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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION RAY K. HARTER, JR. an Individual, RICHARD KEARNEY, an Individual, and ED CORNO, an Individual, Plaintiffs, v. DISNEY ENTERPRISES, INC., BUENA VISTA HOME ENTERTAINMENT, INC., KEY PIX PRODUCTIONS, INC., WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC, f/k/a WILLIAM MORRIS AGENCY, INC., ROBERT VINCE, an Individual, ANNA McROBERTS, an Individual, JOHN FERRITER, an Individual, BARRY JEFFERY, an Individual, and DOES 110, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 4:11-cv-02207-CDP

MOTION OF DEFENDANTS DISNEY ENTERPRISES, INC., BUENA VISTA HOME ENTERTAINMENT, INC., KEY PIX PRODUCTIONS, INC., ROBERT VINCE AND ANNA MCROBERTS TO DISMISS COUNTS 1 AND 4 OF PLAINTIFFS COMPLAINT, WITH MEMORANDUM IN SUPPORT Defendants Disney Enterprises, Inc., Buena Vista Home Entertainment, Inc., Key Pix Productions, Inc., Robert Vince and Anna McRoberts (collectively, Movie Defendants) move the Court to dismiss this action against Movie Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). Movie Defendants request dismissal of Counts 1 and 4 of the Complaint, the only counts asserted against Movie Defendants, with prejudice and without leave to amend. Counts 1 and 4 fail to state a claim upon which relief can be granted, on the following grounds: (i) the First

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Cause of Action for copyright infringement fails because, as a matter of law, the works at issue, Movie Defendants motion pictures Santa Buddies: The Legend of Santa Paws and The Search for Santa Paws and the screenplays upon which they are based, are not substantially similar to any protected expression in Plaintiffs illustrated childrens short story Santa Paws: The Story of Santas Dog; and (ii) the Fourth Cause of Action for civil conspiracy fails because civil conspiracy is not an independent cause of action, and it is based upon Plaintiffs meritless claim of copyright infringement. Movie Defendants motion is accompanied by the Memorandum of Points and Authorities and Appendix filed herewith, the contemporaneously filed Request for Judicial Notice and Exhibits thereto, the pleadings and papers filed herein, all of which are incorporated by reference, and such other argument as the Court may deem proper. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This is a copyright infringement action by plaintiffs Richard Kearney, Ray Harter, Jr. and Ed Corno (Plaintiffs), who claim that Movie Defendants used their illustrated childrens short story Santa Paws: The Story of Santas Dog in Movie Defendants motion pictures Santa Buddies: The Legend of Santa Paws and The Search for Santa Paws and related screenplays. Plaintiffs misapprehend the nature of federal copyright law, which protects neither general plot ideas, stock themes or characters, nor scenes-a-faire contained within an authors work, but only the particular expression that the author uses to tell his story, and requires that two works be substantially similar in their protected expression before there can be infringement. As set forth below, the works themselves constitute the only evidence on the issue posed by this Motion, and the Court may take judicial notice of those works because they are referenced in the Complaint and there is no dispute about their authenticity. Movie Defendants move for dismissal of Plaintiffs copyright infringement claim on the ground that their motion pictures and screenplays are not substantially similar to any protected expression in Plaintiffs
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story. The Eighth Circuit has made clear that non-infringement due to lack of substantial similarity can be determined on a motion to dismiss, regardless of any alleged access to a plaintiffs work. Because Plaintiffs claim of copyright infringement fails, the related claim of conspiracy should also be dismissed for the reasons set forth below. II. MOVIE DEFENDANTS AND PLAINTIFFS WORKS Complete summaries of the relevant works are set forth in the Appendix, for the Courts convenience. Ultimately, however, the works themselves, which are attached to the accompanying Request for Judicial Notice, govern the issue of substantial similarity. Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986). 1. Defendants Motion Pictures: Santa Buddies: The Legend of Santa Paws (the

First Picture) and The Search for Santa Paws (the Second Picture) were released in 2009 and 2010, respectively.1 Both are live action motion pictures starring Great Pyrenees dogs that appear to be talking, via computer generated imagery. 2. The First Picture (see Appendix, 2-30): Santa Buddies: The Legend of Santa

Paws (running time: 88 minutes) is the story of Puppy Paws, a mischievous, white-haired puppy whose father, Santa Paws, is Santas right hand and leader of the elf dogs at the North Pole. Puppy Paws secretly hitches a ride on an elfs truck to Fernfield, Washington because he is tired of his father reminding him that he shares responsibility for bringing Christmas to the world. He enlists the help of Budderball, a puppy on Santas naughty list who lives in Fernfield, and his siblings (the Buddies), to learn how to be an ordinary, carefree puppy. They engage in a series of misadventures until Puppy Paws is caught by the towns curmudgeonly dogcatcher and thrown in the pound. There he meets an orphaned puppy named Tiny, who teaches him how

As the screenplays for Movie Defendants films do not differ materially from the motion pictures, only the films are summarized herein.

