Case 2:16-cv R-RAO Document 75 Filed 07/24/17 Page 1 of 34 Page ID #:467

Transcription

1 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 David Halberstadter (CA 00) david.halberstadter@kattenlaw.com Joanna M. Hill (CA 0) joanna.hill@kattenlaw.com KATTEN MUCHIN ROSENMAN LLP 0 Century Park East, Suite 00 Los Angeles, CA 00-0 Telephone: Facsimile: 0.. Attorneys for Defendants STARZ ENTERTAINMENT, LLC, ANCHOR BAY ENTERTAINMENT, LLC, CBS TELEVISION STUDIOS, DAVID KNOLLER, MARK CANTON, RANDALL EMMETT, COURTNEY KEMP AGBOH and CURTIS JACKSON LARRY S. JOHNSON AND BLAKE KELLER, v. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Plaintiffs, DAVID KNOLLER, STARZ ENTERTAINMENT LLC, ANCHOR BAY ENTERTAINMENT LLC, CBS TELEVISION, MARK CANTON, RANDALL EMMETT, NIKKI TURNER, CURTIS JACKSON, COURTNEY KEMP ABGOH AND DOES THROUGH 0, Defendants. ) Case No. :-cv-0-r-rao ) ) ) ) DEFENDANTS NOTICE OF ) MOTION AND MOTION FOR ) JUDGMENT ON THE PLEADINGS ) ) [Fed. R. Civ. P. (c)] ) ) [Hon. Manuel L. Real] ) ) [Defendants Request for Judicial Notice; ) Declaration of Joanna M. Hill; Notice of ) Manual Filing; and [Proposed] Order ) filed concurrently herewith] ) ) ) Date: August, 0 ) Time: 0:00 a.m. ) Place: Department 0 ) ) ) ) V

2 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 TO PLAINTIFFS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August, 0 at 0:00 a.m., or as soon thereafter as the parties may be heard, before the Honorable Manual L. Real, United States District Judge, in Courtroom 0, located at East Temple Street, Los Angeles, California 00, defendants Starz Entertainment, LLC, Anchor Bay Entertainment, LLC, CBS Television Studios, David Knoller, Mark Canton, Randall Emmett, Courtney Kemp and Curtis Jackson ( Jackson ) (collectively, the Moving Defendants ) will and hereby do move for judgment on the pleadings dismissing the First Amended Complaint ( FAC ) filed by plaintiffs Larry S. Johnson ( Johnson ) and Blake Keller (collectively, the Plaintiffs ) pursuant to Rule (c) of the Federal Rules of Civil Procedure. The Moving Defendants move for judgment on the pleadings on the grounds that Plaintiffs fail to state any claim upon which relief can be granted. More specifically, judgment should be entered on Plaintiffs first claim for copyright infringement because, as a matter of law, (i) Plaintiffs have failed to sufficiently allege that any of the creators or writers of Power had any access to Plaintiffs works, and (ii) there is no substantial similarity between Plaintiffs works and the Moving Defendants allegedly infringing work as a matter of law. Judgment should be entered on Plaintiffs second claim for fraud because, as a matter of law, the Moving Defendants made no false representations to Plaintiffs regarding the creation of the allegedly infringing work. Lastly, Plaintiffs third claim for breach of contract also fails, among other reasons, because the purported agency agreement between Johnson and defendant Nikki Turner does not involve or implicate Jackson or any of his companies. This Motion is made following the conference of counsel pursuant to Local Rule -, which took place on July, 0. This Motion is based upon this Notice of Motion and the attached Memorandum of Points and Authorities; the pleadings and papers on file in this action; the Moving Defendants Request for Judicial Notice filed concurrently herewith and any other

3 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 matters of which the Court may take judicial notice; the Declaration of Joanna M. Hill; the works lodged by the Moving Defendants concurrently herewith; and such other argument that may be presented to this Court at or before the hearing on this Motion. Dated: July, 0 Respectfully submitted, KATTEN MUCHIN ROSENMAN LLP By: /s/ Joanna M. Hill Joanna M. Hill Attorneys for Defendants STARZ ENTERTAINMENT, LLC, ANCHOR BAY ENTERTAINMENT, LLC, CBS TELEVISION STUDIOS, DAVID KNOLLER, MARK CANTON, RANDALL EMMETT, COURTNEY KEMP AGBOH and CURTIS JACKSON

4 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #:0 0 0 TABLE OF CONTENTS Page I. INTRODUCTION... II. FACTUAL BAGROUND... A. Allegations of the FAC... B. Purported Similarities Between Tribulation and Power... C. Summary of Tribulation... D. Summary of Power... III. ARGUMENT... A. A Motion For Judgment on the Pleadings is Subject to the Same Standards as a Motion to Dismiss.... B. Copyright Infringement Requires Proof of Both Access and Substantial Similarity..... Access.... Substantial Similarity... 0 a. This Court Should Consider and Compare Both Tribulation and Power in Connection With This Motion b. The Ninth Circuit s Extrinsic Test for Substantial Similarity Requires an Analysis of Only the Protected Elements of Plaintiffs Work.... c. Copyright Law Does Not Protect Generalized Themes or Ideas or Stock Elements.... C. Tribulation and Power Are Not Substantially Similar..... The Plot of Power Bears No Similarity to Tribulation..... The Characters in Power and Tribulation Are Not Similar.... a. The Protagonists... b. Secondary Characters The Settings of the Two Works Are Completely Different.... The Two Works Share No Similar Dialogue..... The Theme, Mood, Pace and Sequence of Events Are Dissimilar....

5 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 IV. PLAINTIFFS CLAIMS FOR FRAUD AND BREACH OF CONTRACT ALSO FAIL.... A. Plaintiffs Fraud Claim Fails To Allege Sufficient Facts.... B. Plaintiffs Breach of Contract Claim Also Fails.... V. CONCLUSION...

