District court grants motion to dismiss plaintiff’s claim that Disney filmZootopia infringed his film treatment and synopsis, with leave to replead, finding that plaintiff’s failure either to attach allegedly infringed materials to complaint or to describe them in sufficient detail made it impossible for court to determine whether requisite “substantial similarity” between works exists.

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, alleging that the movie infringed copyrights he held in a synopsis and treatment for his movie Looney, which was part of a proposed franchise he also called “Zootopia.”

In support of its claims, Esplanade alleged that Goldman twice shared a synopsis and treatment for his Looney film with Disney agents and executives. The parties disputed whether Goldman’s materials were sufficiently similar to the Disney film to support an action for copyright infringement. However, the district court held that, despite both parties’ urging, it could not engage in a copying analysis on the merits, because Esplanade failed either to attach the allegedly infringed materials to the complaint or to describe them in sufficient detail to permit the requested analysis. Thus, the court held that Esplanade failed to meet its burden of alleging sufficient facts to permit a jury to rule in its favor, and dismissed the complaint with leave to replead.

According to the complaint, Goldman began in 2000 to develop the franchise, which was based on “an animated cartoon world” with a “fictional setting of a diverse, modern, and civilized society of anthropomorphic animals.” Goldman developed the franchise’s main animal characters and, with an animator, developed a set of mock-ups of the characters. He then developed the synopsis and treatment of the first segment of the franchise, a live-action film titled Looney that told “the story of a young man living in a small town who aspires one day to become an animator in the big city.” He shopped the concept of the franchise and Looney on two separate occasions, in 2002 and 2009, through two separate channels, 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.” The film became the highest-grossing original animated film of all time, and the characters appear in Disney theme parks and in popular merchandise.

According to the court, Esplanade alleged that Disney’s Zootopia film “is substantially similar to Goldman’s Zootopia proposed franchise in general, or to Looney in particular, or maybe to both — precisely which is unclear from the Complaint.” The court remarked that the complaint’s allegations “actively obfuscate the details of the infringement,” and “describe[d] the alleged similarities of such a high level of generality that it is impossible for the [c]ourt to evaluate whether the alleged copying was sufficiently specific to be protectable or merely a series of unprotectible scènes-à-faire.

In the Ninth Circuit, a plaintiff may circumstantially prove actionable copying, sufficient to give rise to an infringement claim, by demonstrating (1) defendant’s access to the copyrighted work prior to the creation of defendant’s work, and (2) “substantial similarity” of both general idea and expression between the two works. To show substantial similarity, a plaintiff must show that the works are both extrinsically and intrinsically similar. The extrinsic test — which “focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in the works — is an objective analysis and a prerequisite to considering whether the works are intrinsically similar, a task left to the jury.

The court noted that no case law directly addresses the question of whether a plaintiff can plead substantial similarity without either party actually attaching the relevant works to the complaint for review. But setting aside whether or not it is possible to allege copyright infringement without attaching the relevant works, the court concluded that Esplanade failed to do so here. According to the court, the complaint failed to allege the “plot, themes, dialogue, mood, setting, pace, characters and sequence of events” of Looney in particular detail to determine whether it is substantially similar to Zootopia. “Phrased another way, the Complaint is filled with conclusory allegations that are not factually specific enough to support [plaintiff’s] claims.”

According to the court, plaintiff’s allegations describing the similarities between the plot of the animated story within Looney and the plot of Zootopia amounted to no more than a list of themes without “any true plot points,” making it impossible for the court to discern the plot of the animated portion of “Looney,” other than to conclude that it was perhaps a “a buddy movie starring talking animals, possibly set in a place called ‘Zootopia.’” Even the most specific allegation — that the two protagonists of both animated works were an “odd pair” — is simply a “cliché of the buddy cop genre,” noted the court. “Excising all of the non-protectable elements and conclusory allegations … leaves any potential jury with insufficient facts to conclude anything about whether Zootopia is substantially similar to Looney.’”

The complaint’s comparison of the plot similarities between the live-action portion of Looney and Zootopia suffered from similar defects because, according to the court, it was impossible to get more than a general sense of Looney’s plot because the story arc itself was never separately pleaded, and the court had to infer details of the plot from a list of purported similarities. In addition, the court noted, the alleged similarities bore only a passing resemblance to the plot of Zootopia.

With respect to alleged similarities between the characters of the two works, the court noted that plaintiff did provide copies of the drawings of his animated characters in the complaint. However, because plaintiff did not claim that only his artwork was stolen, but rather that the work as a whole was copied, the court concluded that the original artwork, standing alone, was insufficient to show copying between Looney and Zootopia. In any case, the court also found that the Looney artwork was not substantially similar to the rendering of Zootopia characters; in fact, “[t]he differences between the character designs outnumber the similarities.” None of plaintiff’s proposed similar characters were actually the same animals; all the Looney characters were unclothed, in contrast with the elaborately costumed Zootopia characters; and the Looney characters were “darker” and “seedier” than their alleged Disney counterparts. In the end, the court noted, 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.” Rather than being copyrightable expressions, the characteristics of the characters depicted were “scéne-á-faire flowing from the very idea of anthropomorphizing animals.”

The court also found that the complaint failed to plead any details of the Looney characters’ personalities and traits, precluding a comparison between the two sets of characters. In the Ninth Circuit, 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.” The general allegations in the complaint were inadequate to meet any prong of this test, according to the court.

The court held that plaintiff’s allegations of the remaining similarities in mood, dialogue and setting were likewise general and unsupported by any facts in the complaint. The articulation of the mood of the two works was simply a generic description “encompass[ing] nearly every animated movie Disney has ever made.” The complaint included only two instances of allegedly similar dialogue, which the court found insufficient to show any extended dialogic similarity. The dialogue also consisted of “ordinary, common expressions” that are noncopyrightable. The court found the settings of Zootopia (“an entirely fictional, computer-animated city called ‘Zootopia’ that is divided into several temperature-controlled, unique zones to accommodate the anthropomorphic animals who live there” and Looney (“a live-action suburb and its adjacent city”) to be dissimilar as well. And while the title of the Looney franchise is also “Zootopia” — at least in plaintiff’s 2017 copyright registration — the shared title, standing alone, is “insufficient to rescue the Complaint from its many other deficiencies,” according to the court.

The court also rejected plaintiff’s argument that, even if none of the individual elements discussed above were substantially similar to be protectable, taken together the allegations are sufficient to be protectable. Again, the court concluded that, as currently drafted, the allegations in the complaint were too vague to determine whether any particular sequence of generic elements in Looney was protectable.

In sum, the court concluded that it was in plaintiff’s power to attach the Looney treatment and synopsis to the complaint, but instead chose to obfuscate the details of the infringement, apparently believing that including a clear summary of “Looney’s plot, dialogue and themes, and so on, would be detrimental to plaintiff’s claims. According to the court, to decide in plaintiff’s favor and allow the action to proceed based on such “deliberate obfuscation” would run afoul of what the Ninth Circuit considers to be “a critical policy interest in preventing plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based.”

Accordingly, the court dismissed plaintiff’s infringement claims and declined to rule on its state law claims at this time. However, the court gave plaintiff leave to replead, and stated that it could cure the deficiencies in the complaint either by providing a clear and detailed description of them or attaching them as exhibits — at which point, the court would again determine whether Goldman’s works are substantially similar to Zootopia.