Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 1 of 13
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`
`
`MELVIN WILLIAM SMITH,
`
`Plaintiff,
`
`v.
`
`AMC NETWORKS, INC., et al.,
`
`Defendants.
`
`Case No. 18-CV-03803-LHK
`
`ORDER DENYING MOTIONS TO
`DISMISS
`
`Re: Dkt. Nos. 66, 67
`
`
`
`Plaintiff Melvin Smith brings suit against Defendants and claims that Defendants infringed
`
`Plaintiff’s copyright and that Defendants breached their fiduciary duties to Plaintiff. At the center
`
`of this dispute are two zombie-themed works: Plaintiff’s comic book called Dead Ahead and
`
`Defendants’ television series entitled Fear the Walking Dead. Plaintiff claims that Fear the
`
`Walking Dead infringed Plaintiff’s copyright on Dead Ahead.
`
`Before the Court is Defendants AMC Networks Inc., AMC Film Holdings LLC, AMC
`
`Network Entertainment LLC, AMC TV Studios LLC, and Valhalla Entertainment, Inc.’s
`
`(collectively, “AMC Defendants”) motion to dismiss the second amended complaint. ECF No. 67.
`
`Also before the Court is Defendants Skybound Productions, Inc., Circle of Confusion
`
`Productions, LLC, New Circle of Confusion Productions, Inc., Robert Kirkman, LLC, Robert
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`1
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 2 of 13
`
`
`
`Kirkman, and David Alpert’s (collectively, “Skybound Defendants”) motion to dismiss the second
`
`amended complaint. ECF No. 66. The Court will refer to the Skybound Defendants and AMC
`
`Defendants collectively as “Defendants.”
`
`Having considered the parties’ submissions, the relevant law, and the record in this case,
`
`the Court DENIES Defendants’ motions to dismiss the second amended complaint.
`
`I.
`
`BACKGROUND
`
` Factual Background
`
`Around 2007 and 2008, Plaintiff authored and commissioned others to co-author with him
`
`Dead Ahead. ECF No. 59 at ¶ 18 (“SAC”). Dead Ahead was published by Image Comics as a 3-
`
`part series, with the first issue appearing in September 2008, and the two subsequent issues
`
`appearing in January 2009 and March 2010. Id. at ¶ 19. Dead Ahead is a story about “zombies on
`
`the high seas.” Id. at ¶ 20. Dead Ahead was also subsequently republished as a single graphic
`
`novel containing 14 additional pages of material. Id. at ¶ 21. Plaintiff has registered both the comic
`
`book series and the graphic novel version of his work with the Copyright Office. Id. at ¶ 36.
`
`From November 2008 until about April 2013, Plaintiff engaged David Alpert as his agent.
`
`Id. at ¶ 23. Plaintiff alleges that “[d]uring this period, Alpert was charged with representing
`
`plaintiff’s interests for the purpose of consulting with motion picture and television studios on the
`
`use or exploitation of [Dead Ahead].” Id. at ¶ 24.
`
`Alpert and another Defendant, Robert Kirkman (chief operating officer of Image Comics,
`
`the original publisher of Dead Ahead), were credited as executive producers on the hit AMC show
`
`The Walking Dead, which began airing in October 2010. Id. at ¶¶ 15, 27. Plaintiff alleges that
`
`because The Walking Dead was so successful, AMC Defendants engaged Alpert and Kirkman to
`
`create a spinoff of The Walking Dead. Id. at ¶ 28. The spinoff took shape in the form of Fear the
`
`Walking Dead, which premiered on AMC in August 2015. Id. at ¶ 29. Alpert and Kirkman were
`
`also credited as executive producers of Fear the Walking Dead. Id. at ¶ 29.
`
`Plaintiff alleges that portions of season 2 of Fear the Walking Dead were copied from
`
`Dead Ahead. Id. at ¶ 39-40. Plaintiff asserts that there are many similarities between the two
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 3 of 13
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`works in terms of plot, characters, dialogue, themes, setting, mood, and pace. The Court discusses
`
`each purported type of similarity in turn.
