Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 1 of 35
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`TIMOTHY McGEE,
`Plaintiff,
`
`v.
`ANDRÉ BENJAMIN 3000, THE CARTOON
`NETWORK, and TURNER BROADCASTING
`SYSTEMS, INC.,
`Defendants.
`
`))
`
`)
`MEMORANDUM AND ORDER
`March 20, 2012
`
`CIVIL ACTION NO.
`08-11818-DPW
`
`))
`
`))
`
`)
`)
`)
`)
`
`This copyright action arises out of a treatment for an
`animated television series developed by Plaintiff Timothy McGee
`and unsuccessfully pitched to Defendant The Cartoon Network
`(“Cartoon Network”) in 1997. Nearly ten years later, Cartoon
`Network aired Class of 3000, which was co-created and co-produced
`by Thomas Lynch and Defendant André Benjamin. Alleging that
`Benjamin, Cartoon Network, and its parent company, Defendant
`Turner Broadcasting Systems, Inc. (“TBS”), copied his cartoon
`treatment, McGee filed suit against the defendants for copyright
`infringement and various state law claims. Defendants Cartoon
`Network and TBS have moved to dismiss, and McGee has filed
`several motions to amend the complaint and two motions to enforce
`an earlier discovery order. For the following reasons, I will
`grant the defendants’ motion to dismiss and deny McGee’s motions.
`
`1
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 2 of 35
`
`I. BACKGROUND
`Plaintiff Timothy McGee is a resident of Massachusetts, but
`at times relevant to this action was an animation and graphic
`design student in Georgia. Cartoon Network and TBS
`(collectively, the “defendants”) are the only defendants who have
`been served properly in this action. The other named defendant,
`André “André 3000” Benjamin, is an Atlanta native and musical
`artist/entrepreneur who is perhaps best known as half of the hip
`hop duo Outkast.1 Cartoon Network and TBS both have principal
`places of business in Georgia.
`A.
`The Allegedly Infringed Work: The Music Factory of the 90’s
`In approximately 1997, McGee “developed characters, artwork,
`storylines, re-use (movie/internet) and marketing concepts” for
`
`1 In a submission before oral argument, McGee sought
`guidance on how properly to serve Benjamin and a Georgia company
`called Moxie Turtle, Inc., which is involved in the production of
`Class of 3000. Neither Benjamin nor Moxie Turtle were properly
`served in this action. According to his submission, in January
`2008 McGee tasked his attorney with serving both Benjamin and
`Moxie Turtle, but the attorney failed to do so. McGee has
`submitted more than 100 pages of correspondence with his attorney
`to demonstrate his good faith effort to serve Benjamin. However,
`under Local Rule 4.1 and Federal Rules of Civil Procedure 4(m)
`and 6(b), McGee’s opportunity to serve Benjamin or extend the
`time to do so for good cause had long expired by the time of oral
`argument. Thus, McGee’s claims against Benjamin will be
`dismissed on alternative grounds of failure to effect service.
`McGee was given leave to amend his complaint on April 9, 2009 to
`add Moxie Turtle as a defendant, but McGee never filed his First
`Amended Complaint. Thus, Moxie Turtle is not properly subject to
`this suit. In any event, even if McGee had properly served
`Benjamin with his First Amended Complaint adding Moxie Turtle,
`McGee’s claims would still fail for the substantive reasons
`discussed below in this Memorandum.
`2
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 3 of 35
`
`an animated serial work titled “The Music Factory of the 90’s
`[sic]” (the “Music Factory”). McGee registered three copyrights
`for work related to the Music Factory: the original eight-page
`treatment,2 Reg. No. VAu 218-1729, effective May 6, 1997; an
`updated treatment, Reg. No. VAu 416-298, effective January 23,
`1998; and additional drawings and two pages of text, Reg. No. Vau
`440-850, effective May 27, 1998. The only copyrighted work
`allegedly infringed by the defendants in the Amended Complaint is
`No. 218-1729, which includes (1) letters to several production
`companies pitching Music Factory, (2) various articles discussing
`marketing of cartoons and spin-off merchandise, (3) sample
`contract language regarding ancillary merchandising, (4) a
`“Synopsis/OUTLINE/TREATMENT” for Music Factory in the form of a
`letter pitch, (5) character sketches with accompanying text
`describing the characters, and (6) a script of a proposed pilot
`episode entitled “The Birth of the Factory.”3
`McGee’s “story format is based on the cartoon (Fat-Albert
`and the Cosby Kids) format, where at the end of each show the
`cartoon characters had a sing-a-long for that day [sic] lesson.”
