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DAVID GROSSMAN (SBN 211326) dgrossman@loeb.com ERIC SCHWARTZ (SBN 266554) eschwartz@loeb.com LOEB & LOEB LLP 10100 Santa Monica Blvd., Suite 2200 Los Angeles, CA 90067 Telephone: 310.282.2000 Facsimile: 310.282.2200 JONATHAN ZAVIN (Pro Hac Admission Pending) jzavin@loeb.com LOEB & LOEB LLP 345 Park Ave. New York, NY 10154 Telephone: 212-407-4161 Facsimile: 212-658-9105 Attorneys for The Fox Defendants, and The Meriwether Defendants UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

STEPHANIE COUNTS, et al., Plaintiffs, v. ELIZABETH MERIWETHER, et al., Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No.: 14-CV-000396-SVW-CW Assigned to Hon. Stephen V. Wilson NOTICE OF MOTION AND MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(B)(6); MEMORANDUM OF POINTS AND AUTHORITIES [Request for Judicial Notice and Notice of Lodging filed concurrently herewith] Date: June 2, 2014 Time: 1:30 p.m. Courtroom: 6 Complaint Filed: January 16, 2014

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on June 2, 2014, at 1:30 p.m., in Courtroom 6 of the above-captioned court, located at 312 N. Spring St., Los Angeles, California 90012, Judge Stephen V. Wilson presiding, Defendants TwentyFirst Century Fox, Inc.; Fox Entertainment Group, Inc.; Twentieth Century Fox Film Corporation; Twentieth Television, Inc.; Twentieth Century Fox Home Entertainment, LLC; Twentieth Century Fox Int’l Television, Inc.; Fox Network Group, Inc.; Fox Broadcasting Company; Fox Television Stations, Inc.; Fox International Channels, Inc. (the “Fox Defendants”); Elizabeth Meriwether; and Elizabeth Meriwether Pictures (the “Meriwether Defendants”) will, and hereby do move to dismiss Plaintiffs’ complaint in its entirety, including the claims for Direct Copyright Infringement, Contributory Copyright Infringement, Vicarious Copyright Infringement and Equitable Relief – Right of Attribution. Defendants’ Motion to Dismiss is based upon this Motion, the supporting Memorandum of Points and Authorities, the concurrently filed Request for Judicial Notice, as well as all records and pleadings on file with the Court in this action and on such further evidence and argument as may be presented at or before the time of hearing. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on April 14, 2014, and on April 15, 2014.

Dated: April 21, 2014

LOEB & LOEB LLP JONATHAN ZAVIN (PRO HAC ADMISSION PENDING) DAVID GROSSMAN ERIC SCHWARTZ By: /s/ David Grossman David Grossman Attorneys for the Fox Defendants, and The Meriwether Defendants

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TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES ........................................... 1 I. II. INTRODUCTION ........................................................................................... 1 FACTS ............................................................................................................. 2 A. Fox’s “New Girl.” ................................................................................. 2 1. B. Synopsis of New Girl.................................................................. 2 Plaintiffs’ “Square One.” ...................................................................... 5 1. III. Synopsis of Square One. ............................................................. 5

DISCUSSION.................................................................................................. 9 A. B. Legal Standard. ..................................................................................... 9 Substantial Similarity. ........................................................................... 9 1. C. The Lack Of Substantial Similarity May Be Decided In The Context Of A Motion To Dismiss. .................................... 10

Square One Is Not Substantially Similar To New Girl....................... 12 1. 2. 3. 4. 5. 6. Plot and Sequence of Events. ................................................... 15 Themes. ..................................................................................... 19 Characters. ................................................................................ 19 Settings...................................................................................... 23 Dialogue. ................................................................................... 23 Pace and Mood. ........................................................................ 23

IV.

CONCLUSION. ............................................................................................ 24

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TABLE OF AUTHORITIES Page Cases Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 9, 12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) ............................................................................................... 9 Benay v. Warner Bros. Ent., Inc., 607 F.3d 620 (9th Cir. 2010) ................................................................................ 14 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985) .............................................................................. 10 Bernal v. Paradigm Talent and Literary Agency, 788 F. Supp.2d 1043 (C.D.Cal., 2010) ........................................................... 15, 21 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994) (overruled on other grounds) ................................... 13 Capcom Co. v. MKR Group, Inc., 2008 U.S. Dist. LEXIS 83836 (N.D. Cal. October 10, 2008) .............................. 11 Christianson v. West Publ’g. Co., 149 F.2d 202 (9th Cir. 1945) ................................................................................ 10 DuckHole Inc. v. NBC Universal Media LLC, 2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) ................................... 12 Funky Films v. Time Warner Cable, 462 F.3d 1072 (9th Cir. 2006) .................................................................... 9, 10, 14 Gable v. National Broadcasting Co., 727 F. Supp.2d 815 (C.D. Cal. 2010) ................................................................... 18 Hogan v. DC Comics, 48 F. Supp.2d 298 (S.D.N.Y. 1999) ..................................................................... 21 Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002) .............................................................................. 13

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TABLE OF AUTHORITIES (CONT’D) Page(s) Kennedy v. Paramount Pictures Corp., 12CV372-WQH-WMC, 2013 U.S. Dist. LEXIS 43882, 2013 WL 1285109 (S.D. Cal. Mar. 27, 2013) ...................................................... 11 Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) ................................................................................ 10 Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984) .............................................................................. 13 Olson v. Nat’l Broadcasting Co., Inc., 855 F.2d 1446 (9th Cir. 1988) .............................................................................. 13 Peter F. Gaito Architecture v. Simone Development, 602 F.3d 57 (2nd Cir. 2010) ................................................................................. 13 Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) ........................................................................ 10, 12 Scholastic, Inc. v. Stouffer, 221 F. Supp.2d 425 (S.D.N.Y. 2002) ................................................................... 21 Segal v. Rogue Pictures, 2011 U.S. Dist. LEXIS 157933 (C.D. Cal. August 19, 2011) ............................. 12 Thomas v. Walt Disney Co., No. C-07-4392 CW, 2008 U.S. Dist. LEXIS 14643, 2008 WL 425647 (N.D. Cal. Feb. 14, 2008) ........................................................ 11 Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083 (C.D. Cal. 2011) .................................................................. 12 Zella v. E.W. Scripps Co., 529 F. Supp.2d 1124 (C.D. Cal. 2007) ........................................................... 10, 12

