrial): Berkic, 761 F.2d at 1293 (comparing screen treatment with film Coma). Thus, Plaintiffs’ Complaint, containing only a claim for copyright infringement, should be promptly dismissed, without leave to amend. No additional allegations can change the two works at issue or otherwise salvage Plaintiffs’ copyright claim. IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court dismiss Plaintiffs’ Complaint, without leave to amend, and award Defendants their reasonable attorneys’ fees and costs pursuant to 17 U.S.C. § 505. DATED: August 10, 2016 /s/ Robert S. Gutierrez LOUIS P. PETRICH ROBERT S. GUTIERREZ LEOPOLD, PETRICH & SMITH, P.C. Attorneys for Defendants PURE FLIX ENTERTAINMENT LLC and DAVID A. R. WHITE Case 2:16-cv-03949-R-AS Document 13 Filed 08/10/16 Page 32 of 32 Page ID #:332 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 1 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT 38069.docx LOUIS P. PETRICH (State Bar No. 038161) ROBERT S. GUTIERREZ (State Bar No. 143223) LEOPOLD, PETRICH & SMITH, P.C. 2049 Century Park East, Suite 3110 Los Angeles, California 90067-3274 Tel: (310) 277-3333 • Fax: (310) 277-7444 E-Mail: lpetrich@lpsla.com; rgutierrez@lpsla.com Attorneys for Defendants PURE FLIX ENTERTAINMENT LLC and DAVID A.R. WHITE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION KELLY MONROE KULLBERG, an individual and MICHAEL LANDON, JR., an individual, Plaintiffs, v. PURE FLIX ENTERTAINMENT LLC, a California limited liability company, and DAVID A.R. WHITE, an individual, Defendants. CASE NO. 2:16-cv-03949-R-AS [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT DATE: October 3, 2016 TIME: 10:00 a.m. CTRM: 8 Case 2:16-cv-03949-R-AS Document 13-1 Filed 08/10/16 Page 1 of 2 Page ID #:333 LEOPOLD, PETRICH & SMITH A Professional Corporation 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 2 [PROPOSED] ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS COMPLAINT 38069.docx The Motion to Dismiss of defendants Pure Flix Entertainment LLC and David A.R. White (collectively, “Defendants”) came regularly for hearing in the courtroom of the Honorable Manuel L. Real. After due consideration, and the Court having concluded that Plaintiffs’ Complaint fails to state a claim upon which relief can be granted, and that amendment of the Complaint would be futile, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss by Defendants is granted, and the Complaint filed by Kelly Monroe Kullberg and Michael Landon, Jr.is DISMISSED with prejudice and without leave to amend, on the following grounds: Plaintiffs’ sole claim for relief for copyright infringement fails to state a claim upon which relief can be granted because the two works at issue, Defendants’ motion picture God’s Not Dead and Plaintiffs’ screenplay Rise, are not substantially similar as a matter of law. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Judgment shall be entered in favor of Defendants dismissing the Complaint in its entirety. IT IS SO ORDERED. DATED: __________________ ________________________________ United States District Judge Case 2:16-cv-03949-R-AS Document 13-1 Filed 08/10/16 Page 2 of 2 Page ID #:334