`
`2 In the television and film industries, a “treatment” is a
`long-form outline that is written to describe the plot and style
`of a show. It is generally written in the present tense, as if
`the author is walking through the show step by step and he
`describes the scenes and dialog.
`3 A second treatment, included as Exhibit A to the McGee’s
`briefing but not identified in the Amended Complaint, lays out
`additional episode summaries and characters.
`3
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 4 of 35
`
`In each episode, the group of central characters “interacts with
`established performers, featured as guest artists, who are
`integrated into each episode’s storyline to impart lessons about
`the music industry and life.” Each episode is built around three
`elements: “the conflicts between the cartoon characters’ everyday
`life”; “topics that have been addressed on [Black Entertainment
`Television’s] ‘Teen Summit’ some of which are: racism,
`stereotypes, image, dress codes, violence and most importantly
`responsibility”; and “the music and the artist who will appear on
`the show showcasing their talents and educating the kids.” The
`guest stars “will become animated characters when entering the
`music factory or performing on the magic stage in the studio[ and
`then] return to their normal [live-action] state at the end of
`each episode after helping these kids complete the day [sic]
`lesson.” McGee intended that a three-minute music video would be
`“reedited out” of the twenty-two minute episode to be marketed
`independently. The target audience of the show was “young
`viewers who [a]re consumers of cartoon programming and music
`programming.”
`Set in Atlanta, the work’s central character is Tony “The
`Play Maker” Rich, a corporate attorney from a rich family who
`leaves his law firm to try become a successful music producer.
`In addition to The Play Maker, the animated cast includes five
`“young musicians, technologists, would-be executives and other
`
`4
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 5 of 35
`
`artists as they try to break into Atlanta’s burgeoning music
`scene.” The Music Factory also features a “host,” like Bill
`Cosby in Fat Albert and the Cosby Kids, who would be someone
`“established in the music industry.”
`The script for the first episode, “The Birth of the
`Factory,” establishes the premise for the show. Tony Rich leaves
`his law firm and, using money from his father, buys a production
`studio. His father appoints an attractive, female bank
`executive, Bobby, to monitor the investment, leading to tension
`and potential romance. Bobby and The Play Maker hire a young
`inventor, Brain, as technician and discover the stage-shy Mic.
`Check singing in a family band. The Play Maker runs into Whitney
`Houston (the guest star for the episode) at his old law firm, and
`she helps Mic. Check overcome her stage fright. The episode ends
`with Mic. Check recording a song while Whitney Houston sings
`along in the sound booth.
`McGee Presents Music Factory to Cartoon Network
`B.
`According to the Amended Complaint, McGee pitched the Music
`Factory to Cartoon Network in 1997 for use in the network’s
`“Adult Swim” programming, which was adult-oriented programming
`being developed at that time.4 In particular, he sent the
`
`4 Adult Swim debuted on Cartoon Network in 2001 with a
`single-night block on Sundays at 10 p.m. and expanded to nightly
`programming beginning at 9 p.m. See Sean Fennessey, The “Bold,
`Crazy” World of Adult Swim, L.A. Times, Feb. 20, 2011, available
`at http://articles.latimes.com/2011/feb/20/
`5
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 6 of 35
`
`treatment (“a demo reel, character sheets and a synopsis of the
`work”) to Michael Lazzo, who was a senior vice president of
`programming and production at Cartoon Network and was overseeing
`the “Adult Swim” development. In a letter dated May 28, 1997,
`Lazzo informed McGee that Cartoon Network was not interested in
`using the Music Factory because it did not meet Cartoon Network’s
`programming needs. Lazzo’s letter stated that Cartoon Network
`was “currently focusing on creator driven shorts targeted at a
`slightly younger age group at this time. We’re returning all
`your materials herewith.” McGee alleges that he never heard from
`Cartoon Network again.5
`C.
`The Allegedly Infringing Work: “Class of 3000”
`In November 2006, Cartoon Network launched Class of 3000, an
`animated half-hour musical series also set in Atlanta. According
`to the Amended Complaint, the cast includes “young aspiring
`musicians” and a fictional host, Sunny Bridges, who is voiced by
`Benjamin and loosely based on his life. The series includes
`original music, written and produced by Benjamin, that emphasizes
`the “theme and lessons of each storyline.” Benjamin and Thomas
`
`entertainment/la-ca-adult-swim-20110220.
