Constantino Basile v. Twentieth Century Fox Film

Ninth Circuit

Constantino Basile v. Twentieth Century Fox Film

678 F. App'x 576

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 27, 2017

Docket14-56423

StatusUnpublished

Cited by7 cases

This text of 678 F. App'x 576 (Constantino Basile v. Twentieth Century Fox Film) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Constantino Basile v. Twentieth Century Fox Film, 678 F. App'x 576 (9th Cir. 2017).

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Opinion

MEMORANDUM **

Constantino Basile appeals pro se from the district court’s order dismissing his action alleging that defendants’ movie Prometheus infringed upon his copyrighted works “Crisis on Jupiter” and “The World of Jupiter.” We have jurisdiction under 28 U.S.C. § 1291.- We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.

The district court properly dismissed Basile’s copyright infringement claim because there is no substantial similarity, as a matter of law, between protected elements of Basile’s copyrighted works and comparable elements of defendants’ film, and any similarities in the general concepts are unprotected. See Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076-78 (9th Cir. 2006) (absent direct copying, a plaintiff must show substantial similarity to prevail on a copyright infringement claim); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (“Scenes-a-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a *577 finding of infringement.”); Berkic v. Crichton, 761 F.2d 1289, 1292-94 (9th Cir. 1985) (setting forth factors to determine substantial similarity).

The district court did not abuse its discretion in taking judicial notice of documents registered with the U.S. Copyright Office, see Federal Rule of Evidence 201(b)(2); see also Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012) (setting forth standard of review), or in failing to consider evidence irrelevant to the dispositive legal issue of whether there was substantial similarity between the works, see Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164-66 (9th Cir. 1995) (setting forth standard of review and discussing relevance).

Basile waived any challenge to the dismissal of his trademark infringement claim by failing to raise an argument in his opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM **

Constantino Basile appeals pro se from the district court’s order dismissing his action alleging that defendants’ movie Prometheus infringed upon his copyrighted works “Crisis on Jupiter” and “The World of Jupiter.” We have jurisdiction under 28 U.S.C. § 1291.- We review de novo the district court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.

The district court properly dismissed Basile’s copyright infringement claim because there is no substantial similarity, as a matter of law, between protected elements of Basile’s copyrighted works and comparable elements of defendants’ film, and any similarities in the general concepts are unprotected. See Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076-78 (9th Cir. 2006) (absent direct copying, a plaintiff must show substantial similarity to prevail on a copyright infringement claim); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (“Scenes-a-faire, or situations and incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a *577 finding of infringement.”); Berkic v. Crichton, 761 F.2d 1289, 1292-94 (9th Cir. 1985) (setting forth factors to determine substantial similarity).

The district court did not abuse its discretion in taking judicial notice of documents registered with the U.S. Copyright Office, see Federal Rule of Evidence 201(b)(2); see also Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9 (9th Cir. 2012) (setting forth standard of review), or in failing to consider evidence irrelevant to the dispositive legal issue of whether there was substantial similarity between the works, see Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164-66 (9th Cir. 1995) (setting forth standard of review and discussing relevance).

Basile waived any challenge to the dismissal of his trademark infringement claim by failing to raise an argument in his opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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