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In September of 2011, Defendant Twentieth Century Fox Television premiered the comedy sitcom “New Girl,” which was created and written by Defendant Elizabeth Meriwether. In January of 2014, Plaintiffs Stephanie Counts and Shari Gold filed this eighty-seven page complaint against twenty named defendants, alleging that New Girl infringes a motion picture screenplay that Plaintiffs wrote called “Square One.” A simple comparison of Fox’s New Girl and Plaintiffs’ Square One demonstrates that there is no substantial similarity of protectable elements between these works. The only similarities between the works arise from general, nonprotectable ideas. Plaintiffs’ basic claim of similarity is that both works involve a woman who leaves a bad relationship and moves in with three single men. However, a review of the works makes clear that their respective treatments of these underlying concepts are entirely dissimilar. The two women at the center of each of the works are very different, as are the supporting characters, and the plots, themes, settings, tones and dialogue. Plaintiffs attempt to avoid this reality by cobbling together a list of scattered alleged “similarities” they claim exist between the works. Not only is this approach inappropriate in a copyright infringement case, but the alleged similarities either do not rise to the level of copyrightable expression or do not exist. For example, Plaintiffs allege infringing similarities based on the inclusion of a cat in one episode of New Girl, as well as in Square One, and in the fact that a popular ACDC song was played in an episode during the second season of New Girl, and was included, in an entirely different context, in Plaintiffs’ Square One script. Courts in this Circuit have repeatedly held that such a scattershot approach cannot support a finding of substantial similarity necessary for copyright infringement. Moreover, a review of the works reveals that none of the purported “similarities” in Plaintiffs’
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varied lists have merit, because they either: (i) result from mischaracterizations of the works designed to give the false appearance of a similarity that does not exist; or (ii) derive from unprotectable ideas or scènes à faire. No amount of discovery can change the content of the relevant works, or the fact that they are fundamentally dissimilar. It is clear that courts can dismiss meritless copyright claims at the pleading stage (as discussed at pages 10-11), and Plaintiffs’ FAC should be dismissed now, with prejudice. II. FACTS A. Fox’s “New Girl.”

The television show, New Girl, premiered on the Fox television network in September of 2011. 1. Synopsis of New Girl.

The pilot episode begins with Jess Day, a single woman, facing the camera, explaining that her story is like a bad horror movie, where the audience is helpless to stop the murderer’s naïve victims from making decisions that are going to get them killed. The show then cuts to Jess in a taxi wearing nothing but a trench coat, on her way to surprise her boyfriend by engaging in role play and pretending to be a stripper. While in the taxi, Jess is on the phone with her friend, Ce Ce, whom she tells about her plan. Jess gets to her boyfriend’s house and does a dorky, clumsy, strip tease – which is interrupted when another woman comes out of her boyfriend’s bedroom in her underwear. (Pilot; 1-2:15). The next scene reveals that Jess has been relating this story to three men. She tells them that she saw their ad seeking a roommate on Craigslist and is interested in moving in their place. The men are Schmidt, a conceited womanizer, Nick, a bartender who is having trouble getting over a former girlfriend, and Coach, a personal trainer. Schmidt says something obnoxious and the other roommates make him put a dollar in the “douchebag jar.” Jess describes herself as a teacher and warns them that she likes to sing to herself, is emotional, and may be watching Dirty
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Dancing repeatedly. They agree to let her move in, in large part because Jess mentioned that her best friend and former roommate is a model. (Id., 2:15-5:10). After she moves in, Jess sings to herself in goofy ways, she repeatedly watches Dirty Dancing and she lays around in frumpy clothes and cries on the couch. Schmidt persuades her to go out with the guys and she agrees, whimsically singing to herself about how she’s going to find a “rebound.” (Id., 5:10 – 7:35). While everyone is getting ready to go out to the bar, Coach tells Jess that his boss says that he does not know how to talk to women – he angrily yells at women that he trains at the gym when he is trying to motivate them. Jess tells him to lower his voice and not to have so much rage. (Id., 9:00 – 10:20). The group goes out to the bar and initially they do not succeed in finding a “rebound” mate for Jess. The “Wild West” charity party is the next night, and two of Schmidt’s obnoxious friends see him at the bar and make fun of him for not being on the list for the party. Schmidt begs Nick to call his ex-girlfriend, who is somehow involved with the charity event, so that the three of them can get on the guest list. Nick is still hung up on his ex and resists contacting her, but he eventually texts her and gets himself, Schmidt and Coach onto the guest list. At the end of the night Jess talks to Nick about how he should move on from his ex, and he responds by sarcastically telling her that he would be better off if he lived on a rainbow and sang all the time, like her. Eventually, one of Schmidt’s obnoxious friends, who had made fun of Schmidt earlier in the night, approaches Jess and buys her a drink. The night ends with Jess telling her new roommates that she has a dinner date with him for the next night. (Id., 10:20 – 15:10). The next night, Jess’s friend Ce Ce, the model, meets the three roommates in the apartment. She is wearing a black cocktail dress. Schmidt unabashedly hits on her, and takes off his shirt to try to impress her. She insults him and rejects his advances. Ce Ce notices that Jess is planning to wear overalls for her date. She goes into Jess’s room and switches outfits with her. The guys are momentarily
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impressed when they see Jess in Ce Ce’s black cocktail dress. But Jess does a goofy dance, reminding them of her quirky personality and destroying any sex appeal that the dress had created. (Id., 15:10-18:00). Nick, Coach and Schmidt arrive at the Wild West charity party. Nick sees his ex-girlfriend who expresses interest in him and asks to get a drink. Nick then sees Schmidt’s obnoxious friend, who was supposed to be on a dinner date with Jess, and asks why he is not at dinner with her. Jess’s would-be date tells the group that Jess had already sent too many text messages so he decided, without telling her, that he would stand her up. Nick and Coach leave the Wild West party to find Jess. Schmidt grudgingly follows, disappointed that he is missing out on the party. (Id., 18:00 – 20:30). Nick, Coach and Schmidt find Jess alone at a restaurant, about to be kicked out because she has been waiting for hours and has not ordered anything. The three housemates barge in just as the hostess is asking Jess to give up her table. Jess realizes that, by coming to see her, the guys had left the much-anticipated party. She is so touched by their gesture that she starts crying. Coach yells at her to stop, and Nick takes a different tact, singing “Time of My Life” from Dirty Dancing to make her smile. Coach and Schmidt join in, serenading her, and all four of them are kicked out of the restaurant. (Id., 20:30 – 23:00). They go back to the apartment and end the night by watching Dirty Dancing together on the couch. (Id., 23:00 – 23:30).1 There were a total of twenty four episodes broadcast during the first season of New Girl. After the pilot, the character “Coach” was replaced by a different roommate, Winston. The Winston character used to live with Schmidt and Nick, but

