Case 2:11-cv-06203-JFW-JC Document 102

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES -- GENERAL Case No. Title: PRESENT: HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE Shannon Reilly Courtroom Deputy None Present Court Reporter

CV 11-6203-JFW (JCx)
Elissa Tedesco -v- Sandi Pepe, et al.

Date: July 17, 2012

ATTORNEYS PRESENT FOR PLAINTIFFS: None PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS: None

ORDER GRANTING MOTION OF DEFENDANTS ALLISON GRODNER, RICHARD MEEHAN, AMY PALMER, LOUISE ROE, FLY ON THE WALL ENTERTAINMENT, INC., MTV NETWORKS ENTERPRISES, INC., SONY PICTURES TELEVISION INC., AND THE CW NETWORK LLC FOR SUMMARY JUDGMENT UNDER FED. R. CIV. PRO. 56 [filed 6/18/12; Docket No. 89]

On June 18, 2012, Defendants Allison Grodner (Grodner), Richard Meehan (Meehan), Amy Palmer (Palmer), Louise Roe (Roe), Fly on the Wall Entertainment, Inc. (FOTW), MTV Networks Enterprises, Inc. (MTV), Sony Pictures Television Inc. (Sony), and The CW LLC (CW) (collectively, the CW Defendants) filed a Motion for Summary Judgment Under Fed. R. Civ. Pro. 56 (Motion). On June 25, 2012, Plaintiff Elissa Tedesco (Plaintiff) filed her Opposition, and, on June 29, 2012, Plaintiff filed her Amended Opposition. On July 2, 2012, the CW Defendants filed a Reply. Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court found the matter appropriate for submission on the papers without oral argument. The matter was, therefore, removed from the Courts July 16, 2012 hearing calendar and the parties were given advance notice. After considering the moving, opposing, and reply papers, and the arguments therein, the Court rules as follows: I. Factual and Procedural Background1
1

Because Plaintiff failed to respond to the majority of the CW Defendants undisputed facts in her Statement of Genuine Disputes, those facts are deemed undisputed. To the extent any of Page 1 of 18
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A.

The CW Defendants Plain Jane Television Series

Palmer is the President of Zipline Productions. Grodner and Meehan are partners in the reality television production company FOTW, which they formed in October 2009. In February 2009, Palmer met with British stylist and fashion reporter Roe, who inspired Palmer to create a reality television series with a romantic comedy feel. Shortly after Palmers meeting with Roe, she began brainstorming about a television show, and first conceptualized the reality television series Plain Jane (including the title), which would be a show about a woman revealing her crush. In or around May 2009, Palmer shared her concept for Plain Jane, including her idea that Roe would be a great host for the show, with Grodner, who agreed to co-produce the show. Palmer and Grodner then met with Roe, who advised them that she loved the idea for Plain Jane. As a result, Palmer and Grodner began developing Plain Jane, and that creative process included an exchange of ideas between Palmer and Grodner. By May 15, 2009, Palmer had created the first written outline for Plain Jane, and the final revision of the outline was created on November 5, 2009, shortly before Grodner, on behalf of FOTW, pitched Plain Jane to Sony. The pitch was successful and Sony agreed to co-produce Plain Jane with FOTW. Immediately after Sony agreed to co-produce Plain Jane, Brandon Panaligan (Panaligan), Vice-President of Development for FOTW, prepared and ultimately provided Sony with a pitch deck for Sony to use in marketing the series to television networks for broadcast and distribution. The polished pitch deck was sent to Sony via email by Panaligan on November 10, 2009 at 1:14 p.m. On January 13, 2010, Grodner, Meehan, and Roe participated in a pitch meeting with CWs executives, and at the meeting the executives expressed an interest in Plain Jane. Shortly after the meeting, CW agreed to produce a pilot of Plain Jane, which commenced shooting in early March 2010. The pilot was picked up in June 2010, and the series consisted of six episodes which aired on CW between July and September 2010.2 Plain Jane is a real-life romantic comedy series. Each sixty-minute episode opens with the series host, Roe, reviewing a video submitted by a young woman in her early twenties (the Jane) who wants to appear on a makeover show. Each Jane is romantically interested in a young man (the Crush). The Jane already knows the Crush, but has been afraid to reveal her feelings for him. Based on the video footage, and sometimes on video testimonials from parents, family members, or friends, Roe determines what personality trait is preventing Jane from pursuing her Crush. Roe then visits Jane at Janes place of employment, at a restaurant, or over coffee. They discuss Janes personality, dating history, stylistic choices, and the Crush. Roe surprises Jane by pulling out a cell phone and Roe calls the Crush to invite him on a blind date with an anonymous the facts are disputed, they are not material to the disposition of this motion. In addition, to the extent that the Court has relied on evidence to which the parties have objected, the Court has considered and overruled those objections. As to the remaining objections, the Court finds that it is unnecessary to rule on those objections because the disputed evidence was not relied on by the Court. Sonys sister company, 2waytraffic UK Rights Limited, licensed Plain Jane to MTV Networks (not Defendant MTV) for foreign distribution. Page 2 of 18
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secret admirer (i.e., Jane), which is set for 48 hours later. Thereafter, Roe and Jane travel around Los Angeles and surreptitiously watch the Crush from afar. Roe then asks Jane what she fears most in life, and Roe has Jane confront her fear.3 Each Jane is apprehensive, but eventually accepts the challenge and successfully conquers her fear. Roe then explains that telling the Crush how she feels will be easy compared to the afternoons activity. The show then cuts to a video testimonial in which Jane expresses pride in her accomplishment. As a reward, Roe takes Jane on a shopping spree. They first visit Janes home to inspect her bedroom and wardrobe. After reviewing the bland and poorly selected clothes in Janes closet, Jane and Roe shop at an upscale location, such as Rodeo Drive in Beverly Hills, where Jane tries on outfits. Roe critiques Janes inevitably bad choices, and then Jane tries on Roes selections and beams with enthusiasm over her new look. Roe then drives Jane to another location and introduces her to an expert who will coach Jane through another confidence building exercise involving flirting with men in a public location (e.g., a dog park, a speed dating club, a beach, a supermarket, or a softball barbeque). Roe and the expert outfit Jane with a bracelet that delivers mild electrical shocks when Jane is not flirting successfully. Jane approaches some men and she attempts to execute strategies suggested by Roe and the expert. The exercise is suppose to help Jane overcome her fear of rejection and prepare her to confront her Crush. In most of the episodes, Jane also participates in an additional confidence building exercises, such as instruction in burlesque dancing in the Friend Zone Jane episode, mixed martial arts training in the Wallflower Jane episode, firing range practice in the Do Over Jane episode, and bungee jumping in the Jane Plus episode. Jane then appears in a video testimonial in which she confirms the value of the exercises. Jane then visits a hair stylist who has worked for celebrity clients. Jane often shows the stylist a picture of the Crush on a mobile phone and visits Facebook or Twitter to update her online profiles. Jane learns that she will not be allowed to look in a mirror and see her made-over self until her transformation is complete. Roe and Jane then travel by limousine to Janes date with the Crush. During the ride, they discuss how Jane has grown and how she feels about her upcoming date. In several episodes, Jane rehearses what she plans to say to the Crush and sometimes breaks down in tears over the thought of revealing herself to the Crush. When the limousine arrives at the picturesque location selected for the date, which varies from episode to episode, Roe introduces Jane to a celebrity make-up artist. The show then cuts to an interview with the Crush, who expresses mixed emotions about going on a blind date. As the make-up artist finishes applying the last touches of make-up, Roe enters the room and surprises her with a new dress to wear on her date. Jane tries on the dress, after which her fully made-over look is revealed to both herself and the audience. Roe and Jane take a moment to reflect on what has happened and what is about to happen. As Jane enters the venue where she will meet the Crush, she seems simultaneously excited and terrified. Roe, who is eavesdropping,

