APPENDIX
`APPENDIX
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`APPENDIX
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`APPENDICES
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`Contents
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` Page
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`Document
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`Appendix A - Ninth Circuit Amended Opinion
`and Denial of Rehearing Petitions
`May 4, 2020 ............................................................... 1a
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`Appendix B - Ninth Circuit Original Opinion
`March 16, 2020 ....................................................... 18a
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`Appendix C - District Court Order
`(Dismissing Second Amended Complaint)
`May 9, 2018 ............................................................. 34a
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`Appendix D - District Court Order
`(Dismissing First Amended Complaint)
`January 31, 2018 .................................................... 51a
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`1a
`APPENDIX A
`FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
` FOR THE NINTH CIRCUIT
`
`DENISE DANIELS; THE
`MOODSTERS COMPANY,
`Plaintiffs-
`Appellants,
`v.
`THE WALT DISNEY COMPANY;
`DISNEY ENTERPRISES, INC.;
`DISNEY CONSUMER
`PRODUCTS AND INTERACTIVE
`MEDIA INC.; DISNEY
`INTERACTIVE STUDIOS, INC.;
`DISNEY SHOPPING, INC.;
`PIXAR,
`
`
`
`
`
`
`No. 18-
`55635
`
`D.C. No.
`2:17-cv-04527-
`PSG-SK
`
`ORDER AND
`AMENDED
`OPINION
`
`Defendants-
`Appellees.
`Appeal from the United States District Court
` for the Central District of California
`Philip S. Gutierrez, District Judge, Presiding
`Argued and Submitted November 6, 2019
`Pasadena, California
`Filed March 16, 2020
`Amended May 4, 2020
`
`
`
`2a
`Before: Jerome Farris, M. Margaret McKeown, and
`Barrington D. Parker, Jr.,* Circuit Judges.
`
`Order;
`Opinion by Judge McKeown
`_________________________________________________
`SUMMARY**
`_________________________________________________
`
`Copyright
`
`The panel filed (1) an order amending its opinion,
`denying a petition for panel rehearing, and denying on
`behalf of the court a petition for rehearing en banc;
`and (2) an amended opinion affirming the district
`court’s dismissal of an action alleging copyright
`infringement by the Disney movie Inside Out of
`plaintiffs’ characters called The Moodsters.
`Affirming the denial of plaintiff’s claim under the
`Copyright Act, the panel held that The Moodsters,
`lightly sketched anthropomorphized characters
`representing human emotions, did not qualify for
`copyright protection because they lacked consistent,
`identifiable character traits and attributes and were
`not especially distinctive. The Moodsters also did not
`
` * The Honorable Barrington D. Parker, Jr., United States
`Circuit Judge for the U.S. Court of Appeals for the Second
`Circuit, sitting by designation.
`
`
` ** This summary constitutes no part of the opinion of the
`court. It has been prepared by court staff for the convenience of
`the reader.
`
`
`
`
`
` 3a
`qualify for copyright protection under the alternative
`“story being told” test.
`The panel also affirmed the district court’s denial
`of plaintiff’s claim for breach of an implied-in-fact
`contract under California law, based on her disclosure
`of information about The Moodsters to various
`employees of Disney and its affiliates.
`_________________________________________________
`COUNSEL
`
`Patrick Arenz, Esq.(argued), Ronald J. Schutz and
`Brenda L. Joly, Robins Kaplan LLP, Minneapolis,
`Minnesota, for Plaintiffs-Appellants.
`Mark Remy Yohalem, Esq. (argued), Glenn D.
`Pomerantz, Erin J. Cox, Kenneth M. Trujillo-
`Jamison, and Anne K. Conley, Munger, Tolles &
`Olson LLP, Los Angeles, California, for Defendants-
`Appellees.
`_________________________________________________
`ORDER
`The opinion filed on March 16, 2020, slip op. 18-
`55635, and appearing at 952 F.3d 1149, is hereby
`amended. An amended opinion is filed concurrently
`with this order.
