Gallagher
v.
Lions Gate Entm't Inc.

This case is not covered by Casetext's citator
United States District Court Central District of CaliforniaSep 11, 2015
Case No. 2:15-cv-02739-ODW(Ex) (C.D. Cal. Sep. 11, 2015)

Case No. 2:15-cv-02739-ODW(Ex)

09-11-2015

PETER GALLAGHER, Plaintiff, v. LIONS GATE ENTERTAINMENT INC.; LIONS GATE FILMS INC.; MUTANT ENEMY, INC.; JOSEPH "JOSS" WHEDON; ANDREW GODDARD; and DOES 1-50, inclusive, Defendants.


ORDER GRANTING DEFENDANTS' MOTION TO DISMISS [18]

I. INTRODUCTION

Plaintiff Peter Gallagher ("Gallagher") has brought suit against Defendants Lions Gate Entertainment Inc., Lions Gate Films Inc., Mutant Enemy, Inc., Joseph "Joss" Whedon, Andrew Goddard, and Does 1 through 50 (collectively "Defendants") for copyright infringement of his book The Little White Trip: A Night in the Pines ("Trip") by Defendants' film The Cabin in the Woods ("Cabin"). Defendants now move to dismiss Gallagher's claims for failing to allege the necessary elements for copyright infringement. For the reasons discussed below, the Court finds that Cabin and Trip are not similar and therefore GRANTS Defendants' Motion to Dismiss with prejudice. (ECF No. 18.)

After carefully considering the papers filed in support of and in opposition to the Motion, the Court deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.

II. FACTUAL BACKGROUND

Gallagher is the author and owner of all exclusive rights under copyright of the literary work Trip. (ECF No. 15, First Am. Compl. ["FAC"] ¶ 12.) Gallagher developed the idea of Trip and drafted an outline of that idea in 2004; he then completed the initial draft of Trip between late 2004 and early 2005. (Id. ¶¶ 13-14.) Trip was published in or about June 2006, with 2,500 copies of the book printed for sale. (Id. ¶ 17.) Gallagher then began selling copies of Trip on the Venice Beach Boardwalk, the Santa Monica Third Street Promenade, and outside the Chinese Theatre on the Hollywood Walk of Fame. (Id. ¶ 18.) During this period, Gallagher alleges that multiple producers contacted him and expressed interest in Trip. (Id. ¶ 19.) Gallagher does not state what exactly the producers' interests were, nor if anyone connected to Defendants were amongst those who contacted him. Over the course of one and a half years, Gallagher sold approximately 5,000 copies of Trip, primarily in the Santa Monica and Venice Beach areas. (Id. ¶ 25.)

Defendants are the writers, producers, and distributors of Cabin, which was released in 2012. (Id. ¶¶ 4-8.) All Defendants other than Andrew Goddard and Mutant Enemy, Inc. reside or operate out of Santa Monica, with the other two listed as residing or operating out of Los Angeles County. (Id.) Gallagher alleges that Cabin copied extensively from Trip in addition to having access and thereon bases his allegations of copyright infringement. (Id. ¶ 29.)

A. Procedural History

Gallagher filed his initial Complaint on April 13, 2015. (ECF No. 1.) Defendants subsequently moved to dismiss the Complaint for failing to allege the necessary elements of copyright infringement on May 18, 2015. (ECF No. 11.) In response, Gallagher filed the First Amended Complaint on May 19, 2015. (ECF No. 15.) Defendants moved to dismiss the First Amended Complaint on June 1, 2015. (ECF No. 18.) A timely opposition and reply were filed. (ECF Nos. 24, 25.) Defendants' Motion is now before the Court for consideration.

III. LEGAL STANDARD

A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable legal theory or insufficient facts pleaded to support an otherwise cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). In doing so, "a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A court is generally limited to the pleadings and must construe all "factual allegations set forth in the complaint . . . as true and . . . in the light most favorable" to the plaintiff. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). However, the court is not required to "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (internal citations omitted).

The factual "allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The determination whether a complaint satisfies the plausibility standard is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell, 266 F.3d at 988.

To prevail on a copyright infringement claim, a plaintiff "must demonstrate (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 624 (9th Cir. 2010). In order to establish infringement when evidence of direct copying is unavailable, the plaintiff must show that the defendant had access to the plaintiff's work and that the two works are "substantially similar." Funky Films, Inc. v. Time Warner Entm't Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006).

In copyright infringement cases where the court judicially notices the works at issue and it is clear there is no substantial similarity between them as a matter of law, dismissal of the claims is proper. E.g., Christianson v. West Publ'g Co., 149 F.2d 202, 203 (9th Cir. 1945); accord Wild v. NBC Universal, Inc., 513 Fed. Appx. 640, 641 (9th Cir. 2013). Accordingly, when substantial similarity is absent after a review of the works at issue no amendment could cure the complaint's deficiencies, thus, dismissal with prejudice is not uncommon. E.g., Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (stating that dismissal with prejudice is proper when "it is clear, upon de novo review, that the complaint could not be saved by any amendment."); Segal v. Rogue Pictures, No. CV 10-5650-DSF-AJWX, 2011 WL 11512768 (C.D. Cal. Aug. 19, 2011) ("[C]ourts need not grant leave to amend if it would be futile to do so."), aff'd, 544 Fed. Appx. 769 (9th Cir. 2013); Campbell v. The Walt Disney Co., 718 F. Supp. 2d 1108, 1116 (N.D. Cal. 2010) (a finding of no substantial similarity is a "defect [that] cannot be cured by amendment."); Scott v. Meyer, No. 2:09-cv-06079-ODW, Order Granting Def.'s Mot. to Dismiss at 4 (C.D. Cal. Nov. 24, 2009) (attached as Ex. 3 to ECF No. 18, Attach. 1, Decl. of Elaine K. Kim).