6 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Cases TABLE OF AUTHORITIES Page(s) Alexander v. Murdoch, No. CV 0 PAC JCF, 0 WL 0 (S.D.N.Y. May, 0)... Anderson v. Stallone, No. -0 WDKGX, WL 0 (C.D. Cal. Apr., )... Ashcroft v. Iqbal, U.S. (00)... Bell Atl. Corp. v. Twombly, 0 U.S. (00)... Benay v. Warner Bros. Entm t, Inc., 0 F.d 0 (th Cir. 00)...,, 0, Berkic v. Crichton, F.d (th Cir. )...,,, Bernal v. Paradigm Talent & Literary Agency, F. Supp. 0 (C.D. Cal. 00)... Cafasso, U.S. ex rel. v. Gen. Dynamics C Sys., Inc., F.d 0 (th Cir. 0)..., Campbell v. Walt Disney Co., F. Supp. d 0 (N.D. Cal. 00)...,,, Cavalier v. Random House, Inc., F.d (th Cir. 00)...,, Chavez v. U.S., F.d 0 (th Cir. 0)..., Corbett v. Otts, 0 Cal. App. d, ()... Cory Van Rijn, Inc. v. Cal. Raisin Advisory Bd., F. Supp. (E.D. Cal. )...,

7 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Dworkin v. Hustler Magazine Inc., F.d (th Cir. )... Feist Publ ns, Inc. v. Rural Tel. Servs. Co., U.S. 0 ()... Funky Films, Inc. v. Time Warner Entm t Co., L.P., F.d 0 (th Cir. 00)... passim Gable v. Nat l Broad. Co., F. Supp. d (C.D. Cal. 00), aff d sub nom. Gable v. Nat l Broad. Co., F. App x (th Cir. 0)... passim Heusey v. Emmerich, -cv-00-ab (Ex) (C.D. Cal. Apr., 0)... Kabehie v. Zoland, 0 Cal. App. th (00)... Kouf v. Walt Disney Pictures & Television, F.d 0 (th Cir. )..., Litchfield v. Spielberg, F.d (th Cir. )... Loomis v. Cornish, No. CV - RSWL (JEMx), 0 WL 0 (C.D. Cal. Nov., 0), aff d F.d (th Cir. 0)..., 0 Lucky Break Wishbone Corp. v. Sears, Roebuck & Co., F. Supp. d 0 (W.D. Wash. 00), aff d F. App'x (th Cir. 00)... Lucky Leather, Inc. v. Mitsui Sumitomo Ins. Grp., No. CV00MMMPLAX, 0 WL (C.D. Cal. Feb., 0)... Meta-Film Assocs., Inc. v. MCA, Inc., F. Supp. (C.D. Cal. )..., Metcalf v. Bochco, F.d 0 (th Cir. 00)... Miller v. Universal City Studios, Inc., 0 F.d (th Cir. )...

8 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Musero, III v. Mosaic Media Grp. Inc., 0-cv- PA (JCx) (C.D. Cal. Aug., 00)... Newt v. Twentieth Century Fox Film Corp., No. -CV-0-CBM-JPRX, 0 WL 0 (C.D. Cal. July, 0)... passim Olson v. Nat l Broad. Co., F.d (th Cir.)...,,, Rice v. Fox Broad. Co., 0 F.d 0 (th Cir. 00)...,,, Schkeiban v. Cameron, No. CV -0-R, 0 WL (C.D. Cal. May 0, 0)...,, 0 Schkeiban v. Cameron, No. CV -0-R (MANx), 0 WL (C.D. Cal. Oct., 0)) aff d F. App x (th Cir. 0)... 0 Scott v. Meyer, 0-cv-0 ODW (RZx) (C.D. Cal. Dec., 00)... Shame on You Prods., Inc. v. Elizabeth Banks, 0 F. Supp. d, (C.D. Cal. 0) aff d sub nom. Shame on You Prods., Inc. v. Banks, No. -, 0 WL (th Cir. May, 0)..., Shaw v. Lindheim, F.d (th Cir. 0)...,, 0 Shwarz v. U.S., F.d (th Cir. 000)... Sid & Marty Krofft Telev. Prods., Inc. v. McDonald s Corp., F.d (th Cir. )... 0 Thomas v. Walt Disney Co., F. App x (th Cir. 00)... Three Boys Music Corp. v. Bolton, F.d (th Cir. 000)..., Walker v. Time Life Films, Inc., F.d (d Cir. )...

9 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Weiss v. DreamWorks SKG, No. CV00DDPAJWX, 0 WL (C.D. Cal. Feb., 0)... Wild v. NBC Universal, Inc., F. Supp. d 0 (C.D. Cal. 0), aff d sub nom. Wild v. NBC Universal, F. App x 0 (th Cir. 0)... Zella v. E.W. Scripps Co., F. Supp. d (C.D. Cal. 00)... 0,, Other Authorities - Nimmer on Copyright.0[B][][b]...

10 Case :-cv-0-r-rao Document Filed 0// Page 0 of Page ID #: 0 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiffs have alleged that the Moving Defendants infringed Plaintiffs two-part copyrighted work, Tribulation of a Ghetto Kid and Tribulation of a Ghetto Kid: Part (together, Tribulation ), in the writing, production and distribution of the Starz television series, Power. This claim is wholly without merit. First, Plaintiffs allegations respecting the Moving Defendants purported access to Plaintiffs works are speculative, at best. Plaintiffs most crucial averments are alleged on information and belief; specifically, that Plaintiffs shared their work with a third party who has no connection to the Starz series, who then purportedly shared Plaintiffs work with Jackson. These allegations are conclusory and are entitled to no deference whatsoever in assessing the adequacy of the FAC. Second, other than the fact that both works involve an African-American protagonist, they bear no similarities beyond the generalized theme of a crime drama and stock creative elements that flow from this most basic of premises. Power is a modern day story of a successful New York drug dealer and his desire to leave behind the drug trade and pursue only legal endeavors - in particular, an elite Manhattan nightclub. Tribulation, by contrast, takes place in an inner city neighborhood in Virginia and tells the story of how a triple murder sets off a wave of violence in warring communities and the impact this violence has on the -year-old protagonist. Plaintiffs describe the purported similarities between Tribulation and Power at such an abstract level of generality that Plaintiffs work arguably would be similar to almost every other television series or film involving big-city violence and drug dealing. But when the Court examines the works themselves (as it is permitted to do on a motion for judgment on the pleadings), disregarding Plaintiffs random list of imagined similarities, it is evident that Plaintiffs claim of infringement is meritless. The purported similarities (i) lack context, (ii) constitute stock elements of any show involving drug dealing and/or (iii) do not actually exist in both works. In sum, the

