Opinion
No. 12-56964 D.C. No. 2:12-cv-00636-R-MAN
04-01-2014
ELIJAH SCHKEIBAN, an individual, Plaintiff - Appellant, v. JAMES CAMERON, an individual; LIGHTSTORM ENTERTAINMENT, INC., a California corporation; TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation; DUNE ENTERTAINMENT, LP, a Delaware limited partnership, Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 17, 2013
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
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San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Plaintiff Elijah Schkeiban appeals the district court's dismissal of his complaint alleging that James Cameron's movie Avatar infringed the copyright of his book and screenplay Bats and Butterflies. We review a dismissal under Rule 12(b)(6) de novo, Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and affirm.
The district court correctly ruled that Avatar and Bats and Butterflies are not "substantially similar in their protected elements." Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). There are "few real similarities" between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in Avatar and Schkeiban's work. Funky Films, Inc. v. Time Warner Entm't Co., L.P., 462 F.3d 1072, 1078 (9th Cir. 2006). Any similarities consist of unprotectable "general plot ideas" or r scènes à faire flowing naturally from these ideas. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).
Because we affirm the district court's ruling that the works are not substantially similar, we do not need to reach the court's alternative ground for dismissal that Schkeiban did not adequately allege that the defendants had access to his work. See Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620, 625 (9th Cir. 2010) (holding that the plaintiffs had not shown sufficient similarity to prevail even if the defendants had access to their work).
The defendants' motion to submit commercially available copies of Avatar on DVD, filed on May 8, 2013, is granted.
Schkeiban's motion to submit annotated copies of Avatar on DVD, filed on November 12, 2013, is denied. Schkeiban's motion to submit highlighted copies of the book Bats and Butterflies, filed on December 9, 2013, is also denied. However, our disposition of the appeal would not be affected even if we were to grant these motions.
AFFIRMED.