CONSTANTINO BASILE V. TWENTIETH CENTURY FOX FILM, No. 14-56423 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION FEB 27 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT CONSTANTINO BASILE, Plaintiff-Appellant, U.S. COURT OF APPEALS No. 14-56423 D.C. No. 2:14-cv-04263-DMGJPR v. TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation; et al., MEMORANDUM* 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. 3

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