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important Christmas really is. Puppy Paws escapes the pound and makes it home in time for Christmas Eve, helping deliver toys around the world. Meanwhile, the lessons he and other characters learn about Christmas prompt a resurgence in Christmas spirit, solving an energy crisis that was threatening the North Pole; and Tiny is finally adopted into a loving home. 3. The Second Picture (see Appendix, 31-56): In The Search for Santa Paws

(running time: 96 minutes), we learn how Santa Paws came to be, and how he saved Santas life in New York City. At first the dog exists only as a stuffed toy given to Santa as a birthday gift, until the magic of Christmas (contained in a giant icicle hanging in a North Pole cave, and in small crystals that Santa and his helpers wear around their necks) turns him into a living puppy. Santa names him Paws, and the two decide to visit New York City, because the Christmas spirit has been out of whack there since good-hearted toy dealer Mr. Hucklebuckle passed away. Once there, Santa is hit by a taxi, loses his memory (and his magic crystal), and finds work as a toy-store Santa in none other than Mr. Hucklebuckles shop, now run temporarily by Hucklebuckles grandson and his wife. While he is a great success, Santa grows continually weaker due to the loss of his magic crystal and ends up in the hospital. Meanwhile, Paws who was separated from Santa after the accident wanders New York City until he crosses paths with an orphan girl, Quinn, and her older friend, Will, who live in a foster home run by a heartless caretaker. Paws and the girls, aided by the Hucklebuckles and Santas elf Eli, rescue Santa from the hospital. Paws sacrifices the magic crystal on his dog collar to help Santa recover, and as a result is transformed back into a stuffed toy. When Santa awakes, he takes Paws back to the North Pole, where the magic Christmas icicle and Santas love bring Paws back to life as a fullgrown dog. Santa tells him, Youre no longer a pup. Now your name will be Santa Paws. Santa Paws joins Santa on Christmas Eve as he delivers toys around the world. Meanwhile, the Hucklebuckles adopt Quinn and Will, and decide to keep the toy store operating. 4. Plaintiffs Work (see Appendix, 57-80): Santa Paws: The Story of Santas

Dog is a 30-page illustrated childrens story featuring a dog named Paws who is adopted by Santa and fights off an evil ice queen to save Christmas. Paws is one in a litter of puppies
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belonging to a poor Midwestern family. Nobody wants to adopt him because his paws are too big. So, on Christmas Eve, the familys young son persuades Santa to take Paws with him to the North Pole. There, Paws befriends a reindeer named Mercury and they visit Santas talking Christmas tree, Scotty Pine, who says his lights have gone out because Christmas spirit has sunk so low. Unbeknownst to them, the drop in Christmas spirit has been caused by Evila the ice witch, who lives in an ice castle nearby and yearns to end Christmas forever. She soon visits Santas palace and uses her magic icicle to freeze Santa and the reindeer solid. Paws and Mercury, along with Santas advisor Britt and a guard named Nutcracker, track Evila in the direction of the ice castle. Paws sneaks into the castle and steals Evilas magic icicle, but she wakes and chases Paws back to Santas palace. As Paws is trying to thaw Santa, Evila reveals she is Santas sister and was always jealous of Santas special role in Christmas. Santa wakes up, and declares that his sister must decorate all the worlds Christmas trees with icicles to atone for her misdeeds. Then Paws notices Scottys lights have come back on, and everyone cheers. Santa renames Paws Santa Paws and tells him he will be my one and only dog. III. PLAINTIFFS COPYRIGHT CLAIM SHOULD BE DISMISSED BECAUSE, AS A MATTER OF LAW, MOVIE DEFENDANTS FILMS ARE NOT SUBSTANTIALLY SIMILAR TO ANY PROTECTED EXPRESSION IN PLAINTIFFS STORY A. This Court May Dismiss a Copyright Claim for Lack of Substantial Similarity on a Rule 12(b)(6) Motion

A motion to dismiss brought under Federal Rules of Civil Procedure (FRCP) 12(b)(6) tests the legal sufficiency of the claims asserted in a complaint. A claim may be dismissed if it does not allege facts sufficient to raise a right to the relief requested. A plaintiffs allegations must rise above the level of mere speculation and be plausible on their face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-59, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). All facts alleged in the complaint are taken as true and construed in the light most favorable to the plaintiff. Farm Credit Services of America v. American State Bank, 339 F.3d 764, 767 (8th Cir. 2003) (citation omitted). However, courts are free to ignore legal conclusions,