In the six episodes, the Janes fears were, respectively, snails, loss of control, sharks, snakes, darkness, and bees. Page 3 of 18
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conveys her impressions to the audience. After brief hugs and awkward banter mixed with silence, Jane tells the Crush that she wants to pursue a relationship with him. In five of the six episodes, the Crush reciprocates Janes romantic feelings. The new couple share a dinner, and Roe comments to the audience on the remarkable success of Janes transformation. Finally, the show concludes with photographs of the new couple together several weeks or months later, enjoying themselves. Jane holds up handwritten signs thanking Roe and informing the audience that the couple is still together.4 B. Plaintiffs Plain Jane: From Geek to Glam Treatment

Plaintiff, a former graphic designer, is the author of a treatment for a 30-minute reality television show entitled Plain Jane: From Geek to Glam (the Treatment).5 On November 10, 2009 at 8:31 p.m., a few days after she finished writing the Treatment and before sending the Treatment to anyone, Plaintiff registered it online with the Writers Guild of America (WGA). At 9:25 p.m. on November 10, 2009, about eight hours after Panaligan sent the pitch deck for Plain Jane to Sony, Plaintiff e-mailed the Treatment to Sandi Pepe, a former talent agent who once headed The Gersh Agencys Alternative Department, which included reality, daytime, digital, and talent packaging. Sandi Pepe now works as a caterer but continues to consult on realty television projects. Plaintiff provided Sandi Pepe with her Treatment several weeks after an introductory lunch meeting to discuss Plaintiffs general interest in the entertainment industry at a West Hollywood restaurant that was arranged by Sandi Pepe and Plaintiffs acupuncturist, Susanna Horton. Plaintiff hoped that Sandi Pepe would show the Treatment to her contacts in the entertainment business and secure a production deal for the Treatment. However, the following day, Sandi Pepe rejected the Treatment and in an email dated November 11, 2009 to Plaintiff explained that the Treatment was way too general and not enough of a hook to differentiate [it] from the [other] show you mentioned, and was a little soft for a TV show. On November 12, 2009, Plaintiff responded to Sandi Pepes email and acknowledged that I get what you mean by soft. Plaintiff admits that she never sent the Treatment to any agent, producer, or alleged intermediary, and there is no evidence that Sandi Pepe ever sent Plaintiffs Treatment to anyone, including any of the CW Defendants.6 In the Treatment, Plaintiff explains that Plain Jane: From Geek to Glam would be a series similar in format to Queer Eye for the Straight Guy, or What not to Wear, two existing reality makeover series, and that a well-known actress or model such as Jenny McCarthy or Carmen In the one episode where the Crush says he does not want to date Jane, Jane goes on a date with another man she met while filming the show, and the closing photograph montage shows images from that date. Plaintiffs only published works are two short films. Plaintiff has never been paid for works she wrote for film or television, and, before meeting Defendant Sandi Pepe, she had never written a reality television treatment. Plaintiff identifies and contends that Sandi Pepe and her husband, Peter Pepe, were the only defendants who had access to her work. Page 4 of 18
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Electra would host the series. Each episode would begin with the host and three female experts7 riding in a limousine and reviewing secret videotape of the unsuspecting makeover candidate (the Candidate), who would be an ordinary woman. According to the Treatment, the Candidates can be frumpy housewives or studious co-eds. They could be tom-boys or 40 something soccer moms, their one common thread is that they are Plain Janes, and that their friends and family think their [sic] just might be a hidden [P]layboy bunny in there somewhere. The host and the experts, along with the Candidates friends and family members, would ambush the Candidate on the street and offer her a makeover. The makeover would focus on making the Candidate HOT and would turn her into a sexy siren over night. After the ambush, the host and the Candidate would travel by limousine to the first of three stops. At each stop, a different female expert would teach the Candidate how to be sexy, hot and alluring. These experts would be regular cast members on the show. Although each episode would focus on making the Candidate sexy and glamorous like a starlet, the makeovers would be tailored to the personalities of the Candidates, such that some might end up look[ing] like Marilyn Monroe, [while] others will look like Audrey Hepburn. There would be no plastic surgery, but some Candidates would get teeth whitening, contacts, push-up bras and hair extensions. At the end of each episode, the Candidates transformation would be revealed at a party or event (such as a wedding, graduation, or birthday party), where she would launch her new look in front of friends and family. In some episodes, boyfriends, husbands, and secret crushes would be invited to the ending party to give their opinions on the HOT new look. The event would create a triumphant feel at the end of each episode because both inner and outer beauty would be exposed. The Treatment explains that watching a caterpillar turn into a butterfly would inspire female audience members who want to look prettier and sexier and to express the sexy goddess thats in all of [them]. The Treatment also claims that men who want to look at hot sexy women (hostess and experts, and ultimately the [C]andidate) will also enjoy the series. C. Procedural History

On July 27, 2011, Plaintiff filed her Complaint against the CW Defendants, Sandi Pepe, and Peter Pepe, alleging claims for relief for: (1) direct copyright infringement (15 U.S.C. 101 et seq.) against all the defendants; (2) contributory copyright infringement (15 U.S.C. 101 et seq.) against all the defendants; (3) unfair competition (passing off) (15 U.S.C. 1125(a)) against all the defendants; (4) unfair competition (misappropriation) (15 U.S.C. 1125(a)) against all the