11 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 works differ entirely as to their plots, characters, themes, moods, pace and sequence of events. Last, Plaintiffs state law claims for fraud and breach of contract also fail. The Moving Defendants are not alleged to have made any false representations to Plaintiffs whatsoever, and Plaintiffs fail to allege credibly and with specificity how they supposedly relied to their detriment on any representations by the Moving Defendants. And it is apparent from the only agreement that is alleged in the FAC that while Johnson may have entered into some type of agency agreement with defendant Nikki Turner, he entered into no agreement at all with Jackson. Accordingly, the Moving Defendants respectfully request that the Court dismiss the FAC with prejudice, and award the Moving Defendants their attorneys fees as the prevailing party because (i) Plaintiffs claim of access is deficient as a matter of law, (ii) the total lack of substantial similarity between the two works may be readily determined by the Court as a matter of law, and (iii) the state law claims lack sufficient allegations. II. FACTUAL BAGROUND A. Allegations of the FAC Plaintiffs assert three causes of action against the Moving Defendants: () copyright infringement; () fraud; and () breach of contract. Plaintiffs allege that the television series, Power, infringes on Plaintiffs work, Tribulation. Plaintiffs allege that in 00-00, Johnson created Tribulation, and in 00, Johnson gave a The breach of contract claim is asserted only against defendants Jackson and Nikki Turner ( Turner ). Turner has not yet entered an appearance in this action. This is the third lawsuit filed by Johnson alleging these same claims. In September 0, Johnson filed a copyright infringement claim in the Eastern District of Virginia against almost all of the same defendants (Case No. -cv-00-heh). The district court in that action sua sponte dismissed the complaint for failure to state a claim (Dkt. No. ). See Defendants Answers in this action, Dkt. Nos. 0-,. In June 0, Johnson filed another complaint, also in the Eastern District of Virginia, alleging the same claims of infringement against almost all of the same defendants named in this action. (Case No. -cv-000). See FAC. Johnson voluntarily dismissed that complaint (Dkt. No. ). See Defendants Answers in this action, Dkt. Nos. 0-,.

12 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 copy of it to Turner. (FAC,.) Thereafter, Turner and Johnson corresponded about the works and began working together to develop projects to distribute literary material about the sex, guns, cash, brutal highs and short lives of persons involved in legally questionable situations in tough streets. (Id. at -.) Plaintiffs allege that Turner was employed by Jackson s company, G-Unit Books, who also purportedly developed projects centered around the same themes. (Id. at.) Solely on information and believe, Plaintiffs allege that Turner knowingly and intentionally gave Jackson a copy of Plaintiffs works when she was employed by G- Unit Books and then Jackson and/or Turner purportedly transferred the works to each of the other named Defendants. (Id. at.) Plaintiffs claim that the Moving Defendants infringed on Plaintiffs works by substantially copying and publicly displaying, or authorizing the copying and displaying of Power. (Id. at.) B. Purported Similarities Between Tribulation and Power Plaintiffs allege that both Tribulation and Power explore the life of an African- American protagonist drug dealer using his ill-gotten gains to transition into the realm of legitimate business. (Id. at.) Plaintiffs argue that the protagonists in both works (i) have a 0 degree waves hairstyle and goatee facial hair, (ii) are smart, (iii) have parents who are both deceased, and (iv) aspire to leave behind the drug trade in favor of a legitimate life by owning a nightclub. (Id. at -,.) Both works also purportedly share similar plot lines in that they involve (i) ties to a Latin drug supplier based out of Miami, (ii) a scene where the protagonist reunites with his estranged family for dinner and his wife sheds a tear in private, (iii) the protagonist s hiring of an attorney who appears at a bail hearing on behalf of the protagonist, who is subsequently denied bail, (iv) an associate of the protagonist who was a former college In connection with their fraud claim, Plaintiffs allege that the Moving Defendants knew Power infringed upon Plaintiffs works yet held themselves out to the public as being the creators of Power. (Id. at.) As the Court will see when it reviews the two works, Plaintiffs description of the plot of their work is misleading and inaccurate. The protagonist in Tribulation is not a drug dealer, but rather, a -year-old young man.

13 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 basketball star but suffered a career ending injury, and (v) a white woman who infiltrates the protagonist s inner circle and later works with the FBI to further their investigation into the protagonist s drug ring. (Id. at, -, -.) Both works also purportedly feature a similar love interest named Angela/Angie who has lots of mental fortitude, [and is] relaxed, easy to be around, and able to fit into any situation. (Id. at 0.) Finally, Plaintiffs claim there is a similarity in dialogue in a scene involving the Latin drug supplier and the protagonist. (Id. at,.) C. Summary of Tribulation Tribulation chronicles the impact of a string of violent events on the lives of various teenagers and young adults living in an inner city neighborhood in Richmond, Virginia. There is no clear protagonist, but if one were to look to the title of the works (Tribulation of a Ghetto Kid), the character most fitting of that description is a teenage boy named Jeffrey Owens. Jeffrey and his two younger sisters are raised by their single mother in a housing project in Richmond. Jeffrey is a kind and intelligent young man who manages to stay out of trouble and away from the drug business that plagues his community until his mother is killed in a drive-by shooting. Jeffrey s life then takes a turn for the worse, as his sisters are taken into foster care and he resorts to drug dealing in order to make money. The first book of Tribulation begins with a gambling dispute between two groups, LA and Black, on the one hand, and three men from a neighboring housing Plaintiffs counsel informed Moving Defendants counsel that copies of Plaintiffs works could be obtained through Amazon. Based on this advice, the Moving Defendants purchased a copy of both works comprising Tribulation. The summary of Tribulation is derived from these two documents which are also attached to the Declaration of Joanna M. Hill ( Hill Decl. ) as Exhibits B & C. The Moving Defendants have requested that the Court take judicial notice of these works. Thomas v. Walt Disney Co., F. App x, (th Cir. 00) (district court properly considered materials alleged in complaint in finding no substantial similarity and granting motion to dismiss); Campbell v. Walt Disney Co., F. Supp. d 0,, n. (N.D. Cal. 00) (taking judicial notice of plaintiffs screenplay and allegedly infringing film because the contents of each were alleged in the complaint). In fact, the back cover of the first novel of Tribulation focuses exclusively on Jeffrey: Meet Jeffrey Owen s [sic], the modern day version of the biblical Job; he s a model student and inspiring [sic] rapper/poet who strives hard to live right in an environment filled with gross images of death and despair. (Hill Decl., Ex. B.)