IV. DISCUSSION

A. Defendants' Requests Are Procedurally Proper in a Motion to Dismiss

As an initial matter, the Court will address the procedural issue raised by Gallagher. (Opp'n 13-14.) Gallagher contends that if the Court looks to matters introduced outside the pleadings, "the motion must be treated as one for summary judgment." (Id. (emphasis added).) Accordingly, he argues, the Court "must" grant him an opportunity to conduct discovery and present evidence in support of his claims. (Id. 14 (emphasis added).) This position, however, is incorrect and entirely unsupported, as evidenced by the lack of case citations in Gallagher's brief. See supra p. 4. Moreover, since both works in question are now before the court, there is no other possible evidence that could be introduced that could sway the Court's finding on substantial similarity and, as a result, of non-infringement. E.g., Segal v. Rogue Pictures, 544 Fed. Appx. 769, 770 (9th Cir. 2013) ("[N]o amount of proof of access will suffice to show copying if there are no similarities.").

Pursuant to Federal Rule of Evidence 201, Defendants have requested the Court take judicial notice of Gallagher's book, The Little White Trip, and the Defendants' motion picture, The Cabin in the Woods, and provided copies of both works to the Court. (ECF No. 19, Defs.' Request for Judicial Notice.) Federal Rule of Evidence 201(c) states that the Court "must take judicial notice if a party requests it and the court is supplied with the necessary information," and 201(d) allows for judicial notice at "any stage of [a] proceeding." Fed. R. Evid. 201. Furthermore, on a motion to dismiss the Court may take judicial notice of documents outside the pleadings when the documents are referenced in the complaint. E.g., Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005) ("We have extended the 'incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document"). As the requested works are essential to the outcome of this motion, do not have their authenticity disputed, and are referenced at great length in Gallagher's complaint, the Court GRANTS Defendants' Request for Judicial Notice (ECF No. 19) and considers the material therein in ruling on this motion.

B. The Extrinsic Test Shows That the Works Are Not Substantially Similar

In determining whether two works are substantially similar, the Ninth Circuit has consistently relied on a two-part test that requires the plaintiff to prove substantial similarity under both an extrinsic and intrinsic test. Benay, 607 F.3d at 624. The extrinsic test is an objective analysis of the specific expressive elements in each work that "focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works." Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044 (9th Cir. 1994) (quotation omitted). The intrinsic test, on the other hand, "is a subjective comparison that focuses on 'whether the ordinary, reasonable audience' would find the works substantially similar" in their totality. Id. (quoting Kouf, 16 F.3d at 1044). Therefore, the extrinsic test is capable of being ruled on as a matter of law, whereas the intrinsic test remains solely in the hands of the trier of fact. Benay, 607 F.3d at 624.

However, an examination that finds no substantial similarity under the extrinsic test allows a court to rule on the case at either the motion to dismiss or summary judgment stage. Id. ("If the [Plaintiffs] fail to satisfy the extrinsic test, they cannot survive a motion for summary judgment."); Segal, 2011 WL 11512768 (dismissing an infringement claim due solely to failing the extrinsic test). Such rulings are proper because no jury may find substantial similarity without satisfying both tests. Kouf, 16 F.3d at 1045.

In proceeding under the extrinsic test, a court "must take care to inquire only whether 'the protect[a]ble elements, standing alone, are substantially similar.'" Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996) (citation omitted); accord Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442-43 (9th Cir. 1994). Accordingly, "a court must filter out and disregard the non-protect[a]ble elements in making its substantial similarity determination." Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). Non-protectable elements can arise in the form of "general plot ideas," "stock scenes and themes that are staples of literature," and "scenes-a-faire, [comprising] situations and incidents that flow necessarily or naturally from a basic plot premise." Id. at 823 (citing Berkic v. Crichton, 761 F.2d 1289, 1293-4, (9th Cir. 1985)). The Court will address these elements in turn below.

1. PLOT

When applying the extrinsic test, a court must look "beyond the vague, abstracted idea of a general plot." Berkic, 761 F.2d at 1293. While Trip and Cabin share the same basic plot premise of five young adults venturing off to a cabin in the wilderness and being manipulated in varying degrees by a third party, "a closer inspection reveals that they tell very different stories." Benay, 607 F.3d at 625 (emphasis added).

a. Basic Plot

The plot of Cabin is rather comical and revolves around the idea that to avoid the "ancient ones" bringing about the apocalypse annual sacrifices, in the form of young people fitting certain specific archetypes common in most horror films, must be made to appease the old gods. Employees at various facilities located all around the world take this duty upon themselves to set up situations in which the chosen young people will be brought together and then systematically murdered in accordance with the ritual's requirements. The film's focus is upon a North America facility, and as it is the only facility left that has not yet failed in the current year's ritual, the world will come to an end unless they succeed in appeasing the old gods.

The film begins with the viewer becoming aware of the underground facility and its team, though their end goal is only revealed later in the film, and soon thereafter becoming aware that the team is observing and directing the group of friends during their stay at the cabin. Focus then changes to a group of college students, Dana, Jules, Curt, Holden, and Marty, preparing for a trip to a cabin and the film continues to alternate scenes between the group of friends and the facility. The facility's crew does their best to make light of the somber nature of their work by making wagers on which monsters will be selected each year and recognizing the importance of their work in protecting mankind. Eventually, the two friends still alive discover the underground facility and unleash the horrific, and sometimes comical, monsters on the facility's employees. When they discover the role they play in the grand scheme of appeasing the old gods, they defiantly refuse to complete the ritual and actually embrace, in some degree, bringing about the destruction of humanity.

In contrast, Trip starts off on a very serious note with the preface written by Matt, one of the "survivors," talking about what he went through including witnessing the "murder" of his closest friends; Julie, Dura, Ian, and Sam. The actual story begins by talking about the group of friends attending their high school graduation and winning a trip to a cabin in Flagstaff. The friends encounter numerous individuals who talk about the mystery and savagery of the murders that occurred at the cabin at the hands of the previous owner of said cabin. Over the course of the story, three of the five friends are "killed" by, who the group believes to be, Jeff Brinkley ("Brinkley"), the former owner that the friends were warned about. At the end of the story, Matt shoots and "kills" Brinkley and then a production crew flocks out of the woods and only then do the reader and Julie and Matt discover that they have been unwitting participants in the filming of a motion picture and that none of their friends had actually been killed.