The three experts would include a Sex Appeal & Human Behavior Authority who would help the Candidate improve her self-esteem, confidence, flirting, and dating. The second expert would be a Professional Fashion Stylist who would provide tips on style, fashion, and appearance. The third expert would be a Celebrity Makeup and Hair Specialist who would improve the Candidates hair and make-up. Some episodes might include guest experts, such as a runway model, belly dancer, stripper, or dancer. In addition, some episodes might include fashion photographers who surprise the Candidates with photo shoots, or dermatologists, nutritionists and fitness instructors [who] could be asked for their expert advice for taking care of the face and body. Page 5 of 18
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defendants; (5) common law fraud against Sandi Pepe and Peter Pepe (collectively, the Pepes); (6) violation of California Unfair Competition Law against all the defendants; (7) breach of confidence against the Pepes; (8) breach of confidential relationship against the Pepes; and (9) breach of implied-in-fact contract against the Pepes. In their Motion, the CW Defendants seek summary judgment as to all the claims alleged against them in the Complaint.8 II. Legal Standard

Summary judgment is proper where the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party meets its burden, a party opposing a properly made and supported motion for summary judgment may not rest upon mere denials but must set out specific facts showing a genuine issue for trial. Id. at 250; Fed. R. Civ. P. 56(c), (e); see also Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (A summary judgment motion cannot be defeated by relying solely on conclusory allegations unsupported by factual data.). In particular, when the non-moving party bears the burden of proving an element essential to its case, that party must make a showing sufficient to establish a genuine issue of material fact with respect to the existence of that element or be subject to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of fact is not enough to defeat summary judgment; there must be a genuine issue of material fact, a dispute capable of affecting the outcome of the case. American International Group, Inc. v. American International Bank, 926 F.2d 829, 833 (9th Cir. 1991) (Kozinski, dissenting). An issue is genuine if evidence is produced that would allow a rational trier of fact to reach a verdict in favor of the non-moving party. Anderson, 477 U.S. at 248. This requires evidence, not speculation. Meade v. Cedarapids, Inc., 164 F.3d 1218, 1225 (9th Cir. 1999). The Court must assume the truth of direct evidence set forth by the opposing party. See Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). However, where circumstantial evidence is presented, the Court may consider the plausibility and reasonableness of inferences arising therefrom. See Anderson, 477 U.S. at 249-50; TW Elec. Serv., Inc. v. Pacific Elec. Contractors Assn, 809 F.2d 626, 631-32 (9th Cir. 1987). Although the party opposing summary judgment is entitled to the benefit of all reasonable inferences, inferences cannot be drawn from thin air; they must be based on evidence which, if believed, would be sufficient to support a judgment for the nonmoving party. American International Group, 926 F.2d at 836-37. In that regard, a mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some significant probative evidence tending to support the complaint. Summers v. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir. 1997).

On September 26, 2011, the Pepes filed Chapter 7 Bankruptcy. On December 27, 2012, Plaintiff filed an Adversary Complaint for Determination that Debts are Nondischargeable (11 U.S.C. 523 et seq.) And Objections to Discharge (11 U.S.C. 727 et seq.) (Adversary Complaint) in U.S. Bankruptcy Court, Case No. 11-bk-21404-MT. A review of the docket in the bankruptcy proceeding reveals that Plaintiff has not prosecuted her Adversary Complaint. The Pepes have not joined in the CW Defendants Motion in this action, and this action has been stayed as to the Pepes. Page 6 of 18
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III.

Discussion A. Plaintiffs Rule 56(d) Request is Denied.