Plaintiffs’ infringement claim is primarily based on a comparison of the Square One script with the pilot episode of New Girl. Indeed, Plaintiffs sued Elizabeth Meriwether for her role in writing the pilot, and Defendant Jacob Kasdan for his role in directing the pilot.
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during the events of the pilot episode, Winston was playing basketball in Europe. See Complaint, Appx. A. B. Plaintiffs’ “Square One.”

Plaintiffs allege that they completed work on their motion picture screenplay called “Square One” in approximately July of 2007. Complaint, ¶46. 1. Synopsis of Square One.

Square One focuses on Greer McIntyre, a married woman in her thirties living in Georgia. In the opening scene, Greer is driving across Georgia to Atlanta. (Square One August 2007 Script at 1).2 Greer stops at a gas station, where she calls and leaves a message for her friend. In her voicemail message, Greer tells her friend that she is leaving her husband and is heading to Atlanta where she will be living, rent-free, with some friends of her brother. (Id., 1-2). In the next scene, Greer arrives in Atlanta and meets her new housemates, JC and Keegan. Keegan is a former football player who is slightly out of shape and JC is merely described as “clean cut.” They are both in their 20s. (Id., 2-4). The home is unkempt and is described as a “bachelor pad” with posters of naked women on the walls, and beer, food and dirty clothes on the floor. (Id.) After meeting the two housemates, Greer falls asleep in her new room, which is inhabited by a cat named “Sir” that was left behind by a prior housemate. (Id., 3-5).

Plaintiffs allege that they initially drafted a television pilot, but then, from June of 2006 to July of 2007, they transformed the pilot into a feature-length film screenplay. Complaint, ¶¶46-49. Plaintiffs claim they sent their motion picture script to the talent agency Endeavor in June of 2008, but Plaintiffs do not allege that they sent the earlier television pilot to any of the Defendants. Therefore, Defendants have summarized Plaintiffs’ August 2007 motion picture script. Although Plaintiffs registered their motion picture screenplays along with their previously-created television script in December of 2013, the television script that is appended to their copyright registration is irrelevant here as it is not alleged to have been sent to the Defendants. To the extent Plaintiffs have alleged purported similarities arising from their television pilot, those alleged similarities are inapplicable because Plaintiffs specifically allege that they sent their later-developed motion picture script, and not their television pilot, to Endeavor.
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The next day she is woken up by JC as he is getting ready for work and eating cereal. JC makes Greer coffee and wakes up Keegan so that he can show Greer Keegan’s unusual morning routine of getting up, scratching himself, walking around without direction and showering for twenty minutes. (Id., 5-8). Greer is visited by her friend “Cat” who is also married and in her thirties. Cat has two small children. Cat is shocked at how “nasty” the house is. Cat says that Greer’s husband, Spencer, has called her and that she did not tell Spencer anything about Greer, as Cat always thought that he was “a dog.” (Id., 9-10). Cat and Greer proceed to clean up the house and transform Greer’s new room. Greer then makes a “full Southern spread” for dinner. (Id., 11-12). JC and Keegan come home and are impressed, and Greer asks if Ben, their friend who is in his early thirties and lives in their converted garage, would like to eat with them. Greer stops in to see Ben who is playing loud music. He and his girlfriend are in various states of undress when Greer meets them. (Id. 13-14). All of the housemates eat dinner together and afterwards Greer goes outside and takes a puff from Ben’s cigar. (Id., 14-19). JC gets Greer a job at the Atlanta hotel where he works. She meets a friendly co-worker named Jasmine and her stern boss named Eleanor. (Id., 20-21). Greer comes home after work and JC, Keegan and Ben welcome her back and serve her a shot of tequila, then take her out to a bar where they meet Greer’s brother, Jack, and his pregnant wife. (Id., 21-24). Greer’s husband shows up at the bar and asks if they can try to work things out. He apologizes to her, tells her things will be better, and promises Greer that he will try in earnest to have a child with her. (Id., 25-27). Greer leaves with her husband and goes back to their home in suburban Georgia. Greer and her husband go to Home Depot where Greer and a “hot young” male employee flirt with each other, and then Greer and her husband visit a Preacher for marriage therapy. (Id., 27-32).
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That night, Greer goes to her in-laws’ house for a party. (Id., 32-33). The following day, Greer goes to Cat’s house and talks about life, children and marriage. (Id., 33-36). In the next scene, Greer is at a party with her husband, Spencer, at a country club, and Spencer makes insensitive remarks and seems disrespectful of Greer. (Id., 37-38). Greer then goes to a high-end dress boutique with her sister-inlaw and their respective mothers, and they buy dresses for her sister-in-law’s bridal shower. After leaving the boutique, Greer’s mother expresses disdain for Spencer’s family, and she tells Greer that Spencer’s father is a philanderer. (Id., 39-43). Greer gets drunk and loud at the bridal shower. Her mother takes her home and Greer confides in her mother that she does not believe that she fits in with her wealthy in-laws, telling her, “all of this is NOT me.” At the end of the night, Greer stumbles into her house and enters the living room in time to pick up her husband’s ringing cell phone. She is greeted on the other end by a girl named Laura Lynn who attended the shower. Laura Lynn says, “Hey sexy,” thinking she is addressing Greer’s husband Spencer. (Id., 44-45). Greer believes that her husband has been unfaithful, and she goes out onto the front porch and creates a bonfire out of personal items from the house. She does “a little sexual dance” in front of the flames and the police come and arrest her for violating the trash burning ordinance. (Id., 45-47). Greer’s father then drives her back to the Atlanta house to once again move in with her brother’s friends. The housemates readied the house for Greer’s return and Ben bought her flowers for her room. (Id., 47-50). Greer pawns her wedding ring and goes back to her job at the hotel in Atlanta. (Id., 50-52). Greer goes to Keegan’s office party to support him because Keegan is interested in a woman he works with. (Id., 52-56). After the party, Greer, back at the house, is in a good mood and hangs out on the porch with Ben. (Id., 57-59). In the next scene, JC and his girlfriend, “Becs,” are in the bar with Keegan, Greer and Ben. JC makes dismissive comments about committing to women in front of Becs,
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and she leaves the table and heads to the bathroom. Greer meets her in the bathroom and encourages her to break up with JC. (Id., 59-63). Back at work, Greer meets with Eleanor, her boss at the hotel. Eleanor is celebrity-obsessed. Greer is told by Eleanor that Greer will be responsible for ensuring that things go smoothly during the week that Dusty Adams, a NASCAR driver, will be staying at the hotel. (Id., 64-66). Greer tells Keegan about this and Keegan tells her that Ben grew up around racing and is “infatuated” with Dusty Adams. (Id., 66-68). Greer runs into Ben’s 25-year old girlfriend, Pam, in the bathroom, and they talk about how many sexual partners Pam has had. Greer mentions that she has not been intimate with her husband in some time. Pam gives Greer a makeover and presents the new, “hotter” Greer to the guys, who cheer approvingly. (Id., 68-71). At the hotel, Greer meets racecar driver Dusty Adams. He overtly flirts with her and she goes into his hotel room and sleeps with him. Her boss, Eleanor, stops by the hotel room to check on Dusty, and Greer hides in the bathroom. (Id., 71-77). Greer comes home and her husband, Spencer, has her car towed away from the house as revenge for Greer pawning her wedding ring. (Id., 78-80). Greer gets drunk that night, and is late for work the next day. When she arrives at work, she finds Dusty meditating with his shirt off in the hotel lobby, surrounded by female fans. She distracts the crowd and Dusty takes her to a spa and to lunch to help her get over her hangover. (Id., 80-88). Back at the hotel, Dusty asks Greer to go on tour with him. (Id., 91-92). She gets a call that her brother’s wife is about to give birth. Dusty drives her to the hospital, with the help of a police escort. Greer then hosts a party for her family and friends at the house. (Id., 93-100). At the end of the night, Greer gives JC advice on how to get his girlfriend back. (Id., 100-103). The next day Greer works a black-tie charity event at the hotel. She tells Dusty she is not going on tour with him. Dusty kisses her in the hotel hallway.
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Greer’s boss, Eleanor, sees her kissing Dusty and fires her for fraternizing with a hotel guest. Greer arranges for two young NASCAR drivers to have a rendezvous with Eleanor in her office, and Eleanor retracts the firing and gives Greer a promotion. (Id., 103-109). Several months later, JC and Becs have reconciled and are getting married in the bar. Greer helped to plan the wedding, and Ben has now bought the bar, where he was previously the manager. Greer and Ben walk down the street to Greer’s new house, and they kiss. (Id., 110-115). III. DISCUSSION A. Legal Standard. To survive a motion to dismiss a plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. Put another way, a plaintiff’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 545. B. Substantial Similarity.

