Constantino Basile v. Twentieth Century Fox Film

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

CONSTANTINO BASILE, No. 14-56423

Plaintiff-Appellant, D.C. No. 2:14-cv-04263-DMG-
JPR
v.

TWENTIETH CENTURY FOX FILM MEMORANDUM*
CORPORATION, a Delaware corporation;
et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding

Submitted February 14, 2017**

Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Constantino Basile appeals pro se from the district court’s order dismissing

his action alleging that defendants’ movie Prometheus infringed upon his

copyrighted works “Crisis on Jupiter” and “The World of Jupiter.” We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627

F.3d 338, 341 (9th Cir. 2010), and we affirm.

The district court properly dismissed Basile’s copyright infringement claim

because there is no substantial similarity, as a matter of law, between protected

elements of Basile’s copyrighted works and comparable elements of defendants’

film, and any similarities in the general concepts are unprotected. See Funky

Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076-78 (9th Cir.

2006) (absent direct copying, a plaintiff must show substantial similarity to prevail

on a copyright infringement claim); Cavalier v. Random House, Inc., 297 F.3d

815, 823 (9th Cir. 2002) (“Scenes-a-faire, or situations and incidents that flow

necessarily or naturally from a basic plot premise, cannot sustain a finding of

infringement.”); Berkic v. Crichton, 761 F.2d 1289, 1292-94 (9th Cir. 1985)

(setting forth factors to determine substantial similarity).

The district court did not abuse its discretion in taking judicial notice of

documents registered with the U.S. Copyright Office, see Federal Rule of Evidence

201(b)(2); see also Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1016 n.9

(9th Cir. 2012) (setting forth standard of review), or in failing to consider evidence

2
irrelevant to the dispositive legal issue of whether there was substantial similarity

between the works, see Aceves v. Allstate Ins. Co., 68 F.3d 1160, 1164-66 (9th Cir.

1995) (setting forth standard of review and discussing relevance).

Basile waived any challenge to the dismissal of his trademark infringement

claim by failing to raise an argument in his opening brief. See Smith v. Marsh, 194

F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal, arguments not raised by a party in

its opening brief are deemed waived.”).

AFFIRMED.