`5 In his brief in opposition to the motion to dismiss,
`McGee asserts that Lazzo never returned the materials. He also
`asserts, for the first time, that he unsuccessfully re-pitched
`the Music Factory to Lazzo in 1999 or 2000.
`6
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 7 of 35
`
`Lynch were co-creators and co-producers of Class of 3000.6 The
`Amended Complaint alleges that Benjamin planned to market the
`music and music videos used in the show independently and to
`invite guest musical artist to appear on future episodes of the
`show.
`
`According to a treatment, Class of 3000 chronicles “the
`adventures of a classroom of musical outcasts and their whimsical
`teacher at the Westley School for the Performing Arts in
`Atlanta.” Although Sunny is a central character, an equally
`featured character is Li’l D, a music student who reminds Sunny
`of himself at a younger age. Li’l D and his six classmates are a
`multi-cultural group from different parts of the city, including
`the real Atlanta neighborhoods of Buckhead (a wealthy area) and
`Bankhead (a low-income housing area). Sunny grew up in Bankhead
`and, after years as a “musical superstar, A-lister, and
`trendsetter,” “left stardom to go back home to Atlanta in search
`of his lost joy.” Sunny becomes a “part-whimsical, part magical
`music teacher” who “lights the world up when he walks by,” “sees
`life differently than most,” and lives in a magical house in the
`woods.
`
`6 In the Amended Complaint, McGee alleges that Benjamin is
`the creator and producer of Class of 3000, but now seeks to add
`Thomas Lynch and Lynch’s production company as defendants in this
`action. The disposition of this and other motions to amend the
`complaint will be discussed infra Part III.
`7
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 8 of 35
`
`The “world” of Class of 3000 is based on real Atlanta
`neighborhoods and on fictional locations such as the magical
`woods and the school, although the school is based on the
`performing arts school that Benjamin attended in Atlanta as a
`child. The style of the animation is “[e]nergetic, stylish,
`influenced with a Southern flavor and relatable characters that
`have flawed and quirky comedic centers.” Music is an integral
`part of the show, with each episode featuring original music
`animated by a guest animator.
`D.
`Procedural History
`McGee filed suit against Benjamin, Cartoon Network, and TBS
`on October 30, 2008. He filed a motion to amend his complaint to
`include defendant Moxie Turtle on April 1, 2009.7 As noted
`above, see Note 1 supra, neither Moxie Turtle nor Benjamin have
`been served in this action. In the four-count complaint, McGee
`alleges that by producing, airing, and licensing Class of 3000,
`the defendants infringed his copyright, breached an implied
`contract not to use his idea without compensation,
`misappropriated trade secrets, and violated Massachusetts’s
`
`7 Although McGee’s motion to amend the Complaint to include
`defendant Moxie Turtle, Inc., was granted, McGee did not formally
`file the Amended Complaint. Because the Amended Complaint is in
`all respects identical to the original Complaint, with the
`exception of two brief references to Moxie Turtle in the Amended
`Complaint, and the defendants have addressed the Amended
`Complaint in their briefing on the pending motions, I will
`consider McGee’s allegations in the Amended Complaint to be the
`operative allegations here.
`
`8
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 9 of 35
`
`consumer protection act, Mass. Gen. Laws ch. 93A. McGee seeks
`statutory damages, profits obtained by the use of his work, and
`costs.
`In July 2009, counsel for the parties reported a settlement
`had been reached in this matter. The defendants filed a motion
`to enforce the settlement, and McGee opposed the motion, claiming
`that he had not granted his attorney authority to accept any such
`settlement. On October 22, 2009, Judge Harrington granted a
`motion filed by McGee’s counsel, Jerrold Neeff, to withdraw.
`Following a hearing, which McGee did not attend, the defendants’
`motion to enforce the settlement was granted and the case was
`dismissed. Proceeding pro se, McGee appealed the enforcement
`order, which the First Circuit vacated and remanded for an
`evidentiary hearing. McGee v. Cartoon Network, Inc., 383 F.
`App’x 12 (1st Cir. 2010) (per curiam). On remand, Judge Saris
`denied the motion to enforce, McGee v. Cartoon Network, Inc., No.
`08-cv-11818, 2011 WL 722470 (D. Mass. Feb. 22, 2011).