In her Opposition, Plaintiff requests a continuance pursuant to Federal Rule of Civil Procedure 56(d) for the purpose of conducting additional discovery. If a nonmoveant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order. Fed. R. Civ. P. 56(d). A party invoking Rule 56(d) bears the burden of showing what facts [it] hopes to discover to raise a material issue of fact. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (quoting Hancock v. Montgomery Ward Long Term Disability Trust, 787 F.2d 1302, 1306, n.1 (9th Cir. 1986)). Compliance with Rule [56(d)] requires more than a perfunctory assertion that the party cannot respond because it needs to conduct discovery. In that regard, references in memoranda and declarations positing a need for discovery do not constitute a proper motion under Rule [56(d)]. Rather, that rule requires affidavits setting forth with particularity: (1) why the party opposing summary judgment cannot respond; (2) the particular facts that the party reasonably expects to obtain in further discovery; and (3) how the information reasonably expected from its proposed discovery requests could be expected to create a genuine issue of material fact that would defeat the summary judgment motion. Adams v. Allstate Insurance Co., 187 F. Supp. 2d 1207, 1213 (C.D. Cal. 2002); see also Tatum v. City and County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (holding that a party requesting a continuance pursuant to Rule 56(d) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment.). The party seeking additional discovery also bears the burden of showing that the evidence sought exists. Terrell, 935 F.2d at 1018. Failure to comply with the requirements of Rule [56(d)] is a proper ground for denying discovery and proceeding to summary judgment. Brae Transportation, Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Moreover, even where these prerequisites are met, a court may refuse to a continue hearing on a summary judgment motion where a party has had the opportunity to conduct discovery in a diligent fashion, but failed to do so. Adams, 187 F. Supp. 2d at 1213 (citing Stitt v. Williams, 919 F.2d 516, 526 (9th Cir. 1990)). In this case, Plaintiff has failed to demonstrate that she is entitled to a continuance pursuant to Rule 56(d). She had more than ample notice of the issues involved in this case, and, thus, ample notice of the discovery that needed to be conducted. On December 1, 2011, the CW Defendants in the Rule 26(f) Report stated that they intended to move for summary judgment on the grounds of prior creation, no access, and no substantial similarity. In response, Plaintiffs former counsel requested that the CW Defendants make an informal early disclosure of those documents establishing prior creation, which the CW Defendants did on February 10, 2012 by providing Plaintiff with metadata that would allow her to confirm that the prior creation documents were created before her Treatment. After this disclosure, Plaintiffs former counsel withdrew on March 20, 2012. Page 7 of 18
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Despite the CW Defendants clearly notifying Plaintiff of issues they intended to pursue in this case and providing her with significant informal discovery related to one of the potentially dispositive issues in the case, Plaintiff failed to diligently prosecute her case or conduct the necessary discovery to do so. In fact, while proceeding pro se, Plaintiff failed to produce documents as required, even after numerous letters demanded that she do so, and failed to appear for a long-scheduled deposition, claiming that she forgot. This lack of diligence continued when Plaintiffs current counsel entered the case on April 30, 2012. In fact, Plaintiffs new counsel did not propounded any additional discovery, and did not promptly evaluate the prior document production. Instead, on June 12, 2012, over a month after the CW Defendants sent their meet and confer letter on the motion for summary judgment and approximately six weeks after Plaintiffs new counsel first appeared, Plaintiff sent the CW Defendants a twenty-five page meet and confer letter initiating the Local Rule 37-1 meet and confer process relating to the CW Defendants previous document production.9 In addition, Plaintiff has served only one deposition subpoena, on Sandi Pepe, which she waited to serve until May 10, 2012, even though Sandi Pepe has been central to Plaintiffs theory of access since Plaintiff filed her complaint on July 27, 2011. Given the significant delay in attempting to serve Sandi Pepe with a deposition subpoena, the fact that Plaintiff was not able to secure the deposition of Sandi Pepe at an earlier time is not grounds for a continuance. See Landmark Dev. Corp. v. Chambers Corp., 752 F.2d 369, 372 (9th Cir. 1985) (denying Rule 56(f) where the [f]ailure to take further depositions apparently resulted largely from plaintiffs own delay).10 Finally, even if granted, Plaintiffs Rule 56(d) Request would not have any effect on the outcome of the CW Defendants Motion. The burden is on the party seeking additional discovery to proffer sufficient facts to show that the evidence sought exists, and that it would prevent summary judgment. Chance, 242 F.3d at 1161 & n.6. As discussed below, the CW Defendants have three independently sufficient grounds for summary judgment. The additional discovery Plaintiff seeks is relevant only to prior creation and access, and not to the issue of substantial similarity. Therefore, the additional discovery sought does not affect the Courts granting of summary judgment on substantial similarity. Furthermore, Plaintiff has failed to establish that additional discovery from Sandi Pepe, Palmer, or Grodner would defeat the CW Defendants uncontroverted evidence of prior creation. Plaintiffs only basis for seeking additional discovery are her attacks on the credibility of Palmer, Grodner, Kunkel, and Sandi Pepe, and her unfounded speculation that something must be missing. However,[t]he mere hope that further evidence may develop prior to trial is an insufficient basis for a continuance under Fed. R. Civ. P. 56(f). Contl Mar. of San Francisco, Inc. v. Pac. Coast Metal Trades Dist. Council, Metal Trades Dept., AFL-CIO, 817 F.2d 1391, 1395 (9th Cir. 1987). Finally, a desire to test declarants credibility is not The CW Defendants responded to Plaintiffs meet and confer letter within ten days, as requested by Plaintiff. On June 18, 2012, the CW Defendants filed this Motion, which they set for hearing on July 16, just two weeks before the July 30 motion cutoff. According to Plaintiffs Ex Parte Application to Extend Discovery Cut-Off from July 9 to August 28, 2012 [filed 7/10/12; Docket No. 99], Plaintiff deposed Sandi Pepe as scheduled on June 28, 2012, and obtained documents from her around that date. Page 8 of 18
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sufficient grounds for a continuance. Id. (denying continuance to depose witnesses who had already provided affidavits based on the hope that evidence to contradict the affidavits would transpire at deposition). B. The CW Defendants Are Entitled to Summary Judgment on Plaintiffs Copyright Infringement Claim.

With respect to Plaintiffs first claim for relief for direct copyright infringement, the CW Defendants have moved for summary judgment on the grounds that, as a matter of law, the CW Defendants created Plain Jane before Plaintiff created her Treatment, and even if Plaintiff had created her Treatment before the CW Defendants created Plain Jane, Plaintiff cannot establish that the CW Defendants had access to her Treatment or that Plain Jane is substantially similar to her Treatment. 1. Standard for Demonstrating Copyright Infringement

To prove copyright infringement, Plaintiff must prove (1) ownership of a valid copyright in her Treatment11, and (2) that the CW Defendants copied elements of Plaintiffs Treatment protected by that copyright. See, e.g., Pasillas v. McDonalds Corp., 927 F.2d 440, 442 (9th Cir. 1991). Because direct evidence of copying is rarely available and copying can therefore be difficult to prove, Plaintiff may establish copying by showing (1) circumstantial evidence of access to the protected work and (2) substantial similarity of ideas and expression between the copyrighted work and the allegedly infringing work. Jason v. Fonda, 526 F. Supp. 774, 776 (C.D. Cal. 1981), affd, 698 F.2d 966 (9th Cir. 1982) citing Sid & Marty Krofft Television Productions, Inc. v. McDonalds Corp., 562 F.2d 1157, 1162 (9th Cir. 1977). Proof of access requires an opportunity to view or to copy plaintiffs work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) quoting Sid & Marty Krofft, 562 F.2d at 1172. Opportunity has been defined as a reasonable possibility that the CW Defendants viewed Plaintiffs Treatment. Jason, 526 F. Supp. at 776-77. [A] bare possibility is insufficient to create a genuine issue of whether defendants copied [a] plaintiffs work. Id. at 777. In this case, because there is no direct evidence that the CW Defendants had access to her Treatment when they created Plain Jane, Plaintiff must rely on circumstantial evidence. Circumstantial evidence of reasonable access is proven in one of two ways: (1) a particular chain of events is established between the plaintiffs work and the defendants access to that work (such as through deals with a publisher or record company), or (2) the plaintiffs work has been widely disseminated. Three Boys Music, 212 F.3d at 482. In addition, even if Plaintiff can demonstrate that the CW Defendants had access to her Treatment, she must also demonstrate that her Treatment and Plain Jane are substantially similar to prove copying. See Three Boys Music, 212 F.3d at 481. Substantial similarity refers to similarity of expression, not merely similarity of ideas or concepts. Dr. Seuss Enterprises, L.P. v.