14 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #:0 0 0 project referred to as the Gray Stone Projects, on the other hand. After a heated exchange, Black kills the three men from the Gray Stone Projects. From there, a trail of violence ensues as friends and family of the slain victims seek revenge and begin attacking people in Jeffrey s community. This war eventually leads to the murders of Jeffrey s mother and LA s pregnant girlfriend, Angie. Percy Prince Miller is Jeffrey s mentor and a former drug kingpin in Richmond during the 0s. After his release from prison following a murder conviction, Prince continues to sell drugs, but soon after, retires from the drug trade. He moves away from his neighborhood (but still lives in Virginia) and maintains a low profile operating as a law abiding citizen and an investor in a restaurant. Prince s estranged girlfriend, Wanda, and their child, still live in Jeffrey s neighborhood. After Wanda witnesses Black kill the three men during the gambling dispute, Prince has Wanda and his son move in with him out of fear that they may also be killed. When the police begin investigating the triple murder, LA and Black go on the run. LA hides out in North Carolina while Black heads to Virginia Beach with Christy, a white women he is dating. Eventually, Christy turns Black in to the police for the triple murder in the hope that her cooperation will result in a lighter sentence for her actual boyfriend, who is currently incarcerated. While hiding in North Carolina, LA s pregnant girlfriend (Angie) is raped and murdered by Bernard, a relative of the men Black murdered. By the end of the second book, Prince has been arrested for the triple murder because Black lied and told the police that Prince ordered him to kill the three men. In the final scene of the second book, LA finds out where Bernard is hiding and, along LA, Black and Jeffrey are friends and live in the same neighborhood. For purposes of this lawsuit, Plaintiffs characterize Prince as the work s protagonist, rather than Jeffrey. But this is demonstrably false. The back covers of both novels provide a summary of each, and tellingly do not even mention Prince or drug dealing. Because it makes no difference whatsoever to the viability of the FAC, this Motion treats Prince as the protagonist of Tribulation.

15 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 with Jeffrey and one other companion, sets a plan to capture and kill Bernard. LA and Bernard are killed in a subsequent shoot out, but Jeffrey manages to escape. D. Summary of Power Power takes place in present day Manhattan and centers on James Ghost St. Patrick, the owner of a new and popular New York City nightclub called Truth. Ghost is a successful drug kingpin who wants to retire from the drug business and pursue a legitimate career as a nightclub owner. In the pilot episode, Ghost is portrayed as the calm but stern head of an organized network of criminals who smuggle drugs in and out of New York City. To an outsider, Ghost, often dressed in well-tailored suits, seems like an upright business man; but his inner circle knows that he is capable of violence. During Season, Ghost and Tommy (Ghost s business partner and best friend) secure a new distribution deal with drug supplier, Felipe Lobos. 0 Using the drugs they get from Lobos, Ghost becomes the main drug supplier for multiple other drug networks, essentially serving as a middle man between Lobos and the other networks. Ghost is married to Tasha and the couple share a Manhattan home with their three children (one boy and two girls) and Tasha s mother. Tasha does not like the idea of Ghost leaving behind the drug trade and, throughout the first season, feels that he is drifting away from her. Most of the first season takes place in and around upscale neighborhoods in Manhattan. In the pilot episode, Ghost runs into a former flame, Angela Valdez, when she shows up at Truth. Throughout the first season, Ghost and Angela rekindle their prior relationship and fall back in love; however, Ghost soon discovers that Angela is an assistant U.S. attorney working on a task force aimed at prosecuting Ghost s supplier, The summary of Power is derived from the first season of the series, which is also attached to the Hill Decl. as Exhibit D. The Moving Defendants have requested that the Court take judicial notice of the contents of the first season of Power. See supra n.. 0 Contrary to Plaintiffs allegations, there is no indication that Lobos operates solely out of Miami.

16 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Felipe Lobos. The first season highlights Ghost s love triangle and how that is a reflection of his own internal struggle to leave behind the drug trade. The main story lines of the first season are as follows: () Ghost s crew fights off attacks from a mysterious rival gang; () he pursues a relationship with Angela all the while slipping further away from Tasha; () he continues to try and transition out of the drug life and promote the growth of Truth; and () he tries to evade criminal prosecution (by Angela and her peers) and keep his drug supplier, Lobos, content. III. ARGUMENT A. A Motion For Judgment on the Pleadings is Subject to the Same Standards as a Motion to Dismiss. Rule (c) of the Federal Rules of Civil Procedure provides that [a]fter the pleadings are closed but early enough not to delay trial a party may move for judgment on the pleadings. In deciding a Rule (c) motion, the court applies the same standard that is applicable to a motion under Rule (b)(), which provides that a court may dismiss a complaint for failure to state a claim upon which relief can be granted. Chavez v. U.S., F.d 0, 0 (th Cir. 0); Dworkin v. Hustler Magazine Inc., F.d, (th Cir. ). In Bell Atl. Corp. v. Twombly, 0 U.S., - (00) and Ashcroft v. Iqbal, U.S., (00), the Supreme Court clarified the standards for judging a motion to dismiss. A motion for judgment on the pleadings must be granted unless the plaintiff alleges more than the mere possibility of misconduct, otherwise, the complaint has alleged but it has not shown that the pleader is entitled to relief. Wild v. NBC Universal, Inc., F. Supp. d 0, 0 (C.D. Cal. 0), aff d sub nom. Wild v. NBC Universal, F. App x 0 (th Cir. 0) (quoting Iqbal, U.S. at ); Twombly, 0 U.S. at ( Factual allegations must be enough to raise a right to relief above the speculative level ). Although a plaintiff s allegations are The Twombly/Iqbal plausibility standard applies to Rule (c) motions. Cafasso, U.S. ex rel. v. Gen. Dynamics C Sys., Inc., F.d 0, 0, n. (th Cir. 0).