`With these amendments, the panel has voted to
`deny the petition for panel rehearing.
`The full court has been advised of the petition for
`rehearing and rehearing en banc and no judge has
`requested a vote on whether to rehear the matter en
`banc. Fed. R. App. P. 35.
`
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` 4a
`The petition for panel rehearing and petition for
`rehearing en banc are DENIED. No further petitions
`for en banc or panel rehearing shall be permitted.
`_________________________________________________
`OPINION
`
`McKEOWN, Circuit Judge:
`Literary and graphic characters—from James
`Bond to the Batmobile—capture our creative
`imagination. These characters also may enjoy
`copyright protection, subject to certain limitations.
`Here
`we
`consider
`whether
`certain
`anthropomorphized characters representing human
`emotions qualify for copyright protection. They do
`not. For guidance, we turn to DC Comics v. Towle, our
`court’s most
`recent
`explanation
`of
`the
`copyrightability of graphically-depicted characters.
`DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015).
`Denise Daniels
`developed
`a
`line
`of
`anthropomorphic characters called The Moodsters,
`which she pitched to entertainment and toy
`companies around the country, including The Walt
`Disney Company. Under Towle, “lightly sketched”
`characters such as The Moodsters, which lack
`“consistent,
`identifiable
`character
`traits and
`attributes,” do not enjoy copyright protection. Id. at
`1019, 1021. We affirm the district court’s dismissal of
`Daniels’s complaint.
`BACKGROUND
`I. The Moodsters
`Daniels is an expert on children’s emotional
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` 5a
`intelligence and development. She designed and
`promoted initiatives that help children cope with
`strong emotions like loss and trauma. The Moodsters
`were devised as a commercial application of this
`work. Daniels hired a team to produce and develop
`her idea under the umbrella of her new company, The
`Moodsters Company. The initial product was The
`Moodsters Bible (“Bible”), a pitchbook released in
`2005. It provided a concise way to convey Daniels’s
`idea to media executives and other potential
`collaborators, and included a brief description of the
`characters,
`themes, and setting
`that Daniels
`envisioned for her Moodsters universe.
`The Moodsters are five characters that are color-
`coded anthropomorphic emotions, each representing
`a different emotion: pink (love); yellow (happiness);
`blue (sadness); red (anger); and green (fear). Daniels
`initially named The Moodsters Oolvia, Zip, Sniff,
`Roary, and Shake, although these names changed in
`each iteration of the characters.
`In 2007, Daniels and her team released a 30-
`minute pilot episode for a television series featuring
`The Moodsters, titled “The Amoodsment Mixup”
`(“pilot”). The pilot was later available on YouTube.
`Between 2012 and 2013, Daniels and her team
`developed what they call the “second generation” of
`Moodsters products: a line of toys and books featuring
`The Moodsters that were sold at Target and other
`retailers beginning in 2015.
`Daniels and The Moodsters Company pitched The
`Moodsters to numerous media and entertainment
`companies. One recurring target was The Walt
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` 6a
`Disney Company and its affiliates, including Pixar.
`Daniels alleges that she or a member of her team had
`contact with several different Disney employees
`between 2005 and 2009.
`The claimed contact began in 2005, when a
`member of The Moodsters Company shared
`information about The Moodsters with an employee
`of Playhouse Disney. Daniels alleges that in 2008 she
`was put in touch with Thomas Staggs, the Chief
`Financial Officer of the Walt Disney Company, and
`that Staggs later informed her that he would share
`materials about The Moodsters with Roy E. Disney,
`the son of a Disney founder, and Rich Ross, the
`President of Disney Channels Worldwide. Finally,
`Daniels alleges that she spoke by phone with Pete
`Docter, a director and screenwriter, and they
`discussed The Moodsters, although no year or context
`for this conversation is alleged in the Complaint.
`II. Disney’s Inside Out
`Disney began development of its movie Inside Out
`in 2010. The movie was released in 2015, and centers
`on five anthropomorphized emotions that live inside
`the mind of an 11-year-old girl named Riley. Those
`emotions are joy, fear, sadness, disgust, and anger.
