Opinion
No. 08-16308.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 22, 2010.
Troy Walter, Suisun City, CA, pro se.
Duffy Carolan, II, Davis Wright Tremaine, LLP, San Francisco, CA, Marcia Beth Paul, Esquire, Davis Wright Tremaine, New York, NY, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:06-CV-04931-SI.
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Troy Walker appeals pro se from the district court's order granting summary judgment for defendants in his copyright action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Funky Films, Inc. v. Time Warner Entm't Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006), and we affirm.
The district court properly granted summary judgment because Walker failed to show that his comic strip was substantially similar to defendants' cartoon and thus, he failed to satisfy the extrinsic test for showing infringement. See id. at 1077 (explaining that the extrinsic test considers articulable similarities between characters and plot and that "[a] plaintiff who cannot satisfy the extrinsic test necessarily loses on summary judgment") (citation and internal quotation marks omitted). Accordingly, we do not reach Walker's contentions regarding access and independent creation.
Walker's request to enter new evidence is denied. See Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) ("Papers not filed with the district court or admitted into evidence by that court are not part of the clerk's record and cannot be part of the record on appeal.").