17 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 generally taken as true, labels and conclusions are insufficient to defeat a motion for judgment on the pleadings. Newt v. Twentieth Century Fox Film Corp., No. -CV- 0-CBM-JPRX, 0 WL 0, at * (C.D. Cal. July, 0); Chavez, F.d at 0 ( Mere conclusory statements in a complaint and formulaic recitations of the elements of a cause of action are not sufficient. ). B. Copyright Infringement Requires Proof of Both Access and Substantial Similarity. To prevail on a claim for copyright infringement, a plaintiff must show (i) ownership of a valid copyright and (ii) that the defendant copied original elements of that work. Feist Publ ns, Inc. v. Rural Tel. Servs. Co., U.S. 0, (); see also Funky Films, Inc. v. Time Warner Entm t Co., L.P., F.d 0, 0 (th Cir. 00). The second prong of this analysis requires that the plaintiff sufficiently allege the infringer had access to [his] copyrighted work and that the works at issue are substantially similar in their protected elements. Cavalier v. Random House, Inc., F.d, (th Cir. 00); see also Funky Films, F.d at 0.. Access Actual copying may be proven by direct or circumstantial evidence. Lucky Break Wishbone Corp. v. Sears, Roebuck & Co., F. Supp. d 0, (W.D. Wash. 00), aff d, Fed. Appx. (th Cir. 00); Three Boys Music Corp. v. Bolton, F.d, (th Cir. 000). In order to demonstrate access, a plaintiff must sufficiently allege that the purported infringer had a reasonable opportunity, not simply a bare possibility, of seeing the plaintiff s work prior to the creation of the infringing work. Three Boys Music, F.d at. Access, however, may not be inferred through mere speculation or conjecture. Id.; Weiss v. DreamWorks SKG, No. CV00DDPAJWX, 0 WL, at * (C.D. Cal. Feb., 0) (granting motion to dismiss because allegations of access were mere conjecture ); Schkeiban v. Cameron, No. CV -0-R (MANx), 0 WL, at *- (C.D. Cal. May 0, 0) (granting motion to dismiss where Plaintiff [] pled no facts indicating that it

18 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 was reasonably possible that defendants had access to the work but rather merely speculate[d] that it occurred without foundation. ). The plaintiff must allege either: (i) a particular chain of events between the plaintiff s work and the defendant s access to that work or (ii) that the plaintiff s work has been widely disseminated. Three Boys Music, F.d at. If a plaintiff claims that a defendant had access to plaintiff s work via a third party, the plaintiff must allege a sufficient nexus between the individual who possesses knowledge of a plaintiff s work and the creator of the allegedly infringing work. Meta-Film Assocs., Inc. v. MCA, Inc., F. Supp.,, (C.D. Cal. ). The plaintiff must allege that he/she submitted his/her work to an intermediary who either () has supervisory responsibility for the allegedly infringing project, () contributed ideas and materials to it, or () worked in the same unit as the creators. Gable v. Nat l Broad. Co., F. Supp. d, (C.D. Cal. 00), aff d sub nom. Gable v. Nat l Broad. Co., F. App x (th Cir. 0) (emphasis added); see also Bernal v. Paradigm Talent & Literary Agency, F. Supp. 0, 0- (C.D. Cal. 00) (no reasonable possibility of access where the plaintiff s script was sent to someone who worked at the same company as the infringing show s creator, and there was no evidence beyond speculation that the two discussed the script); Loomis v. Cornish, No. CV - RSWL (JEMx), 0 WL 0, at * (C.D. Cal. Nov., 0), aff d F.d (th Cir. 0) (insufficient evidence of access where plaintiff never met with writers of the allegedly In Schkeiban, the plaintiff alleged that he sent his script to several individuals and entities in the film industry, with the implication that one of those individuals/entities passed the script along to the defendants. This Court held that such allegations were pure speculation. 0 WL, at *. In Meta-Film, the plaintiff showed his work to a director who was under contract with the defendant studio and worked on the studio lot, but could not demonstrate any connection between that director and the studio s allegedly infringing project. Id. at -.

19 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 infringing work and the alleged intermediary had no involvement with the creation of the infringing work). Here, Plaintiffs have not sufficiently alleged that the Moving Defendants had access to Plaintiffs work. Rather, on information and belief, they assume that because Johnson gave copies of Tribulation to defendant Turner, Turner must have given Plaintiffs materials to Jackson and Jackson therefore must have given copies of those materials to the remaining Defendants in order to create Power. Plaintiffs do not and cannot allege that Turner had any role in the creation or development of Power. The remaining allegations are speculative and allege only a bare possibility of access, which is not sufficient because there is no claim that the creators, distributors or producers of Power actually saw Plaintiffs materials. See Gable, F. Supp. d at ; Loomis, 0 WL 0, at *. Therefore, the Court should not take as true these allegations asserted on information and belief. Nonetheless, even if Plaintiffs were able to demonstrate that all of the Moving Defendants had access to Plaintiffs materials, Plaintiffs still must demonstrate that their allegations regarding similarities, if true, amount to substantial similarity.. Substantial Similarity a. This Court Should Consider and Compare Both Tribulation and Power in Connection With This Motion. Courts in this circuit regularly compare the works in dispute at the pleading stage in order to determine whether they are substantially similar. See, e.g., Zella v. E.W. Scripps Co., F. Supp. d, - (C.D. Cal. 00) (comparing a treatment and script, with television series, Rachel Ray); Schkeiban v. Cameron, No. CV -0-R (MANx), 0 WL, at * (C.D. Cal. Oct., 0)) aff d F. App x (th Cir. 0) (comparing script with movie). And courts routinely Schkeiban, 0 WL, at * ( the mere sending of a work to contacts in Hollywood is insufficient to demonstrate access. ) No amount of proof of access will suffice to show copying if there are no similarities. Sid & Marty Krofft Telev. Prods., Inc. v. McDonald s Corp., F.d, (th Cir. ). 0