`Docter, who directed and co- wrote the screenplay,
`stated that his inspiration for the film was the
`manner with which his 11-year-old daughter dealt
`with new emotions as she matured.
`III.District Court Proceedings
`Daniels filed suit against Disney in 2017 for breach
`of an implied-in-fact contract, arising from Disney’s
`
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` 7a
`failure to compensate Daniels for the allegedly
`disclosed material used to develop Inside Out. Daniels
`then filed an amended complaint, joining The
`Moodsters Company as a co-plaintiff and alleging
`copyright
`infringement of both the
`individual
`Moodsters characters and the ensemble of characters
`as a whole.
`Disney filed a motion to dismiss, asserting that
`Daniels failed to meet the legal standard for copyright
`in a character, and that the copyright “publication” of
`the Bible and pilot doomed Daniels’s implied-in-fact
`contract claim. The district court granted Disney’s
`motion to dismiss, and granted Daniels leave to file
`an amended complaint on the copyright claims.
`Disney filed a motion to dismiss the Amended
`Complaint, which the district court granted on the
`ground that The Moodsters are not protectable by
`copyright.
`
`ANALYSIS
`I. Copyright Protection for The Moodsters
`Although characters are not an enumerated
`copyrightable subject matter under the Copyright Act,
`see 17 U.S.C. § 102(a), there is a long history of
`extending copyright protection
`to graphically-
`depicted characters. See, e.g., Olson v. Nat’l Broad.
`Co., 855 F.2d 1446, 1452 (9th Cir. 1988); Walt Disney
`Prods. v. Air Pirates, 581 F.2d 751, 755 (9th Cir.
`1978). However, “[n]ot every comic book, television, or
`motion picture character is entitled to copyright
`protection.” Towle, 802 F.3d at 1019. A character is
`entitled to copyright protection if (1) the character
`has “physical as well as conceptual qualities,” (2) the
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` 8a
`be
`to
`“sufficiently delineated
`is
`character
`recognizable as the same character whenever it
`appears” and “display[s] consistent, identifiable
`character traits and attributes,” and (3) the character
`is “especially distinctive” and “contain[s] some unique
`elements of expression.” Id. at 1021 (internal
`citations and quotation marks removed).
`A. Application of the Towle Test to The
`Moodsters
`Disney does not dispute that the individual
`Moodster characters meet the first prong of the Towle
`test: each has physical as well as conceptual qualities.
`Because they have physical qualities, The Moodsters
`are not mere literary characters.
`The second prong presents an insurmountable
`hurdle for Daniels. Towle requires that a character
`must be “sufficiently delineated to be recognizable as
`the same character whenever it appears.” Id.
`Although a character that has appeared in multiple
`productions or iterations “need not have a consistent
`appearance,” it “must display consistent, identifiable
`character traits and attributes” such that it is
`recognizable whenever it appears. Id.
`Consistently recognizable characters like Godzilla
`or James Bond, whose physical characteristics may
`change over various iterations, but who maintain
`consistent and identifiable character traits and
`attributes
`across
`various
`productions
`and
`adaptations, meet the test. See Tono Co. v. William
`Morrow & Co., 33 F. Supp. 2d 1206, 1215 (C.D. Cal.
`1998) (finding that Godzilla is consistently a “pre-
`historic, fire-breathing, gigantic dinosaur alive and
`
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` 9a
`well in the modern world”), Metro-Goldwyn-Mayer,
`Inc. v. Am. Honda Motor Corp., 900 F. Supp. 1287,
`1296 (C.D. Cal. 1995) (noting that James Bond has
`consistent traits such as “his cold-bloodedness; his
`overt sexuality; his love of martinis ‘shaken, not
`stirred;’ his marksmanship; his ‘license to kill’ and use
`of guns; his physical strength; his sophistication”). By
`contrast, a character that lacks a core set of
`consistent and identifiable character traits and
`attributes is not protectable, because that character
`is not
`immediately recognizable as the same
`character whenever it appears. See, e.g., Olson, 855
`F.2d at 1452–53 (holding that television characters
`from “Cargo” are too “lightly sketched” to be
`independently protectable by copyright).