The Ninth Circuit employs a two-part test to determine whether two works are substantially similar. The two components of this test are the objective “extrinsic test” and the subjective “intrinsic test.” Funky Films v. Time Warner Cable, 462 F.3d 1072, 1077 (9th Cir. 2006). With respect to literary works, such as films and television shows, the extrinsic test evaluates “the articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events.” Id. (quoting
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Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)). In applying the extrinsic test, the “court compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.” Id. (quoting Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985)). The intrinsic test is the province of the jury. Accordingly, on a motion to dismiss or for summary judgment, “only the extrinsic test is important.” Kouf, 16 F.3d at 1045. General plot ideas are not protectable and cannot give rise to a claim for copyright infringement. See Berkic, 761 F.2d at 1293. Similarly, “scenes a faire,” elements of literary works that naturally flow from generic plot-lines or sequences, are not protectable. Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1175 (9th Cir. 2003) (“expressions indispensable and naturally associated with the treatment of a given idea are treated like ideas and are therefore not protected by copyright”). Thus, the relevant test examines “not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.” Berkic, 761 F.2d at 1293. 1. The Lack Of Substantial Similarity May Be Decided In The Context Of A Motion To Dismiss. Courts have determined substantial similarity as a matter of law where the evidence shows that no reasonable jury could find substantial similarity. Funky Films, 462 F.3d at 1076-77. “[W]hen the copyrighted work and the alleged infringement are both before the court, [and] capable of examination and comparison, non-infringement can be determined on a motion to dismiss.” Christianson v. West Publ’g. Co., 149 F.2d 202, 203 (9th Cir. 1945). In Zella v. E.W. Scripps Co., 529 F. Supp.2d 1124, 113031 (C.D. Cal. 2007), the court dismissed the plaintiffs’ suit which claimed that the “Rachael Ray” television show infringed plaintiffs’ “Showbiz Chefs” treatment. The court compared the two works at issue and rejected the plaintiffs’ argument that
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 16 of 29 Page ID #:264

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the court lacked the power to dismiss a copyright claim based on lack of substantial similarity on a motion to dismiss. The court noted that, when the works at issue were before the court and capable of examination, the substantial similarity analysis could be performed at the motion to dismiss stage, explaining that, “[f]or fifty years, courts have followed this rather obvious principle and dismissed copyright claims that fail from the face of the complaint (and in light of all matters properly considered on a motion to dismiss).” In Thomas v. Walt Disney Co., No. C-074392 CW, 2008 U.S. Dist. LEXIS 14643, 2008 WL 425647, at *2 (N.D. Cal. Feb. 14, 2008), the district court rejected the plaintiff’s claim that her screenplay titled “Squisher the Fish” was substantially similar to Disney’s “Finding Nemo.” The court granted the defendants’ motion to dismiss, holding that, although the defendants’ movie and the plaintiff’s screenplay were both about a young fish who is captured by divers and placed in a fish tank, this was a basic plot idea and not copyrightable. In Capcom Co. v. MKR Group, Inc., 2008 U.S. Dist. LEXIS 83836 (N.D. Cal. October 10, 2008), the district court dismissed a copyright claim brought by the owners of the “Dawn of the Dead” film with respect to a video game featuring zombies. The court reviewed the film and the allegedly infringing video game and dismissed the suit, holding that “the few similarities MKR has alleged are driven by the wholly unprotectable concept of humans battling zombies in a mall during a zombie outbreak.” See also Kennedy v. Paramount Pictures Corp., 12CV372-WQH-WMC, 2013 U.S. Dist. LEXIS 43882, 2013 WL 1285109 (S.D. Cal. Mar. 27, 2013) (granting motion to dismiss and finding that “any similarities between Plaintiff Kennedy’s works and Titanic are, at most, ‘ordinary phrases,’ ‘stock scenes containing little in the way of original expression,’ and/or ‘scenes a faire, which flow naturally from generic plot-lines.’”). Whether or not the Plaintiff has alleged a theory of access, dismissal is proper when a comparison of the two works shows that there is no substantial similarity as

