DECISION AND ORDER RE CERTAIN DEFENDANTS’ MOTION TO DISMISS

On March 16, 1987, the court heard the motion to dismiss filed by defendants California Raisin Advisory Board, Richard Mar-karian, Clyde Nef, Foote, Cone and Beld-ing, Inc., and Ted Block, which motion seeks dismissal of the First Amended Complaint for Copyright and Trademark Infringement filed by plaintiffs Cory Van Rijn, Inc. and Raisin People, Inc. on the ground that plaintiffs have failed to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.

Upon due consideration of the written and oral arguments of the parties and the record herein, the court issues its order granting defendants’ motion for the reasons set forth herein.

A. Matters Outside of the Pleading.

The threshold issue to be resolved is whether the court is faced with a motion to dismiss or a motion for summary judgment.

Attached to the First Amended Complaint are exhibits depicting the plaintiffs’ Raisin People singly and in groups and one exhibit depicting the defendants’ California Raisins dancing as a group, which depiction is a still from defendants’ “Late Show” television commercial. Submitted by defendants as exhibits to the motion to dismiss are video cassettes containing the “Late Show” and “Lunch Box” or “Out to Lunch” television commercials featuring the California Raisins.

While there is authority that disposition of a copyright and trademark infringement case through a motion to dismiss for failure to state a claim is appropriate when the court has the opportunity of comparing the two works in question, the two works in question in those cases either were attached as exhibits to the complaint or were made part of the complaint by way of a motion for more definite statement. Lake v. Columbia Broadcasting System, 140 F.Supp. 707, 708 (S.D.Cal.1956); Christianson v. West Publishing Co., 53 F.Supp. 454 (N.D.Cal.1944), aff'd, 149 F.2d 202 (9th Cir. 1945); Lewis v. Kroger Co., 109 F.Supp. 484, 486 (S.D.W.Va.1952); Lowenfels v. Nathan, 2 F.Supp. 73, 74 (S.D.N.Y.1932). Here, while the First Amended Complaint alleges claims based on the two television commercials, neither are attached to and incorporated into the First Amended Complaint. And, as noted, the only exhibit depicting the California Raisins is one still from the “Late Show” commercial. Moreover, in opposing the motion to dismiss, plaintiffs have submitted as exhibits video cassettes of news broadcasts, various news articles, and storyboards for a proposed video television commercial.

The submission of these exhibits brings into issue the following provision in Rule 12(b):

“Most courts ... view ‘matters outside the pleading’ as including any written or oral evidence in support or in opposition to the pleading that provides some substantiation for and does not merely reiterate what is said in the pleadings.” Wright and Miller, 5 Federal Practice and Procedure, § 1366, pp. 681-682 (1969).

There is no question that the exhibits submitted by plaintiffs come within this definition. And it is more than arguable that the video cassettes submitted by defendants also constitute “matters outside the pleadings.” The court’s research has located two decisions which involve situations similar to that before the court. In Grove v. Mead School District No. 354, 753 F.2d 1528, 1531, 1533 (9th Cir.), cert. denied, 474 U.S. 826 , 106 S.Ct. 85 , 88 L.Ed. 2d 70 (1985), the Ninth Circuit concurred that the district court’s reading of and reliance on The Learning Tree as well as affidavits submitted by plaintiffs converted defendants’ motion to dismiss plaintiffs’ claim that use of The Learning Tree violated the religious clauses of the First Amendment. In Nagoya Associates, Inc. v. Esquire, Inc., 191 F.Supp. 379, 381 (S.D.N.Y. 1961), the plaintiff had annexed as an exhibit to the complaint a copy of the disparaging advertisement which appeared in designated issues of defendants’ magazines. At oral argument on defendants’ motions to dismiss for failure to state a claim, two of the defendants presented to the district court the issues of their magazines which contained the allegedly disparaging advertisements. The district court considered the magazines to be “matters outside of the pleadings” and converted these defendants’ motions to ones for summary judgment. See also Amfac Mortgage Corporation v. Arizona Mall of Tempe, 583 F.2d 426 , 430 (9th Cir.1978), wherein the Ninth Circuit distinguished Great Western Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir.1976):

The court is persuaded that it should exercise its discretion and exclude defendants’ video cassettes and plaintiffs’ exhibits, thereby retaining the motion’s status as one for dismissal for failure to state a claim. Defendants’ assertion that conversion of the motion to summary judgment should be limited solely to the exhibits presented to the court is inappropriate, especially given the expedited scheduling of this motion. In any event, in the court’s opinion, conversion of the motion is not likely to facilitate disposition of the action because the extraneous material is scanty, incomplete and inconclusive. See Wright and Miller, supra at p. 679.