`In addressing The Moodsters, we first distinguish
`between the idea for a character and the depiction of
`that character. The notion of using a color to
`represent a mood or emotion is an idea that does not
`fall within the protection of copyright. See 17 U.S.C.
`§ 102(b) (“In no case does copyright protection for an
`original work of authorship extend to any idea . . .
`regardless of the form in which it is described,
`explained, illustrated, or embodied in such work.”);
`see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499
`U.S. 340, 344–45 (1991) (internal quotation marks
`and citation removed) (“The most fundamental axiom
`of copyright law is that no author may copyright his
`ideas ….”); Frybarger v. Int’l Bus. Mach. Corp., 812
`F.2d 525, 529 (9th Cir. 1987) (“[I]deas themselves are
`not protected by copyright and cannot, therefore, be
`infringed.”). So it is no surprise that the idea of color
`psychology is involved in everything from decorating
`books to marketing and color therapy. Color and
`emotion are also frequent themes in children’s books,
`
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` 10a
`such as Dr. Seuss’s classic, My Many Colored Days,
`and Anna Llenas’s The Color Monster: A Story of
`Emotions.
`Notably, colors themselves are not generally
`copyrightable. Boisson v. Banian, 273 F.3d 262, 271
`(2d Cir. 2001) (“Color by itself is not subject to
`copyright protection.”); see also 38 C.F.R. § 202.1(a)
`(“[M]ere variations of
`.
`.
`. coloring” are not
`copyrightable). Nor is the “idea” of an emotion
`copyrightable. See Feist, 499 U.S. at 350. Taken
`together, these principles mean that Daniels cannot
`copyright the idea of colors or emotions, nor can she
`copyright the idea of using colors to represent
`emotions where these ideas are embodied in a
`character without
`sufficient delineation and
`distinctiveness.
`In analyzing whether The Moodster characters
`are “sufficiently delineated,” we carefully examine
`the graphic depiction of the characters and not the
`ideas underlying them. We look first to the physical
`appearance of The Moodsters. Unlike, for example,
`the Batmobile, which “maintained distinct physical
`and conceptual qualities since its first appearance in
`the comic books,” the physical appearance of The
`Moodsters changed significantly over time. Towle,
`802 F.3d at 1021. In the 2005 Bible and 2007
`television pilot, the five Moodsters have an insect-like
`appearance, with skinny bodies, long ears, and tall
`antennas that act as “emotional barometers” to form
`a distinctive shape and glow when an emotion is
`strongly felt. By the second generation of toys, The
`Moodsters look like small, loveable bears. They are
`round and cuddly, have small ears, and each dons a
`detective’s hat and small cape.
`
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` 11a
`Mindful that physical appearance alone is not
`decisive, we also consider whether The Moodsters
`have maintained consistent character traits and
`attributes. Across
`the various
`iterations The
`Moodsters have consistently represented five human
`emotions, and those emotions have not changed. But
`other than the idea of color and emotions, there are
`few other identifiable character traits and attributes
`that are consistent over the various iterations. In the
`2005 Bible, each character is described in a few short
`paragraphs. For example, the Zip character is
`described as having “an infectious laugh and wakes
`up each morning with a smile on his face and a
`friendly attitude.” By
`the 2007 pilot,
`these
`characteristics are not mentioned and are not evident
`from the depiction of Zip. The other four Moodsters
`similarly
`lack
`consistent
`characteristics and
`attributes in the 2005 Bible and 2007 pilot. “Lightly
`sketched” characters of this kind, without identifiable
`character traits, are not copyrightable under the
`second prong of Towle. See id. at 1019 (citing Olson,
`855 F.3d at 1452–53).