While the two works share a common premise of students travelling to remote locations and subsequently being murdered, real or otherwise, that premise is unprotectable. The concept of young people venturing off to such locations and being murdered by some evil force is common in horror films and amounts to scenes a faire as they flow indispensably from the premise of a horror film. See Apple Computer, Inc., 35 F.3d at 1444 ("[W]hen similar features in a [genre] are as a practical matter indispensable, or at least standard, in the treatment of a given [idea], they are treated like ideas") (internal quotations and citation omitted). Another such form of scenes a faire takes shape in the presence of the "harbinger" character(s) in each work. While a gas station attendant warns the students in Cabin, and numerous characters warn the friends in Trip, the appearance of a character foreshadowing the danger ahead is commonplace in horror films.

For example, the film Friday the 13th (1980) similarly involved young adults venturing to a remote cabin in the woods after ignoring various warnings of death and danger from harbinger type characters, only to find themselves murdered by an evil force. This plot pattern has been mimicked in countless horror movies over the decades.

b. PRESENCE OF A CONTROLLING THIRD PARTY

Gallagher emphasizes in his arguments the similarity between the works' plots where a third party controls, at least to some degree, the group of friends during the book and film. Aside from the abstract idea of a third party manipulating the characters in various degrees, the facility technicians in Cabin and the film crew in Trip share almost no similarities whatsoever. In Cabin, the purpose of the third party is to appease the "ancient ones" and prevent the cataclysmic annihilation of humanity by sacrificing young adults who fit certain archetypes. The employees do not necessarily take pleasure in murdering these young people, as is made apparent through the various scenes in which the employee's describe their actions as necessary for the greater good and their act of praying after each death. In contrast, in Trip, the purpose of the third party is for the sole selfish reason of wishing to make a fortune by filming a reality horror movie. Those who are a part of the film crew show no remorse for their actions and instead appear to take great joy in being a part of "history" as members of the cast.

However, the existence of a third party controlling characters' actions and their surroundings is not a novel idea. For instance, The Truman Show (1998) was a motion picture where the main character's entire life was being controlled and filmed in order to make a reality television show. The main character lived in a small town that was actually a controlled set and everyone who lived there was an actor. The level of control, manipulation, and psychological impact of the third party in that film far outweighs the works before the Court here, but it shows that the abstract premise of both works is not a new idea or form of expression.

The presence of a third party is the very first thing the viewer learns of in Cabin, whereas in Trip the third party is not revealed until the very end of the book in the "surprise reveal." (FAC 11.) Contrary to Gallagher's allegation in the Complaint that the characters in Trip sense that "the things that are happening to them are not random, but carried out by some third party controlling the situation," when Matt discovers the camera hidden in the vase, Julie and he simply think that Brinkley is watching them. (FAC 12.) When the film crew exits the woods and their existence is made known, Matt's reaction does not comport with the reaction of a person who was aware that a third party was manipulating him; rather Matt himself narrates that "nothing could've prepared [him] for it," that "[he] felt like [he] had been slipped some awful drug," and that he and Julie were "totally lost."

This is made quite clear by the dialogue that follows, "[h]ow could he...like you said, where could he watch them from," and "[t]his kind of stuff is wireless. He could probably get a feed from anywhere around here." (emphasis added). If the characters had been sensing that a third party was in control and that awareness "culminated" with the discovery of the camera, why would they speak about a "he" rather than "they."

While Gallagher alleges in his Complaint that the facility employees in Cabin do what they do for the "enjoyment of others," that simply mischaracterizes the purpose of third party in Cabin. The facility employees do not bring about the friends' deaths for their enjoyment, but rather they do so solely to complete a preordained ritual necessary to prevent the destruction of the world. Their purpose, in comparison to the film crew in Trip, could not be more different.

Furthermore, the degree of manipulation and means of accomplishing it differ drastically between the works. In Cabin, the facility employees manipulate the friends by introducing chemical gasses/compounds to make sure they fall into the stock archetype planned for them. They lace Jules's hair dye with chemicals to increase her libido and release pheromone mists when Jules and Curt are in the woods to ensure that Jules fits the "Whore" archetype before she dies. The employees also release chemicals to ensure the friends abandon their common sense and instead engage in common horror movie lapses in judgment by splitting up when it is obvious that odds of survival diminish greatly while doing so. Outside of ensuring the characters fall into their archetype roles, opening the cellar door, and ensuring that they cannot leave before the ritual is completed, the employees let events unfold on their own.

In contrast, the film crew in Trip controls nearly every aspect of the friends experience from rigging the contest through which they win the trip, to removing all weapons from the cabin after the murders begin and planning their script to react to each and every move made by the friends. The crew's planning and methods are extensive and attempt to account for any variable, though they are caught off guard at times—an element necessary to their success in making a "reality horror movie." Extensive as the manipulation may be, the actions taken are generic and fail to even come close to the extravagance of the means of manipulation in Cabin, such as the chemical gas and rigging a tunnel with explosives, and the extent of control extends far past the degrees present in Cabin. The film crew must account for nearly every action taken by the friends, while the facility in Cabin need only ensure that the group arrives, stays at the cabin, and fulfill their archetypes for the sacrifice.

An additional integral component of the plot in Cabin is that the friends actually choose the instrument of their demise depending on what object in the cabin's cellar they choose to interact with. There are dozens of potential choices, each represented by a different item, and these alternative monsters are what end up tearing the underground facility apart in the latter parts of the film. There is no counterpart for this aspect of Cabin present in Trip; the recent graduates do nothing to "choose" their fate and instead are simply set upon by an actor pretending to be the former resident of the cabin they are residing in.

Gallagher argues that this element is in fact similar between the works, because Trip involves the friends discovery of the cabin's attic, inside of which they find dolls and photographs of the Brinkley family. According to Gallagher, both works involve finding a "storage space" and inside each, the friends find "items from the previous owners," including "a framed photograph of the family [of the previous owner]." (FAC 11-12.) This comparison, however, grossly mischaracterizes what occurs in Cabin when the friends are lured into the cabin's basement. Aside from the diary that Dana reads from, summoning the zombie Buckner family, none of the items in the basement belong to the previous owners of the cabin. Similarly at odds with Gallagher's allegations, there is no framed photograph of the Bucker family within the cellar, nor are clay dolls in the cellar in Cabin. Of the numerous objects discovered by the friends in Cabin there are no similarities to those found by the friends in Trip. Furthermore, the actual death of the friends in Cabin is required in order to complete the ritual and prevent the end of the world. In Trip there are no deaths and it is revealed at the end of the story that all of the "murders" were faked.