`
`Plaintiff alleges numerous alleged plot similarities between season 2 of Fear the Walking
`
`Dead and Dead Ahead. Id. at ¶ 41. For ease, the Court categorizes the alleged plot similarities into
`
`11 groups. First, Plaintiff alleges that “[b]oth works share many of the same events arranged in the
`
`same sequence as well as an identical premise, i.e., that a ragtag group of individuals thrown
`
`together by circumstance escape a zombie apocalypse from Southern California by fleeing to the
`
`Pacific Ocean on board a boat heading south towards Mexico.” Id. Second, both works “begin on
`
`a similarly sized boat located in the Pacific Ocean, off the coast of Southern California, with eight
`
`individuals.” Id. Third, the survivors are “anxious (at first) to evade military ships while
`
`developing a plan to head south” because of “concerted military action against civilians . . . to
`
`move humans away from the coast and to herd them inland so that the military can use or kill
`
`them.” Id. Fourth, “the characters consult a map and chart their course south from Southern
`
`California,” and also fish, communicate via HAM radio, and survey the sea. Id. Fifth, “[e]arly in
`
`both works, the main characters encounter zombies at sea. In both works, the main characters are
`
`surprised to find that zombies have adapted to the open water.” Id. Sixth, “the ship’s propeller is
`
`used against the zombies.” Id. Seventh, in Fear the Walking Dead, “the main characters then make
`
`the decision to tack back toward the coast . . . and seek refuge at an abandoned resort hotel, where
`
`a pier features prominently.” Id. However, the characters “barely make it out of what turn out to be
`
`zombie-ridden hotels and eventually lose their boats.” Id. Plaintiff compares this to Dead Ahead,
`
`in which the survivors “encounter an abandoned cruise ship essentially serving as an abandoned
`
`resort hotel at sea.” Id. Eighth, the survivors in both works encounter pirates. Id. Ninth, a character
`
`in Dead Ahead “races to the engine room to both hide from the zombies and attempt to start the
`
`cruise ship,” whereas in Fear the Walking Dead, a character “races to the engine room to start the
`
`ship.” Id. Tenth, in Dead Ahead, the survivors hide from zombies in an elevator whereas in Fear
`
`the Walking Dead, a character “flees zombies by hiding in an elevator shaft.” Id. Eleventh, “in an
`
`attempt to destroy the zombies,” characters in both Dead Ahead and Fear the Walking Dead
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`3
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 4 of 13
`
`
`
`attempt to destroy their ships. Id.
`
`Plaintiff also alleges that the characters and dialogue in the two works are very similar.
`
`These similarities can be categorized into 5 groups. First, “[b]oth works begin with eight
`
`characters, four men and four women, on board their respective vessels struggling to survive a
`
`post-apocalyptic world on water.” Id. at ¶ 42. Second, the protagonists are “male educator[s]” who
`
`are not prepared for the leadership roles they are “thrust into . . . given their ostensible
`
`backgrounds.” Id. Third, “[b]oth works feature a mysterious red-headed, female, rifle-sporting
`
`character of around the same age named Red, both of whom have fringe bangs and carry similar
`
`rifles with the exact same scope . . . .” Id. Fourth, “[b]oth works feature a Central-American crew
`
`member with a military background whose dialogue is a mixture of English and Spanish and who
`
`sports a goatee and carries a pistol.” Id. Fifth, there are pirates in both works. Id.
`
`Moreover, Plaintiff alleges that 3 themes in the works are similar. First, Plaintiff alleges
`
`that the theme of life versus death is shared by both works; “the characters are literally in a battle
`
`with the dead, and must fight to survive each moment of every day against a very real, yet very
`
`dead, threat. In both works, this distinction is an internal one, as the characters are repeatedly
`
`faced with the decision to fight to survive or end their own lives before they are swallowed-up by
`
`their hellish reality.” Id. at ¶ 43. Second, the nature of survival allegedly features as a theme in
`
`both works, wherein “the characters must adapt, die, or capitulate. In both works, the main
`
`characters must go on the offensive and fight to survive, rather than flee and escape.” Id. Third,
`
`the resilience of the human spirit purportedly features as a theme common to both works; Plaintiff
`
`claims that “[a]lthough there is little-to-no hope of the characters’ finding an oasis in either work,
`
`they still find the will to overcome these obstacles.” Id.