`Perhaps the most readily identifiable attribute of
`The Moodsters is their relationship to emotions. The
`2005 Bible explains that each character relates to
`emotions in its own way when something new
`happens—the “anger” Moodster might become angry,
`whereas the “sad” Moodster might become sad. The
`Moodsters behave in a similar fashion in the 2007
`pilot, where each character is especially prone to a
`particular emotion such as anger or sadness. But by
`2015, the five Moodsters are “mood detectives,” and
`help a young boy uncover how he feels about
`situations in his life.
`
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` 12a
`Finally, in every iteration the five Moodsters each
`have a completely different name. For example, the
`red/anger Moodster was originally named Roary in
`the 2005 Bible, then Rizzi in the 2007 pilot, and as of
`2015 was named Razzy in Moodsters toys and the
`Meet the Moodsters storybook. The other four
`characters have gone through similar name changes
`over the three iterations. While a change of name is
`not dispositive in our analysis, these changes across
`each iteration further illustrate that Daniels never
`settled on a well-delineated set of characters beyond
`their representation of five human emotions.
`The Batmobile in Towle again provides a useful
`contrast to this case. There, we recognized that from
`the time of the 1966 television series to the 1989
`motion picture, the Batmobile had numerous
`identifiable and consistent character traits and
`attributes. It was always a “crime- fighting car” that
`allowed Batman to defeat his enemies. Towle, 802
`F.3d at 1021. It consistently had jet-engines and far
`more power than an ordinary car, the most up-to-date
`weaponry, and the ability to navigate through
`landscapes impassible for an ordinary vehicle. Id. at
`1021–22. Beyond the emotion it represents, each
`Moodster
`lacks
`comparable
`identifiable and
`consistent character traits and attributes across
`iterations, thus failing the second prong of the Towle
`test.
`Finally, even giving Daniels the benefit of the
`doubt on Towle’s second prong, we conclude that The
`Moodsters
`fail the third prong—they are not
`“especially distinctive” and do not “contain some
`unique elements of expression.” Id.
`(internal
`quotation marks and citations removed). Daniels
`
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` 13a
`identifies The Moodsters as unique in that they each
`represent a single emotion. But this facet is not
`sufficient to render them “especially distinctive,”
`particularly given their otherwise generic attributes
`and character traits. In contrast, the Batmobile in
`Towle had a “unique and highly recognizable name,”
`unlike each Moodster, which had three entirely
`different names. Id. at 1022. Developing a character
`as an anthropomorphized version of a specific
`emotion is not sufficient, in itself, to establish a
`copyrightable character. See Rice v. Fox Broad. Co.,
`330 F.3d 1170, 1175 (9th Cir. 2003) (declining to
`extend copyright protection to “the magician …
`dressed in standard magician garb—black tuxedo
`with tails, a while tuxedo shirt, a black bow tie, and a
`black cape with red lining” whose role is “limited to
`performing and revealing magic tricks”). Taken
`together, The Moodsters are not
`“especially
`distinctive,” and do not meet the third prong of the
`Towle test.
`B. The Story Being Told Test
`Since the 1950s, we have also extended copyright
`protection to characters—both literary and graphic—
`that constitute “the story being told” in a work.
`Warner Bros. Pictures v. Columbia Broad. Sys., 216
`F.2d 945, 950 (9th Cir. 1954); see also Rice, 330 F.3d
`at 1175–76; Halicki Films, LLC v. Sanderson Sales &
`Mktg., 547 F.3d 1213, 1224 (9th Cir. 2008). A
`character is not copyrightable under this test where
`“the character is only the chessman in the game of
`telling the story.” Warner Bros. Pictures, 216 F.2d at
`950. This is a high bar, since few characters so
`dominate the story such that it becomes essentially a
`character study.
`
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` 14a
`Warner Brothers and Towle are two different tests
`for character copyrightability. See Rice, 330 F.3d at
`1175 (“characters that are ‘especially distinctive’ or
`the ‘story being told’ receive protection apart from the
`copyrighted work” (emphasis added)). Thus, we do not
`embrace the district court’s view that Towle
`represents the exclusive test for copyrightability.