`Thereafter, the case was reassigned to this session.
`Before me now are the defendants’ motion to dismiss (Dkt.
`No. 77) and McGee’s motions to amend the complaint to add various
`parties as defendants (Dkt. Nos. 80, 105, 108, 109) and to
`enforce a discovery order issued by Magistrate Judge Collings on
`September 20, 2010 (Dkt. Nos. 90, 104). In his briefing on the
`motion to dismiss, McGee concedes that the trade secrets and
`
`9
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 10 of 35
`
`Chapter 93A claims (Counts III and IV, respectively) fail to
`state a claim for which relief can be granted. Accordingly,
`Counts III and IV will be dismissed and only the copyright
`infringement and breach-of-contract claims will be considered
`here.
`
`A.
`
`II. MOTION TO DISMISS
`Standard of Review
`In order to survive a motion to dismiss pursuant to Federal
`Rule of Civil Procedure 12(b)(6), “a complaint must contain
`sufficient factual matter, accepted as true, to state a claim to
`relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.
`Ct. 1937, 1949 (2009) (citation and internal quotation marks
`omitted). Factual allegations must “raise a right to relief
`above the speculative level,” Bell Atl. Corp. v. Twombly, 550
`U.S. 544, 555 (2007), and provide “more than an unadorned, the-
`defendant-unlawfully-harmed-me accusation,” Iqbal, 129 S. Ct. at
`1950.
`In considering a motion to dismiss, I must accept all
`factual allegations in the complaint as true and draw all
`reasonable inferences in favor of McGee. Id. at 1949. However,
`neither “naked assertion[s]” nor “conclusory statements” are
`sufficient to support a claim. Id.
`I am “generally limited to considering facts and documents
`that are part of or incorporated into the complaint.” Giragosian
`
`10
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 11 of 35
`
`v. Ryan, 547 F.3d 59, 65 (1st Cir. 2008) (citation and internal
`quotation marks omitted); Beddall v. State St. Bank & Trust Co.,
`137 F.3d 12, 16 (1st Cir. 1998) (citations omitted) (“When . . .
`a complaint’s factual allegations are expressly linked to — and
`admittedly dependent upon — a document (the authenticity of which
`is not challenged), that document effectively merges into the
`pleadings and the trial court can review it in deciding a motion
`to dismiss under Rule 12(b)(6).”). I “may also consider
`documents incorporated by reference in the [complaint], matters
`of public record, and other matters susceptible to judicial
`notice.” Giragosian, 547 F.3d at 65 (citation and internal
`quotation marks omitted) (alteration in original). Consequently,
`I will consider the Music Factory treatment referenced by
`copyright number in the Amended Complaint, the Class of 3000
`episodes and treatment discussed in the Amended Complaint, the
`official copyrights, and the May 1997 letter quoted in the
`Amended Complaint.
`However, without converting the motion to dismiss into a
`motion for summary judgment under Federal Rule of Civil Procedure
`12(d), which I find inappropriate at this stage in the
`development of this case, I may not consider the exhibits
`attached to McGee’s briefing. Trans-Spec Truck Serv., Inc. v.
`Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008) (“[I]f the
`district court chooses . . . to ignore supplementary materials
`
`11
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 12 of 35
`
`submitted with the motion papers and determine the motion under
`the Rule 12(b)(6) standard, no conversion occurs and the
`supplementary materials do not become part of the record for
`purposes of the Rule 12(b)(6) motion.”). Similarly, I may not
`consider any new factual allegations set forth in the plaintiff’s
`briefing, Miller v. Suffolk Cty. House of Corr., No. 01-cv-11331,
`2002 WL 31194866, at *2 n.1 (D. Mass. Sept. 27, 2002), even when
`the plaintiff is pro se, Steele v. Turner Broad. Sys., Inc., 607
`F. Supp. 2d 258, 263 (D. Mass. 2009) (“[A]ssertions in an
`opposition to a motion are not the equivalent of factual
`pleadings. To allow Steele to plead facts in such a manner would
`grant too much leeway to a pro se plaintiff at the expense of
`orderly procedure and would deprive the defendants of clear
`notice of the allegations against them.”).
`B.
`Copyright Infringement (Count I)
`In order to demonstrate copyright infringement, the
`plaintiff must establish “(1) ownership of a valid copyright, and
`(2) copying of constituent elements of the work that are
`original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
`338, 361 (1991). The parties do not contest that McGee has a
`valid copyright in the treatment materials compiled in copyright
`registration No. Vau 416-298. Thus, only the second prong is at
`issue.