LA2348462.9 202894-10020

11

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 17 of 29 Page ID #:265

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a matter of law.3 Zella, 529 F. Supp.2d at 1133 (“Plaintiffs cannot state a claim if substantial similarity is lacking.”); see also DuckHole Inc. v. NBC Universal Media LLC, 2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) (dismissing infringement claim for lack of similarity and noting that plaintiff alleged only minimal facts regarding Defendants’ supposed exposure to plaintiffs’ work); Wild v. NBC Universal, Inc., 788 F.Supp.2d 1083, 1110 (C.D. Cal. 2011) (dismissing case after holding that, even if access could be proven, “the two works are not substantially similar within the meaning of Ninth Circuit copyright jurisprudence”); Segal v. Rogue Pictures, 2011 U.S. Dist. LEXIS 157933 (C.D. Cal. August 19, 2011) (“[e]ven if the inverse ratio rule applies in this case, Plaintiff cannot establish sufficient similarity to defeat the motion”). C. Square One Is Not Substantially Similar To New Girl. If there is no “substantial similarity” between the works at issue, the case must be dismissed. In making a determination regarding substantial similarity, it is appropriate, and necessary, for the Court to review the allegedly infringing works. See Zella, 529 F. Supp. at 1128. 4 Although Defendants do not seek to dismiss the Complaint based on the deficiency of Plaintiffs’ allegations regarding access, Defendants note that Plaintiffs’ theory of access is based on a tenuous string of unfounded speculation. Plaintiffs surmise that television agents at WME could have accessed Plaintiffs’ full-length feature motion picture script and either could have given the script to producer Peter Chernin or could have given it to both Chernin and to Elizabeth Meriwether, and that Chernin, in turn, could have instructed Meriwether to “re-write the Square One script” into New Girl. Complaint, ¶¶45-74. Defendants deny this claim of access and, furthermore, these speculative allegations are baseless conclusions and are therefore “not entitled to the assumption of truth.” See Ashcroft, 556 U.S. at 679 (2009); see also Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) (rejecting application of inverse ratio rule when plaintiff’s theory was based on “speculation, conjecture and inference” that an agent “must” have shared plaintiff’s work with his client). 4 The Defendants have submitted herewith copies of both of Plaintiffs’ copyrighted works (although as explained on p. 5, only the motion picture screenplay is relevant to the lawsuit and this motion) and copies of the pilot and first two seasons of New Girl. Because Plaintiffs have alleged that these New Girl works infringe Plaintiffs’ “Square One” work, the Court may properly consider the content of both the New Girl works and the Square One screenplay as documentation of facts “whose contents are alleged in [the] complaint.” Zella, 529 F. Supp. at 1128 (quoting Branch, 14 F.3d at 454). The Court may take judicial notice of the
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12

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 18 of 29 Page ID #:266

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As plaintiffs in infringement cases often do, Plaintiffs in this case have put together a list of dozens of claimed “similarities.” Such lists are common, and are inherently subjective and subject to manipulation. See Olson v. Nat’l Broadcasting Co., Inc., 855 F.2d 1446, 1450 (9th Cir. 1988); Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984) (“such lists of similarities…are inherently subjective and unreliable” and at times a plaintiff’s list “emphasizes random similarities scattered throughout the works.”). Further, most of the claimed similarities in Plaintiffs’ list do not address protectable copyrightable expression. See, e.g., Complaint, Appx. A (Even though names are not protectable (see discussion at pp. 21), Plaintiffs’ list argues similarity of expression because “Benjamin” is the name of a bit character in New Girl, and “Ben” is a major character in Plaintiffs’ script; because Greer’s husband and Jess’s ex-boyfriend share the name “Spencer” and because the main characters in both works have friends whose names start with the letter “C” (Cat in Square One; and Ce Ce in New Girl)). Further, the law is clear that, in reviewing a copyright infringement claim on a motion to dismiss or motion for summary judgment, “the works themselves supersede and control contrary descriptions of them,” including “any contrary allegations, conclusions or descriptions of the works contained in the pleadings.” Peter F. Gaito Architecture v. Simone Development, 602 F.3d 57, 64 (2nd Cir. 2010) (quoting 3-12 Nimmer on Copyright §12.10). “When a district court considers the original work and the allegedly copyrighted work in deciding a 12(b)(6) motion, the legal effect of the works are determined by the works themselves rather than by the allegations in the complaint.” Jacobsen v. Deseret Book Co., 287 F.3d 936, 941-942 (10th Cir. 2002). Thus, the content of the works existence and contents of (1) Plaintiffs’ works that were registered and deposited with the Copyright Office; and (2) as-aired episodes of the television series New Girl. The court may consider “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading . . . .” Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994) (overruled on other grounds).
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 19 of 29 Page ID #:267