`The Warner Brothers test is therefore available,
`but it affords no protection to The Moodsters. Neither
`the Bible nor the pilot episode exhibits any prolonged
`engagement with character development or a
`character study of The Moodsters. Although the
`characters are introduced in the Bible, along with
`short descriptions, these pithy descriptions do not
`constitute the story being told. The pilot contains
`even less character development—rather, each of The
`Moodsters serves primarily as a means by which
`particular emotions are introduced and explored. The
`Moodsters are mere chessmen in the game of telling
`the story.
`Daniels’s final argument is that even if the
`individual Moodsters are not protectable under the
`Towle or “story being told” regimes, the ensemble of
`five characters together meets one or both of those
`tests. Daniels’s ensemble claim does not change the
`distinctiveness or degree of delineation of the
`characters, and so The Moodsters as an ensemble are
`no more copyrightable than the individual characters.
`The district court did not err in dismissing
`Daniels’s claims for copyright infringement.
`
`
`
`
`
`
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`
`
` 15a
`II. Implied-in-Fact Contract
`Daniels also puts forth a claim for breach of an
`implied- in-fact contract. Under California law, a
`plaintiff can recover compensation for an idea
`conveyed to a counter- party where no explicit
`contract exists only where (1) “before or after
`disclosure he has obtained an express promise to
`pay,” or (2) “the circumstances preceding and
`attending disclosure, together with the conduct of the
`offeree acting with knowledge of the circumstances,
`show a promise of the type usually referred to as
`‘implied’ or ‘implied-in- fact.’” Desny v. Wilder, 46 Cal.
`2d 715, 738 (1956). The Ninth Circuit has developed
`a multi-part test to evaluate Desny claims, asking
`whether (1) the plaintiff prepared or created the work
`in question, (2) the work was disclosed to the
`defendant for sale, and (3) the disclosure was made
`“under circumstances
`from which
`it could be
`concluded that the offeree voluntarily accepted the
`disclosure knowing the conditions on which it was
`tendered and the reasonable value of the work.”
`Grosso v. Miramax Film Corp., 383 F.3d 965, 967 (9th
`Cir. 2004).
`Daniels’s implied-in-fact contract claim is based
`on the disclosure of information about The Moodsters
`to various employees of Disney and its affiliates
`between 2005 and 2009. These discussions were a
`part of Daniels’s effort to find a partner with whom
`she could develop and grow the Moodsters brand and
`commercial opportunities.
`There is no dispute that Daniels created the
`characters in question, and we accept as true that the
`alleged conversations took place. But the existence of
`
`
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`
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`
` 16a
`a conversation in which an idea is disclosed is, by
`itself, an insufficient basis to support an implied-in-
`fact contract.
`Daniels alleges that “she was aware and relied on
`customs and practices in the entertainment industry
`when she approached Disney˖Pixar about a
`partnership,” and that “Disney˖Pixar accepted the
`disclosure of the ideas in The Moodsters with an
`expectation that it would have to compensate Daniels
`and The Moodsters Company if Disney˖Pixar used
`this
`idea
`in any
`television, motion picture,
`merchandise, or otherwise.”
`But we are told no more. Daniels offers only bare
`allegations, stripped of relevant details that might
`support her claim for an implied-in-fact contract. No
`dates are alleged, and no details are provided. There
`is no basis to conclude that Disney either provided an
`express offer to pay for the disclosure of Daniels’s idea
`or that the disclosure was made “under circumstances
`from which it could be concluded that [Disney]
`voluntarily accepted the disclosure knowing the
`conditions on which it was tendered and the
`reasonable value of the work.” Id.
`To survive a motion to dismiss, Daniels is required
`under California law to do more than plead a boiler-
`plate allegation, devoid of any relevant details. The
`district court did not err in dismissing Daniels’s claim
`for an implied-in- fact contract.