For the purposes of this Motion, the CW Defendants do not contest that Plaintiff has a valid copyright in her Treatment. Therefore, for purposes of deciding this Motion, the Court will assume that Plaintiff has a valid copyright in her Treatment. Page 9 of 18
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Penguin Books USA, Inc., 109 F.3d 1394, 1398 (9th Cir. 1997). Only protected expression is relevant for purposes of assessing substantial similarity. See Shaw v. Lindheim, 919 F.2d 1353, 1361 (9th Cir. 1990); see also Smart Inventions, Inc. v. Allied Communications Corp., 94 F. Supp. 2d 1060, 1066 (C.D. Cal. 2000) (It is an axiom of copyright law that ideas are not protected.). [T]he party claiming infringement may place no reliance upon any similarity in expression resulting from unprotectable elements. Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994) (quoting Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir. 1987)) (emphasis in original). To determine whether two works are substantially similar, the Ninth Circuit employs a twopart analysis - an extrinsic and an intrinsic test.12 The extrinsic test is an objective comparison of specific expressive elements which focuses on articulable similarities between the two works. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002) (quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)). The intrinsic test is a subjective test that focuses on whether the ordinary, reasonable audience would recognize the [Defendants] work as a dramatization or picturization of the [P]laintiffs work. Kouf, 16 F.3d at 1045 (internal quotations omitted). For summary judgment, only the extrinsic test is important. Id. [A] plaintiff who cannot satisfy the extrinsic test necessarily loses on summary judgment, because a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests. Id. The Court recognizes that summary judgment is not favored on questions of substantial similarity in copyright cases. See e.g., Shaw, 919 F.2d at 1355. Summary judgment is only appropriate if no reasonable juror could find substantial similarity of ideas and expression, viewing the evidence in the light most favorable to the nonmoving party. Kouf, 16 F.3d at 1045; see also Pasillas, 927 F.2d at 442 (Our circuit has expressed a certain disfavor for summary judgment on questions of substantial similarity, but it is nevertheless appropriate to grant summary judgment if, considering the evidence and drawing all inferences from it in the light most favorable to the nonmoving party, no reasonable jury could find that the works are substantially similar in idea and expression.). Although summary judgment is generally disfavored on the question of substantial similarity, summary judgment is proper when the Court determines that the similarity between works is insubstantial as a matter of law. Jason, 526 F. Supp. at 777. Indeed, the Ninth Circuit has frequently . . . affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity. Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989). The Ninth Circuit has also identified a process to be followed by the Court in applying the extrinsic test to the works at issue in the case. First, it is Plaintiffs burden to identify the sources of

[O]riginally . . . the extrinsic prong was a test of similarity of ideas based on external criteria; analytic dissection and expert testimony could be used, if helpful. The intrinsic prong was a test for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance. As it has evolved, however, the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively. Apple Computer, 35 F.3d at 1442. Because the criteria incorporated into the extrinsic test encompasses all objective manifestations of creativity, the two tests 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. Page 10 of 18
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the alleged similarity between her Treatment and Plain Jane. See Apple Computer, 35 F.3d at 1443; see also Three Boys Music, 212 F.3d at 485. Once Plaintiff has identified the alleged similarities, [u]sing analytic dissection, and, if necessary, expert testimony, the court must determine whether any of the allegedly similar features are protected by copyright. See Apple Computer, 35 F.3d at 1443 (emphasis added). The typical objective features to be compared when dissecting literary or dramatic works include plot, theme, dialogue, mood, pace, setting, characters, and sequence of events. See, e.g., Kouf, 16 F.3d at 1045. However, these features may vary depending on the type of works at issue, and may not be applicable in every case. See id.; see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1177-78 (C.D. Cal. 2001). In comparing these features, the Court must first filter out any unprotectable elements. See, e.g., Apple Computer, 35 F.3d at 1443; see also Mattel, Inc. v. MGA Entertainment, Inc., 616 F.3d 904, 913 (9th Cir. 2010) (When the unprotectable elements are filtered out, whats left is an authors particular expression of an idea, which most definitely is protectable) (emphasis in the original). Among the unprotectable elements which the court must filter out of its comparison of a copyrighted work and an allegedly infringing work are: ideas, as distinguished from the expression of those ideas; facts, historical events, or other information over which no individual is entitled to claim a monopoly . . .; elements borrowed from another author or from the public domain; instances in which a particular expression at issue merges with the idea being expressed; and/or a similar instance in which the form of the expression is so standard in the treatment of a given idea that it constitutes a scenes a faire, or a scene which must be done. Idema, 162 F. Supp. 2d at 1176-77 (internal citations omitted). 2. Application of the Copyright Standard to this Case. a. Plain Jane Was Created before Plaintiffs Treatment.

Where a defendants work is created before a plaintiffs work, no infringement is possible. Christian v. Mattel, Inc., 286 F. 3d 1118, 1128 (9th Cir. 2002) (By simple logic, it is impossible to copy something that does not exist.); 4 M.B. Nimmer & D. Nimmer, Nimmer on Copyright, 13.02[A] (2011) (Of course, where plaintiffs dissemination occurs only after defendants work has already been created, then access is not established.). Thus, when the undisputed facts demonstrate the defendants work was created before the plaintiffs work, defendant is entitled to summary judgment. See, e.g., Scott-Blanton v. Universal City Studios Productions LLLP, 539 F. Supp. 2d 191, 197-200 (D. D.C. 2008), affd 308 Fed. Appx 452 (D.C. Cir. 2009). In this case, Palmer first conceptualized and began to develop Plain Jane in February 2009, which is nine months before Plaintiff submitted her Treatment to Sandi Pepe. By May 2009, Palmer began preparing written outlines, which contained detailed plans for Plain Jane. On November 5, 2009, Plain Jane was successfully pitched to Sony. On the afternoon of November 10, at 1:14 p.m. hours before Plaintiff sent her Treatment to Ms. Pepe Panaligan, on behalf of FOTW, sent Sony the pitch deck for Plain Jane. It is undisputed that by November 10, 2009, at 1:14 p.m., the CW Defendants had created the written outlines and pitch deck, which contained all the material elements of the show as ultimately broadcast, including: (1) the title Plain Jane; (2) an opening with a video diary establishing Janes back story and history with her crush; (3) the premise of making over a plainlooking womans outer appearance, as well as her inner attitude toward life and men; (4) the Page 11 of 18
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format of a makeover show that would transform Janes style and build her confidence, in preparation to for a date with a secret crush; (5) Roe as a hostess who was envisioned as a fairy godmother and who would guide Jane through her transformation; (6) the conception of the Janes as women who are single, and consider themselves forgettable, and who may be insecure, shy or just plain bad at talking to guys; (7) the notion of dating experts, stylists, and hair and makeup experts who would coach the Janes; (8) non-intrusive, inexpensive makeovers that take place over 48 hours; (9) scenarios such as School Girl Crush, and Best Friends; (10) a confidence building exercise such as performing karaoke in front of a crowd, giving a toast at a wedding, or hosting a party; (11) physical transformation plus confidence building; (12) a dramatic focal point when Jane would be revealed to her secret crush; (13) use of the concepts of flowers and butterflies to illustrate Janes transformation. Plaintiffs copyright infringement claims are based on her contention that these elements were copied from her Treatment. However, because these elements were conceived by the CW Defendants before Plaintiff sent her Treatment to Sandi Pepe, Plaintiffs copyright infringement claim is precluded by the CW Defendants prior creation. Christian v. Mattel, Inc., 286 F. 3d at 1128. Accordingly, the CW Defendants Motion is GRANTED with respect to Plaintiffs first claim for relief for direct copyright infringement. b. Plaintiff Cannot Demonstrate That The CW Defendants Had Access to Her Treatment.