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themselves is controlling, and Plaintiffs’ allegations, particularly to the extent they mischaracterize the works, are not. Putting aside Plaintiffs’ lists of attenuated alleged similarities, the primary alleged similarity stems from the highest level of generality. Plaintiffs allege that the works are substantially similar because both works depict a woman who, after leaving her boyfriend/husband, moves in with three single men.5 The Ninth Circuit has repeatedly held that such similarities in the basic plot of a story do not suffice to establish substantial similarity. In Funky Films, both works were based on the death of a family patriarch who leaves the family’s two sons to run the family funeral home. Further, both works involved the return of one son to his hometown to help in the business, another son changing his religion to aid in the business, and a competitor bidding on the business. The Ninth Circuit affirmed dismissal, noting these general similarities, but concluded that “general plot ideas are not protected by copyright law, they remain forever the common property of artistic mankind.” Id. at 1081. Similarly, in Benay v. Warner Bros. Ent., Inc., 607 F.3d 620, 625 (9th Cir. 2010), the Ninth Circuit repeated this analysis, holding that, in spite of the similarities in basic plot and characters, the critical alleged similarities were mere ideas, not subject to copyright protection: The Benays point to a number of similarities between the Screenplay and the Film. Both have identical titles; both share the historically unfounded premise of an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising; both have protagonists who are authors of non-fiction studies on war and who have flashbacks to battles in America; both include meetings with the Emperor and numerous battle scenes; both are reverential toward Japanese culture; and both feature the leader of the samurai rebellion as an important foil to the protagonist. Finally, in both works the This general device of oddly-matched roommates has obviously been used before, e.g., Three’s Company was a long-running television sitcom featuring a single man sharing an apartment with two single women, and The Odd Couple was a Broadway play, feature film, and television series about a man who splits with his wife and then moves into a messy apartment with a very dissimilar male roommate.
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 20 of 29 Page ID #:268

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American protagonist is spiritually transformed by his experience in Japan. We agree with the district court that "[w]hile on cursory review, these similarities may appear substantial, a closer examination of the protectable elements, including plot, themes, dialogue, mood, setting, pace, characters, and sequence of events, exposes many more differences than similarities between Plaintiffs' Screenplay and Defendants' film." The most important similarities involve unprotectable elements. They are shared historical facts, familiar stock scenes, and characteristics that flow naturally from the works' shared basic plot premise. Stripped of these unprotected elements, the works are not sufficiently similar to satisfy the extrinsic test. Similarly, in Bernal v. Paradigm Talent and Literary Agency, 788 F. Supp.2d 1043, 1064 (C.D.Cal., 2010) (Wilson, J., presiding), this Court dismissed a claim alleging that the Desperate Housewives television show infringed the plaintiff’s work. The Court ruled that, although there were superficial similarities of plot, the works, when viewed as a whole, were not substantially similar. “Here, both works involve the death of a woman who lives in a suburban neighborhood, a leading man who comes to the neighborhood with a mysterious past, and a leading female character who is romantically involved with the leading man. Beyond these rather abstract similarities, the plots of each work are substantially different.” Id. Thus, although Plaintiff has alleged similarities of general ideas, there is no substantial similarity between these works because the plot, theme, dialogue, mood setting, pace, characters and sequence of events illustrate “many more differences than similarities” between the works. 1. Plot and Sequence of Events.

Both Square One and New Girl feature a woman who leaves a bad relationship and moves in with three men. However, the basic plot idea of a female protagonist moving in with three single men is not protectable. Plaintiffs are required to show similarity at a level of expression that is far more specific than general plot ideas and a review of each of the works, as a whole, reveals that they share very few plot similarities.
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 21 of 29 Page ID #:269

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Plaintiffs’ protagonist, Greer, is a married woman in her thirties. She has recently left her home in suburban Georgia because she suspects her husband has been unfaithful. She moves to Atlanta to live with her brother’s three younger friends. Soon after she arrives, one of the housemates, JC, gets Greer a job at a local hotel. While the four housemates are at a bar, Greer’s husband, Spencer, finds her there and convinces her to leave Atlanta and to move back home. While back in her suburban hometown, Greer attends a number of events with her husband but she struggles to fit in with her husband’s wealthy family. Greer intercepts a phone call from another woman that was meant for her husband, and concludes that he has been unfaithful. She has a breakdown and creates a bonfire on her porch out of her personal belongings, while dancing around the fire in a seductive, obviously unhinged way. She is arrested, returns to Atlanta, and moves back in with her brother’s friends. Shortly after she moves back to Atlanta, Greer is told that she is in charge of handling VIP guests at the hotel where she works. One of the first guests she encounters is a famous racecar driver, Dusty Adams. Dusty hits on her and she sleeps with him in his hotel room. She spends the next day at a spa with Dusty and he asks her to go on tour with him. Greer finds out that her brother’s wife is about to give birth, and Dusty races Greer to the hospital. Later that week, at a black tie event at the hotel, she tells Dusty that she is not going on tour with him because she is interested in someone else. Plaintiffs’ script ends with a flash-forward to four months later. JC and his girlfriend, Becs, are getting married at the local bar. Ben, one of the housemates who formerly was the bar’s manager, now owns the bar. After the wedding, Greer walks Ben down the street to the small home she just purchased, and she and Ben kiss. New Girl also begins with its lead character, Jess, a single, young woman, moving in with three male roommates who are her contemporaries, whom she found on Craigslist. Jess discovered her boyfriend cheating on her, in a tragicomic way,
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16

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 22 of 29 Page ID #:270

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and spends her time at the new apartment crying and watching Dirty Dancing. Jess is socially awkward and she makes up songs and sings to herself. Her new male roommates take her out to the local bar – where one of the roommates, Nick, is a bartender. Her roommates attempt to get Jess to mute her unusual and awkward tendencies so that men will be interested in her. For the most part, she is unable to do so. At the end of the night, a guy buys her a drink and agrees to take her out the following night. The next night, the male roommates are able to get on the list for the Wild West charity party, an event that at least one of them has been looking forward to as the party event of the year. Meanwhile, Jess is set to meet her date at a nice restaurant. While waiting to get into the party, the three male roommates see Jess’s would-be date, and realize that she has been stood up. Against their own selfinterests, they leave the Wild West party and go off to find Jess. They find her alone in a restaurant where the hostess is about to kick Jess out. The roommates rush in and say that the three of them are her collective date, calling themselves “reverse Mormons.” Jess is touched by their gesture and starts to cry. Nick, one of the roommates, starts singing “Time of My Life” from Dirty Dancing to keep her from crying. The others chime in, and sing loudly and off-key until they are all kicked out. They all return to the apartment and watch Dirty Dancing on the couch together. Thus, the plots are completely different and there are no protectable similarities of expression between the two works. Plaintiffs allege that, aside from the basic, unprotectable, idea of a woman moving in with three men, there are several other plot similarities. Complaint, ¶27. Plaintiffs claim that both plots involve a “strip tease” but they do not. While Jess starts to do an awkward strip tease to seduce her boyfriend and accidentally, and simultaneously, discovers her boyfriend sleeping with another woman, there is no strip tease in Plaintiffs’ work. In Square One, Plaintiffs’ Greer character, leaving
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17