`CONCLUSION
`There is no dispute that the 2005 Moodsters Bible
`and the 2007 pilot television episode are protected by
`
`
`
`
`
`
`
`
` 17a
`copyright. But Daniels cannot succeed on her
`copyright claim for The Moodsters characters, which
`are “lightly sketched” and neither sufficiently
`delineated nor representative of the story being told.
`Daniels also fails to allege sufficient facts to maintain
`an implied-in-fact contract claim against Disney
`under California law.
`AFFIRMED.
`
`
`
`
`
`
`
`
`
` 18a
` APPENDIX B
`FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`DENISE DANIELS; THE
`MOODSTERS COMPANY,
`Plaintiffs-
`Appellants,
`v.
`THE WALT DISNEY
`COMPANY; DISNEY
`ENTERPRISES, INC.; DISNEY
`CONSUMER PRODUCTS AND
`INTERACTIVE MEDIA INC.;
`DISNEY INTERACTIVE
`STUDIOS, INC.; DISNEY
`SHOPPING, INC.; PIXAR,
`Defendants-
`Appellees.
`Appeal from the United States District Court
` for the Central District of California
`Philip S. Gutierrez, District Judge, Presiding
`Argued and Submitted November 6, 2019
`Pasadena, California
`Filed March 16, 2020
`
`No. 18-55635
`
`D.C. No.
`2:17-cv-04527-
`PSG-SK
`
`OPINION
`
`
`
`
`
`
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` 19a
`Before: Jerome Farris, M. Margaret McKeown, and
`Barrington D. Parker, Jr.,∗ Circuit Judges.
`Opinion by Judge McKeown
`_________________________________________________
`SUMMARY**
`_________________________________________________
`Copyright
`The panel affirmed the district court’s dismissal of
`an action alleging copyright infringement by the
`Disney movie Inside Out of plaintiffs’ characters
`called The Moodsters.
`Affirming the denial of plaintiff’s claim under the
`Copyright Act, the panel held that The Moodsters,
`lightly sketched anthropomorphized characters
`representing human emotions, did not qualify for
`copyright protection because they lacked consistent,
`identifiable character traits and attributes and were
`not especially distinctive. The Moodsters also did not
`qualify for copyright protection under the alternative
`“story being told” test.
`The panel also affirmed the district court’s denial
`of plaintiff’s claim for breach of an implied-in-fact
`contract under California
`law, based on her
`
` ∗ The Honorable Barrington D. Parker, Jr., United States
`Circuit Judge for the U.S. Court of Appeals for the Second
`Circuit, sitting by designation.
`
` ** This summary constitutes no part of the opinion of the
`court. It has been prepared by court staff for the convenience of
`the reader.
`
`
`
`
`
`
`
`
`
`
` 20a
`disclosure of information about The Moodsters to
`various employees of Disney and its affiliates.
`_________________________________________________
`
`COUNSEL
`
`Patrick Arenz, Esq.(argued), Ronald J. Schutz and
`Brenda L. Joly, Robins Kaplan LLP, Minneapolis,
`Minnesota, for Plaintiffs-Appellants.
`Mark Remy Yohalem, Esq. (argued), Glenn D.
`Pomerantz, Erin J. Cox, Kenneth M. Trujillo-
`Jamison, and Anne K. Conley, Munger, Tolles &
`Olson LLP, Los Angeles, California, for Defendants-
`Appellees.
`_________________________________________________
`OPINION
`McKEOWN, Circuit Judge:
`Literary and graphic characters—from James
`Bond to the Batmobile—capture our creative
`imagination. These characters also may enjoy
`copyright protection, subject to certain limitations.
`Here
`we
`consider
`whether
`certain
`anthropomorphized characters representing human
`emotions qualify for copyright protection. They do
`not. For guidance, we turn to DC Comics v. Towle, our
`court’s most
`recent
`explanation
`of
`the
`copyrightability of graphically-depicted characters.
`DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015).