`
`Furthermore, Plaintiff alleges that the setting, mood, and pace of the works are similar.
`
`Regarding setting, Plaintiff alleges that “[b]oth works feature stories of fleeing a zombie
`
`apocalypse on the high seas.” Id. at ¶ 44. Also, both works prominently feature a “resort hotel,”
`
`and a “significant part” of the works “take place on mid-size vessels traveling south”; the vessels
`
`also make stops along the way to “search for supplies or signs of life.” Id. The works also feature
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 5 of 13
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`elevators and engine rooms, and in both stories, “zombies invade sandy knolls and dunes that
`
`emerge from the Pacific Ocean, where the main characters are forced to slaughter what they can
`
`and barely escape with their lives.” Id. Regarding mood, Plaintiff alleges that “[b]oth works
`
`present moods that are dark, deliberate, weighty, and purposeful. . . . Both stories are sad and
`
`somber and end in an unresolved manner.” Id. Regarding pace, Plaintiff alleges that the works “are
`
`paced at breakneck speed, with gory, violent zombie attacks lurking around every corner . . . .”. Id.
`
` Procedural History
`
`On June 26, 2018, Plaintiff filed his complaint. ECF No. 1. On August 3, 2018, Plaintiff
`
`amended his complaint. ECF No. 28. On August 23, 2018, Skybound Defendants filed a motion to
`
`dismiss the amended complaint and for a more definite statement. ECF No. 35. On September 6,
`
`2018, AMC Defendants filed a motion to dismiss the amended complaint. ECF No. 46. On
`
`October 9, 2018, Plaintiff filed a second amended complaint. ECF No. 59. The Court denied as
`
`moot Skybound Defendants’ motion to dismiss and AMD Defendants’ motion to dismiss. ECF
`
`No. 58.
`
`On November 2, 2018, AMC Defendants filed a motion to dismiss the second amended
`
`complaint. ECF No. 67 (“Mot.”). On November 2, 2018, the Skybound Defendants also filed a
`
`motion to dismiss the second amended complaint. ECF No. 66. On November 30, 2018, Plaintiff
`
`filed an omnibus opposition to the Defendants’ motions to dismiss. ECF No. 70. On December 14,
`
`2018, AMC Defendants filed a reply. ECF No. 73. Also on December 14, 2018, the Skybound
`
`Defendants filed a reply. ECF No. 72.
`
`II.
`
`LEGAL STANDARD
`
`A. Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
`
`Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a
`
`short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint
`
`that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure
`
`12(b)(6). The U.S. Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough
`
`facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 6 of 13
`
`
`
`U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
`
`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
`
`alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a
`
`probability requirement, but it asks for more than a sheer possibility that a defendant has acted
`
`unlawfully.” Id. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6)
`
`motion, the Court “accept[s] factual allegations in the complaint as true and construe[s] the
`
`pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire &
`
`Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008).
`
`The Court, however, need not accept as true allegations contradicted by judicially
`
`noticeable facts, see Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and it “may look
`
`beyond the plaintiff’s complaint to matters of public record” without converting the Rule 12(b)(6)
`
`motion into a motion for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir.
`
`1995). Nor must the Court “assume the truth of legal conclusions merely because they are cast in
`
`the form of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per
`
`curiam) (internal quotation marks omitted). Mere “conclusory allegations of law and unwarranted
`
`inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183
`
`(9th Cir. 2004).
`
`III. DISCUSSION
`
`First, the Court discusses Plaintiff’s and AMC Defendants’ requests for judicial notice.
`
`Then, the Court discusses the merits of the motion to dismiss.
`
` Requests for Judicial Notice
`
`The Court may take judicial notice of matters that are either “generally known within the
`
`trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources
`
`whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Moreover, courts may
`
`consider materials referenced in the complaint under the incorporation by reference doctrine, even
`
`if a plaintiff failed to attach those materials to the complaint. Knievel v. ESPN, 393 F.3d 1068,
`
`1076 (9th Cir. 2005). Public records, including judgments and other publicly filed documents, are
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 7 of 13
`
`
`
`proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir.