`
`12
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 13 of 35
`
`To show actionable copying “involves two steps: (a) that the
`defendant actually copied the work as a factual matter, . . . and
`(b) that the defendant’s copying of the copyrighted material was
`so extensive that it rendered the infringing and copyrighted
`works ‘substantially similar.’” Situation Mgmt. Sys., Inc. v.
`Asp. Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009) (citation
`and quotation marks omitted). “The plaintiff bears the burden of
`proof as to both elements.” Johnson v. Gordon, 409 F.3d 12, 17
`(1st Cir. 2005).
`A plaintiff may satisfy the first element, actual copying,
`either by direct or indirect evidence of copying. Johnson, 409
`F.3d at 18. When, as here, direct proof is absent, “the
`plaintiff may satisfy his obligation indirectly by adducing
`evidence that the alleged infringer enjoyed access to the
`copyrighted work and that a sufficient degree of similarity
`exists between the copyrighted work and the allegedly infringing
`work to give rise to an inference of actual copying.” Id. The
`First Circuit has held that, when determining this “probative
`similarity,” “a court must engage in dissection of the
`copyrighted work by separating its original, protected expressive
`elements from those aspects that are not copyrightable because
`they represent unprotected ideas or unoriginal expressions.” Id.
`at 18–19. Any copying of ideas or unoriginal “constituent
`
`13
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 14 of 35
`
`elements” of the copyrighted work does not demonstrate probative
`similarity because those elements are unprotected.
`If a court identifies any probative similarity from which it
`can infer actual copying, it must then “address the question of
`substantial similarity (and, thus, determine whether wrongful
`appropriation occurred).” Johnson, 409 F.3d at 19. Two works
`are “substantially similar if a reasonable, ordinary observer,
`upon examination of the two works would conclude that the
`defendant unlawfully appropriated the plaintiff’s protectable
`expression.” Hassett v. Hasselbeck, 757 F. Supp. 2d 73, 79–80
`(D. Mass. 2010) (quoting T-Peg, Inc. v. Vt. Timber Works, Inc.,
`459 F.3d 97, 112 (1st Cir. 2006)) (quotation marks omitted).
`As with the probative similarity inquiry, the substantial
`similarity test includes a “requirement of originality.”
`Johnson, 409 F.3d at 18. “Thus, in assessing whether substantial
`similarity exists, an overall impression of similarity may not be
`enough.” Id. at 19 (citation omitted). If the impression of
`similarity arises from the similarity of unoriginal and
`noncopyrightable expressions or ideas, “it will not satisfy the
`predicate requirement of originality necessary to ground a
`finding of actionable copying.” Id.
`
`Actual Copying
`1.
`McGee alleges, and the defendants do not dispute, that in
`1997 he sent a treatment of Music Factory to Lazzo when he was a
`
`14
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 15 of 35
`
`Cartoon Network executive. Thus, the defendants had access to
`the copyrighted treatment — or at least some derivative version
`of it. The remaining question, therefore, is whether there is
`any probative similarity between the original, copyrightable
`elements of the Music Factory treatment and the Class of 3000.
`See Johnson, 409 F.3d at 18. Again, “[s]imilarities with respect
`to nonprotectable interests need not be considered.” Franklin v.
`Ciroli, 865 F. Supp. 947, 949 (D. Mass. 1994) (citation omitted).
`In his Amended Complaint, McGee alleges that “the
`similarities of location, characters, content, format, and
`dramatis personae present a pattern of infringement” from which
`this court can infer copying by the defendants. The defendants
`contend that this conclusory statement does nothing more than
`restate an element of a copyright infringement claim without any
`factual allegation to support it. For that reason alone, the
`defendants argue, it should be dismissed under the pleadings
`requirements laid out in Iqbal and Twombly. I have recently
`found allegations referring to similar “storylines,” “names,”
`“lives,” and “actions” to be “simply too vague to be the basis
`for an infringement claim.” Feldman v. Twentieth Century Fox
`Film Corp., 723 F. Supp. 2d 357, 366 (D. Mass. 2010). Thus, the
`plaintiff must point to some more specific similarities than
`“location, characters, content, format, and dramatis personnae”
`for his claim to survive.