`Denise Daniels
`developed
`a
`line
`of
`anthropomorphic characters called The Moodsters,
`which she pitched to entertainment and toy
`companies around the country, including The Walt
`
`
`
`
`
`
`
`
`
`
` 21a
`Disney Company. Under Towle, “lightly sketched”
`characters such as The Moodsters, which lack
`“consistent,
`identifiable
`character
`traits and
`attributes,” do not enjoy copyright protection. Id. at
`1019, 1021. We affirm the district court’s dismissal of
`Daniels’s complaint.
`BACKGROUND
`I. The Moodsters
`Daniels is an expert on children’s emotional
`intelligence and development. She designed and
`promoted initiatives that help children cope with
`strong emotions like loss and trauma. The Moodsters
`were devised as a commercial application of this
`work. Daniels hired a team to produce and develop
`her idea under the umbrella of her new company, The
`Moodsters Company. The initial product was The
`Moodsters Bible (“Bible”), a pitchbook released in
`2005. It provided a concise way to convey Daniels’s
`idea to media executives and other potential
`collaborators, and included a brief description of the
`characters,
`themes, and setting
`that Daniels
`envisioned for her Moodsters universe.
`The Moodsters are five characters that are color-
`coded anthropomorphic emotions, each representing
`a different emotion: pink (love); yellow (happiness);
`blue (sadness); red (anger); and green (fear). Daniels
`initially named The Moodsters Oolvia, Zip, Sniff,
`Roary, and Shake, although these names changed in
`each iteration of the characters.
`In 2007, Daniels and her team released a 30-
`minute pilot episode for a television series featuring
`
`
`
`
`
`
`
`
` 22a
`The Moodsters, titled “The Amoodsment Mixup”
`(“pilot”). The pilot was later available on YouTube.
`Between 2012 and 2013, Daniels and her team
`developed what they call the “second generation” of
`Moodsters products: a line of toys and books featuring
`The Moodsters that were sold at Target and other
`retailers beginning in 2015.
`Daniels and The Moodsters Company pitched The
`Moodsters to numerous media and entertainment
`companies. One recurring target was The Walt
`Disney Company and its affiliates, including Pixar.
`Daniels alleges that she or a member of her team had
`contact with several different Disney employees
`between 2005 and 2009.
`The claimed contact began in 2005, when a
`member of The Moodsters Company shared
`information about The Moodsters with an employee
`of Playhouse Disney. Daniels alleges that in 2008 she
`was put in touch with Thomas Staggs, the Chief
`Financial Officer of the Walt Disney Company, and
`that Staggs later informed her that he would share
`materials about The Moodsters with Roy E. Disney,
`the son of a Disney founder, and Rich Ross, the
`President of Disney Channels Worldwide. Finally,
`Daniels alleges that she spoke by phone with Pete
`Docter, a director and screenwriter, and they
`discussed The Moodsters, although no year or context
`for this conversation is alleged in the Complaint.
`II. Disney’s Inside Out
`Disney began development of its movie Inside Out
`in 2010. The movie was released in 2015, and centers
`
`
`
`
`
`
`
`
` 23a
`on five anthropomorphized emotions that live inside
`the mind of an 11-year-old girl named Riley. Those
`emotions are joy, fear, sadness, disgust, and anger.
`Docter, who directed and co-wrote the screenplay,
`stated that his inspiration for the film was the
`manner with which his 11-year-old daughter dealt
`with new emotions as she matured.
`III.District Court Proceedings
`Daniels filed suit against Disney in 2017 for
`breach of an implied-in-fact contract, arising from
`Disney’s failure to compensate Daniels for the
`allegedly disclosed material used to develop Inside
`Out. Daniels then filed an amended complaint,
`joining The Moodsters Company as a co-plaintiff and
`alleging copyright infringement of both the individual
`Moodsters characters and the ensemble of characters
`as a whole.
`Disney filed a motion to dismiss, asserting that
`Daniels failed to meet the legal standard for copyright
`in a character, and that the copyright “publication” of
`the Bible and pilot doomed Daniels’s implied-in-fact
`contract claim. The district court granted Disney’s
`motio
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