B. Motion to Dismiss.

1. Federal Copyright Infringement.

The court is aware that very seldom are the issues presented by this motion disposed of pursuant to Rule 12(b)(6). From its research, virtually all of the cases are rulings on motions for summary judgment. In 3 Nimmer on Copyright, § 12.10 (rev. ed. 1985), it is explained:

Even with this stringent standard, however, the court is convinced from its comparison of the works at issue pursuant to the principles mandated by the Ninth Circuit that plaintiffs have failed to state a claim upon which relief can be granted.

According to defendants’ brief, the only issue presented by defendants in this motion to dismiss is “whether the Raisin Board’s Claymatic Raisin characters are so different from any copyrightable elements of Plaintiffs’ Raisin People characters that as a matter of law ‘substantial similarity’ cannot be established.” It is apparent, however, that defendants also contend as a preliminary matter that there has been no infringement because the “similarity between the two works concerns only ‘non-copyrightable elements of the plaintiff’s work.’ ” citing Harvey Cartoons v. Columbia Pictures Industries, Inc., 645 F.Supp. 1564, 1570-1571 (S.D.N.Y.1986).

a. Non-Copyrightable Elements.

Defendants contend that a humanized raisin figure is nothing more than a common idea, incapable of copyright protection. In so arguing, defendants refer the court to Judge Learned Hand’s “abstraction test” as set forth in Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157 , 1163 (9th Cir.1977):

Defendants assert that “[u]nder Judge Hand’s test, there is no more general an abstraction, when viewing Plaintiffs’ works than to describe them as raisins incorporating anthropomorphic features, that is, figures of humanized raisins [and that] Plaintiffs, as a matter of law, cannot claim copyright protection in the idea of a humanized raisin, any more than one artist can claim copyright protection in the idea of ‘statues of nudes.’ ”

This argument is directed to what defendants feel is a claim by plaintiffs in paragraph 25 of the First Amended Complaint to copyright protection against all uses of humanized raisins. Plaintiffs’ opposition to the motion puts paid to defendants’ concern:

Defendants further argue that plaintiffs are prevented from claiming copyright protection against defendants’ use of features which are necessarily common to all humanized raisin characters. In so arguing, defendants refer to Krofft, supra at 1167, and contend: “Commonly referred to as the unity of idea and expression, the principle of copyright protection requires the court to consider the features embodied in all forms of a general idea. These common features are then considered part of the unprotectible general idea.”

In Krofft, supra at 1168-1169, the Ninth Circuit explained:

In their reply brief, defendants further assert that “[substantial similarity can only be analyzed by comparing the works after unprotectible features are separated out.”

The court is not persuaded that defendants’ assertion is a correct statement of the law. Certainly, the decisions cited in these portions of defendants’ briefs are not supportive. Krofft has already been quoted. Defendants also refer the court to Harvey Cartoons v. Columbia Pictures Industries, Inc., supra at 1571 n. 9, wherein the district court stated in dicta:

Defendants also refer the court without comment or page citation to Cooling Systems and Flexibles v. Stuart Radiator, 777 F.2d 485 (9th Cir.1985). The court assumes defendants mean to direct the court’s attention to p. 491, wherein the Ninth Circuit commented:

These cases stand only for the proposition that the closer the idea and the expression are, the more exact the copy must be before infringement may be found. The court does not read them as allowing the dissection implied by defendants’ argument and, in fact, Krofft specifically refused to permit this dissection in connection with the unity of expression and idea. See also Frybarger v. IBM, 812 F.2d 525 (9th Cir. 1987), the Ninth Circuit affirmed the district court’s grant of summary judgment, holding:

b. Substantial Similarity.

In order to determine whether there is substantial similarity, there must be substantial similarity not only of the general ideas but of the expressions of those ideas as well. As explained in Krofft, supra at 1164:

c. Extrinsic Test.