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unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations. Id.; see Zella v. The E.W. Scripps Co., 529 F.Supp.2d 1124, 112728 (C.D. Cal. 2007). When amendment of a complaint would be futile, dismissal may be ordered without leave to amend. See In re Medtronic, Inc., Sprint Fidelis Leads Products Liability Litig., 623 F.3d 1200, 1208 (8th Cir. 2010). A trial court should dismiss a copyright claim pursuant to Rule 12(b)(6) where either the evidence demonstrates that no reasonable jury could find the defendants works are substantially similar to the plaintiffs works, or the court determines that any such similarities pertain only to unprotected elements in the works. Nelson v. PRN Prods., 873 F.2d 1141, 1143-44 (8th Cir. 1989) (affirming grant of motion to dismiss based on lack of substantial similarity); Christianson v. West Publ. Co., 149 F. 2d 202, 203-204 (9th Cir. 1945) (affirming grant of 12(b)(6)motion); Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (there is ample authority for the proposition that a district court may make [a determination as to substantial similarity] on a motion to dismiss for failure to state a claim under Rule 12(b)(6).) (citation omitted); Zella, 529 F.Supp.2d at 1130-31 (granting 12(b)(6) motion); Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F.Supp.2d 625, 634 (S.D.N.Y. 2008) (granting motion to dismiss where depiction of plaintiff's pinball machine in a movie was de minimis). When a court is called upon to consider whether the works are substantially similar, no discovery or factfinding is typically necessary, because what is required is only a comparison of the works. Peter F. Gaito Architecture, 602 F.3d at 64 (citation omitted). [T]he works themselves, not descriptions or impressions of them, are the real test for claims of infringement, and in copyright infringement cases, the works themselves supersede and control contrary descriptions of them. Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986). In ruling on a Rule 12(b)(6) motion, even if the works are not attached to the complaint, a court can consider their contents by taking judicial notice of them. Kushner v. Beverly Enterprises, Inc., 317 F.3d 820, 831-832 (8th Cir. 2003) (When deciding a motion to dismiss, a court may consider the complaint and documents whose contents are alleged in a complaint and
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whose authenticity no party questions, but which are not physically attached to the pleading.) (internal quotation marks and citation omitted); Zella, 529 F.Supp.2d at 1128. In an application filed contemporaneously with this motion, Movie Defendants request the Court to take judicial notice of copies of the scripts for the First and Second Pictures, and of DVDs of the First and Second Pictures, as there can be no disagreement or question about their authenticity. Movie Defendants Request for Judicial Notice pursuant to Rule 201 of the Federal Rules of Evidence (RJN). Additionally, because the copy of Plaintiffs story filed as Exhibit B to Plaintiffs Complaint is missing several pages, Movie Defendants request the Court to take judicial notice of a complete copy of Plaintiffs story as provided by Plaintiffs counsel to Movie Defendants counsel. RJN, e; Declaration of Matthew G. Minder, 3-4. B. Elements of Copyright Infringement

To prove copyright infringement, a plaintiff must prove (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). To establish the second element, Plaintiffs must show both that (a) Defendants actually copied from their work,2 and (b) that what they copied was original, or protected expression. Id. (Not all copying, however, is copyright infringement); 4 M. & D. Nimmer, Nimmer on Copyright (Nimmer), 13.01[B] at 13-8 to 13-10 (2011). Ideas, facts, and scenes-a-faire are not protected. Feist, 499 U.S. at 344-45 (The most fundamental axiom of copyright law is that [n]o author may copyright his ideas or the facts he narrates.); Frye v. YMCA Camp Kitaki, 617 F.3d 1005, 1008 (8th Cir. 2010) (The principle that a copyright does not protect ideas, but only

An inference of actual copying is typically created by showing that the defendant had access to the plaintiffs work, and that there is probative similarity between the defendants and plaintiffs works. 4 M. & D. Nimmer, Nimmer on Copyright, 13.01[B], at 13-11 to -14 (2011). However, as noted in Feist, actual copying does not by itself establish infringement. Feist, 499 U.S. at 361.
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the expression of those ideas, is longstanding.). Where non-literal copying of protected expression is alleged, the issue is whether the defendants work is substantially similar to expression in the plaintiffs work. Id.; 4 Nimmer, 13.03[A][1] at 13-38.2 to -43. Where, as here, the lack of similarity between the parties respective works is obvious, judgment as a matter of law is appropriate notwithstanding the presence of potential factual disputes concerning whether there was actual copying, such as whether defendants had access to the plaintiffs work. For purposes of this motion only, Movie Defendants will assume arguendo that Plaintiffs own a valid U.S. copyright to Santa Paws: The Story of Santas Dog, and that Movie Defendants had access to the work. Nelson, 873 F.2d at 1142 (motion to dismiss granted although defendants stipulated to plaintiffs ownership of copyright and defendants access); 4 Nimmer, 13.01[B] at 13-8 to -10 (distinguishing actual copying from improper appropriation). Plaintiffs copyright claim should be dismissed because, as a matter of law, neither of Movie Defendants works is substantially similar to protectable expression in Plaintiffs work. C. As a Matter Of Law, Movie Defendants Works are not Substantially Similar to any Protected Expression in Plaintiffs Story

Whether two works are substantially similar is a legal question, i.e., whether they share not only unprotectable elements, such as the same ideas, clichs, or facts (17 U.S.C. 102(b)), but whether the defendants work appropriates a plaintiffs original, protectable expression. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985). When non-identical dramatic works are compared, protectable expression means the actual concrete elements that make up the total sequence of events and the relationships between the major characters, not simply a combination of abstract similarities. Berkic, 761 F.2d at 1293; accord Funky Films, Inc. v. Time Warner Entmt Co., 462 F.3d 1072, 1077 (9th Cir. 2006).

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Because all storytelling relies on the use of facts, plot ideas, clichs, scnes--faire,3 and conventions of story-telling and filmmaking, many stories will have substantially overlapping elements at a high enough level of generalization to constitute unprotectible ideas rather than the expression of ideas.4 Such elements, however, remain forever the common property of artistic mankind and must be filtered out of the comparison. Funky Films, 462 F.3d at 1077, 1081; Frye, 617 F.3d at 1009, n.3; Berkic, 761 F2d at 1293; Hoch, 284 F.Supp.2d at 1222; 4 Nimmer, 13.03[A][1] at 13-33 to -43; see Hartman, 833 F.2d at 121. Therefore, a plaintiffs dramatic work is only protected from (1) the comprehensive appropriation of her story or pattern5 that is the arrangement of characters, their relationships, and the essential sequence of events in a story, not a random combination of abstract elements, or (2) nearly verbatim taking of segments. See Berkic, 761 F.2d at 1293-94; Hartman, 833 F.2d at 120 (The listing of similarities does not alone generate an issue of material fact precluding summary judgment.) (citing Litchfield, 736 F.2d at 1356-57); 4 Nimmer, 13.03[A][1] & [2] at 13-36 to -43 & 13-53 to -59. When comparing expressive works, courts are guided by the Copyright Acts core policies and constitutional limits: how far beyond the literal may a copyright monopoly extend?