In Cabin, the friends interact with a spherical puzzle, a conch, a music box topped with a ballet dancer figurine, a locket, an old film reel, a dairy, and an old dress. In contrast, in Trip the friends discover a box filled with tiny clay figurines and a photo of the Brinkley family.

Moreover, a key plot component of Trip is that the existence of the film crew is not made known to the reader or the characters until the very end of the book, nor do the characters have any awareness of the presence of a third party until that point. Conversely, the viewer is informed of the facility and its employees in the first scene of the film and consistently throughout; there is never any doubt in the viewer's mind as to what is happening. The characters are initially unaware, though Marty senses something is afoot, until roughly two-thirds through the film when they descend into the underground facility and, eventually, bring about the apocalypse.

c. ADDITIONAL UNRECIPROCATED PLOT ELEMENTS

The differences in key plot features in the works do not end with those described above. For instance, the final third of Cabin revolves around Marty and Dana entering the underground facility, releasing the remaining monsters to savagely kill every employee of the facility, and eventually refusing to complete the ritual thereby causing the end of the world. Trip succinctly ends after the surprise reveal of the film crew. There are no monsters to kill the crew and there is no end of the world; rather the story ends with Matt moving away with his new girlfriend happily.

Therefore, while "[a]t first blush[] the apparent similarities in plot appear significant[,] . . . an actual [review] of the two works reveals greater, more significant differences and few real similarities at the levels of plot." Funky Films, 462 F.3d at 1078. The concept of a third party turning young adults into unwitting victims of horrible violence at remote locations is the very abstract premise of the plot behind the two works here. However, "[s]haring a simple plot feature . . . is insufficient to satisfy the extrinsic test for substantial similarity." Segal, 544 Fed. Appx. At 770. The idea behind an artistic work is not copyrightable, only the expression of that idea in a tangible medium falls within the realm of copyright law. Berkic, 761 F.2d at 1293. While both works share some abstract similarities in their underlying concept, their vastly differing expressions of that concept throughout the works are blatantly dissimilar. The plot of Trip is that of a suspenseful horror/thriller novel, while Cabin is a comedic spin on the classic motifs of the horror-film genre and, as such, "the plots of the two stories develop quite differently." Funky Films, 462 F.3d at 1078. As a result, the two works tell "fundamentally different stories, though they share [a similar] premise and a number of elements that flow naturally from that premise." Benay, 607 F.3d at 626 (emphasis added).

2. Characters

Ordinarily, characters are not afforded copyright protection, see Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954), but "characters that are 'especially distinctive' or the 'story being told' receive protection apart from the copyrighted work." Rice v. Fox Broad. Co., 330 F.3d 1170, 1175 (9th Cir. 2003). Seldom are characters in copyrighted works afforded their own copyright protection outside of the works they are found in, and those characters "have displayed consistent, widely identifiable traits." Id.; e.g., Toho Co., Ltd. v. William Morrow and Co., Inc., 33 F. Supp. 2d 1206, 1215 (C.D. Cal. 1998) (affording copyright protection to the character Godzilla); Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Corp., 900 F. Supp. 1287, 1297 (C.D. Cal. 1995) (James Bond); Anderson v. Stallone, 1989 WL 206431, *7 (C.D. Cal. 1989) (Rocky Balboa). It naturally follows that "[t]he bar for substantial similarity in a character is set quite high." Sheldon Abend Revocable Trust v. Spielberg, 748 F. Supp. 2d 200, 208 (S.D.N.Y. 2010).

Substantial similarity in characters cannot be based on "shared attributes of appearance and [general] demeanor [that] are generic and common to [characters in horror works]." Rice, 330 F.3d at 1176; see also Bernal, 788 F. Supp. 2d. at 1069 ("Generalized character types are not protected by copyright law."). Similarities that "flow naturally from the works' shared premises" also are unprotected. Benay, 607 F.3d at 626. Accordingly, a court must be sure "to slice or filter out the unprotectable elements" that arise from the embodiment of stock ideas in characters in a work. Bissoon-Dath v. Sony Computer Entm't Am., Inc., 694 F. Supp. 2d 1071, 1087 (N.D. Cal. 2010) aff'd sub nom. Dath v. Sony Computer Entm't Am., Inc., 653 F.3d 898 (9th Cir. 2011).

Gallagher argues that the two groups of friends in the works have "striking" similarities, and lists out the same alleged similarities in his Opposition as he does in his Complaint. (Opp'n 5-6; FAC 10.) He argues that both works follow a group that shares the same number of friends and the age group they fall into and both groups consist of "two couples and one male." (Opp'n 5.) Before discussing each character and their alleged counterpart separately, the Court wishes to point out that, while Trip indeed contains two couples and one lone male, Cabin clearly contains only one couple. This example, along with the other alleged similarities between the characters, is almost entirely the result of Gallagher's mischaracterizations.

a. TRIP 'S DURA AND CABIN'S DANA

Turning first to Trip's Dura and Cabin's Dana, Gallagher alleges that both are "sweet dark-haired female[s] who recently ended a relationship" and that at the beginning of both works the dark-haired female lead "begin[s] a romantic relationship with the more sensitive and mature male (Matt/Holden) which culminates in a love scene in front of the fireplace." (Id. 5-6.) In Trip, Dura is described as a star volleyball player, frequent marijuana smoker, feisty and "one of the guys" as well as having a "soft coffee complexion" and long brown hair. Dura is intimate with Matt before leaving for the cabin and is romantically involved with him. In contrast, Dana is a pale redhead who was recently dumped by one of her college professors, rather than having "recently ended a relationship," and is far from feisty as she is shown as being quite reserved and shy throughout most of the film. Additionally, Dana is not athletic, nor does she smoke marijuana, outside of the final scene of the movie, and Cabin does not begin with Dana starting a relationship with Holden. When Dana is told about Holden at the beginning of Cabin she tells Jules that if they try to set her up with him she will not be happy and consistently through the first half of the movie says that she is not interested in any sort of relationship. While Gallagher alleges that both works include a "love scene in front of the fireplace," Dana and Holden only briefly kiss--far from a love scene.

