NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLA JO MASTERSON, No. 19-55650

Plaintiff-Appellant, D.C. No. 2:18-cv-05966-MWF-PLA v.

THE WALT DISNEY COMPANY; MEMORANDUM*

DISNEY ENTERPRISES, INC.; DISNEY

CONSUMER PRODUCTS AND

INTERACTIVE MEDIA, INC.; DISNEY

INTERACTIVE STUDIOS, INC.; DISNEY

SHOPPING, INC.; PIXAR; PETE

DOCTER; MICHAEL ARNDT; RONNIE

DEL CARMEN; MEG LEFAUVE; JOSH

COOLEY,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Submitted June 5, 2020** Pasadena, California

Before: LEE and BUMATAY, Circuit Judges, and MOLLOY,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Carla Masterson appeals from the district court’s dismissal of her copyright

infringement claims against The Walt Disney Co. Masterson alleged that Disney’s

Inside Out (the “Movie”) violated her copyrights in her book of poetry, What’s On

the Other Side of the Rainbow? (A Book of Feelings) (the “Book”), and her movie

script, The Secret of the Golden Mirror (the “Script”). We have jurisdiction under

28 U.S.C. § 1291, and we review de novo a dismissal for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6). We affirm.

1. Works at Issue: Masterson’s Book is a collection of poems about

different feelings that is about forty pages long. It begins with a cloud-like character

named Mr. Positively who introduces himself to four unnamed children. Mr.

Positively then introduces these four children to various anthropomorphic doors that

are associated with different feelings. The only character to have dialogue in the

Book is Mr. Positively; the doors and the children remain silent throughout the story.

Masterson’s Script somewhat differs from her Book. It tells the story of how Mr.

Positively and the feeling doors help a child cope with his struggles being in an

unhappy family situation. For example, early in the Script, the child listens to his

drunken father beat his mother.

In contrast, Disney’s Movie tells the story of Riley, an eleven-year-old girl,

*** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.

2 and the anthropomorphized emotions that live inside her: Joy, Sadness, Fear,

Disgust, and Anger. The main storyline follows the journey of Joy and Sadness

making it back to Riley’s “Headquarters” (which manages her emotions) during

which Joy learns the usefulness of Sadness and the importance of having all the

emotions contribute to Riley’s life.

2. Addressing Substantial Similarity in a Motion to Dismiss: The district

court did not err by considering substantial similarity in a motion to dismiss even

though the works at issue are literary works.

Masterson correctly points out that we have not issued a published decision

affirming the dismissal of a case alleging infringement of a literary work on

substantial similarity grounds before discovery has been conducted. But we have

affirmed such dismissals repeatedly over the past decade in unpublished

memorandum dispositions.1 Moreover, other circuits have affirmed Rule 12(b)(6)

1 See, e.g., Fillmore v. Blumhouse Prods., LLC, 771 F. App’x 756, 756–57 (9th Cir. 2019) (manuscript and film); Esplanade Prods., Inc. v. Walt Disney Co., 768 F. App’x 732, 733 (9th Cir. 2019) (film treatment and movie); Abdullah v. Walt Disney Co., 714 F. App’x 758, 759 (9th Cir. 2018) (book and movie); Silas v. HBO, Inc., 713 F. App’x 626, 627 (9th Cir. 2018) (television series and screenplay); Shame on You Prods., Inc v. Banks, 690 F. App’x 519, 520 (9th Cir. 2017) (screenplay and film); Heusey v. Emmerich, 692 F. App’x 928, 929 (9th Cir. 2017) (screenplay and film); Schkeiban v. Cameron, 566 F. App’x 616, 617 (9th Cir. 2014) (novel/screenplay and film); White v. Twentieth Century Fox Corp., 572 F. App’x 475, 476–77 (9th Cir. 2014) (screenplay and films/television shows); Wild v. NBC Universal, 513 F. App’x 640, 641 (9th Cir. 2013) (graphic novel and television

3 dismissals on the basis of no substantial similarity when dealing with literary works.

See, e.g., Tanksley v. Daniels, 902 F.3d 165, 177 (3d Cir. 2018) (in a case involving

a television pilot and a network television series, explaining that “[w]ithout

substantial similarity, Tanksley’s complaint fails to state a claim of copyright

infringement and was properly dismissed under Rule 12(b)(6)”); Peters v. West, 692

F.3d 629, 635–36 (7th Cir. 2012) (finding song lyrics were not substantially similar

on a motion to dismiss); Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143–44 (8th

Cir. 1989) (same).

Despite Masterson’s arguments, determining substantial similarity does not

necessarily require expert testimony. We explained in Rentmeester v. Nike, Inc. that

a motion to dismiss is proper when “[n]othing disclosed during discovery could alter

the fact that the allegedly infringing works are as a matter of law not substantially

similar.” 883 F.3d 1111, 1123 (9th Cir. 2018), overruled on other grounds by

Skidmore v. Zeppelin, 952 F.3d 1051 (9th Cir. 2020). Indeed, this court has even

found at the summary judgment stage that it is not an abuse of discretion to reject

expert testimony when the court “engage[s] in an extensive analysis of the alleged

similarities in expressive elements.” Rice v. Fox Broad. Co., 330 F.3d 1170, 1180

(9th Cir. 2003), overruled on other grounds by Skidmore, 952 F.3d 1051.

show); Thomas v. Walt Disney Co., 337 F. App’x 694, 695 (9th Cir. 2009) (literary work and movie).