Scnes--faire, or situations and incidents that flow naturally or necessarily from an unprotectable premise, cannot sustain a finding of infringement. Frye, 617 F.3d at 1008; accord Funky Films, 462 F.3d at 1077. Regarding non-identical dramatic works, Judge Learned Hand explained in Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930): Upon any work, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his ideas, to which, apart from their expression, his property is never extended. Quoted in Sid & Marty Krofft Television Prods., Inc. v. McDonalds Corp., 562 F.2d 1157, 1163 (9th Cir. 1977). Professor Chaffee famously further refined the boundary between idea and expression, stating that protection [of a dramatic or literary work] covers the pattern of the work , the sequence of events and the development of the interplay of characters. Z. Chaffee, Reflections on the Law of Copyright, 45 Col. L. Rev. 503, 513 (1945), cited in Krofft, 562 F.2d at 1164.
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Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197, 201 (9th Cir. 1989); 4 Nimmer, 13.03[A] at 13-34 to -43. If plaintiffs monopoly extends too far, liability would be imposed for the use of ideas and facts rather than protected expression in violation of the First Amendment and copyright policy. Feist, 499 U.S. at 344-48, 349-50; Harper & Row, Publishers v. Nation Enter., 471 U.S. 539, 556, 85 L.Ed.2d 588, 105 S.Ct. 2218 (1985) (the idea/expression dichotomy strikes a constitutional balance between copyright and free speech). An extrinsic test is mandated to analyze whether substantial similarity exists between non-identical dramatic works, and requires comparing the original expression of the works in the objective elements of plot, characters, theme, sequences of events, setting, dialogue, pace, and tone (or mood). Funky Films, 462 F.3d at 1077 (summary judgment affirmed on TV series Six Feet Under); Berkic, 761 F.2d at 1292; Hartman v. Hallmark Cards, Inc., 639 F.Supp. 816, 818 (W.D. Mo. 1986), affd, 833 F.2d 117 (8th Cir. 1987); Hoch v. Mastercard Intl Inc., 284 F.Supp.2d 1217, 1222 (D. Minn. 2003). Expert witnesses are permitted to make this analysis, Hartman, 833 F.2d at 120, although judges may disregard their opinions when they do not comport with the works. Olson v National Broad. Co., 855 F.2d 1446, 1450 (9th Cir. 1988) (affirming JNOV and disregarding plaintiffs experts analysis which deemphasized any dissimilarities between plaintiffs and defendants works and compared unprotectable scenes a faire). If the two works are deemed substantially similar under the extrinsic test, the Court then proceeds to the intrinsic test, which evaluates whether the works are similar in expression based on the response of the ordinary, reasonable person. Hartman, 833 F.2d at 120 (citing Krofft, 562 F.2d at 1164). Under this test, infringement occurs only when the total concept and feel of the works in question are substantially similar. Id. at 120-121. Expert opinion and analytical dissection are not appropriate in conducting the intrinsic test. Hartman, 833 F.2d at 120 (expert affidavits not admissible in conducting intrinsic test; [t]he district court, while not a qualified literary critic, [is] fitted by training and experience to compare works and determine whether they evidence substantial similarity.) (brackets added; citation omitted).
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D.

The Eighth Circuits Test for Substantial Similarity as Adopted From the Ninth Circuits Opinion in Sid & Marty Krofft

In borrowing the extrinsic and intrinsic tests as formulated in Sid & Marty Krofft Television Productions, Inc. v. McDonalds Corp., 562 F.2d 1157 (9th Cir. 1977) (Krofft), the Eighth Circuit borrowed Kroffts mandate that the extrinsic test measures similarity of ideas, and the intrinsic test measures similarity of expression: First, similarity of ideas is analyzed extrinsically, focusing on objective similarities in the details of the works. Second, if there is substantial similarity in ideas, similarity of expression is evaluated using an intrinsic test depending on the response of the ordinary, reasonable person to the forms of expression. Hartman, 833 F.2d at 120. The Ninth Circuit subsequently modified the extrinsic test in cases comparing dramatic or literary works, such that the test, which formerly compared similarity of ideas, now compares similarity of ideas and expression. E.g., Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir. 1990). The Shaw court recognized that following Krofft, Ninth Circuit cases comparing literary or dramatic works analyzed the elements of plot, theme, dialogue, characters, pace, sequence of events, mood and setting all of which were sufficiently concrete that they in fact measured expression. Now that [the extrinsic test] includes virtually every element that may be considered concrete in a literary work, the extrinsic test as applied to books, scripts, plays, and motion pictures can no longer be seen as a test for mere similarity of ideas. Because the criteria incorporated into the extrinsic test encompass all objective manifestations of creativity, the two tests [extrinsic and intrinsic] are more sensibly described as objective and subjective analyses of expression, having strayed from Kroffts division between expression and ideas. Shaw, 919 F.2d at 1357 (brackets added, italics in original); see Dath v. Sony Computer Entertainment America, Inc., 653 F.3d 898 (9th Cir. 2011) (adopting District Courts decision in 694 F.Supp.2d 1071 (N.D. Cal. 2010) (comparing characters and story in screenplays/treatments and video games)); Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010);