20 Case :-cv-0-r-rao Document Filed 0// Page 0 of Page ID #: 0 0 dismiss meritless copyright infringement claims at the pleading stage where no substantial similarity is found. See, e.g., Zella, F. Supp. d at ; Newt, 0 WL 0, at * (comparing plaintiff s screenplay and documentary with television series, Empire); Musero, III v. Mosaic Media Grp. Inc., 0-cv- PA (JCx) (C.D. Cal. Aug., 00) (Dkt. No. ) (comparing plaintiff s screenplay with the movie, Bruno); Scott v. Meyer, 0-cv-0 ODW (RZx) (C.D. Cal. Dec., 00) (Dkt. No. 0) (comparing plaintiff s novel with Twilight saga novel); Campbell, F. Supp. d at (comparing plaintiff s screenplay with the movie, Cars). Further, the works themselves, rather than Plaintiffs allegations, should control the Court s analysis because the Court need not accept as true allegations contradicted by documents referenced in the complaint or by facts which may be judicially noticed. Cory Van Rijn, Inc. v. Cal. Raisin Advisory Bd., F. Supp., (E.D. Cal. ) (In copyright infringement cases the works themselves supersede and control any contrary allegations, conclusions or descriptions of the works. ); Shwarz v. U.S., F.d, (th Cir. 000). Finally, the Court should disregard Plaintiffs list of random purported similarities alleged throughout the FAC because the Ninth Circuit has held that such lists, are inherently subjective and unreliable, particularly where the list emphasizes random similarities scattered throughout the works. Litchfield v. Spielberg, F.d, - (th Cir. ); Anderson v. Stallone, No. -0 WDKGX, WL 0, at * (C.D. Cal. Apr., ) (rejecting expert s list of similarities as it merely identified general themes and basic plots [] not protected by Copyright. ) Discovery is unnecessary because discovery would not change the fact that the two works lack any concrete or articulable similarities. Funky Films, F.d at 0; see also Gable, F. Supp. d at - (C.D. Cal. 00) (courts can compare general audience literary works without expert testimony). Any prior, unpublished scripts of Power are not relevant to the Court s analysis of substantial similarity. Meta-Film, F. Supp. at 0 (citing Miller v. Universal City Studios, Inc., 0 F.d, (th Cir. ) ( the ultimate test of infringement was the film as broadcast rather than the underlying scripts. ); - Nimmer on Copyright.0[B][][b] (stating that courts [ ] routinely rejec[t] requests to consider earlier drafts of [an infringing work] when determining whether the works are substantially similar).

21 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 Here, Plaintiffs specifically describe both Tribulation and Power and include a discussion of their random purported similarities. (FAC,.) Review of the two works will reveal that the only similarities that exist between the two are superficial and generalized themes and plot points that are not protectable or sufficient to establish substantial similarity. Accordingly, the Moving Defendants respectfully request that the Court compare the works at issue and grant the Moving Defendants motion for judgment on the pleadings based also on the lack of substantial similarity. b. The Ninth Circuit s Extrinsic Test for Substantial Similarity Requires an Analysis of Only the Protected Elements of Plaintiffs Work. The Ninth Circuit employs a two-part test that combines an extrinsic and intrinsic analysis to determine substantial similarity. Rice v. Fox Broad. Co., 0 F.d 0, (th Cir. 00); see also Funky Films, F.d at 0 (copyright plaintiff must satisfy both an extrinsic test, focusing on objective elements, and an intrinsic test, focusing an ordinary person s subjective impressions). The extrinsic test ignores basic plot ideas but instead focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in the two works. Funky Films, F.d at 0; see also Berkic v. Crichton, F.d, (th Cir. ). Notably, the Court must look only at whether the protectable elements, standing alone, are substantially similar. Funky Films, F.d at 0 (emphasis in original); Cavalier, F.d at. A motion for judgment on the pleadings should be granted if, after comparing the works, a court concludes that no reasonable jury could find that the works are substantially similar, or if it concludes that the similarities between the two works pertain only to unprotected elements. Zella, F. Supp. d at. Although the intrinsic test is a subjective assessment, a finding of lack of extrinsic similarity (which may be determined at the pleading stage) is fatal to a plaintiff s copyright claim as a matter of law. See, e.g., Zella, F. Supp. d at -.

22 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 As discussed in the following sections, the claimed similarities between Tribulation and Power consists almost entirely of unprotectable elements including, but not limited to, Plaintiffs description of Tribulation as a work that explore[s] the life of an African-American protagonist drug dealer using his ill-gotten gains to transition into the realm of legitimate business. (FAC.) c. Copyright Law Does Not Protect Generalized Themes or Ideas or Stock Elements. It is a fundamental principle that any claim of substantial similarity must be based on more than [g]eneral plot ideas [as they] are not protected by copyright law [and] remain forever the common property of artistic mankind. Berkic, F.d at - ( [A]dventures of a young professional who courageously investigates, and finally exposes, the criminal organization was a basic and unprotected plot); see also Funky Films, F.d at 0 (general plot idea of a family-run funeral home, the father s death, and the return of the son who assists in maintaining the business was not protected); Kouf v. Walt Disney Pictures & Television, F.d 0, 0 (th Cir. ) (finding that the general plot idea of the life struggle of [shrunken] kids fighting insurmountable dangers was not protected); Olson v. Nat l Broad. Co., F.d, 0 (th Cir.) (the general idea of a group action-adventure series in which Vietnam veterans do good deeds and are portrayed in a positive light is not protectable); Campbell, F. Supp. d at (finding that the young mentee-older mentor storyline to be a basic plot idea [] not protected by copyright law. ). The use of elements that constitute scènes à faire or stock scenes which are indispensable and naturally associated with generic plot lines, or are standard to the treatment of a certain topic, are also not protectable. Rice, 0 F.d at ( the sequencing of first performing [a magic] trick and then revealing the secrets behind the See also Metcalf v. Bochco, F.d 0, 0 (th Cir. 00) ( [o]ne cannot copyright the idea of an idealistic young professional choosing between financial and emotional reward, or of love triangles among young professionals that eventually become strained, or of political forces interfering with private action. ).