Furthermore, the role that Dana and Dura play in the plot of the works is vastly different. Dura is the second person to be "killed" by the fake Brinkley, while Dana is the main character of the film and one of the last two survivors before she and Marty bring about the end of the world. Indeed, it seems that the only similarity between the characters is that they have similar sounding names but that alone cannot suffice to find substantial similarity. E.g., Bernal, 788 F. Supp. 2d at 1070 ("Susan and Suzanne are not similar. Although the women have similar sounding names, the characters do not have much in common. . . . The roles that the two women play in the works are also different."). Contrary to Gallagher's assertion that similar character names should influence the Court in finding that "Defendants did in fact copy," the authority he uses to support that argument references the names of the works themselves, not of the characters. (Opp'n 6.) Perhaps if numerous other similarities existed between Cabin and Trip, similar names could prove to be the decisive element; that is simply not the case here. Accordingly, Dana and Dura are not substantially similar.

While Gallagher claims copying by Defendants due, in part, to similar sounding names and, in reality, very little else, it is puzzling to discover that the prime antagonist behind the scenes of the horror Matt and Julie endured in Trip is named Rex Luther; one's mind immediately thinks of Superman's arch-nemesis, Lex Luthor. Indeed, it would seem that Rex and Lex are substantially more similar than any of the characters in Cabin that Gallagher argues are "striking[ly]" so. If the Court were to find that any of Cabin's characters were substantially similar to Trip's by following Gallagher's argument and logic, the Court would also find that Gallagher has infringed upon Superman by copying Lex Luthor to make Trip's antagonist Rex Luther.

b. TRIP 'S MATT AND CABIN'S HOLDEN

Next, the Court finds that Trip's Matt and Cabin's Holden are far from similar. Holden is the student selected to fill the "Scholar" archetype for the ritual and necessarily is very intelligent, as shown by the fact that he had learned to speak Latin by the time he was in 10th grade. He is shown to be mature throughout the film; first by disclosing the two-way mirror to Dana, then by not pushing Dana to move further than just their kissing, and also by reassuring Dana that they would be okay up until his death. In Trip, however, Matt is said to have "subpar grades," was the class clown, and often landed himself in trouble in school. Matt is also the narrator and main character of Trip, and was never "killed," whereas Holden is stabbed through the neck by a zombie. The alleged similarities between Matt and Holden are only found in the Complaint, the works themselves reveal two rather different characters and the Court finds them to be so.

c. TRIP 'S JULIE AND CABIN'S JULES

The Court also finds Trip's Julie and Cabin's Jules to be quite different. In Trip Julie is a spoiled rich girl who begins a relationship with Ian right before the trip starts and is one of the last two survivors, alongside Matt. Jules, on the other hand, had already been in a relationship with Curt, is a pre-med student, and is the first character to die in Cabin. She had been induced into acting differently than normal by means of chemicals introduced by the chemistry department of the underground facility,. Though both characters do have blonde hair, it is shown in Cabin that Jules had just dyed her hair when the film begins, and, regardless, simply sharing the same hair color does not render characters substantially similar. The fact they are both "bubbly" is irrelevant because such characters are scenes a faire in the horror genre. Again, the similarity of names is insufficient to find substantial similarity, and there are no other striking similarities between Jules and Julie by which to reach that conclusion. See supra p. 15.

d. TRIP 'S IAN AND CABIN'S CURT

Gallagher's characterization of Curt when drawing the alleged similarities to Ian amounts to blatant misstatements in light of the content of the works. While Gallagher alleges that both Ian and Curt "drink[] regularly," when, outside of one scene at the cabin, Curt is never shown as an alcoholic or party animal in any way. (FAC 10.) In reality, Curt is a football player and sociology major on academic scholarship, whereas Ian is described as a wealthy alcoholic, and non-athletic. The similarity that they are both strong and look like movie stars is unavailing, for if Trip were to secure the copyright on strong and attractive males, there would be few works that do not infringe upon that common casting type. The fact that movie star Chris Hemsworth, the actor who plays Curt, "looks like a movie star" does not suffice to establish substantial similarity.

e. TRIP 'S SAM AND CABIN'S MARTY

The final main character in the group of friends is Marty in Cabin and Sam in Trip. Marty is the only regular marijuana smoker out of the group of friends, and though Marty is the sole voice of reason during the film, he is cast as the "Fool" character in the ritual and provides much comic relief throughout the film. He has no romantic interest in any other character and, along with Dana, is one of the last to die in Cabin. In Trip, Sam is the first character to die and has a crush on Dura, which causes friction between him and Matt. Sam is described as a "your token fast food eating, high-stress American" who attempted to infiltrate the popular crowd during high school. This description puts him as the polar opposite of Marty who is extremely laid back throughout almost the entire film. Though Gallagher alleges that Marty is the only single character in Cabin, that allegation is blatantly false and appears designed solely to fabricate similarities between, the otherwise dissimilar, Marty and Sam. (Opp'n 6.) Simply sharing a "quirky personalit[y]" is not enough to find substantial similarity, for such a trait is quite generic in this genre--as evidenced by the existence of the "Fool" character as a part of the ritual sacrifice.

f. OTHER CHARACTERS

Outside of the five main characters that comprise each group of friends, both works have numerous characters that have no counterpart in the other, and the pervasiveness of these characters points the Court towards finding that the works are not substantially similar. E.g., Benay, 607 F.3d at 637 ("There are a number of important characters in the Film and the Screenplay who have no obvious parallel in the other work.") The friends in Trip interact with numerous people before they arrive at the cabin and during their stay, none of whom are represented in Cabin. Both works include a harbinger character that warns of impending danger, but the forms they take are far from similar. Moreover, their shared purpose is scenes a faire in horror movies and, as such, is unprotected by copyright law.

In Trip a waiter at the restaurant they visit warns the group about the Brinkley murders, as does a family the friends visit, and a cab driver. In Cabin, the friends encounter an old man at a gas station who insults them and warns them about the Buckner place. There is nothing similar, outside of their purpose of warning of danger and being ignored, between those characters.