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 23 of 29 Page ID #:271

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her husband for a second time, creates a bonfire on the porch of their home to burn her belongings, and dances seductively around the fire. She is not performing a strip tease, or intending to seduce anyone, and the two dances are in completely different contexts from one another. Plaintiffs also claim that both protagonists “go through a mourning phase, binging on junk food.” Id. But neither protagonist “binges on junk food.” Plaintiffs claim that, in New Girl, Jess tries to get Nick “to care about life again” and that they “push each other” but take the other’s advice seriously and that the same can be said for Greer and Ben in Square One. Id. These are vague concepts and not plot points. Moreover, although Jess, in New Girl, gives her bartender roommate Nick advice about moving on with his breakup, Greer, in Square One, does not give Ben any life advice nor does she get him “to care about life again.” Lastly, Plaintiffs claim that, in both works, the lead’s female friend thinks that one of the roommates likes Greer/Jess. Id. While Greer’s best friend in Square One expresses that belief in Plaintiffs’ screenplay, no such plot point exists in the New Girl pilot. At some point during the first season of New Girl, Jess’s friend Cat does convey her suspicion that Nick likes Jess. However, those two characters do not become involved in a relationship during the entire first season of New Girl. Plaintiffs also reference a list of purported similarities in an “appendix” to the Complaint. This list is comprised of random and insubstantial alleged similarities (such as the existence of a character named “Carolyn” in New Girl and an entirely dissimilar character named “Caroline” in Square One). As this Court has held, such “minor elements, scattered throughout the works, are not probative of similarity.” Gable v. National Broadcasting Co., 727 F. Supp.2d 815, 841 (C.D. Cal. 2010) (Wilson, J., presiding). When the works at issue are analyzed as a whole, it is clear that the plots are entirely different and that Plaintiffs’ claimed plot similarities are either attenuated, or non-existent.
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 24 of 29 Page ID #:272

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2.

Themes.

Square One is a story about becoming independent and taking ownership of your life. Greer confides to her mother that she does not belong in the country club lifestyle that she has been living. She wants to have a baby, but her husband has been resistant and only agrees to try to have a child when threatened with Greer leaving. Greer ultimately ends her marriage because she was not respected and sets off on her own. During her marriage, she did not hold a paying job, as she did not need to earn money, but after she leaves her husband and moves to Atlanta, she gets a job, gets promoted, finds someone who treats her well, and buys her own house. New Girl is a silly, comedic exploration of the interactions between an unusual and socially awkward young, unmarried woman, and three young bachelors. The themes that emerge in the pilot episode are those of unity and friendship. Even though Jess’s roommates appear to have very little in common with her, they sacrifice their big night out in order to console her when she is rudely stood up. They bond with her and show that they care about her by singing the theme song from Dirty Dancing to cheer her up, and by watching the film on the couch with her. 3. Characters.

The female protagonists in the two works are starkly different. Greer in Square One is a far more serious character – she is married, in her thirties, and living the life of a well-to-do housewife in an affluent family. She is trying to have a baby, is unhappy in her marriage and is struggling to fit into her community. Greer easily attracts men – an attractive stranger flirts with her while she is out shopping with her husband, and a famous racecar driver sleeps with her as soon as he meets her. In fact, the racecar driver is so taken with her, he asks her to go on tour with him. Greer is also extremely competent and performs her job with grace and ease, receiving high praise for her work on her very first day on the job. She is angry and vindictive towards her ex, pawning her wedding ring and telling the pawn shop owner to call her soon-to-be ex-husband if he wants to get a good price for it.
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19

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 25 of 29 Page ID #:273

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Greer is focused and, by the end of the story, she has achieved her goals, buying a house on her own and starting a relationship with Ben, one of her brother’s friends. Jess, in New Girl, is a completely different character. Jess is in her twenties, and acts like an aimless teenager. Jess is clumsy, socially awkward and above all, quirky. She appears to exist on another plane of reality, often sings to herself and is unaware of her surroundings. Unlike Greer, men are not attracted to Jess, primarily because she is so quirky and unusual. When Jess’s new male roommates take her to a bar to find a date for her, she is incapable of even carrying on a conversation with another man without looking strange and foolish. Unlike Jess, Greer is highly adept socially, and, in fact, is single-handedly responsible for saving one of her roommates’ relationships and for helping another roommate start a relationship with a woman he has been interested in for years. Jess, on the other hand, needs others to take care of her, and at the end of the pilot episode, Jess needs to be rescued by her new roommates when she is stood up by one of their friends. Greer’s friend in Square One, Cat, is in her thirties and lives in suburban Georgia with her two small children. Cat is happily married and is a soundingboard for Greer. Jess’s best friend in New Girl, Ce Ce, is a very attractive, single model in her twenties. She is exotic-looking and Jess’s new roommates are struck by her beauty. In the pilot episode, Jess’s roommate Schmidt shamelessly hits on Ce Ce, but she rebuffs his advances. Neither of these supporting female characters has a substantial role in the works at issue and, other than the fact that they are both friends with the main character, Ce Ce and Cat do not appear to have anything in common. The three male roommates in New Girl are Schmidt, Coach and Nick. Schmidt is conceited and the other roommates are actively trying to curb his “douchebag” tendencies. Coach is Schmidt’s friend, sidekick and personal trainer. Coach is more laid-back than Schmidt, but has issues with communicating, tending to bark orders at people like a drill sergeant. Nick is curmudgeonly, and is deeply
LA2348462.9 202894-10020

