USDC, C.D. California, November 8, 2017

District court dismisses copyright claim by well-known producer and writer Gary Goldman alleging that Disney animated film “Zootopia” infringed his treatment, synopsis, and character descriptions and illustrations for contemplated “Zootopia” franchise, ruling that parties’ works are not substantially similar.

Gary L. Goldman, a well-known Hollywood writer, director and producer, through his company Esplanade Productions, brought copyright infringement and state law claims against The Walt Disney Co. and others involved in the production of Disney’s animated box office hit “Zootopia.” Esplanade alleged that the movie infringed copyrights Goldman held in a synopsis, treatment, and character illustrations and descriptions for his movie “Looney,” the synopsis and treatment for which Goldman allegedly shared with Disney agents and executives, and which was part of a proposed franchise he also called “Zootopia.”

The court had previously granted defendants’ motion to dismiss plaintiff’s copyright infringement claim with leave to replead, on the basis that plaintiff’s failure either to attach the allegedly infringed materials to the complaint or to describe them in sufficient detail made a meaningful comparison between the parties’ works impossible. (Read our summary of the court’s earlier decision here.) Esplanade’s amended complaint attached Goldman’s works and, on the motion to dismiss, the court also took judicial notice of defendants’ “Zootopia” film, which had been provided to the court as well.

According to the complaint, Goldman began in 2000 to develop his franchise, which was based on “an animated cartoon world” with a “fictional setting of a diverse, modern, and civilized society of anthropomorphic animals.” Goldman wrote the synopsis and treatment for a live-action film titled “Looney,” which tells the story of an eccentric cartoonist who creates an animated show called “Zootopia.” The cartoonist grows up in small-town America and rises to success in Hollywood, but experiences a dramatic downfall after he loses his job and starts seeing the animal characters from his show in real life. He is placed in an insane asylum, where a psychiatrist leads him to understand that the characters he sees are aspects of his personality. The cartoonist recovers and reunites with the love of his life. Goldman also created character descriptions for seven teenage animals and two adult animals belonging to his protagonist’s “Zootopia,” and, with an animator, developed a set of mock-ups of the characters. Goldman shopped the concept of the franchise and “Looney” and shared character illustrations, on two separate occasions, in 2000 and 2009, with no success. In 2016, Disney released “Zootopia,” an animated film about “an idealistic bunny who makes it as a police officer in the big city, only to find herself—and an unlikely partner—tracking down a twisting mystery that leads her from the city’s shady underground up to the political elite.”

On defendants’ motion to dismiss, the court limited its analysis to whether there is substantial similarity between the parties’ works. The court explained that, under the Ninth Circuit’s formulation, the determination of substantial similarity includes both “extrinsic” and “intrinsic” components, the latter of which is “reserved for the jury.” The extrinsic test, on the other hand, is an objective analysis that may be undertaken by the court, focusing on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in the works. In doing so, the court “must take care to inquire only whether ‘the protectable elements, standing alone, are substantially similar’ and thus must ‘filter out and disregard the non-protectable elements.’” The court further explained that a substantial similarity analysis could be done on a motion to dismiss, as “there is no logical reason to delay the inevitable when the [c]ourt already has the allegedly infringed and infringing works before it.”

Applying these standards, the district court concluded that the plot and sequence of events of “Zootopia” and Goldman’s work were not substantially similar. Esplanade argued that the plot about the cartoonist in “Looney” was similar to “Zootopia” because they both contained similar conflicts about whether the characters “can become what they want to be” or “overcome prejudices in society and within themselves.” The court noted that these were themes rather than plot points, and these general themes were unprotectable under copyright law. In addition, the story arc of “rags to riches” present in both works was not protectable, and any potentially protectable plot points in the two works were not similar. Esplanade also claimed that “Zootopia” shared a similar plot with the cartoon world in the “Looney” story. The court found either that Esplanade focused on plot elements too general to be protectable or that Esplanade was “selectively reconfiguring certain descriptions of the characters” to make a plot, but the character descriptions “could just as easily be used to come up with an entirely different plot.”

The court also rejected plaintiff’s alleged similarities between the character designs in the two works, explaining that “[t]he differences between the character designs outnumber the similarities.” Almost none of plaintiff’s proposed similar characters were actually the same animals; all the “Looney”characters were unclothed, in contrast with the “elaborately costumed” characters in “Zootopia,” and the “Looney” characters were “darker” and “seedier” than their alleged Disney counterparts. In the end, any similarities between the “Looney” artwork and the “Zootopia” characters “boil down to the fact that both ensembles consist of anthropomorphic animals whose attributes flow to some extent from their physical form. . . . [S]mall animals are cute and feminine, traditional trickster animals appear sly, and large animals are strong.” These characteristics, the court held, are unprotectable and insufficient to establish similarity in the character designs.

As with the character designs, the court rejected plaintiff’s argument of substantial similarity as to the characters’ traits. In the Ninth Circuit, the court explained, characters must meet a three-part test to be protectable: (1) have “physical as well as conceptual qualities,” (2) be “sufficiently delineated” and (3) be “especially distinctive.” Most of the character descriptions of the “Looney” animals were unprotectable because they were not clearly delineated or especially distinctive. Where Goldman’s descriptions demonstrated distinct character traits, they were not similar to the characters in “Zootopia.”

The court held that the remaining alleged similarities in dialogue, setting, mood and pace were likewise insufficient. Although Esplanade pointed out three brief instances where dialogue in “Zootopia” resembled Goldman’s character descriptions, there were no extended similarities in dialogue as required to establish infringement, and the dialogue identified was “too commonplace” to be copyrightable. Esplanade’s allegation that the two works possessed the similar setting of a “cartoon world of animated animal characters . . . with each species having its own neighborhood . . . [in] a society with an established class and power structure” projected details not present in Goldman’s work, and other comparisons demonstrated no actual similarities. With respect to the mood in the two works, the court rejected Esplanade’s characterizations of the works’ shared themes, explaining that its “descriptions mischaracterize the works.” And while Goldman’s title for the franchise was also “Zootopia” — at least in plaintiff’s 2017 copyright registration — words and short phrases are unprotectable.

The court also rejected plaintiff’s argument that even if none of the individual elements were substantially similar, taken together the selection and arrangement of elements are sufficient to be protectable. The court explained that, under the Ninth Circuit’s formulation, this doctrine may give rise to substantial similarity where the similarities between the otherwise non-protectable elements between two works are numerous and “striking.” Here, however, the court concluded that the few similarities between “Zootopia” and “Looney” were not striking.

Accordingly, the court concluded that, upon applying the extrinsic test, Disney’s “Zootopia” was not substantially similar to Goldman’s work. The court also rejected plaintiff’s counsel’s assertion, made at oral argument, that plaintiff should be permitted to assert a claim of “intermediate copying” based on unreleased versions of defendants’ work. The court reasoned that plaintiff’s allegations focused on the finished “Zootopia” movie rather than on rough drafts or outtakes. The court also stated that, in any event, the doctrine of “intermediate copying” has never been applied outside the context of computer software.

Esplanade also brought claims for breach of implied contract, breach of confidence and violation of California’s Unfair Competition Law. Upon dismissing the copyright claim, the district court declined to exercise supplemental jurisdiction over the claims, without prejudice to plaintiff’s refiling these claims in state court.