`
`2007). However, to the extent any facts in documents subject to judicial notice are subject to
`
`reasonable dispute, the Court will not take judicial notice of those facts. See Lee v. City of Los
`
`Angeles, 250 F.3d 668, 689 (9th Cir. 2001), overruled on other grounds by Galbraith v. County of
`
`Santa Clara, 307 F.3d 1119 (9th Cir. 2002). The Court first addresses Plaintiff’s request for
`
`judicial notice, then AMC Defendants’ request.
`
`Plaintiff seeks judicial notice of Copyright Office Public Catalogue pages for various Fear
`
`the Walking Dead and The Talking Dead1 episodes showing that AMC Film Holdings LLC claims
`
`the copyright on those episodes. ECF No. 70-2. The Copyright Office Public Catalogue constitutes
`
`public records. DuckHole Inc. v. NBC Universal Media LLC, 2013 WL 5797279, at *4 (C.D. Cal.
`
`Sept. 6, 2013) (“The request for judicial notice of Plaintiff’s copyright registration is granted as it
`
`is common practice for courts to take judicial notice of copyright registrations.”). Thus, Plaintiff’s
`
`request for judicial notice is GRANTED.
`
`AMC Defendants request that the Court take judicial notice of two categories of items.
`
`First, AMC Defendants request that the Court take judicial notice of the Dead Ahead comic books,
`
`the Dead Ahead graphic novel, and the Fear the Walking Dead series. All three of these works
`
`have been referenced in the complaint. See, e.g., SAC at ¶¶ 29 (referencing Fear the Walking
`
`Dead), 35 (referencing the comic book and graphic novel versions of Dead Ahead). Thus, under
`
`the incorporation by reference doctrine recognized in Knievel, the Court GRANTS judicial notice
`
`of all three works.
`
`Second, AMC Defendants request that the Court take judicial notice of “generic elements
`
`of action-adventure, thriller, and horror films and television series, including those involving
`
`invasions or outbreaks of some sort and those that take place at sea.” ECF No. 67-1 at 1.
`
`Specifically, AMC Defendants want the Court to take judicial notice of the concepts of: “[a]
`
`ragtag group of individuals thrown together by circumstance”; “[d]epicting characters on boats
`
`
`1 The Talking Dead is a companion talk show to Fear the Walking Dead. SAC at ¶ 31 n.2.
`7
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 8 of 13
`
`
`
`consulting a map, fishing, communicating by radio, or surveying the sea from time to time”;
`
`“[a]ttempting to evade the military to emergency situations”; “[p]ortraying characters seeking
`
`refuge and searching for supplies”; “[f]eaturing pirates in a fictional work that involves bodies of
`
`water”; “[u]sing an elevator to hide or escape”; and “[u]sing fire to destroy enemies.” Id. at 1-2. In
`
`support of these purportedly generic concepts, AMC Defendants reference more than a dozen
`
`books, films, Wikipedia articles, and websites, none of which are mentioned in the SAC.
`
`Tellingly, the Court is not asked to take judicial notice of these books, films, Wikipedia
`
`articles, and websites. Rather, AMC Defendants cite these sources to show the contents therein
`
`support the generic nature of the aforementioned concepts. In essence, what AMC Defendants ask
`
`is that the Court take judicial notice of the aforementioned concepts based purely on AMC
`
`Defendants’ representation that the underlying works, of which the Court is not asked to take
`
`judicial notice, show that the above concepts are generic. AMC Defendants point to no legal
`
`authority—and the Court finds none—that supports this unusual request for judicial notice.
`
`Moreover, the Court finds that whether the above concepts are generic is subject to reasonable
`
`dispute, and the Court, pursuant to Ninth Circuit law, cannot take judicial notice of any facts that
`
`are subject to reasonable dispute. Lee, 250 F.3d at 689. Accordingly, AMC Defendants’ request to
`
`have the Court take judicial notice of the aforementioned supposedly generic concepts is
`
`DENIED.