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Funky Films, 462 F.3d at 1077. The Eighth Circuit has not modified the extrinsic test from its original formulation in Krofft, probably because its substantial similarity opinions have focused on non-dramatic, non-literary works, such as greeting cards; Taylor Corp. v. Four Seasons Greetings, LLC, 403 F.3d 958 (8th Cir. 2005); popular songs; Nelson v. PRN Productions, Inc., 873 F.2d 1141 (8th Cir. 1989); Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939 (8th Cir. 1992); and architectural plans Rottlund Co. v. Pinnacle Corp., 452 F.3d 726 (8th Cir. 2006).6 When the Ninth Circuit imported expression into its extrinsic test in Shaw, it held that the intrinsic test was reserved to juries. Because the Eighth Circuit presently compares expression under the intrinsic test, it allows Courts (as well as juries) to make comparisons under the intrinsic test. The two Circuits probably reach the same results. E. As a Matter of Law, Movie Defendants Films Are Not Substantially Similar to Any Protected Expression in Plaintiffs Story

Plot and Sequence of Events: Movie-Defendants motion pictures and Plaintiffs story are not similar, let alone substantially similar, in their protected expression. Movie Defendants First Picture is the story of a North Pole puppy who learns the importance of Christmas after he hitches a ride to Fernfield, Washington, goes on misadventures with Buddies, and meets an orphaned puppy named Tiny in the pound. The Second Picture is the story of a toy puppy who is brought to life by Christmas magic and who, with the help of kind-hearted toy store owners and two young children, saves Santas life when he is suffering from amnesia in New York City. Plaintiffs work is the story of a determined puppy with enormous paws, who foils an evil witchs diabolical plot to freeze Santa and destroy Christmas. Movie Defendants and Plaintiffs works share nothing other than the general plot idea of a dog named Paws (rhymes with Claus) who helps Santa save Christmas. Such a basic plot

See also Reliant Care Management Co. v. Health Systems, Inc., 2011 WL 4342619 (Sept. 15, 2011, E.D. Mo.) (comparing written materials describing treatment programs for patients with behavioral problems).

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idea is insufficient to show substantial similarity. Berkic, 761 F.2d at 1293 (fictional works that both focus on a criminal organization that murders healthy young people and sells their vital organs to wealthy transplant patients, and that feature a young professional who investigates and exposes said criminal organization, are similar only in general plot ideas and do not evidence infringement); Nichols, 45 F.2d at 120-122 (two dramatic works, both involving the secret marriage of a Jewish man/woman to an Irish man/woman, the exposure of the marriage and their families resulting quarrels, and the families reconciliation after the birth of grandchildren, were similar only in general plot ideas and did not constitute infringement); Cavalier v. Random House, Inc., 297 F.3d 815, 824 (9th Cir. 2002) (plaintiffs and defendants works share the general premise of a child, invited by a moon-type character, who takes a journey through the night sky and returns safely to bed to fall asleep. But basic plot ideas, such as this one, are not protected by copyright law.). General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind. Berkic, 761 F.2d at 1293. Here, there is no substantial similarity in the actual concrete elements that make up the total sequence of events. Berkic, 761 F.2d at 1293. Movie Defendants First Picture involves a North Pole puppy who, in an effort to escape his Christmas responsibilities, visits a real world town where he makes new friends, is captured by the town dogcatcher, and learns about the importance of Christmas, and whose new-found Christmas spirit helps save the holiday. The Second Picture involves a stuffed toy dog who is transformed into a live puppy and accompanies Santa on a trip to New York, where Santa gets amnesia and the puppys loyal sacrifice saves his life; Santas love, in turn, helps revive the puppy after he is transformed back into a stuffed toy. Plaintiffs work involves a puppy who is adopted by Santa and foils a plot by Santas sister, an evil ice witch, to permanently freeze Santa and end Christmas forever.7 The plot and sequence
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In fact, the plot is somewhat ambiguous in this respect. At one point Plaintiffs story states that Evila wishes to end the holiday once and for all. (P. 9.) Later, Evila expresses a desire to be crowned Queen of Christmas (p. 21); and states that Her plan was always to replace Santa as the Queen of Christmas. (P. 27.)