`
`15
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 16 of 35
`
`McGee identifies several specific similarities referenced in
`the Amended Complaint, namely, “(1) the facts that both creative
`works take place in Atlanta, Georgia[,] (2) that the host or main
`character of each work is from, or becomes involved in the music
`industry, and (3) that each main character has left his former
`job to commence each respective creative work.” Even assuming
`that the factual allegations in the Amended Complaint are
`specific enough to meet the pleadings standard, however, McGee
`fails to allege sufficient probative similarity to demonstrate
`actual copying.
`McGee’s argument regarding probative similarity runs up
`against several hurdles often encountered by those who seek to
`enforce a copyright in a treatment for a television show, movie,
`or theatrical performance. Most notably, there are very few
`elements of the Music Factory treatment that are original; most
`of the alleged similarities are noncopyrightable “basic concepts
`and ideas” or “stock scenes and characters.” See Feldman, 723 F.
`Supp. 2d at 366.
`First, ideas and concepts are not protected by copyright.
`17 U.S.C. § 102(b) (“In no case does copyright protection for an
`original work of authorship extend to any idea, procedure,
`process, system, method of operation, concept, principle, or
`discovery, regardless of the form in which it is described,
`explained, illustrated, or embodied in such work.”); see also
`
`16
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 17 of 35
`
`Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998) (“[T]he
`underlying idea [of a work] (e.g., the travails of two star-
`crossed lovers), even if original, cannot be removed from the
`public realm; but its expression in the form of a play script
`(such as William Shakespeare’s Romeo and Juliet) can be
`protected.”).
`Despite this limitation on copyright protection, McGee
`repeatedly argues that “Defendants may have taken [his] idea and
`used it as an inspiration for the Class of 3000 show” and that
`“Defendants have failed to proffer any valid copyright to the
`idea.” (emphasis added). Thus, to the extent that Class of 3000
`copies any ideas contained in the Music Factory treatment, such
`copying is not protected. For example, an animated television
`show that incorporates music, musicians, or original songs is not
`copyrightable. Nor is it, in any event, original: as McGee
`explains in his treatment, his cartoon format is itself based on
`Fat Albert and the Cosby Kids, which also incorporated music and
`an original song into an animated series.8
`
`8 The integration of music and animation, including the use
`of music or sing-alongs related to the episode’s story or lesson,
`is a recurring format in animated series. The Beatles (1965–67)
`and The Jackson 5ive (1971–72) featured the bands’ released songs
`and followed fictionalized versions of the real musical groups as
`they navigated the music industry and various unrelated
`adventures. The exploits of young musical artists and bands that
`include original songs also have been a mainstay of cartoon
`programming; Josie and the Pussycats (1970–72), Fat Albert and
`the Cosby Kids (1972–85), Butch Cassidy and the Sundance Kids
`(1973), Alvin and the Chipmunks (1983-90), Jim Henson’s Muppet
`17
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 18 of 35
`
`Second, “courts have recognized that a copyright will not
`protect[] plots, subplots or themes.” Franklin, 865 F. Supp. at
`950 (citation omitted). This conclusion is consistent with the
`limitation of a copyright’s protection to expressions of ideas,
`rather than the ideas themselves. Thus “the doctrine of scènes à
`faire denies copyright protection to elements of a work that are
`for all practical purposes indispensable, or at least customary,
`in the treatment of a given subject matter.”9 Coquico, Inc. v.
`Rodriguez-Miranda, 562 F.3d 62, 68 (1st Cir. 2009) (citations
`omitted).
`The concept of struggling young artists is not an original
`one, and issues such as stage fright, the inability to get
`
`Babies (1984–91), and Fraggle Rock (1987) all featured original
`songs and musical groups. Such cartoons and others have
`chronicled both the performing and production aspects of the
`music industry. In the 1980s show Jem (1985–88), for example,
`heroine Jerrica Benton is the owner of a music company who also
`(secretly) is the front-woman of her most successful band, Jem
`and the Holograms.
`9 For this reason, the Ninth Circuit has observed that “a
`concept for a film or television show cannot be protected by
`copyright.” Montz v. Pilgrim Films & Television, Inc., 649 F.3d
`975, 979 (9th Cir. 2011) (en banc) (citing 17 U.S.C. § 102).
`Rather, the proper claim is the California common law tort of
`misappropriation of an idea. Id. The First Circuit recognizes
`that, in limited circumstances, “[i]nfringement can occur where —
`without copying a single line — the later author borrows
`wholesale the entire backdrop, characters, interrelationships,
`genre, and plot design of an earlier work.” TMTV, Corp. v. Mass.
