USCA Ninth Circuit, July 8, 2009

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  • Ninth Circuit affirms dismissal of pro se plaintiff’s copyright infringement claim because plaintiff’s screenplay and defendants’ motion picture Finding Nemo are not substantially similar as a matter of law.

In an unpublished memorandum, the Ninth Circuit affirmed the district court’s opinion dismissing pro se plaintiff’s copyright infringement claim because the Disney animated film at issue was not substantially similar as a matter of law to plaintiff’s literary work. (We summarized the district court’s opinion in February, 2008.) Applying the extrinsic similarity test of the Ninth Circuit, the court held that the plot, mood and characters of the two works were not substantially similar. In affirming, the Ninth Circuit held that the district court did not improperly consider the underlying materials whose contents plaintiff alleged in the complaint; nor was it error for the court to take judicial notice of certain matters. The Ninth Circuit further found that the district court properly denied plaintiff’s request to take judicial notice of materials that were not readily verifiable. Finally, the Ninth Circuit upheld the dismissal, without leave to amend, of plaintiff’s state law claim of unfair business practices because the amendment would have been futile.