20

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 26 of 29 Page ID #:274

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affected by his breakup with his ex-girlfriend, Carolyn. Nick is heart-broken and calls Carolyn at all times of the night, disguising his voice by taking on a British accent. Nick is a bartender at the local bar where the roommates take Jess to try to help her get a date. In Square One, although there are three male housemates, including one who works at a bar, they are very different from the three male roommates in New Girl. In Square One, JC has a girlfriend that he inadvertently insults, but eventually marries. Keegan is a former football player who has been pining after a co-worker for years. Greer accompanies Keegan to an office party and helps him strike up a conversation with his long-time crush. Ben lives in the converted garage of the house and manages a bar. Ben came from a car racing family, and is living with an attractive, sexually open, yoga instructor named Pam. Ben teaches Greer how to smoke cigars and buys her flowers when she leaves her husband for the second time. Ben is disappointed when he sees Greer kissing Dusty Adams, but by the end of the script, Greer has moved into a house of her own, and Ben and Greer are dating. Plaintiffs claim similarity in the fact that both works include a character named Spencer, who is unfaithful to the protagonist. Names are unprotectable. See C.F.R. §202.1 (“Material Not Subject to Copyright”). Numerous courts, including this one, have rejected attempts to claim copyrightable similarity arising from the names of characters. In Hogan v. DC Comics, 48 F. Supp.2d 298, 311 (S.D.N.Y. 1999), the court held that the works were not substantially similar despite both works having a protagonist named Nicholas Gaunt who was half-vampire and halfhuman. See Bernal, 788 F.Supp.2d at 1070 (“Susan and Suzanne are not similar. Although the women have similar sounding names, the characters do not have much in common.”); see also Scholastic, Inc. v. Stouffer, 221 F. Supp.2d 425, 435 (S.D.N.Y. 2002) (“Aside from the similar, although not identical, names of the main characters [Larry Potter and Harry Potter],” the works had “almost nothing in common” and were not substantially similar). Here, although there are two
LA2348462.9 202894-10020

21

MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 27 of 29 Page ID #:275

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“Spencer” characters, their roles are very different. In New Girl, Jess’s long-hairedboyfriend Spencer is seen, very briefly, in the first scene of the pilot episode. He is less of a character than a plot device or catalyst to propel Jess into her new living arrangement. Jess’s ex-boyfriend appears again in the second episode, but not in any of the remaining episodes of the series. He is able to convince Jess to do his bidding, even after they have broken up. He is also portrayed as cheap; he refuses to give Jess back some of her things, including her television, after she breaks up with him. In Square One, Greer’s preppy and successful husband Spencer is a far more developed character. Greer does not leave her husband permanently until halfway through Plaintiffs’ film script. After she leaves him the first time, he travels to Atlanta, finds her, and convinces her to move back in with him. He promises Greer that he will go through fertility testing and will try to have a child with her. After she moves back in with her husband, they spend an extended period of time together going on outings and attending parties and events until Greer discovers specific evidence of his infidelity. Unlike Jess’s loser-type boyfriend in New Girl, central to Greer’s husband is that he is the wealthy and successful son of an affluent Southern family who spends time at the local country club. Aside from their roles as the former love interests of the protagonists, the two Spencer characters have nothing in common, and the mere similarity of name does not render characters substantially similar. As would be expected in two stories that are very different, there are also many characters in Square One that have no analog in New Girl, and vice versa. For example, the racecar driver Dusty Adams has a major role in Square One but there is no such character in New Girl. Further, Greer’s mother, brother, husband and her in-laws all have notable roles in Plaintiffs’ script, but no such characters exist in New Girl. Likewise, for example, there is no counterpart in Square One to Schmidt’s annoying friend, Benjamin.

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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 28 of 29 Page ID #:276

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4.

Settings.

Plaintiffs’ work is set in Georgia and the setting plays an important role in the story. Greer lives in suburban Georgia, and eventually moves to Atlanta after she leaves her husband for the second time. Country music plays on the radio as Greer is driving to Atlanta, she encounters “rednecks” at a gas station, she makes a “Southern spread” for her new housemates, terms of speech like “Y’all” are used, characters are described as “Southern matriarch” and “Southern gentleman ,” and many of the characters have Southern names such as Carrie Leigh, Laura Lynn, and Mary Elizabeth. New Girl is set in Los Angeles and, unlike Square One, New Girl’s setting is not critical to the story. In fact, in the pilot episode, the characters’ location is not even identified. 5. Dialogue. Plaintiffs do not claim any instances of substantial similarity in dialogue – and there are no such similarities. 6. Pace and Mood. The two works are completely dissimilar in pace and mood. Plaintiffs’ script is fast-moving, cutting back and forth between her life in suburban Georgia and her time in Atlanta. The main character, Greer, gets divorced, gets a new job, sleeps with a famous racecar driver, and attends the birth of her brother’s baby all within what appears to be a matter of days. The story ends with a final scene that takes place four months later, when Greer has bought a house of her own, and one of her former roommates is getting married. Unlike Plaintiffs’ script, New Girl is slower-paced. The entire pilot episode addresses Jess moving in to the apartment, and her failed attempt to land a date. Further, while Square One is paced as a full-length feature film, with the entire arc of the story lasting 116 pages, New Girl is paced as a television show, with half-hour long episodes. Each episode relays a brief interlude in the lives of
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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)

Case 2:14-cv-00396-SVW-CW Document 34 Filed 04/21/14 Page 29 of 29 Page ID #:277

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Loeb & Loeb
A Limited Liability Partnership Including Professional Corporations

the main characters, and throughout the series, many new characters are introduced and interact with the main characters. The moods of the two works are also substantially different. New Girl is an ensemble sitcom – it is overtly quirky and Jess, the main character, is painfully awkward in a comedic way. Plaintiffs’ Square One, on the other hand, is a much darker narrative. Greer struggles with her marriage, does not get along with her inlaws and struggles to fit in until she leaves her marriage. She is pulled back into her marriage by her husband, only to extricate herself again when she obtains further evidence of his infidelity. While at times it is light-hearted, it is far removed from New Girl’s sitcom tone. These two works, when viewed in their entirety, are substantially dissimilar and no discovery, or expert testimony can change that. Defendants therefore request that the Complaint be dismissed with prejudice. IV. CONCLUSION. For all of the foregoing reasons Defendants respectfully request that the Complaint be dismissed with prejudice.

Dated: April 21, 2014

LOEB & LOEB LLP JONATHAN ZAVIN (PRO HAC ADMISSION PENDING) DAVID GROSSMAN ERIC SCHWARTZ By: /s/ David Grossman David Grossman Attorneys for The Fox Defendants, and The Meriwether Defendants

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MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(b)(6)