Similarly without a counterpart are two of Cabin's main characters outside of the group of friends, Gary and Steve, the facility employees that the film's facility scenes are primarily focused on. Gary and Steve represent a central points of the film's focus, and are integral to telling the story to the viewer. In Trip, however, not only is there is no counterpart, but the entire role that Gary and Steve play is absent from the book, because the existence of the third party is a secret until the very end of the story.

Further, the Director in Cabin is quite different than Rex Luther, the film director in Trip. Both appear at the end of each work and both are in charge of the third party that has controlled the happenings in both works, but that is where the similarities end. The Director appears to plead with Dana and Marty to do what is necessary to save the world; Rex Luther appears only to gloat to a television reporter about the genius of his plan. Their appearance, demeanor, and purpose could not be more different, in addition to the fact they are opposite genders.

3. Setting

Apart from the basic fact that both groups of friends end up going to a cabin, there is nearly nothing similar between the settings in the two works. In Trip only about half the book involves the friends actually at the cabin, a large part of the story is set in their hometown where they graduate and celebrate, and then another portion involves their travel to the cabin and the various things they encounter on the way. Cabin's setting is quite different; the film begins with a scene in the underground facility, and numerous scenes throughout the first two-thirds of the movie are set there in addition to the entire final third of the film. The friends almost immediately leave their homes for the cabin, stopping only for gas.

The cabins themselves are in stark contrast with one another. Trip is set in wintery and snowy Flagstaff while Cabin occurs during the summer. In Trip the cabin is a massive estate with a four-car garage, enormous balcony, and is fully equipped with a hot tub, Internet, and full theater-quality entertainment center. In Cabin the characters arrive and discover a run-down and creepy cabin, complete with a one-way mirror in one of the bedrooms and disturbing artwork. Thus, "[b]eyond the basic premise of a [remote cabin], there are no similarities in the setting" of the works. Funky Films, 462 F.3d at 1080; see also Bernal, 788 F. Supp. 2d at 1071 ("[T]he only similarity in setting between the two works is that they are both set in a suburban neighborhood.").

There is no parallel setting in Trip for the underground facility in Cabin, where around half the film is shot. Gallagher alleges that the underground facility "resembles a sound mixing stage," and argues that a similar setting was not included in Trip because the existence of the film crew is kept a secret until the end of the book. (Opp'n 7.) Needless to say, the elaborate underground facility in Cabin, stocked with countless monsters and horrors that is large enough to necessitate employees driving golf-carts between sectors and happens to be built on top of a portal to the old gods, does not remotely resemble a sound mixing stage. Moreover, even if the existence of the film crew had not been a secret, there is no conceivable reason they would have been located in a comparable setting. While Gallagher also asserts that the existence of the facility is only a "minor difference," the Court is not convinced that the setting for half of Cabin's scenes and an integral aspect of the plot constitutes merely a minor difference. (Id.) See Benay, 607 F.3d at 628 (holding that settings were not similar partly because "[t]he Film includes extended scenes in a samurai village" and "[n]o such village appears in the Screenplay.").

4. Dialogue

In order to support a claim of substantial similarity based on dialogue, "extended similarity of dialogue" must be demonstrated. Olson v. Nat'l Broad. Co., 855 F.2d 1446, 1450 (9th Cir. 1988). "Ordinary words and phrases are not entitled to copyright protection, nor are phrases or expressions conveying an idea typically expressed in a limited number of stereotyped fashions." Bernal, 788 F. Supp. 2d at 1072 (internal quotation omitted). Here, Gallagher points to three sentences in Cabin that he claims are similar to the dialogue in Trip. (Opp'n 8.) A mere three sentences taken from a 302-page book compared to three sentences from a 90-minute motion picture falls far short of the "extended similarity" required for a finding of substantial similarity for dialogue. Not only does this comparison fail to demonstrate "extended similarity," but also the allegedly similar dialogue itself is not actually similar and amounts to nothing more than generic and common phrases.

The dialogue that Gallagher claims to be similar includes Trip's Ian saying, "I'm not going to leave you. I'll get the car and come back for you[,]" compared to Cabin's Curt promising "I am coming back here." (Opp'n 8.) An additional allegedly similar dialogue consists of Trip's Julie stating "[t]here's nothing we can do[,]" while Cabin's Dana says "[t]hat won't work. Something will happen." (Id.) The final alleged similarity in the dialogue arises when Trip's Matt says "What if we turn off the all the outside lights and make a run for the woods[,]" while Cabin's Holden states "[W]e just leave the roads all together. Drive as far as we can into the forest, and then we go on foot from there." (Id.)

5. Mood

The moods of the two works are radically different; Cabin is comedic and satirical whereas Trip is dark, suspenseful, and scary. See Bernal, 788 F. Supp. 2d at 1070 ("Although both works deal with dark subject matter, Homeless is a drama, while Desperate Housewives is a comedy."). Some form of comic relief, to keep the mood light-hearted, immediately follows the majority of the scary or suspenseful scenes in Cabin. In contrast, while Trip contains humorous elements, those elements disappear when the murders start and it is pure suspense and terror from that point on. See Id. ("Plaintiff's work has few humorous elements. . . . By comparison, Defendant's work is consistently funny throughout the entire show.").

For example, right after Dana summons the zombie Buckner family and they menacingly rise from their graves and march towards the cabin the scene swaps to the underground facility and the celebration of the people who won the office pool and Steve being sad about the Merman once again not being selected.

6. Pace

Gallagher alleges that "[b]oth works begin moderately paced, with a focus on character development and a blossoming relationship" and "a group of friends going on a trip to a remote cabin." (FAC 11; Opp'n 7.) Trip begins with the friends' graduation and they win the trip to the cabin about one-sixth through the book, page 50 out of 302, and go about their lives and eventually travel to the cabin, arriving about halfway through the work on page 135 out of 302. In contrast, Cabin begins with the introduction of Steve and Gary in the underground facility, changes scene to the friends and immediately sets them on their way to the cabin. There is no blossoming relationship in Cabin; contrary to Gallagher's claims Dana and Holden have not even met at this point.

Additionally, while Gallagher states that both works "culminate[] in a surprise reveal," there is no surprise for the audience in Cabin, and even the characters slowly become aware of what is happening, the Director only tells them what happens if the ritual is not completed. The reveal in Trip takes both the reader and the characters by complete surprise and there is no indication up to this point that the third party exists, contrary to Gallagher's assertions discussed supra p. 9.