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of events in the works are substantially dissimilar. In the Eighth Circuit, if two works share similarities only in general plot ideas or otherwise unprotected elements such as scenes-a-faire, the plaintiffs infringement claim should be dismissed. In Frye, 617 F.3d at 1006, the plaintiff claimed a YMCA camps play, entitled KnightQuest, infringed his play Kastleland. Both works were medieval-themed plays designed to be performed at summer camps. The YMCA camp had performed the plaintiffs Kastleland for more than 10 years, but after the plaintiff and defendant parted ways the camp developed and staged its own play, KnightQuest. Kastleland and KnightQuest both open around a campfire scene where the protagonists, who are medieval characters, are engaged in discussion. Frye, 617 F.3d at 1006-1007. In both works, the protagonists face imminent danger from villains (in Kastleland, seven dragons; in KnightQuest, four shadow lords). In both works, they invite the campers to join them on a quest to defeat their foes. Id. In both works, the campers then undertake a series of physical challenges such as target shooting and swordplay. Id. In Kastleland, at the conclusion of each challenge, the campers learn words of power such as courage, love and self-control, which they ultimately use to defeat the seven dragons. Similarly, in KnightQuest, at the conclusion of the four challenges, the campers learn the knights code reflecting the values they have just learned in the challenges (such as responsibility and truthfulness), and use their knights code to reform the shadow lords. Id. Both works end with a campfire scene. Id. The Eighth Circuit affirmed the trial courts finding that the two works were not substantially similar. Kastleland and KnightQuest are both interactive plays conducted at the same YMCA summer camp and employing a medieval theme. In each play, campers are invited to join the characters on a quest and are guided through multiple challenges where they can acquire certain skills necessary to defeat the plays antagonists. The YMCAs employment of that general idea cannot form the basis for a copyright infringement claim. Id. at 1008. The challenges, acquisition of skills to defeat villains, and the opening and closing campfire scenes were scenes-a-faire dictated by the medieval theme and summer camp setting. Id. at 1008-09.
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The rationale of Frye applies with even more force here, as the only similarity between the works is the unprotectable plot idea of Santas dog helping to save Christmas. The actual concrete elements that make up the total sequence of events are vastly dissimilar. The only similarity alleged by Plaintiffs beyond the general plot idea is that their story and Movie Defendants films feature eerily similar uses of a magic icicle and magical Christmas tree. (Complaint, 35.) There is no talking Christmas tree character like Plaintiffs Scotty Pine in Movie Defendants First Picture, only an ordinary tree with lights that flicker on as Puppy Paws walks past, and again later in the film. As for the magic icicle, there is nothing remarkable about the use of magic devices such as icicles or crystals in childrens stories. They are time-worn dramatic props that have been employed in everything from Grimms Fairy Tales to Superman. Moreover, the magic icicles function completely differently in the works. In Plaintiffs story, Evila uses her magic icicle as an instrument of evil, in the way that an evil wizard would use his wand. Its function appears limited to shooting out streams of liquid ice so Evila can freeze her foes. In Movie Defendants films, the crystals worn around Santas neck and on the dogs collars, as well as the gigantic icicle hanging from the ceiling of the ice cave, are instruments of good. They are repositories for the Christmas spirit, absorbing and then releasing powerful positive energy at various points in the films. There is no similarity of protected expression between Plaintiffs story and Movie Defendants films. Theme: Themes are ideas unprotectable under Section 102(b) of the Copyright Act. See Reyher v. Childrens Television Workshop, 533 F.2d 87, 92 (2d Cir. 1976) (two childrens stories which both presented the thematic concept that to a lost child, the familiar face of the mother is the most beautiful face, even though the mother is not, in fact, beautiful to most, were not substantially similar). Moreover, there is no similarity between the themes of the works. Movie Defendants First Picture emphasizes the importance of taking responsibility for the happiness of others: Puppy Paws abandons his desire to escape the responsibilities of Christmas and helps save the holiday so he can preserve hope for the less fortunate. The Second Picture emphasizes the power
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of love and loyalty between man and dog: Paws is willing to sacrifice his life to save Santas life, and Santas love for Paws miraculously revives him when it seems all hope is lost. Plaintiffs work is the story of an underdog named Paws who, although he is rejected by some for being different, proves his mettle by stopping a wicked ice queens plot to permanently freeze Santa. Plaintiffs work also relies heavily on the very general theme of good winning out over evil. The only similarity present in all three works is an emphasis on the importance of Christmas spirit, a theme so clichd in a Christmas film that it is not protectable. See Berkic, 761 F.2d at 1294 (themes such as conflicts between ambitious young people and bureaucracies are among the very staples of modern American literature and film and are not protectable); Hoch, 284 F.Supp.2d at 1223 (stock themes are not protected). But even here, the themes are treated in a completely dissimilar manner. In Movie Defendants First Picture, Christmas spirit is restored by changing the hearts and minds of characters like Puppy Paws, Stan Cruge, Clark the Fake Elf, and the Buddies. In the Second Picture, Christmas spirit is kept alive by Paws loyal act of sacrifice for Santa, and by some acts of Christmas magic (Santas crystal turns Gus the thief good; Paws decorating the orphanage makes a believer out of Will). In Plaintiffs work, Christmas spirit is threatened by a villain, an evil ice witch, who is defeated by Paws. Characters: There is no similarity of protected expression between Plaintiffs and Movie Defendants works. The character of Santa is not protectable. Nor are the generalized characters of anthropomorphized animals or loyal dogs, both of which have long been a staple of childrens stories. Such stock characters or character traits do not evidence substantial similarity. Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986) (characters generic to any work about policeman in the South Bronx, including drunks, prostitutes, and Irish policemen, are not protectable); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1176 (9th Cir. 2003) (fact that magician characters in both plaintiffs and defendants works wore masks while revealing secrets behind tricks did not evidence substantial similarity); Cavalier v. Random House, Inc., 297 F.3d 815, 825 (9th Cir. 2002) (moon character featured in plaintiffs and defendants works a stock character for childrens literature).
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Aside from the general characteristic of being Santas dog, the character Paws is significantly different in and between the three works.8 In Movie Defendants First Picture, Puppy Paws bears little resemblance to the character of Paws in Plaintiffs work. He lacks the enormous paws of Plaintiffs character, and unlike Plaintiffs character, he is not loyal, at least at first. He abandons Santa, so he can forget about Christmas and learn what it means to be an ordinary puppy. It is only through his experiences in the real world that he grows up and learns the importance of Christmas. Plaintiffs character undergoes no such change. Paws from the Second Picture also bears little resemblance to Plaintiffs character. In the Second Picture, Paws undergoes a Pinocchio-like transformation, starting out as nothing more than a stuffed toy, before Christmas magic turns him into a living dog. He transforms back into a toy during the film and is revived by magic and the power of love. Plaintiffs character undergoes no such transformation. Additionally, the character in the Second Picture lacks the oversized paws of Plaintiffs character. The remaining characters in Plaintiffs work Evila the ice witch9, Mercury the reindeer, Nutcracker the guard, and Britt, Santas chief advisor have no counterparts in Movie
8

