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IP/Entertainment Case Law Updates

Masterson v. The Walt Disney Company

In latest in recent series of unpublished decisions addressing substantial similarity in copyright actions, Ninth Circuit affirms dismissal of claim against Disney’s animated film Inside Out, holding that alleged similarities to plaintiff’s book of poetry and movie script are unprotectable upon application of Ninth Circuit’s extrinsic test.

Plaintiff Carla Masterson brought a copyright infringement action against The Walt Disney Company and others involved with the animated film Inside Out, alleging that the film infringed her book of poetry What’s On the Other Side of the Rainbow? (A Book of Feelings) and movie script The Secret of the Golden Mirror. Plaintiff’s works feature a cloudlike character named Mr. Positively, who introduces children to anthropomorphized doors, each of which is associated with a different feeling. Disney’s Inside Out tells the story of an 11-year-old girl named Riley and the anthropomorphized emotions that live inside her – Joy, Sadness, Fear, Disgust and Anger – and explores the significance of each of these emotions in Riley’s life. 

The district court previously granted defendants’ motion to dismiss on the basis that the parties’ works are not substantially similar as a matter of law upon application of the Ninth Circuit’s extrinsic test, which “filters out” unprotectable elements. On plaintiff’s appeal, the Ninth Circuit affirmed. Plaintiff argued that substantial similarity between literary works cannot be resolved on motions to dismiss, noting that the Ninth Circuit has never issued a published decision affirming the pre-discovery dismissal of a copyright claim on this basis where literary works were involved. The Ninth Circuit rejected this argument, explaining that pre-discovery dismissals had been affirmed in many of its unpublished decisions. As the court explained, a motion to dismiss is properly granted when “nothing disclosed during discovery could alter the fact that the allegedly infringing works are as a matter of law not substantially similar.” In undertaking this “context-specific task,” “there will be times when the court finds it plausible that two works are substantially similar and that expert testimony could be helpful. But there will also be times where the court’s ‘judicial experience and common sense’ shows that the claims are not plausible and that a comparison of two works creates no more than a ‘mere possibility of misconduct.’” 

Comparing the works under the Ninth Circuit’s extrinsic test, the court held that the parties’ works are not substantially similar because the shared elements are unprotectable. Among other things, the court explained, the shared theme of “every feeling has a reason” is “too general to be protectible for purposes of the extrinsic test, and the shared use of “anthropomorphized emotion characters flows from the premise of doing a children’s story about human emotions, making it unprotectable scenes-a-faire.” The court further rejected plaintiff’s argument that defendants had infringed upon Masterson’s combination of unprotectable elements. While such combinations can be protectable, plaintiff “must have created a new arrangement of unprotectable elements and the allegedly infringing work must share substantial amounts of that same combination.” Here, the court held, the combination of alleged similarities merely amounted to “random similarities scattered throughout the works,” “not numerous or novel enough to warrant copyright protection.”

Summary prepared by Wook Hwang and Ava Badiee