23 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 trick is... scenes a faire and typical of any work about magic tricks); Benay v. Warner Bros. Entm t, Inc., 0 F.d 0, - (th Cir. 00) (scenes featuring a protagonist sailing into Japan, the Imperial Palace and battle scenes in various places in Japan were scènes à faire and typical of a work centered on an American war veteran who travels to Japan to help the Emperor fight a samurai rebellion ); Berkic, F.d at ( depictions of the small miseries of domestic life, romantic frolics at the beach, and conflicts between ambitious young people on one hand, and conservative or evil bureaucracies on the other... are familiar scenes and themes [that] are among the very staples of modern American literature ); Gable, F. Supp. d at (storylines driven by the basic plot idea of turning one's life around, and [t]he concept of a bad person spending time in prison, and then trying to clean up their act by making restitution and getting a job are unprotectable scenes-a-faire ); Walker v. Time Life Films, Inc., F.d, 0 (d Cir. ) ( Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about... policemen in the South Bronx, and thus are unprotectable scènes à faire). Numerous differences, however, tend to undercut substantial similarity. Gable, F. Supp. d at ( Although there are some general similarities between the works, the similarities pale in comparison to the significant differences between the works. ) C. Tribulation and Power Are Not Substantially Similar.. The Plot of Power Bears No Similarity to Tribulation. Plaintiffs provide a list of similarities that are so general that Plaintiffs could essentially argue that any drug-based television show or movie has infringed upon Plaintiffs work. See Benay, 0 F.d at (th Cir. 00) (finding no substantial similarity even though at a very high level of generality, both works share certain plot similarities. ) The story line of a drug dealer, with ties to a Latin drug supplier, who

24 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #:0 0 0 engages in legitimate businesses is well trodden territory and the subject of numerous television series and films. 0 The focus of Power is Ghost, a successful drug kingpin who wants to retire from the drug trade and pursue a legitimate business of owning and operating high-end nightclubs. At the center of his internal conflict are his two converging love interests that represent the two opposite life paths Ghost must choose between. Ghost wants to pursue a serious relationship with a former girlfriend, Angela Valdez, who is now a federal prosecutor, but he cannot do that if he is still in the drug business. On the other hand, Ghost is married to Tasha, and although she loves Ghost, she has no desire for him to leave the drug business. Tribulation bears no resemblance to Power whatsoever. The only commonality between the two works is that the protagonists in each is African-American, and at one point, was a drug dealer. Plaintiffs misleadingly allege that Tribulation is about an African-American protagonist drug dealer using his ill-gotten gains to transition into the realm of legitimate business, but Tribulation spends very little time discussing Prince s transition out of the drug business. Most of Tribulation is set in the present day (when Prince is no longer a drug dealer) and only occasionally flashes back to the height of Prince s drug dealing in the 0s. As the district court stated in Cory Van Rijn, F. Supp. at, in copyright infringement cases, the works themselves supersede and control any contrary allegations, conclusions or descriptions of the works. Further, the primary plot lines in Tribulation focus on (i) the violence that ensues after LA and Black murder three men following a gambling dispute, (ii) LA and Black running from the police while Bernard, a relative of two of the victims, goes on a killing spree in an attempt to locate his relatives killers, and (iii) Jeffrey s (the true 0 Television series like The Wire, Empire, Breaking Bad, Narcos, and Weeds, and films like Carlito s Way, American Gangster, New Jack City and Scarface, all feature these generic plot lines. See Request for Judicial Notice; see also Newt, 0 WL 0, at *- (discussing elements of television series, Empire).

25 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 protagonist) attempts to recover from the pain of losing his mother and having his sisters taken into foster care. There are no similar plot lines in Power. Plaintiffs also allege that both works feature (i) the protagonist s relationship with a Latin drug supplier, (ii) a scene where the protagonist reunites with his estranged family for dinner and his wife sheds a tear in private, (iii) the protagonist s hiring of an attorney who appears at a bail hearing on behalf of the protagonist who is subsequently denied bail, and (iv) a white woman who infiltrates the protagonist s inner circle and later works with the FBI to further their investigation into the protagonist s drug ring. (FAC, -, -.) These purported similarities are inaccurate and irrelevant for several reasons. First, in Tribulation, Prince s ties to a Dominican drug supplier, Pedro, stem from Prince s prior incarceration. Very little time is actually spent discussing Prince and Pedro s business arrangement or drug dealing in general. Instead, the focus of Tribulation is the violence in an inner city neighborhood and how the deaths of several individuals affect the actions of the various characters. In Power, Ghost and his Mexican drug supplier, Felipe Lobos, did not meet in prison and the plot line featuring this arrangement is prevalent throughout the first season. Nonetheless, it is utterly common to any show about drug dealing that a drug dealer would meet with his supplier and particularly, a Latin drug cartel. Second, in Tribulation, Prince and his estranged girlfriend, Wanda, reunite after several years apart when Prince discovers that her life might be in danger after she witnesses Black commit the triple murder. The scene Plaintiffs describe where Wanda sheds a private, happy tear occurs when she sees her family reunited as Prince and While some of the characters in Tribulation are drug dealers, the deaths of the key characters in Tribulation are not drug related. Plaintiffs incorrectly allege that Ghost gets his drugs from a man named Pedro. In fact, none of the primary or secondary characters in Power is named Pedro. It is also a scène à faire that a work centered on the generic plot of drug dealing would obviously feature some scenes involving conflict surrounding how the protagonist acquires his drugs, and from whom. (FAC.)

