NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 2 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOE GREGORY CARLINI, an individual, No. 21-55213

Plaintiff-Appellant, D.C. No. 2:19-cv-08306-SB-RAO v.

PARAMOUNT PICTURES MEMORANDUM*

CORPORATION, a Delaware corporation; WILL PACKER PRODUCTIONS, INC., a California corporation; BLACK ENTERTAINMENT TELEVISION, a district of Columbia limited liability corporation; TINA GORDON CHISM, an individual; PETER HYUCK, an individual; ALEX GREGORY, an individual; JAS WATERS, an individual; WILL PACKER, an individual; JAMES LOPEZ, an individual; DOES, 1 through 100, inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted February 17, 2022 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BRESS and BUMATAY, Circuit Judges, and LASNIK,** District Judge.

Joe Carlini appeals the district court’s dismissal of his copyright infringement

action against Paramount Pictures Corporation. Carlini claims Paramount’s movie

What Men Want (“WMW”) infringed Carlini’s copyright in What the F is He

Thinking, an unpublished screenplay that Carlini co-authored. We review de novo

the district court’s granting of a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), construing the allegations in the complaint in favor of the

plaintiff. Nguyen v. Endologix, Inc., 962 F.3d 405, 413 (9th Cir. 2020). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

To allege copyright infringement, Carlini must sufficiently allege unlawful

appropriation and copying. Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir.

2020) (en banc). Unlawful appropriation requires a plaintiff to allege that there are

“substantial similarities” between the two works. Id. “Copying” may be shown

with “direct evidence of copying” or “by showing that the defendant had access to

the plaintiff’s work.” Id. The district court correctly concluded that Carlini failed

to allege unlawful appropriation.1

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 1 Because Carlini fails plausibly to allege that the two works are substantially similar, we do not reach whether Carlini adequately pleaded access.

2 First, Carlini did not sufficiently allege that the two works were substantially

similar. To assess substantial similarity, we apply the extrinsic test. See id. Under

that test, “[a] court must take care to inquire only whether the protectible elements,

standing alone, are substantially similar.” Cavalier v. Random House, Inc., 297 F.3d

815, 822 (9th Cir. 2002) (quotations omitted). “Scenes-a-faire, or situations and

incidents that flow necessarily or naturally from a basic plot premise, cannot sustain

a finding of infringement.” Id. at 823. The extrinsic test “is objective in nature” and

“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) (quotations

omitted), overruled on other ground by Skidmore, 952 F.3d at 1067–69. After a

careful review of the two works, we conclude they are not substantially similar as a

matter of law.

Most notably, the plots of each work are not substantially similar. Both works

follow a woman who gains the ability to hear men’s thoughts, but the plots diverge

substantially from there: WMW focuses primarily on the protagonist navigating

career struggles, whereas Carlini’s screenplay focuses on two people in relationships

with the wrong person. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625

(9th Cir. 2010) (finding a lack of substantial similarity when, “[t]hough the

Screenplay and the Film share the same basic plot premise, a closer inspection

3 reveals that they tell very different stories”), overruled on other grounds by

Skidmore, 952 F.3d at 1067–69. Although Carlini points to superficial similarities

in how the main characters gain their mind-reading powers, the events play out in

materially different ways in each work. Other features of the plot that Carlini focuses

on are unprotectable scenes à faire associated with a story about hearing the private

thoughts of other persons. See Cavalier, 297 F.3d at 822.

Carlini’s list of 16 different “events” also fails plausibly to allege substantial

similarity based on the sequence of events in both works. Although it is appropriate

to “rel[y] on such lists of similarities . . . for illustrative purposes,” this court is

“particularly cautious where . . . the list emphasizes random similarities scattered

throughout the works.” Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984)

(quotations omitted). Carlini advances that kind of list. In this case, any similarities

in sequencing are commonplace or, given the plot premise, unremarkable. They do

not “belie[] any claim of literary accident.” Metcalf v. Bochco, 294 F.3d 1069, 1074

(9th Cir. 2002) (quotations omitted), overruled on other grounds by Skidmore, 952

F.3d at 1067–69.

Other features of the two works likewise belie Carlini’s allegations that the

works are substantially similar. The female protagonists are not similar: one is a

junior high school teacher in her mid-20s, and the other is a high-powered, career-

obsessed, sports agent trying to succeed at a firm dominated by men. The

4 protagonists’ male love interests share generic characteristics commonly found in

romantic comedies. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1176 (9th Cir. 2003)

(“[W]hile there may exist similarities between the . . . ‘characters,’ any shared

attributes . . . are generic and common[.]”), overruled on other grounds by Skidmore,

952 F.3d at 1067–69. And while TJ and Brandon have some similarities as the gay

best friends of the protagonists, they are otherwise quite different. TJ, described as

“energetic, very colorful and flamboyant,” has no work relationship with the

protagonist, and acts as her best friend throughout the story. In contrast, Brandon is

portrayed as a reserved and career-oriented assistant whom the protagonist treats

poorly for most of the film.

Other aspects of the works, such as themes, settings, dialogue, and mood and

pace are not substantially similar either, or else are unprotectable scenes à faire of a

romantic comedy. And the isolated lines of dialogue that Carlini relies on do not

demonstrate substantial similarity because “extended similarity of dialogue [is]

needed to support a claim of substantial similarity.” Olson v. National Broad. Co.,

Inc., 855 F.2d 1446, 1450 (9th Cir. 1988).

AFFIRMED.

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