`
` The Copyright Claim
`
`The Court first discusses Plaintiff’s copyright cause of action, then turns to Plaintiff’s
`
`breach of fiduciary duty claim.
`
`“To establish a successful copyright claim, a plaintiff must show: (1) his ownership of the
`
`copyright; (2) the defendant’s access to his work; and (3) ‘substantial similarity’ between the
`
`defendant’s work and his own.” Berkic v. Crichton, 761 F.2d 1289, 1291 (9th Cir. 1985). Analysis
`
`of prong (3)—any “substantial similarity” between the works—is the crux of Defendants’ motion
`
`to dismiss. Defendants claim that there is no substantial similarity between Dead Ahead and Fear
`
`the Walking Dead. The Court analyzes each prong in turn.
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`8
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 9 of 13
`
`
`
`1. Prong (1)—Ownership of the Copyright
`
`Regarding ownership of the copyright, Plaintiff alleges that he registered all versions and
`
`editions of Dead Ahead with the Copyright Office. SAC at ¶ 36. AMC Defendants and Skybound
`
`Defendants do not dispute Plaintiff’s copyright ownership. Thus, Plaintiff has sufficiently alleged
`
`ownership of the copyright.
`
`2. Prong (2)—Defendants’ Access to the Work
`
`“Proof of access requires ‘an opportunity to view or to copy plaintiff’s work.’” Three Boys
`
`Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (quoting Sid and Marty Krofft Television
`
`Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir. 1977)). AMC Defendants and
`
`Skybound Defendants do not dispute that they had access to Plaintiff’s work. Thus, Plaintiff has
`
`sufficiently alleged Defendants’ access to Dead Ahead.
`
`3. Prong (3)—Substantial Similarity Between Dead Ahead and Fear the Walking
`Dead
`
`There are two tests for substantial similarity: an intrinsic test and an extrinsic test. Funky
`
`Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th Cir. 2006). “[T]he intrinsic test,
`
`which examines an ordinary person’s subjective impressions of the similarities between two
`
`works, is exclusively the province of the jury.” Id. Thus, the intrinsic test is not relevant here.
`
`In determining substantial similarity on a motion to dismiss, district courts employ the
`
`extrinsic test. See, e.g., White v. Twentieth Century Fox Corp., 572 Fed. App’x 475, 476-77 (9th
`
`Cir. 2014) (using the intrinsic test to analyze substantial similarity on a motion to dismiss); Implus
`
`Footcare, LLC v. Ontel Prods. Corp., 2015 WL 12655703, at *3 (C.D. Cal. Aug. 28, 2015)
`
`(same); Danjaq, LLC v. Universal City Studios, LLC, 2014 WL 7882071, at *3 (C.D. Cal. Oct. 2,
`
`2014) (same); Marchel Design, Inc. v. Best Master Enterps., Inc., 2008 WL 4723113, at *3 (C.D.
`
`Cal. Oct. 23, 2008) (same); Capcom Co. v. MKR Grp., Inc., 2008 WL 4661479, at *5 (N.D. Cal.
`
`Oct. 20, 2008) (same); Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1128 (C.D. Cal. 2007)
`
`(same). The extrinsic test is “objective in nature,” and “focuses on articulable similarities between
`
`the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” Funky Films,
`
`462 F.3d at 1077.
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 10 of 13
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`“[W]hen applying the extrinsic test, a court must filter out and disregard the non-
`
`protectible elements in making its substantial similarity determination.” Cavalier v. Random
`
`House, Inc., 297 F.3d 815, 822 (9th Cir. 2002). For instance, “[s]cenes-a-faire, or situations and
`
`incidents that flow necessarily or naturally from a basic plot premise, cannot sustain a finding of
`
`infringement.” Id. at 823. “Under the scenes a faire doctrine, when certain commonplace
`
`expressions are indispensable and naturally associated with the treatment of a given idea, those
`
`expressions are treated like ideas and therefore not protected by copyright.” Swirsky v. Carey, 376
`
`F.3d 841, 850 (9th Cir. 2004). Also, “[f]amiliar stock scenes and themes that are staples of
`
`literature are not protected.” Cavalier, 297 F.3d at 822.