Cabin is very fast-paced, the entire film occurring over the span of a single day, and constantly cuts between the group of friends and the employees of the facility in various degrees of joy and duress. Trip unfolds rather slowly, as mentioned above the characters do not reach the cabin until halfway through the book, with a large focus on the characters before they reach the cabin. By the time the first character is "killed" in Trip about two-thirds through, Dana and Marty in Cabin have already begun their infiltration of the underground facility and the other friends are long gone. The fact that both works' pace quickens when the murders begin is insufficient to find substantial similarity; such escalation is common for the horror genre and amounts to scenes a faire. E.g., Segal, 2011 WL 11512768 (holding that "the pace quicken[ing] as harsher events occur as the stories progress" is "generic in this [horror] genre.").

Lastly, there exists an inherent substantial difference in pace between the two works due to the medium of their conveyance. See Bernal, 788 F. Supp. 2d at 1070 (finding the pace between works were not similar because "Homeless is paced as a feature film; whereas, Desperate Housewives is paced as a television series with multiple hour-long episodes."). A motion picture will necessarily have a much different pace than a novel simply due to how the viewer views it. A motion picture is conveyed entirely in, generally, one and a half to two hours, a novel takes even the most avid reader many hours to digest.

7. Sequence of Events

Other than the shared similarity of both groups of friends going to a cabin at some point and subsequently being killed off, there is no similarity of sequence of events. The allegedly similar sequence of both works beginning with friends getting ready to go on a trip misstates the events in Trip. (FAC 11.) As noted above, the friends in Trip do not win the trip to the cabin until a sixth of the way through the story, and do not arrive until halfway through. While Cabin actually begins with the introduction of the third party, the friends are introduced soon thereafter and immediately prepare and depart for the cabin. Accordingly, the first scene of Cabin is, essentially, the climactic finale of Trip—the introduction of the third party. At only the second scene of Cabin, does the film parallel the events of Trip that occur nearly one-third through the book. There is no parallel for Trip's first third in Cabin, nor is there a parallel for Cabin's final third in Trip.

Gallagher also alleges that both friends take "large borrowed vehicle[s]" to the cabin and that both vehicles are rigged with cameras. (FAC 11.) In Cabin, Curt drives his father's RV and there are no cameras installed inside to monitor the friends. In Trip, the characters are given a Lincoln Navigator as a rental car for part of their prize and the film crew fully rigged the SUV previously in order to record the group. The two groups then proceed to travel to the cabin, both encountering a harbinger character before reaching their destination and both ignore their warnings. The presence of a harbinger takes vastly different forms in the two works, but this type of character is scenes a faire in horror films. See supra note 3. The group in Cabin reaches their destination very early in the film, whereas the group in Trip does not arrive until halfway through the book after various other events that are not paralleled in Cabin.

Gallagher argues that both groups then start to relax and celebrate, eventually discovering the attic in Trip, or being lured to the basement in Cabin, and soon thereafter start to be fake-killed in Trip, and viciously murdered in Cabin. However, at this point in Cabin one of the key plot elements takes place where Dana chooses the Buckner family to be the monsters tasked with killing them. In Trip the friends merely find a box of clay dolls and a photo of the Brinkley family. Additionally, all throughout these events Cabin swaps scenes to events in the underground facility numerous times, no such parallel exists in Trip; the reader is kept unaware of the film crew until the "surprise reveal."

Next, Gallagher states that both works contain a lead character being dragged away through a window, Dura in Trip and Marty in Cabin. (FAC 11.) Afterwards, in both works, a character breaks an item in the cabin and discovers a hidden camera. (Id.) According to Gallagher, Marty has already been abducted by the time a hidden camera is discovered in either work. (Id.) This sequence of events is puzzling to the Court because Marty is the only character to discover a hidden camera in Cabin, and was very much alive and inside the cabin when he did so; it was only after he discovered the camera that a zombie abducted him.

In addition, the way in which these events transpired and their timing is quite different. Upon Marty's discovery, roughly halfway through Cabin, he thinks he is being filmed for a reality television show. In contrast, Matt breaks a vase and Julie spots a small wireless camera in the wreckage near the end of Trip, on page 252 out of 302. Matt and Julie believe that Brinkley is watching them so that he can kill them. Furthermore, only Jules has died in Cabin when Marty discovers the camera, and his discovery does not lead the other survivors to become aware of the third party because he is soon after abducted by a zombie—much to the relief of Steve and Gary who were both trying to incapacitate Marty in other ways. The other characters only become aware of the third party after Curt crashes into an electric force field. In Trip, however, only Matt and Julie remain "alive" when the hidden camera is discovered, and though Gallagher alleges that the film crew was scrambling behind the scenes at this point, similar to Steve and Gary in Cabin, the reader still has no knowledge of their existence at this point of the book.

After the confrontation with Brinkley in Trip that occurs shortly after the camera was discovered, the film crew is revealed and the story promptly ends. Cabin, however, does not promptly come to an end. Roughly half of the film remains. Curt and Holden are both killed shortly after the discovery and Dana is left as the sole survivor of the night. The facility employees celebrate and relax, until they discover that Marty is still alive. The last third of the film involves Dana and Marty infiltrating the facility, killing everyone inside it, and bringing about the end of the world. There is no parallel for any part of this in Trip.

Though Gallagher argues that the fact "there are some differences between the third acts of the works" is "for all intents and purposes, irrelevant," the Court is not persuaded that the analysis of the sequence of events in a work should completely ignore the entire final third of Cabin. Similarly, the Court believes that the fact the first third of Trip is unparalleled in Cabin is noteworthy. The sequence of events described by Gallagher does not follow the actual order of events in the works. Instead, Gallagher deliberately placed certain events out of order to draw a stronger comparison. The misrepresentation of the events and their sequence between the two works adds to the Court's conclusion that the works lack substantial similarity. E.g., Bernal, 788 F. Supp. 2d at 1072 (In holding the sequence of two works was not similar, "[t]he sequence of events refers to the actual sequence of the scenes, not just having similar scenes out of sequence. In shuffling the [order of the] events, Plaintiff's expert demonstrates that the two stories do not have a similar sequence of events.")