4 Whether a district court erred in considering substantial similarity in a motion

to dismiss without expert testimony depends on the applicable standards for the

procedural posture of the case. It is not that expert testimony is never required or

that substantial similarity can always be determined as a matter of law on a motion

to dismiss. Rather, the court is required to determine whether the complaint states a

plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This is a “context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Id. Thus, there will be times when the court finds it plausible that

two works are substantially similar and that expert testimony could be helpful. But

there will also be times where the court’s “judicial experience and common sense”

shows that the claims are not plausible and that a comparison of two works creates

no more than a “mere possibility of misconduct.” Id. In this regard, literary works

do not receive special treatment.

3. The Book and the Movie Are Not Substantially Similar: With the

above in mind, Masterson fails to plausibly allege that the Book and the Movie are

substantially similar.

We follow a two-part analysis in assessing substantial similarity; it consists

of an “extrinsic test” and an “intrinsic test.” Rentmeester, 883 F.3d at 1118. The

extrinsic test involves “assess[ing] the objective similarities of the two works,

focusing only on the protectable elements of the plaintiff’s expression.” Id. In the

5 extrinsic test, the court first filters out unprotectable elements, which are “primarily

ideas and concepts, material in the public domain, and scènes à faire (stock or

standard features that are commonly associated with the treatment of a given

subject).” Id. The remaining protectable elements are then compared “to assess

similarities in the objective details of the works.” Id. (emphasis added). For literary

works, “[t]he extrinsic test focuses on articulable similarities between the plot,

themes, dialogue, mood, setting, pace, characters, and sequence of events in the two

works.” Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th

Cir. 2006), overruled on other grounds by Skidmore, 952 F.3d 1051 (internal

quotation marks omitted). The intrinsic test, on the other hand, “requires a more

holistic, subjective comparison of the works to determine whether they are

substantially similar in ‘total concept and feel.’” Rentmeester, 883 F.3d at 1118.

“Only the extrinsic test’s application may be decided by the court as a matter of law,

so that is the only test relevant in reviewing the district court’s ruling on a motion to

dismiss.” Id. (citation omitted).

Applying the above principles here shows that it is not plausible that the Book

and the Movie have any substantial similarity under the extrinsic test. All of the

asserted similarities must be filtered out. Though the works share a general theme—

i.e., every feeling has a reason—such a theme is too general to be protectible for the

purposes of the extrinsic test. The fact that the Book and the Movie involve a journey

6 through childhood emotions is also too general to be a cognizable similarity. Other

supposed similarities fade away upon scrutiny. For example, the “golden mirror” in

the Book, which is associated with the Book’s “Golden Rule” that commands the

reader “to love myself and others the way I would want to be loved,” has no

similarity with the Movie’s golden orbs, which are literal representations of

memories.

The alleged similarities between the characters are also unprotectable. That

both works have a cloud-like character that talks is too general of a similarity to be

an “objective detail” under the extrinsic test. And the presence of

anthropomorphized emotion characters flows from the premise of doing a children’s

story about human emotions, making it unprotectable scenes-a-faire.

Finally, the combination of these unprotectable elements fails to show any

cognizable similarity. As this court recently explained in Skidmore, for a

combination of unprotectable elements to sustain a claim of substantial similarity,

an author must have created a new arrangement of unprotectable elements and the

allegedly infringing work must share substantial amounts of that same combination.

952 F.3d at 1075. Here, there are few, if any, similarities between the works. At

best, the similarities are that (1) both have the general theme of exploring emotions

in childhood, (2) both include anthropomorphized characters embodying the

emotions joy, sadness, fear, and anger, (3) both have a crying character whose tears

7 fall on flowers, (4) both have a cloud-like character, and (5) both associate friendship

with the color purple and arch shapes. Such a combination is not numerous or novel

enough to warrant copyright protection—they do not show a “particular way in

which the artistic elements form a coherent pattern, synthesis, or design.” Id. at 1074

(emphasis in original). Rather, the similarities between the Movie and the Book are

more like “random similarities scattered throughout the works,” of which this court

has been “particularly cautious.” Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th

Cir. 1984). Thus, Masterson failed to plausibly allege substantial similarity.

4. Access to the Script: Masterson failed to address the district court’s

determination that, “[t]o the extent Plaintiff relies on her movie script for her claim

of copyright infringement, she fails to adequately allege access.” Thus, any such

argument is waived. See Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th

Cir. 2010) (“We review only issues which are argued specifically and distinctly in a

party’s opening brief. We will not manufacture arguments for an appellant, and a

bare assertion does not preserve a claim . . . .” (quoting Greenwood v. FAA, 28 F.3d

971, 977 (9th Cir. 1994)).

AFFIRMED

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