`
`However, the Ninth Circuit has cautioned that “[s]ummary judgment is not highly favored
`
`on questions of substantial similarity in copyright cases.” L.A. Printex Indus., Inc. v. Aeropostale,
`
`Inc., 676 F.3d 841, 848 (9th Cir. 2012). “A fortiori, this same limitation applies to a motion to
`
`dismiss.” Minx Int’l, Inc. v. Around the World Apparel, Inc., 2016 WL 7496745, at *2 (C.D. Cal.
`
`July 29, 2016).
`
`The Ninth Circuit has held that “[g]enerally, the scope of review on a motion to dismiss for
`
`failure to state a claim is limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445,
`
`448 (9th Cir. 2006). Here, what Defendants essentially seek is summary judgment because they
`
`stray beyond the four corners of the complaint and into factual disputes over the similarities and
`
`differences between Dead Ahead and Fear the Walking Dead, including whether certain elements
`
`of Dead Ahead are protectable under copyright law. Moreover, AMC Defendants’ request for
`
`judicial notice that certain concepts are generic further demonstrates that Defendants’ motions are
`
`essentially motions for summary judgment.
`
`However, Ninth Circuit law is clear that “[t]he extrinsic test requires analytical dissection
`
`of a work and expert testimony.” Swirsky, 376 F.3d at 845 (emphasis added). Given that
`
`Defendants’ motions are 12(b)(6) motions, there is no full record to review or any expert
`
`testimony upon which the Court may rely. Other courts have denied motions to dismiss in
`
`copyright cases due to an insufficient record. For instance, in Cabell v. Zorro Prods., Inc., the
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`10
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 11 of 13
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`court denied defendants’ motion to dismiss a plaintiff’s copyright allegations involving a musical
`
`script and audio performances because the “case lacks the kind of comprehensive factual record
`
`and undisputed facts that would allow the court to apply the ‘extrinsic test’ at this stage.” 2017
`
`WL 2335597, at *8 (N.D. Cal. May 30, 2017). Moreover, the court in French West, Inc. v. Macy’s
`
`Inc. denied a motion to dismiss a plaintiff’s copyright allegations over a textile print design
`
`because “we have no threshold understanding of what a ‘nautical chain design’ is and whether it
`
`incorporates any common themes of selection, coordination, and arrangement that are
`
`unprotectible [sic] . . . .” 2013 WL 12133844, at *2 (C.D. Cal. Jan. 29, 2013). This Court similarly
`
`finds that the present record is insufficient to conduct the extrinsic test.
`
`Although some district courts have opined that some concepts are generic on motions to
`
`dismiss, and AMC Defendants point to such cases in their reply, this Court respectfully disagrees
`
`with these non-binding cases, which offer little analysis. See Zella, 529 F. Supp. 2d at 1130
`
`(involving television shows); Cline v. Reetz-Laiolo, 329 F. Supp. 3d 1000, 1015 (N.D. Cal. 2018)
`
`(involving a novel and a screenplay); Silas v. Home Box Office, Inc., 201 F. Supp. 3d 1158, 1164,
`
`1166 (C.D. Cal. 2016) (involving a screenplay and a television series); Heusey v. Emmerich, 2015
`
`WL 12765115, at *1 (C.D. Cal. Apr. 9, 2015) (involving screenplays); DuckHole, 2013 WL
`
`5797279, at *1-2 (involving a film treatment and a television series). All these cases offer little
`
`justification for why certain elements are generic or scenes-a-faire, and thus unprotectable under
`
`copyright law. Thus, the Court finds these cases unpersuasive and declines to follow them.
`
`The most prudent course of action is to follow Ninth Circuit precedent, which clearly states
`
`that “[t]he extrinsic test requires analytical dissection of a work and expert testimony.” Swirsky,
`
`376 F.3d at 845. In sum, based on the record before the Court, the Court cannot conduct the
`
`analysis to separate the unprotectable elements from the protectable elements in Dead Ahead. As
`
`such, the Court DENIES Defendants’ motions to dismiss the copyright claim.