8. Themes

Gallagher alleges that both works share "a core theme of horror, resulting from real people unknowingly being manipulated by third parties," and that both works "display a self-referential awareness of classic horror movie tropes" while "provid[ing] a commentary on the use of classic horror devices." (FAC 9.) Such a broad and generic theme could apply to any number of works, and Defendants provide Scream and Scary Movie as examples of films that display self-referential awareness of classic horror tropes. (Mot. 21.) Generic and common themes do not render the two works before the Court similar; more is needed. See Benay, 607 F.3d at 627 (finding that the works were not similar when "both works explore general themes of the embittered war veteran, the 'fish-out-of water,' and the clash between modernization and traditions" because "those themes arise naturally from the [shared] premise [of the works]."); Funky Films, 462 F.3d at 1079 (finding that "[a]lthough both works explore themes of death" they were not substantially similar since the plot revolved around a family operating a funeral home).

Moreover, the Court does not believe that Trip actually "provides a commentary on the use of classic horror devices," as alleged in the Complaint. (FAC 9.) Trip reads as a pure horror thriller, riddled with suspense and danger; nowhere is there any apparent "commentary" on why horror movie characters act the way they do. In contrast, Cabin creates its own lavish and outlandish explanations for how people in horror movies act and those explanations are revealed throughout the film as they arise. For instance, Jules acts very promiscuously only because the facility chemists have dosed her with libido-increasing chemicals, Curt acts more belligerent and makes poor choices due to gasses pumped into the cabin, the "Whore" character must always die first because of the ancient ritual's strict requirements and the "Virgin" must be last or the only survivor. Each of these comment on common motifs in horror films; Trip does not include any such elaborate and comical explanations.

The works may both have a core theme of horror, but Cabin's core of horror is spliced with heavy amounts of comedy and parody. Indeed, the way each work plays out is drastically different than the other, as is the way they develop their core themes and how they provide commentary. E.g., Benay, 607 F.3d at 627 (finding that although the works shared several themes, "the works develop those themes in very different ways."); Funky Films, 462 F.3d at 1079 (holding that works with similar themes and plot were not substantially similar because they explore the themes "in very different ways."). A reader will likely reach the conclusion of Trip and feel furious about Rex Luther's actions and how selfish he was, but most viewers at the end of Cabin would understand and sympathize, to some degree at least, with the horrible task the facility's employees are forced to perform for the greater good.

9. Random Alleged Similarities

Included in Gallagher's Complaint is a list of thirty-three "specific scene similarities" between Cabin and Trip that he uses to argue that the plot and sequence of events of the works are substantially similar. (FAC 13-21; Opp'n 3.) However, the Ninth Circuit has held that a list of "random similarities scattered throughout the works" is "inherently subjective and unreliable." Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984). Additionally, the Ninth Circuit has also held that the argument against relying on these lists "is especially strong here since the alleged similarities are selected from over 280 pages of submissions." Cavalier, 297 F.3d at 825. That argument is even stronger in this case because the similarities are drawn from a 302-page book and a 90-minute film, rather than 280 combined pages between the two works.

Even if the Ninth Circuit's prior holdings were unopposed to such lists, a cursory glance over the alleged similarities and the order in which they occur prove to the Court that Gallagher's list is completely unreliable. The list grossly mischaracterizes the facts of both works in nearly every alleged "similarity" provided and describes the scenes in an astronomically abstract way in a futile attempt to create similarities. The few alleged similarities that are not grossly misstated involve unprotectable forms of expression such as the group going to a cabin or the alpha-male character attempting a risky escape plan to bring back help. Accordingly, the list of random similarities only further convinces the Court of one thing; after thorough analysis of both works and application of the extrinsic test, The Cabin in the Woods and The Little White Trip are not substantially similar.

In his Complaint, Gallagher references Ian's "death" as a similarity to both Curt's and Holden's murder at separate points in the list, equating Ian with Curt and also with Holden, who is alleged to be the parallel of Matt, when its convenient. (FAC 19:24-27.) Not only does this misstate the sequence of "similar" events, but also in and of itself it shows that the characters truly are not similar. If the characters were similar, there would be no need for mental gymnastics to try and piece together similarities. Nor would there be the need to refer to characters as "lead character" instead of their name when drawing similarities across works--this only becomes necessary when the parallels being drawn clearly do not match up with the allegedly similar characters.

C. Defendants' Degree of Access to the Work is Irrelevant

Gallagher argues strongly that Defendants had access to his work as he was distributing his book in the Santa Monica and Venice Beach areas of California. Those arguments, however, are irrelevant due to the Court finding that the works were not similar because "[n]o amount of proof of access will suffice to show copying if there are no similarities." Segal, 544 Fed. Appx. at 770; e.g., Funky Films, 462 F.3d at 1082 ("[I]n this case, additional discovery [for proof of access] would not change the fact that the two works lack any concrete or articulable similarities.").

Gallagher also argues that the Court should apply the "inverse-ratio" rule, which decreases the amount of similarity necessary as the degree of the alleged copier's access increases. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000) ("[W]e require a lower standard of proof of substantial similarity when a high degree of access is shown."). The inverse-ratio rule, however, does not apply here. Application of this rule has been strictly limited to apply only in cases in which the alleged copier has conceded access to the work while also containing numerous similarities; neither of which is present in the current case. See Funky Films, 462 F.3d at 1081 n. 4 (holding that the inverse-ratio rule did not apply because "this is not a circumstance in which the defendant has conceded access to the purportedly copied material."); Rice, 330 F.3d at 1179 (holding that inverse-ratio rule did not apply, even though the alleged copier was also a former distributer of the work allegedly copied, because "[h]ere, there is no such concession of access as most of Rice's claims are based purely on speculation and inference."). --------

V. CONCLUSION

As discussed above, the Court has reviewed the works in question in their entirety and found they are not similar, thus, making proof of access a moot point and any amendment futile. Therefore, the Court GRANTS Defendants' Motion to Dismiss with prejudice. (ECF No. 18.) The Clerk of Court will close this case.

IT IS SO ORDERED.

September 11, 2015

/s/ _________


OTIS D. WRIGHT
, II


UNITED STATES DISTRICT JUDGE