Plaintiffs Paws character is not well developed, his only distinctive characteristics being loyalty and enormous paws, making any comparison between him and Movie Defendants characters more difficult and militating toward non-infringement. Cf., Nichols, 45 F.2d at 121 (It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.). Plaintiffs Complaint attempts to compare Evila and Ms. Stout, the foster home caretaker, by saying they are both domineering and holiday-spiritless female antagonist[s] (Complaint, 35), and evil, bitter, spiritless and Scrooge-like diamond eyed villainess[es] Id. at, p. 2. These descriptions are at such a high level of generality as to be of no value in determining substantial similarity. A villain in any story could be described as evil, domineering or bitter. Spiritless characters are also Christmas story clichs, as is made evident by Plaintiffs reference to the Charles Dickens character Scrooge. Any antagonist in a Christmas movie will lack Christmas spirit. Additionally, the two characters are completely different and serve different roles. Evila is a major character and the driving force behind the crisis in Plaintiffs story, while Ms. Stout plays a comparatively minor role in the Second Picture. Evila is Santas sister, and grew up hating Santa because he received all the attention; there is no similar backstory for Ms. Stout. Finally, Evila is an ice witch who is plotting to destroy Christmas; Ms. Stout is a runof-the-mill bully who runs an orphanage and dislikes Christmas.
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Defendants films. And Movie Defendants First and Second Pictures include well-developed human characters, the likes of which are absent from Plaintiffs story, such as Stan Cruge, Quinn, Will, and the Hucklebuckles. Moreover, the First and Second Pictures include Paws dog buddies, Santas elves, and elf dogs, none of which appear in Plaintiffs story. Dialogue: Plaintiffs have not identified any specific lines of dialogue in Movie Defendants films that are similar to the dialogue in Plaintiffs story, and the dialogue in the different works is markedly dissimilar. The First Picture includes the idiosyncratic speech of the Buddies (i.e., the surfer dude phrases of Mudbud, New Age language of Buddha, and hip-hop expressions of B-Dawg), and the Second Picture, in keeping with its New York City setting, includes stereotypical New York phrases and accents (e.g., of the street dogs who befriend Paws); this is absent from Plaintiffs story. The only line of dialogue in Movie Defendants works that could be considered at all similar to anything in Plaintiffs story is in the Second Picture, after Paws has come back to life as a full-grown dog. Santa tells him, Youre no longer a pup. Now your name will be Santa Paws. In Plaintiffs work, after Paws defeats the witch Evila and un-freezes Santa, Santa tells Paws, From now on your name will be Santa Paws my one and only dog. However, the name Santa Paws, substituting Claus with the rhyming word paws in connection with the Christmas holiday, is an unprotectable clich. Second, short phrases are not copyrightable. Narell v. Freeman, 872 F.2d 907, 911 (9th Cir. 1989) (phrases in both plaintiffs and defendants works, such as rekindle old memories, staggering network, river wound its way between muddy banks crawling with alligators, hordes of gold seekers, pitched overboard, cow path, shanties and corrugated [iron/steel] shacks ... were crowded together, and beach was strewn with boxes, bales were not entitled to protection). This is particularly so when such phrases convey[] an idea typically expressed in a limited number of stereotyped fashions, Narell, 872 F.2d at 911, as is the case here. Mood: The mood of Plaintiffs work is substantially dissimilar to that of Movie Defendants works. Plaintiffs work is dominated by Evila the witch (she is present, or referred to, as a threat on most of the storys pages), and her presence gives much of the story a sinister
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tone. By contrast, the tone of the majority of Movie Defendants First Picture is by turns lighthearted and sentimental. Movie Defendants Second Picture, while relying more on pathos than the first, nevertheless does not have the same sinister mood as Plaintiffs work.10 Even if portions of the works did share a common mood, similarities of mood and pace that are common to [a] genre such as Christmas stories or childrens stories are unprotectable and do not demonstrate substantial similarity. See, e.g., Olson v National Broadcasting Co., 855 F.2d 1446, 1451 (9th Cir. 1988). Setting: Because Plaintiffs work and Movie Defendants works are about Christmas and Santa Claus, they obviously include the settings of the North Pole and Santas workshop. However, these are scenes-a-faire and are not protectable. Cavalier v. Random House, Inc., 297 F.3d 815, 824 (9th Cir. 2002) (night sky setting naturally and necessarily flows from the basic plot premise of a child's journey through the night sky and cannot support a finding of substantial similarity). The settings in Plaintiffs and Movie Defendants works are otherwise dissimilar. Most of Movie Defendants stories take place outside the North Pole, in the real world environs of Fernfield or New York City and run-of-the-mill settings such as parks, street sidewalks, homes, and stores. The vast majority of Plaintiffs story takes place at the North Pole, in Santas palace and in Evilas ice castle, for which there obviously is no counterpart in Movie Defendants works. Pace: There are no discernible similarities in pace between the two works. In Plaintiffs work, the pace quickens about one-third of the way through the story when Evila visits Santas palace. This pace is maintained nearly to the end. In Movie Defendants works, the pace is relatively slow until two-thirds of the way through the story (in the First Picture, when Puppy Paws is thrown into the pound; in the Second Picture, when Santa becomes ill). Even if the