`
` The Breach of Fiduciary Duty Claim
`
`Next, the Court discusses Defendants’ motions to dismiss Plaintiff’s breach of fiduciary
`
`duty claim. Plaintiff claims that Alpert “violated and continues to violate his fiduciary duty to
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 12 of 13
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`plaintiff by engaging in a pattern and practice of self-dealing . . . .” SAC at ¶ 48. Plaintiff also
`
`claims that the other Defendants “substantially assisted and therefore aided and abetted Alpert in
`
`breaching his duty to plaintiff.” Id. at ¶ 50.
`
`“The elements of a cause of action for breach of fiduciary duty are: ‘(1) existence of a
`
`fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the
`
`breach.’” Vaxiion Therapeutics, Inc. v. Foley & Lardner LLP, 2008 WL 5122196, at *5 (S.D. Cal.
`
`Dec. 4, 2008) (quoting Stanley v. Richardson, 35 Cal. App. 4th 1070, 1077 (1995)). “A defendant
`
`is liable for aiding and abetting another in the commission of an intentional tort, including a
`
`breach of fiduciary duty, if the defendant knows the other’s conduct constitutes a breach of duty
`
`and gives substantial assistance or encouragement to the other to so act.” Nasrawi v. Buck
`
`Consultants LLC, 231 Cal. App. 4th 328, 343 (2014).
`
`AMC Defendants argue that Plaintiff has not adequately pleaded that AMC Defendants
`
`aided and abetted Alpert’s alleged breach of fiduciary duty to Plaintiff because AMC Defendants
`
`did not provide “substantial assistance or encouragement” to Alpert connected to the alleged
`
`breach. The Court finds AMC Defendants’ argument unpersuasive.
`
`Alpert is alleged to have been Plaintiff’s agent. SAC at ¶ 23. Both Alpert and Kirkman are
`
`credited as executive producers of Fear the Walking Dead, which was commissioned by the AMC
`
`Defendants. Id. at ¶¶ 27-28. Plaintiff also alleges that AMC Defendants’ employee Dave Erickson
`
`“worked closely and in concert with David Alpert and Robert Kirkman in the developing,
`
`scripting, casting and production of FEAR THE WALKING DEAD . . . .” Id. at ¶ 49. Moreover,
`
`“as showrunner and a credited co-creator, Dave Erickson served as the primary creative
`
`contributor acting on behalf of the AMC Entities, in their collaboration in and funding of the
`
`development, scripting, casting, and production of FEAR THE WALKING DEAD.” Id.
`
`Furthermore, Plaintiff alleges that “all the other defendants named knew of Alpert’s relationship
`
`with and the services he was providing plaintiff.” Id.
`
`Thus, Plaintiff has alleged that the AMC Defendants knew of Alpert’s agency relationship
`
`with Plaintiff, and despite that, provided Alpert with funding and support to produce Fear the
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`12
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-cv-03803-LHK Document 75 Filed 01/31/19 Page 13 of 13
`
`
`
`Walking Dead. As the court held in Minnesota Life Ins. Co. v. Philpot, providing funding is
`
`enough to show “substantial assistance or encouragement” in aiding and abetting the breach of
`
`fiduciary duty. 2012 WL 4486311, at *8 (C.D. Cal. Sept. 27, 2012). Therefore, AMC Defendants’
`
`argument that there are no allegations that AMC defendants provided “substantial assistance or
`
`encouragement” to Alpert is unavailing.
`
`Therefore, the Court DENIES Defendants’ motions to dismiss the breach of fiduciary duty
`
`claim.
`
`IV. CONCLUSION
`
`For the foregoing reasons, the Court DENIES Defendants’ motions to dismiss the
`
`copyright and breach of fiduciary duty claims.
`
`IT IS SO ORDERED.
`
`
`
`Dated: January 31, 2019
`
`
`
`
`
`______________________________________
`
`LUCY H. KOH
`United States District Judge
`
`
`
`Case No. 18-CV-03803-LHK
`ORDER DENYING MOTIONS TO DISMISS
`
`13
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18