Jennie Nicassio v. Viacom International Inc

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-2085
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JENNIE NICASSIO,
Appellant
v.
VIACOM INTERNATIONAL, INC.;
PENGUIN RANDOM HOUSE LLC
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-17-cv-00805)
Honorable Nora B. Fischer, District Judge
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Submitted under Third Circuit L.A.R. 34.1(a)
February 13, 2019
BEFORE: HARDIMAN, SCIRICA, and COWEN, Circuit Judges
(Filed: July 2, 2019)
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OPINION*
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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.
Jennie Nicassio appeals from the order of the United States District Court for the
Western District of Pennsylvania granting the motion to dismiss for failure to state a
claim filed by Viacom International, Inc. (“Viacom”) and Penguin Random House LLC
(“Penguin”). We will affirm.
I.
Nicassio is the author of an illustrated children’s book entitled Rocky: The
Rockefeller Christmas Tree (“Rocky”). She copyrighted this work, “which is the story of
a young Christmas tree that dreams of becoming the Rockefeller Center Christmas tree in
New York City.” Nicassio v. Viacom Int’l, Inc., 309 F. Supp. 3d 381, 385 (W.D. Pa.
2018) (citing A1, A3). Penguin subsequently published Albert: The Little Tree with Big
Dreams (“Albert”). “Nicassio claims that Albert mirrors the story of Rocky, as it too
‘tells the tale of a young Christmas tree that wishes to one-day stand in a big city’ and
otherwise ‘contains substantial material copied from’ Rocky.” Id. (quoting A5). Viacom
released an animated version of Albert, which allegedly also contains substantial copied
material.
Nicassio filed this action against Viacom and Penguin (collectively “Appellees”).
She asserted, inter alia, claims of copyright infringement, and Appellees filed a joint
motion to dismiss. The District Court granted their motion and dismissed Nicassio’s
complaint with prejudice.
The District Court considered at some length the “dispositive issue” of “whether
there are ‘substantial similarities’ between Rocky and Albert.” Id. at 387-88 (citing Dam
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Things from Denmark v. Russ Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002)). It
recognized that an author can protect only the expression of an idea—and not the idea
itself. Under the scènes à faire doctrine, situations and incidents that naturally (and not
just necessarily) flow from the basic plot premise also are not protected. After
summarizing the respective works and examining their purported similarities and
differences, the District Court determined that Rocky and Albert are not substantially
similar as a matter of law:
Regardless of whether the basic plot idea of a little tree aspiring to
be the Rockefeller Christmas Tree in New York is “commonplace,” it is far
too generic to be considered protectable under copyright law. [Tanikumi v.
Walt Disney Co., 616 F. App’x 515, 521 (3d Cir. 2015)] (generic plot and
theme ideas are not protectable). Nor are the themes of perseverance,
adversity, or encouragement in a children’s story protectable. See, e.g.
[Cavalier v. Random House, Inc., 297 F.3d 815, 828 (9th Cir. 2002)] (“The
themes of teaching children to have confidence, to overcome their fears,
and to try are . . . too general to be protected.”). As such, Nicassio cannot
circumvent dismissal by conjuring up a host of hypothetical ways that
Defendants could have told Albert differently, such as by using other
characters, themes, or expressions. ([A161-A164]). This tactic ignores the
fundamental rule that not all copying is copyright infringement, Feist Pub.,
Inc. v. Rural Tel. Svc. Co., [499 U.S. 340, 361 (1991)], and “fails to
address the underlying issue: whether a lay observer would consider the
works as a whole substantially similar to one another.’” [Williams v.
Crichton, 84 F.3d 581, 590 (2d Cir. 1996)].
Id. at 393 (footnote omitted). While acknowledging that both works share the same basic
story concept and theme (i.e., that anything can be accomplished with perseverance and
positive thinking), the District Court pointed out that Albert explores other themes
(including the importance of family, empathy, and forgiveness) by using different plot
twists, sequences and expressions. Likewise, the District Court observed that the
respective characters are not substantially similar.
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In the end, the District Court explained that, despite some similarities, Nicassio
failed to state a claim for copyright infringement against Appellees:
The Court acknowledges some similarity between the works as
identified by Nicassio, including, most notably their use of the phrase: “the
most famous Christmas tree in the world,” and having the trees displayed
before a large crowd in a setting resembling Rockefeller Center in New
York City. ([A5-A6, A8]). Nevertheless, these similarities are, at most, a
“random scattershot” of various aspects of the works which “would be
expected when two works express the same idea or explore the same
theme.” Williams, 84 F.3d at 590; [Kay Berry, Inc. v. Taylor Gifts, Inc.,
421 F.3d 199, 208 (3d Cir. 2005)]. Even if, as Nicassio insists, the
identified similarities are not “indispensable” to conveying this basic
theme, the works’ “total concept and overall feel . . . as instructed by good
eyes and common sense” would not lead a lay observer to conclude that
Defendants’ alleged copying, if proven, was of protectable aspects of
Rocky. [Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d
57, 66 (2d Cir. 2010)]; Dam Things, 290 F.3d at 562; see also Williams, 84
F.3d at 589 (explaining that consideration of the works’ total concept and
feel is especially appropriate when comparing children’s works, which are
“often less complex than those aimed at an adult audience”); Cavalier, 297
F.3d at 824 (“[T]he 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 . . . [is] not protected by copyright law.”). As in
Tanikumi, “[w]hile there are indeed certain similarities between the works,
they concern prototypical settings, plots, and characters too indistinct to
merit copyright protection.” Tanikumi, 616 F. App’x at 521.