10

In some scenes Ms. Stout bullies or threatens the children in the foster home, but her role in the film is comparatively minor.
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works were similarly paced (which they are not), similarities of mood and pace that are common to a genre are unprotectable. See Olson, 855 F.2d at 1451. In summary, there is no similarity, let alone substantial similarity, between the protected elements of Plaintiffs and Movie Defendants works. Plaintiffs work is a typical good-versusevil fantasy involving a diabolical plot to destroy Christmas, a witchs spell, a fierce snowstorm, an ice castle, and a chase scene. Movie Defendants First Picture is a sentimental comedy-drama about a North Pole puppy whose misadventures in Fernfield, Washington (meeting the Buddies, and talking to Tiny in the pound) lead him to discover the importance of Christmas. The Second Picture is a sentimental comedy-drama about a toy puppy who is brought to life by Christmas magic and saves Santas life when he is lost in New York City, and features a struggling toy store, an orphanage, and a case of forgotten identity. The only similarities between Plaintiffs and Movie Defendants works are unprotected ideas, clichs and scenes-a-faire. Plaintiffs do not and cannot, under U.S. copyright law, own the idea of a story about Santas dog, and their copyright claim should be dismissed. Frye, 617 F.3d at 1008; Nichols, 45 F.2d at 120-122; Berkic, 761 F.2d at 1293. IV. PLAINTIFFS CONSPIRACY COUNT SHOULD ALSO BE DISMISSED Plaintiffs claim for civil conspiracy to infringe Plaintiffs copyright is not a proper cause of action, and is unsustainable because, as a matter of law, there is no infringement. In the civil sphere conspiracy is usually not an independent basis for relief, but rather is a label to hold jointly and severally liable those who participate in a separate, recognized tort, which must have actually occurred. 3 Nimmer, 12.04[D][3], at p. 12-137, n.464. See Farmland Indus. v. Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1409 (8th Cir. 1989) (Missouri recognizes no separate cause of action for civil conspiracy.); Charles Davis & Assoc., Inc. v. Nike, Inc., 756 F.Supp. 416, 420 (E.D. Mo. 1991) (Some wrongful act must have been done by one or more of the alleged conspirators and the fact of a conspiracy merely bears on the liability of the various defendants as tortfeasors.). Plaintiffs Complaint improperly pleads conspiracy as a

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separate count when it is merely a theory of liability with respect to the copyright infringement count. What is more, as a matter of law, Movie Defendants films do not infringe Plaintiffs story, as shown above. Thus, Plaintiffs purported cause of action for conspiracy should be dismissed. 3 Nimmer, 12.04[D][3], at p. 12-137, n.464 (with respect to allegations of civil copyright conspiracy, substantive infringement becomes a prerequisite for the conspiracy to be actionable.). V. CONCLUSION AND PRAYER FOR RELIEF For the foregoing reasons, Movie Defendants respectfully request the Court to dismiss Counts 1 and 4 of the Complaint for failure to state a claim upon which relief can be granted, with prejudice and without leave to amend, and dismiss this action as to Defendants Disney Enterprises, Inc., Buena Vista Home Entertainment, Inc., Key Pix Productions, Inc., Robert Vince and Anna McRoberts.

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Respectfully submitted, BRYAN CAVE LLP By: /s/ J. Bennett Clark J. Bennett Clark, #30907MO ben.clark@bryancave.com Matthew G. Minder, #61686MO matt.minder@BryanCave.com BRYAN CAVE LLP One Metropolitan Square 211 North Broadway, Suite 3600 St. Louis, Missouri 63102-2750 Telephone: (314) 259-2000 Facsimile: (314) 259-2020 Louis P. Petrich (Admitted Pro Hac Vice) lpetrich@lpsla.com LEOPOLD PETRICH & SMITH 2049 Century Park East, Suite 3110 Los Angeles, California 90067 Telephone: (310) 277-3333 Facsimile: (310) 277-7444 ATTORNEYS FOR DISNEY ENTERPRISES, INC., BUENA VISTA HOME ENTERTAINMENT, INC., KEY PIX PRODUCTIONS, INC., ROBERT VINCE and ANNA MCROBERTS CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically with the Clerk of Court to be served by operation of the Courts electronic filing system upon counsel of record on this 24th day of February, 2012.

/s/ J. Bennett Clark

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