Because “[similarity of ideas may be shown by an extrinsic test which focuses on alleged similarities in the objective details of the works,” Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984), defendants conversely argue that “[objectively analyzed under an extrinsic test, the parties’ respective works are completely different.” Defendants’ brief sets forth the following chart detailing the dissimilarities of the general ideas:

Defendants further assert that the two works are dissimilar in artwork, subject matter and setting:

In opposing this portion of the motion, plaintiffs, who appear to think that the extrinsic test is governed by a “reasonable person” standard, argue:

Plaintiffs’ response misses the point of the extrinsic test. Moreover, plaintiffs have not pointed to any extrinsic similarities between the two works other than the raisin shaped body and head. Even these common features are totally dissimilar in appearance and texture. Beyond being told that both are raisins, it could just as easily be concluded that one is a prune and the other is a potato. The court accepts defendants’ position. For all intents and purposes, there are no extrinsic similarities between the two works other than the common idea of an anthropomorphic raisin. Consequently, the court concludes as a matter of law that plaintiffs have not stated a claim for copyright infringement with regard to this element of the Krofft test,

d. Intrinsic Test.

“To constitute infringement of expression, the total concept and feel of the works must be substantially similar.” Litchfield v. Spielberg, supra at 1857; Krofft, supra at 1167. Defendants contend that application of the intrinsic test establishes as a matter of law that there is no substantial similarity of expression.

Plaintiffs counter that the total concept and feel of the two works is substantially similar because the response of the ordinary reasonable person would perceive the two groups as at least cousins in an extended raisin family:

The import of plaintiffs’ position, however, is to claim copyright protection for the idea of a humanized raisin. Moreover, the overall impression created by the Beverly Hillbillies is so far removed from that created by The Temptations or Marvin Gaye as to preclude any question of similarity of expression.

As set forth in the decisions cited supra, when there are only a limited number of ways to create the image of humanized raisins, the copying must be identical or virtually so to state a claim for copyright infringement. Here, the two works do not in any way look alike beyond the raisin bodies, and the images projected are completely different.

The court, therefore, also concludes that plaintiffs have not stated a claim with regard to this element of the Krofft test.

Because the court concludes as a matter of law that neither substantial similarity of ideas or of the expression of the ideas has been alleged, plaintiffs’ claim that defendants deliberately based the dancing raisins on the Raisin People is of no consequence because “a defendant may legitimately avoid infringement by intentionally making sufficient changes in a work which would otherwise be regarded as substantially similar to that of the plaintiff’s.” 3 Nimmer on Copyright, § 13.03[B] (rev. ed. 1985).

2. Trademark Infringement and Pendent Claims.

Defendants argue that dismissal of plaintiff’s federal copyright infringement claim because of the absence of substantial similarity requires dismissal of plaintiff’s federal trademark infringement claim and their pendent claims of trademark infringement and unfair competition as well because of the absence of the requisite likelihood of confusion as to source. Plaintiffs have not opposed this premise and conclusion. Because “the absence of substantial similarity leaves little basis for asserting a likelihood of confusion,” Warner Bros. Inc. v. American Broadcasting Companies, 720 F.2d 231, 246 (2d Cir.1983), it is apparent that plaintiffs’ failure to oppose this portion of the motion is not inadvertent. Consequently, the court also grants this portion of defendants’ motion.

ACCORDINGLY, IT IS ORDERED that the Motion to Dismiss the First Amended Complaint for Copyright and Trademark Infringement filed by Defendants California Raisin Advisory Board, Richard Marka-rian, Clyde Nef, Foote, Cone and Belding, Inc. and Ted Block is granted.

. At oral argument, the parties introduced for the court's convenience large scale enlargements of Exhibits 9 and 18 to the First Amended Complaint. These enlargements were relied upon by the court in ruling on the motion to dismiss. The court does not consider these enlargements to be matters outside the pleadings since they are merely large scale duplicates. . It is conceded solely for purposes of this motion that plaintiffs own copyrights in the Raisin People and that defendants have had access to plaintiffs’ copyrighted works. . The court has deleted from the chart quoted herein defendants’ comparison of the "Lunch Box” commercial with the Raisin People as well as those descriptive characteristics apparent only with movement.