Id. at 394-95.
II.
Nicassio presents a large number of arguments in this appeal.1 She specifically
identifies six issues in his appellate brief, initially arguing that the District Court ignored
1
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1338, and we have appellate jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of a motion to dismiss. See, e.g., Tanksley
v. Daniels, 902 F.3d 165, 171 (3d Cir. 2018), cert. denied, 2019 WL 659816 (U.S. Feb.
19, 2019).
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the dictionary definition of “generic” and erroneously defined “generic plot” as any
simple plot. She also challenges its holding that plot elements naturally flowing from a
generic plot are unprotectable under the scènes à faire doctrine. The District Court also
purportedly erred by excusing copying by considering material added by the accused
infringer; failed to consider the sequence, settings, and dramatic significance of the
copied parts “in assessing the plausibility of an improper taking from the viewpoint of a
lay reader”; and “erred by not identifying either a genre for the original work or generic
plot elements, as a first step to determine whether a particular element is a scènes à faire,
and then compounding this error by failing to consider whether a lay observer might
plausibly find the copying unfair.” (Appellant’s Brief at 2.) Finally, Nicassio contends
that the District Court failed “to give a rationale defining the line between idea and
expression, and [failed] to define that line.” (Id.) In her reply brief, she asserts that
Appellees use a chain of legal errors consisting of the following:
. . . . 1) redefining the term “generic” to mean simple; 2) expanding the
definition of scènes à faire to encompass any plot element which might be
said to naturally follow from its simple formulation of the original plot; 3)
ignoring the totality of the copying of the original children’s novel [Rocky];
4) focusing the court instead on irrelevant subject matter which it added to
the copied parts of [Albert]; 5) avoiding any consideration of the dramatic
equivalence of substituted plot elements; 6) ignoring the sequence of the
parallel plot elements in both stories; 7) essentially ignoring the plausibility
standard of FRCP 12; and 8) avoiding the inescapable question of fact
respecting fairness without even advancing a position on whether
reasonable persons might differ with the conclusion which it urges.
(Appellant’s Reply Brief at 1.)
However, the District Court properly applied the governing Rule 12(b)(6)
standards as well as the principles governing claims of copyright infringement. We agree
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with the District Court that Rocky and Albert are not substantially similar as a matter of
law.
It is undisputed that the “substantial similarity” requirement implicates a factual
inquiry. Furthermore, the District Court appropriately recognized that the complaint
must be viewed in the light most favorable to the plaintiff and that it must decide whether
the well-pleaded factual allegations plausibly give rise to an entitlement to relief. See,
e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016); Eid v. Thompson,
740 F.3d 118, 122 (3d Cir. 2014). We recently upheld a Rule 12(b)(6) dismissal
premised on the absence of substantial similarity. See Tanksley, 902 F.3d at 168-77.
“[C]ourts have justified consideration of substantial similarity at the pleading stage by
noting that ‘no discovery or fact-finding is typically necessary.’” Id. at 172 (quoting
Peter F. Gaito, 602 F.3d at 64). Instead, all that is needed is a visual comparison of the
respective works. See, e.g., id. “[W]here no reasonable juror could find substantial
similarity, justice is best served by putting a ‘swift end to meritless litigation.’” Id.
(quoting Hoehling v. Universal City Studies, Inc., 618 F.2d 972, 977 (2d Cir. 1980)).
We also find no reversible error in the District Court’s understanding of
unprotected plot concepts or ideas. As Appellees put it, “the crux of Nicassio’s claim of
actionable substantial similarity is that [they] copied Nicassio’s story concept of ‘a little
tree dreaming of becoming the Rockefeller Center Christmas tree.’” (Appellees’ Brief at
15 (quoting Appellant’s Brief at 35).) In the opposition brief she filed with the District
Court, Nicassio stated that “[Appellees’] repeated protest, that ‘the generic plot idea of a
little Christmas tree with dreams of being on display is not protectable’ ([A61]), is not
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contested.” (A178 (footnote omitted).) While she proceeded to characterize this
formulation as a paper tiger or a gross mischaracterization, she did so because
“Defendants have gone on from such a limited taking to unabashedly copying a great
number of other plot elements” (id.)—and not because she contested Appellees’
understanding of generic plot ideas or their specific formulation of the generic plot at
issue here. In any event, it is well established that copyright law does not protect ideas,
whether they are described as generic, general, or basic in nature. See, e.g., Tanksley,
902 F.3d at 174-75 (stating that neither ideas nor plot elements that flow predictably from
such general idea are protectable); Cavalier, 297 F.3d at 824, 828 (stating that themes of
teaching children to have confidence, overcome fears, and try are too general to be
protected and that basic plot ideas or premises—such as a child who is invited by moon-
type character to take journey through night sky and returns safely to bed to fall asleep—
also do not merit copyright protection).