Even assuming that the CW Defendants had not created Plain Jane before Plaintiff created her Treatment, the CW Defendants would still be entitled to summary judgment because Plaintiff has failed to produce any evidence that the CW Defendants had access to her Treatment. Plaintiff does not allege that the Treatment was widely disseminated, but argues that the CW Defendants somehow gained access to her Treatment as a result of her email submission to Sandi Pepe. Although the evidence is undisputed that Plaintiff only provided her Treatment to the Pepes, Plaintiff then proceeds to speculate based on the Pepes access and their contacts in the entertainment industry that the CW Defendants must have gained access to her Treatment through the Pepes. Specifically, Plaintiff argues that because of those contacts they could have or may have transmitted [Plaintiffs] reality show treatment to those unidentified contacts who may have then shared it with the CW Defendants.13 Claims of access through a chain of events require a nexus between the defendant and the

For example, Plaintiff states that Ms. Allison Grodner has shows on CBS and VHI [sic]. Therefore both Mrs. Pepe and Ms. Grodner had connections to executives in the entertainment industry who are involved with producing reality television. However, although it is undisputed that Grodner has shows on CBS and VH1, there is no evidence that she received or provided Plaintiffs Treatment to anyone. Plaintiff also concludes that Mrs. Pepe had connections in the reality show realm to whom she could have passed Ms. Tedescos treatment because Mrs. Pepe recently catered a Bravo event in December 2011. However, once again, although it is undisputed that Sandi Pepe catered a Bravo event in December 2011, there is no evidence that she provided Plaintiffs Treatment to anyone while at that event. In addition, Plaintiff speculates without any factual basis that Peter Pepe also had connections in the entertainment industry to whom he may have passed Ms. Tedescos treatment. Page 12 of 18
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individual possessing knowledge of the plaintiffs work or an intermediary. Meta-Film Assocs., Inc. v. MCA, Inc., 586 F. Supp. 1346, 1355 (C.D. Cal 1984). The intermediary must have been either (1) a supervisor with responsibility for the defendants project; (2) a part of the same work unit as the copier; or (3) someone who contributed creative ideas or material to the defendants work. Id. at 1355-56. [A]t minimum, the dealing between the plaintiff and the intermediary and between the intermediary and the alleged copier must involve some overlap in subject matter to permit an inference of access. Id. at 1358. For example, in Meta-Film, a plaintiffs submission of his script to a director who maintained an office at a studio with which he was under contract failed to create a genuine issue that the studio had access to the script when it produced an allegedly infringing film. Id. at 1357-58; see also Merrill v. Paramount Pictures Corp., 2005 WL 3955653 at *1, 8-9 (C.D. Cal. Dec. 19, 2005) (granting summary judgment for defendants where plaintiff failed to provide any documentary evidence that he had mailed his script to the defendants, or to any person associated with defendants, before the defendants created a treatment for the allegedly infringing work). In this case, Plaintiff has failed to demonstrate the existence of any nexus or connection between the Pepes and the creators or producers of Plain Jane, much less one that is sufficient to demonstrate that the CW Defendants had access to Plaintiffs Treatment. Accordingly, the CW Defendants Motion is GRANTED with respect to Plaintiffs first claim for relief for direct copyright infringement. c. There is a Lack of Substantial Similarity Between Plaintiffs Treatment and Plain Jane.

Even if Plaintiff was able to demonstrate that the CW Defendants had access to her Treatment, Plaintiff would also have to demonstrate that her Treatment and Plain Jane were substantially similar to prove copying. In applying the extrinsic test of the substantial similarity analysis, Plaintiff must identify the sources of the alleged similarity between her Treatment and Plain Jane. In this case, Plaintiff identifies and argues that three distinct elements demonstrate that Plain Jane is substantially similar to her Treatment. Specifically, Plaintiff claims that: (1) both works are aimed at transforming the makeover subject into a sexy goddess; (2) both works have experts or guest experts on confidence building, dating, and flirting; and (3) both works are romantic. However, as the CW Defendants point out, none of these three elements are protectable by copyright, but, instead are largely conceptual and describe[ ] what [are] essentially ideas or scene a faire. Milano v. NBC Universal, Inc., 584 F.Supp. 2d 1288, 1295 (C.D. Cal. 2008) (comparing the plaintiffs treatment for reality television program From Fat to Phat with defendants reality television series The Biggest Loser). For example, other makeover shows, such as The Swan, A Makeover Story, How Do I Look, Ambush Makeover, Makeover Train, Extreme Makeover, and The Biggest Loser, among many others, contain some or all of these three elements.14 In fact, Plaintiffs Treatment states that her premise is based on two pre-existing makeover shows, Queer Eye for the Straight Guy and What Not to Wear. Plaintiffs arrangement of these three unprotectable elements is also not entitled to copyright protection. [A] combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original