`Prod., Inc., 645 F.3d 464, 470 (1st Cir. 2011). The Ninth
`Circuit’s conclusion, though not the law in this circuit,
`nevertheless underscores just how difficult it is to plead an
`actionable claim for copyright infringement of a television
`treatment or concept.
`
`18
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 19 of 35
`
`recognized by the music industry, receiving mentoring from an
`industry insider or star, and overcoming technological and other
`obstacles to putting on a successful performance are natural
`corollaries of a cartoon following a group of young performers.
`See, e.g., Quaglia v. Bravo Networks, No. Civ.A. 04-10460, 2006
`WL 721545, at *2–3 (D. Mass. Mar. 21, 2006), aff’d No. 06-1864,
`2006 WL 3691667 (1st Cir. Dec. 15, 2006) (per curiam)
`(determining that a reality show chronicling aspiring New York
`City actors during auditions did not infringe the copyright of a
`pitch for a show filming aspiring New York City actors at an
`audition that turns out to be fake). Likewise the plot device of
`a protagonist leaving one profession to embark on an unrelated
`profession with little experience but considerable passion is a
`familiar one. See, e.g., A History of Violence (New Line Cinema
`2005).
`Third, “[s]tock characters, like stock scènes à faire, are
`not subject to copyright protection.” TMTV, 645 F.3d at 469
`(citation omitted); see also Franklin, 865 F. Supp. at 949
`(citation omitted) (“A person may not obtain a copyright on a
`particular type of character, particularly if this character
`represents a recognizable stereotype.”).
`Because the physical appearance and artists’ sketches of the
`characters in the two shows are very different, I must look to
`their attributes and actions. See, e.g., Fisher v. United
`
`19
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 20 of 35
`
`Feature Syndicate, Inc., 37 F. Supp. 2d 1213, 1219 (D. Colo.
`1999), aff’d 203 F.3d 834 (10th Cir. 2000) (unpublished table
`opinion) (“In determining whether a character in a second work
`infringes a cartoon character, courts have generally considered
`not only the visual resemblance but also the totality of the
`character’s attributes and traits.” (quoting Warner Bros. Inc. v.
`Am. Broad. Cos., 720 F.2d 231, 241 (2d Cir. 1983)). However, to
`the extent that those attributes and actions extend naturally
`from their stereotyped characteristics, they are not protectable.
`Franklin, 865 F. Supp. at 950 (“Stereotyped characters do not
`appear in a vacuum. A sheriff appears in a western saloon, a
`waitress appears in a diner, and a soldier appears in a war.”).
`McGee argues that there are similarities between his
`characters and those appearing in Class of 3000. In particular,
`he points out that Sunny and The Play Maker are both involved in
`the music industry: as a former superstar, Sunny comes from the
`industry, and as a new producer, The Play Maker is entering it.
`However, a connection to an industry alone is insufficient to
`render the characters substantially similar. Sunny is a
`superstar musician who becomes frustrated with the demands of the
`music industry (e.g., fawning entourage, excessive touring,
`obsession with money) and goes home to his old neighborhood,
`where he becomes a music teacher at the performing arts school
`that he attended as a child. Sunny also possesses a magical
`
`20
`
`

`
`Case 1:08-cv-11818-DPW Document 126 Filed 03/20/12 Page 21 of 35
`
`quality; for example, in the two-part first episode, wherever
`Sunny walks, the weather changes from rain to sunshine and
`flowers grow in his wake. By contrast, the Play Maker is a rich
`kid who became a lawyer to satisfy his father, is obsessed with
`music videos and the music industry, quits his job, buys a
`production studio, and tries to become a successful producer.
`Whereas Sunny is a mentor figure to his students, The Play Maker
`knows nothing about the music industry and learns as he goes
`along and with the help of others, including the guest stars.
`Thus, in certain fundamental senses the two characters are almost
`polar opposites.
`McGee’s other characters, young musicians and a tough
`executive, are largely stock characters. Even if they were
`copyrightable, they bear little resemblance to the young
`musicians in Class of 3000. McGee’s characters are generally
`older — late teens or 20s — than the students of the Class of
`3000, who appear to be preteens or younger. McGee’s characters
`are also involved primarily — if not exclusively — in the hip h