26 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 their son walk into a restaurant together. In Power, Tasha (Ghost s wife) gets emotional after having dinner with Ghost and their children; but that is because she knows Ghost is slipping away from her. Unlike Wanda, this is not a happy moment for Tasha. Third, although both works do depict the protagonist hiring an attorney who appears at a bail hearing, this is a stock element of any story about drug dealing. And a typical consequence of a drug arrest is the denial of bail. Fourth, in Tribulation, a white woman named Christy cooperates with the police and turns in Black for the triple murder in order to help her incarcerated boyfriend get out of prison early. Black is not a part of Prince s inner circle at the time that Christy turns him in, and the police are not investigating a drug ring; they are investigating a triple murder. In Power, Holly is the girlfriend of Ghost s business partner, Tommy. The FBI brings her in for questioning in the hopes that she will give them information about Ghost which the FBI believes will lead them to cartel drug supplier, Felipe Lobos. In order to protect herself from being prosecuted for other unrelated crimes, and to protect Tommy, Holly gives the FBI a gun used in a murder allegedly committed by Ghost. The motives of Christy and Holly in the respective works are completely dissimilar. See Newt, 0 WL 0, at *, n. 0 ( plots are not substantially similar simply because the works involve questioning by police for different reasons ). Finally, Plaintiffs argue that both works contain gratuitous profanity and violence. (FAC.) The use of strong language is a staple of any show about drugs and violence. And, given that both works involve the drug trade, violence is an element that flows naturally from this basic premise. In any event, the Ninth Circuit has repeatedly dismissed copyright claims where there was far greater overlap in plot elements than what Plaintiffs have alleged. See Moreover, it is not until the season finale of the third season that Ghost is arrested for the murder of an FBI agent and is thereafter denied bail. Contrary to Plaintiffs allegations, Ghost s inner circle is not made up of primarily African-Americans. In fact, Tommy is white and the next most senior lieutenant in his drug ring is a Cuban-American man named Julio.

27 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 e.g., Funky Films, F.d at 0 (no protection for similar plots involving the family-run funeral home, the father s death, and the return of the prodigal son, who assists his brother in maintaining the family business ); Kouf, F.d 0 at 0- (no protection for similar plots involving shrunken kids and the life struggle of kids fighting insurmountable dangers ); Berkic, F.d at (no protection for similar plots involving criminal organizations that murder healthy young people, then remove and sell their vital organs to wealthy people in need of organ transplants or adventures of a young professional who courageously investigates and finally exposes, the criminal organization ); Newt, 0 WL 0, at * (finding no substantial similarity even though the parties works each follow an African American man who was involved in drug dealing and has sons pursuing a music career ).. The Characters in Power and Tribulation Are Not Similar. Generalized character types are not protected by copyright law. Rice, 0 F.d at ; Kouf, F.d at 0. Only those characters that are especially distinctive, such as Mickey Mouse or Superman, receive copyright protection. Olson, F.d at. Further, characters which naturally flow from a basic plot idea are scenes-afaire. Campbell, F. Supp. d at ; see also Cavalier, F.d at ( a moon character can be considered a stock character for children s literature, and directly flows from the idea of a journey in the night sky ); Newt, 0 WL 0, at * ( concept of characters with a troubled past is not protectable. ) Courts generally require a very high degree of similarity between characters in order for them to be copyrightable. Shaw v. Lindheim, F.d, (th Cir. 0) (no substantial similarity between characters with the same name who were both well educated, wealthy, had expensive tastes, and fought against injustice); Benay, 0 F.d at - (no substantial similarity between characters who differed in their marital status, job, dreams/nightmares, and ideology). See also Shame on You Prods., Inc. v. Elizabeth Banks, 0 F. Supp. d, (C.D. Cal. 0) aff d sub nom. Shame on You Prods., Inc. v. Banks, No. -, 0 WL (th Cir. May, 0) (quoting Alexander v. Murdoch, No.

28 Case :-cv-0-r-rao Document Filed 0// Page of Page ID #: 0 0 a. The Protagonists The protagonists in Tribulation and Power bear no similarities aside from the fact that they are both African-American and at one point were drug dealers. Gable, F. Supp. d at (finding no substantial similarity in two characters because [a]part from being African-American and perhaps the same age, the characters had no other similarities). Prince is a felon who retired from the drug business soon after his release from prison; Ghost has no criminal history. In fact, no one outside of Ghost s crew even knows he exists (which is why he is called Ghost ). Even if the protagonists in both works could be considered smart, this is a generic, unprotectable trait. In any event, it is obvious that a successful drug dealer would have to possess street smarts and business acumen to avoid detection and/or prosecution. Shaw, F.d at. Also, even though both protagonists invest in legitimate businesses, Prince invests in a restaurant, while Ghost conceived of, built and owns his exclusive Manhattan nightclub. Moreover, Prince has a girlfriend and one child, while Ghost is married with three children. 0 Lastly, Prince and Ghost are driven by two completely different goals Prince wants to protect his family from being killed and avoid going to jail for a crime he did CV 0 PAC JCF, 0 WL 0, *0 (S.D.N.Y. May, 0)) ( [A] stunningly beautiful, fiery, temperamental, Latina mother, with a thick accent is a stock character). Ghost does not go to jail until the fourth season (which just recently aired) when he is wrongfully charged with the murder of an FBI agent. Prior to that, he had never been arrested. Plaintiffs also note that both protagonists have a 0 degree waves hairstyle and goatee facial hair; however, only those characters that are especially distinctive receive copyright protection. Olson, F.d at. This hairstyle and description of facial hair is generic, common and unprotectable. Further, although Johnson claims his pen name is Ghost, there is no similarly named character in Tribulation. See, e.g., Shaw, F.d at. Nowhere in Tribulation is there any discussion of anyone owning a nightclub. 0 Again, Prince is not the actual protagonist in Tribulation which is made clear by the fact that he is not mentioned in the back cover summaries of either novel. See Hill Decl., Exs. B & C.