14

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enough that their combination constitutes an original work of authorship. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003). In this case, the Court concludes that Plaintiff simply arranged a variety of standard, stock, and common makeover reality program elements in a predictable and standard sequence. See, e.g., Milano, 584 F.Supp. 2d at 1296 (comparing the treatment for a weight loss reality show and the variety of other weight loss reality shows already in the public domain, and finding that the plaintiff simply cannot succeed in this case by claiming a copyright in the idea of a television show based on a weight loss competition.). Furthermore, even if these three elements were entitled to copyright protection, the application of the extrinsic test establishes the lack of concrete and articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.15 Milano, 584 F.Supp. 2d at 1296 (quoting Rice v. Fox Broadcasting, 330 F.3d 1170, 1174 (9th Cir. 2003) (quoting Kouf , 16 F.3d at 1045)). With respect to plot, as the court in Milano found, a treatment for a reality television program describes no plot as that term is normally used. Rather, it outlines a contest structure which, as noted, is not original and therefore not protectable. The plot . . . (as in all reality programming) essentially develop[s] extemporaneously as the viewer observes what happens when the contestants live out the experience in front of omnipresent cameras. Milano, 584 F.Supp. 2d at 1296. The same is true for Plaintiffs Treatment, which does not describe a plot as that term is normally used, but simply outline a makeover reality television structure that is not original or protectable.16 Moreover, even the plot described in Plaintiffs Treatment varies dramatically from the plot of Plain Jane. Each episode of Plain Jane tells the story of a young woman in her early twenties who seeks help from a stylist in a quest to improve her looks and gain enough confidence to reveal her true feelings to her Crush. Thus, the key elements of Plain Jane are the young womans romantic feelings for her Crush and the blind date. In contrast, Plaintiffs Treatment proposes a series that would tell With respect to dialogue, Plaintiff concedes that because both her Treatment and Plain Jane are unscripted reality television programs, dialogue is not a relevant element. Id. It is also undisputed that there is no substantial similarity with respect to setting. See, e.g., Milano, 584 F. Supp. 2d at 1297 (no substantial similarity even though settings of reality shows both [were] elegant, both contain[ed] fitness equipment and comfortable accommodations, [and] both offer[ed] outdoor exercise at the front door); Zella v. E.W. Scripps, 529 F. Supp. 2d 1124, 1137 (C.D. Cal. 2007) (contrasting works where one took place in a celebritys home and the other took place in front of a live studio audience). The fact that the works share the words Plain Jane in their titles does not make them substantially similar. See Pelt v. CBS, Inc., 1993 WL 659605 (C.D. Cal. Oct. 29, 1993) (holding that talk-shows about race-relations whose titles both included Listen Up were not substantially similar because such titles and short phrases are not copyrightable). In addition, the terms Plain Jane is a common expression that has been in use for many years, including in the title of books and motion pictures, and, thus, cannot be copyrighted. See Rice, 330 F.3d at 1175 (holding that the merger doctrine prevents common ideas from being copyrighted because otherwise, the first to come up with an idea will corner the market.); see also Random House Websters Unabridged Dictionary 1479 (2d ed. 2001) (defining Plain Jane as a drab, unattractive, and generally uninteresting girl or woman or simple and modest; unadorned; basic). Page 14 of 18
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stories about women of varying ages who would be ambushed by their friends, family members, and the actress or model host of the show. The series proposed in Plaintiffs Treatment would focus on the quest to bring out the [P]layboy bunny hidden inside the woman. Although the series would sometimes involve a secret crush attending a reveal party at the end of the show, it would also involve married women and women with children, and would build toward a party filled with people eager to see how sexy the shows protagonist now looks. Thus, even the uncopyrightable abstract plots of the works differ markedly. Milano, 584 F.Supp. 2d 1291-93, 1296 (describing two reality shows about contestants who go on television to lose large amounts of weight). As to the sequence of events, both works involve the introduction of a plain-looking woman, followed by makeovers conducted by experts, and then an unveiling of the womans new look. This sequence of events is an unprotected idea and a scene a faire that is shared by all makeover reality television programs, including Queer Eye for the Straight Guy and What Not to Wear, upon which Plaintiff based her Treatment. See Rice, 330 F.3d at 1177 (holding that there is no substantial similarity where both works involved a magician performing an illusion as if it were a normal performance, but then reperforming the same illusion and explaining to the audience how it was done because the sequencing of first performing the trick and then revealing the secrets behind the trick is subject to the limiting doctrines of merger and scenes a faire); Zella, 529 F. Supp. 2d at 1135 (holding that there was no substantial similarity in sequence of events where only similarities were related to sequencing of commonplace elements). In addition, as discussed above with respect to plots, most of the scenes in Plain Jane and Plaintiffs Treatment are quite different in that the Plain Jane scenes focus on the subjects preparation for and meeting with her Crush and Plaintiffs Treatments focus on a reveal party or event for the subjects friends and family. See, e.g., Zella, 529 F.Supp. 2d at 1135 (holding that there was no substantial similarity in sequence of events where only similarities related to sequencing of commonplace elements). Thus, there is no substantial similarity as to the sequence of events in Plaintiffs Treatment and Plain Jane. With respect to characters, Plaintiffs Treatment contains what might be called stock characters or types, but nothing beyond that, such as hosts; fashion, hair, and make-up experts; friends and family members, and crushes, which are not protectable by copyright. Milano, 584 F.Supp. 2d at 1296; see also Rodriguez v. Heidi Klum Co. LLC, 2008 WL 4449416 (S.D.N.Y. Sept. 30, 2008) (holding that fashion industry experts, professional models, hairstylists, [and] make-up artists all necessarily flow from the uncopyrightable idea of a fashion design reality show). In addition, Plaintiffs Treatment has no protectable characters because character is developed entirely through the dynamic interaction of the contestants over the course of the program. Milano, 584 F. Supp. 2d at 1296-97 (discussing treatment and holding that contestants personal stories will make up an important part of the program). In fact, Plaintiffs Treatment clearly provides that the woman being made over will differ in personality and personal style from episode to episode. Moreover, even if Plaintiffs Treatment contained protected characters, the characters in Plain Jane differ significantly from those in Plaintiffs Treatment. For example, Plain Jane was hosted by Roe, who is a British television personality, stylist and fashion reporter, while the hosts suggested in Plaintiffs Treatment were Jenny McCarthy and Carmen Electra, two American actresses and former Playboy models, who undoubtably were selected to compliment the sexy goddess, [P]layboy bunny, and HOT image of the candidates. Furthermore, the female experts in Plaintiffs Treatment have Page 15 of 18
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recurring roles from week-to-week and collaborate extensively with the host at the outset of each episode while almost all of the varying (and sometimes male) experts in Plain Jane appear only in the middle part of each episode. In addition, the crush in Plain Jane is a central character in each episode, provides commentary on his own mixed feelings about the blind date, interacts with the subject during a romantic date, and appears in still together pictures at the end of the show, while Plaintiffs Treatment only refers to secret crushes who might be present at the end of some episodes to assess or evaluate the subjects sexy makeover instead of pursuing a relationship with the subject. These significant differences overwhelm any abstract similarities between the character types in the two works, and, thus, there is no substantial similarity between any protectable character elements in Plaintiffs Treatment and Plain Jane. See Funky Films, Inc. v. Time Warner Entertainment Co., L.P., 462 F.3d 1072, 1078-79 (9th Cir. 2006) (distinguishing two prodigal son characters because of their differences); Zella, 529 F. Supp. 2d at 1137 (distinguishing hosts of cooking shows because one cooked ineptly while the other add[ed] her skills and work[ed] alongside the celebrity chef). As to pace, while both works have a similar pace in the sense that the makeover of a subject is completed in each episode, the speed, or pace, at which those makeovers take place is entirely different. Plaintiffs Treatment describes a fast-paced thirty minute show that follows the makeover subject for twenty-four hours, while each episode of Plain Jane is sixty minutes and follows the makeover subject for forty-eight hours before her blind date with her crush. In addition, while each episode of Plain Jane flashes forward in time to a month or more after the blind date, Plaintiffs Treatment does not look forward in time to show how the makeover subjects life has changed. Thus, Plain Jane has a more leisurely pace when compared to the more rapid pace of the series proposed in Plaintiffs Treatment, and, therefore, there is no substantial similarity with respect to pace. See Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620, 628 (9th Cir. 2010) (contrasting fast pace of plaintiffs work with the more nostalgic and reflective pace of defendants work, which included leisurely sequences); Pino v. Viacom, Inc., 2008 WL 704386 (D.N.J. Mar. 4, 2008) (contrasting reality show where events in sports competitions occurred without pause with show where athletic activities occur[ed] at a slower pace). With respect to mood or emotional tone, Plaintiffs Treatment does not describe anything beyond the standard and stock makeover reality television program, which are uncopyrightable scenes a faire. See, e.g., Rice, 330 F.3d at 1177 (mood of secrecy and mystery merged with concept for show about a magician); Zella, 529 F. Supp. 2d at 1136 (The upbeat mood flowing from a cooking/talk-show is merely another example of scenes a faire and merger, common to all cooking/talk shows .). In addition, it would be almost impossible for Plain Jane to have a substantially similar tone as the series described in Plaintiffs Treatment because, with respect to both works, the tone of each episode would be dictated at least in part by the emotional state of the subject. Moreover, there are some key differences in the mood of the two works. In Plain Jane, although the subjects physical appearance is a topic of the show, each episode focuses on the subjects feelings for her crush and builds toward an emotional blind date in a romantic atmosphere where the subject reveals her feelings for her crush, along with her new look. In contrast, Plaintiffs Treatment focuses entirely on the subjects sexy makeover, and her personality and feelings are simply included as secondary elements. The two works also differ in that the subjects appearing on Plain Jane ask to be coached by Roe, while the subjects in Plaintiffs Treatment are ambushed by their family and friends. Capcom Co., Ltd. v. MKR Group, Inc., 2008 WL 4661479 (N.D. Cal. Oct. 20, 2008) (holding that characters motivations impact the mood). Thus, to the extent that there are protectable elements with respect to mood, there is no substantial similarity between Plaintiffs Treatment and Plain Jane. Page 16 of 18
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As to theme, Plaintiffs Treatment, like Plain Jane, explores themes of confidence building, empowerment, inner beauty, and transformation. However, as discussed above, these are universal themes that are unprotectable ideas. See, e.g. Milano, 584 F.Supp. 2d at 1296 (finding that themes of competition, weight loss, diets, fitness programs, and the like are unprotectable ideas); Benay, 607 F.3d at 627 (holding that although both works explore[d] general themes of the embittered war veteran, the fish-out-of-water, and the clash between modernization and traditions, there was no substantial similarity because themes arose naturally from the premise of an American war veteran who travels to Japan to fight the samurai); Gable v. Natl Broad. Co., 727 F. Supp. 2d at 838. (The ideas of righting past wrongs and good things happening to good people are general storylines that have been around for thousands of years. These ideas, standing alone, are not protectable.). In addition, Plaintiffs Treatment emphasizes the theme of encouraging the subject to release her inner [P]layboy bunny, while Plain Jane emphasizes the theme of love and romance through the use of the subjects crush. Thus, to the extent there are any protectable thematic elements in Plaintiffs Treatment, they are not substantially similar to the thematic elements of Plain Jane. Thus, although Plain Jane contains similarities to Plaintiffs Treatment, those similarities are in elements that are not protectable. In addition, with respect to any of the elements in Plaintiffs Treatment that are entitled to copyright protection, there is a lack of concrete and articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in Plaintiffs Treatment and Plain Jane. After considering the evidence and drawing all inferences in the light most favorable to Plaintiff, the Court concludes that no reasonable jury could find that the works are substantially similar in ideas and expression. Accordingly, the Court GRANTS the CW Defendants Motion as to Plaintiffs first claim for relief for direct copyright infringement. C. Plaintiffs Remaining Claims Must Fail.

