Patrice Edwards v. Cinelou Films , 696 F. App'x 270 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICE EDWARDS, No. 16-56043
Plaintiff-Appellant, D.C. No. 2:16-cv-01014-ODW-
AGR
v.
CINELOU FILMS; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, II, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Patrice Edwards appeals pro se from the district court’s judgment dismissing
her copyright action. We have 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.
*
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). Edwards’s request for oral
argument, set forth in her opening brief, is denied.
The district court properly dismissed Edwards’s copyright infringement
action because, as a matter of law, Edwards’s works titled “Witch” and defendants’
film The Last Witch Hunter are not substantially similar under the extrinsic test.
See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010) (setting
forth the extrinsic test to assess substantial similarity between specific expressive
elements of copyrighted works, such as plot, sequence of events, themes, mood,
setting, pace, and characters); Funky Films, Inc. v. Time Warner Entm’t Co., 462
F.3d 1072, 1076-78 (9th Cir. 2006) (substantial similarity may be decided as a
matter of law by applying the extrinsic test).
We do not consider matters not properly raised before the district court.
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Defendants’ request for judicial notice (Docket Entry No. 13) is denied.
AFFIRMED.
2 16-56043