Relying on Ninth Circuit case law, the District Court went on to explain that
“scenes a faire applies not only to situations and incidents that necessarily flow from the
basic plot premise, but also ones that naturally flow from it.” Nicassio, 309 F. Supp. 3d
at 388 (citing Cavalier, 297 F.3d at 823). As we stated in Tanksley, this doctrine
excludes from copyright protection “plot elements that flow predictably from a general
idea.” Tanksley, 902 F.3d at 175; see also, e.g., Kay Berry, 421 F.3d at 208 (stating that
elements that would be expected when two works express same idea or explore same
theme are not protected).
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Applying these basic principles of law, the District Court properly considered the
storylines, similarities, and significant differences between Rocky and Albert. As
Nicassio observes in her reply brief, concepts like scènes à faire and generic plots should
not be permitted to obscure the basic gist of the “substantial similarity” inquiry:
. . . . There is obvious tension between the imperative to filter out
unprotectable elements of a work while keeping sight of the work’s total
concept and feel (which necessarily includes unprotectable elements). We
reconcile these competing considerations by recalling that the basic inquiry
remains whether an ordinary observer would perceive that the defendant
has copied protected elements of the plaintiff’s work. Other filters, e.g.,
scènes à faire, total concept and feel, etc., while helpful, are merely tools to
assist the trier of fact in reaching a proper conclusion.
Tanksley, 902 F.3d at 175. Here, “an ordinary observer would [not] perceive that
[Appellees have copied] protected elements of [Nicassio’s] work.” Id. For instance,
Albert clearly explores themes not present in Rocky, such as the importance of family,
empathy, and forgiving others—and does so by using plot twists that are completely
missing from Rocky:
In this regard, although Rocky and Albert each contain instances of
verbal bullying, Albert overcomes additional obstacles to achieve his goal,
mainly escaping from the violent bully Cactus Pete twice, evading a pack
of hungry vegetarian bunnies, and suffering defeat when Big Betty is
selected as the Empire City Christmas tree. Only after soldiering on to
Empire City to stop Cactus Pete from ruining Christmas does Albert
become the most famous Christmas tree in the world. In fact, the way
Albert achieves this fame—being placed on top of Betty, an 80-foot
evergreen with a severed top—stands in stark contrast to how Rocky is
merely selected as the contest winner. Also, unlike Rocky, once Albert
reaches his goal, he realizes that family is more important than being the
most famous Christmas tree in the world. He then discovers that Pete was
only trying to ruin Christmas because he was lonely, so he trades places
with Pete and returns home to spend the holiday with his family at the plant
nursery. Hence, it is more than clear that the protectable aspects of the
works’ plots, themes, and sequences are not substantially similar. See
8
Tanikumi, 616 F. App’x at 520-21; see also Winstead v. Jackson, [509 F.
App’x 139, 143 (3d Cir. 2013)] (affirming the district court’s dismissal of
a copyright infringement claim where the similarities in the works’ themes
and settings were “not unique” to that particular genre).
Nicassio, 309 F. Supp. 3d at 394. Although a defendant cannot immunize itself against
liability for infringement by adding new elements on top of those copied, these
differences show that Albert has not infringed Rocky’s overall “concept and feel.”
Similarly, although some of the characters may share certain aspects in common, there
are also obvious differences, e.g., Rocky is initially a small tree who doubles in size
while Albert remains a small tree throughout the story; Rocky’s only friend is the forest
fairy named Mary Louise while Albert’s friends (who accompany him on his adventures)
include a child named Molly, Maisie (a palm tree), and Gene (a stink–breath weed); and
while the bullying spruce tree is Rocky’s competitor in the contest, Cactus Pete was a
more complex character ultimately driven by a feeling of loneliness and exclusion.
Given these circumstances, “the works’ ‘total concept and overall feel . . . as instructed
by good eyes and common sense’ would not lead a lay observer to conclude that
[Appellees’] alleged copying, if proven, was of protectable aspects of Rocky.” Id. at 395
(quoting Peter F. Gaito, 602 F.3d at 66).
III.
For the foregoing reasons, we will affirm the order of the District Court.
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