Plaintiff does not dispute that if she cannot maintain her direct copyright infringement claim against the CW Defendants that her second claim for relief for contributory copyright infringement, which is based on the same alleged facts and the same purported acts of infringement, also fails. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (One infringes contributorily by intentionally inducing or encouraging direct infringement). In addition, Plaintiff has failed to demonstrate that the CW Defendants intentionally induced either each other or a third party to infringe Plaintiffs copyright in her Treatment, which is required to establish liability for contributory copyright infringement. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1170-71 (9th Cir. 2007). In her Opposition, Plaintiff also concedes that she cannot prevail on her third claim for relief for unfair competition (passing off), fourth claim for relief for unfair competition (misappropriation), and sixth claim for relief violation of Californias unfair competition law. Opposition, 19:17-20; see also Scott-Blanton v. Universal City Studios Prods. LLLP, 539 F.Supp. 2d 191, 205 (D.D.C. 2008) (The court agrees with the defendants assertion that the plaintiffs claims are premised on the very same conduct that gives rise to (and thus purely derivative of) her claims under copyright law. . . . [I]n light of the plaintiffs inability to establish that the defendants copied her work, the plaintiffs claim under the Lanham Act must fail); Bisson-Dath v. Sony Computer Entertainment America, Inc., 694 F.Supp. 2d 1071 (N.D. Cal. 2010) (dismissing Section 17200 claim because it was related to failed copyright infringement claim). Page 17 of 18
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Accordingly, the Court GRANTS the CW Defendants Motion as to Plaintiffs second claim for relief for contributory copyright infringement, third claim for relief for unfair competition (passing off), fourth claim for relief for unfair competition (misappropriation), and sixth claim for relief violation of Californias unfair competition law. IV. Conclusion For all the foregoing reasons, the CW Defendants Motion is GRANTED. IT IS SO ORDERED.

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