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Case 2:17-cv-02185-MWF-JC Document 18 Filed 06/05/17 Page 1 of 31 Page ID #:115

1 QUINN EMANUEL URQUHART


& SULLIVAN, LLP
2 Gary E. Gans (Cal. Bar No. 89537)
garygans@quinnemanuel.com
3 Jeffery D. McFarland (Cal. Bar No. 157628)
jeffmcfarland@quinnemanuel.com
4 Shahin Rezvani (Cal. Bar No. 199614)
shahinrezvani@quinnemanuel.com
5 Aaron H. Perahia (Cal. Bar No. 304554)
aaronperahia@quinnemanuel.com
6 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017
7 Telephone: (213) 443-3000
Facsimile: (213) 443-3100
8
9 Attorneys for Plaintiff
Esplanade Productions, Inc.
10
11 UNITED STATES DISTRICT COURT
12 CENTRAL DISTRICT OF CALIFORNIA
13 ESPLANADE PRODUCTIONS, INC., a CASE NO.: 2:17-cv-02185-MWF-JC
California corporation,
14 PLAINTIFF ESPLANADE
Plaintiff, PRODUCTIONS, INC.S
15 vs. OPPOSITION TO DEFENDANTS
MOTION TO DISMISS
16 THE WALT DISNEY COMPANY, a
Delaware corporation; DISNEY Date: June 26, 2017
17 ENTERPRISES, INC., a Delaware Time: 10:00 a.m.
corporation; WALT DISNEY PICTURES, Judge: Hon. Michael W. Fitzgerald
18 a California corporation; ABC, INC., a Place: Courtroom 5A
New York corporation; BUENA VISTA
19 HOME ENTERTAINMENT, Inc., a
California corporation; DISNEY
20 CONSUMER PRODUCTS, INC., a
California corporation; DISNEY
21 CONSUMER PRODUCTS AND
INTERACTIVE MEDIA, INC., a
22 California corporation; DISNEY BOOK
GROUP, LLC, a Delaware limited liability
23 company; BUENA VISTA BOOKS, INC.,
a California corporation; DISNEY
24 INTERACTIVE STUDIOS, INC., a
California corporation; DISNEY STORE
25 USA, LLC, a Delaware limited liability
company; DISNEY SHOPPING, INC., a
26 Delaware corporation; and DOES 1
through 10, inclusive,
27
Defendants.
28

ESPLANADES OPPOSITION TO DISNEYS MOTION TO DISMISS


Case 2:17-cv-02185-MWF-JC Document 18 Filed 06/05/17 Page 2 of 31 Page ID #:116

TABLE OF CONTENTS
1 Page
2 INTRODUCTION ....................................................................................................... 1
3 ALLEGATIONS OF THE COMPLAINT .................................................................. 2
4 ARGUMENT ............................................................................................................... 5
5 I. STANDARD OF REVIEW .............................................................................. 5
6 II. ESPLANADE SUFFICIENTLY ALLEGES INFRINGEMENT .................... 5
7 A. Esplanade Need Only Give Notice of Substantial Similarity ................. 5
8 B. The Court Must Consider the Goldman Zootopia as a Whole,
Including the Selection and Arrangement of Even Unprotectable
9 Elements .................................................................................................. 6
10 C. Infringement Concerns Copying of Material from Plaintiffs
Work, Not the Portion of Infringement in Defendants Work................ 8
11
D. Esplanade Sufficiently Alleges Its Zootopia Is Infringed....................... 9
12
1. Themes ........................................................................................ 10
13
2. Settings........................................................................................ 11
14
3. Dialogue ...................................................................................... 12
15
4. Characters ................................................................................... 14
16
(1) The ensemble of characters. ............................................. 15
17
(2) Individual characters. ....................................................... 16
18
5. Plot and Sequence of Events ...................................................... 18
19
6. Mood and Pace ........................................................................... 20
20
7. Artwork ....................................................................................... 21
21
8. Title ............................................................................................. 22
22
9. Selection, Arrangement, and Combination of Elements ............ 23
23
III. ESPLANADE ADEQUATELY ALLEGES STATE LAW CLAIMS ........... 23
24
IV. ESPLANADE MAY RECOVER STATUTORY DAMAGES AND
25 ATTORNEYS FEES...................................................................................... 24
26 V. IF NECESSARY, ESPLANADE REQUESTS LEAVE TO AMEND .......... 25
27 CONCLUSION .......................................................................................................... 25
28

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TABLE OF AUTHORITIES
1
Page
2
3 CASES
4 Apple Computer, Inc. v. Microsoft Corp.,
35 F.3d 1435 (9th Cir. 1994) ............................................................................. 7
5
Basile v. Warner Bros. Entmt,
6 2016 WL 5867432 (C.D. Cal. Jan. 4, 2016) ............................................. 10, 20
7 Baxter v. MCA, Inc.,
812 F.2d 421 (9th Cir. 1987) ........................................................................... 13
8
Bell Atl. Corp. v. Twombly,
9 550 U.S. 544 (2007) .......................................................................................... 5
10 Benay v. Warner Bros. Ent., Inc.,
607 F.3d 620 (9th Cir. 2010) ..................................................................... 23, 24
11
Berkla v. Corel Corp.,
12 66 F. Supp. 2d 1129 (E.D. Cal. 1999) ............................................................. 24
13 Cabell v. Zorro Prods. Inc.,
2017 WL 2335597 (N.D. Cal. May 30, 2017) .................................................. 3
14
Campbell v. Walt Disney Co.,
15 718 F. Supp. 2d 1108 (N.D. Cal. 2010) .......................................... 8, 10, 16, 20
16 Cavalier v. Random House, Inc.,
297 F.3d 815 (9th Cir. 2002) .................................................................... passim
17
Chase Riboud v. Dreamworks, Inc.,
18 987 F.Supp. 1222 (C.D. Cal. 1998)................................................................. 14
19 Derek Andrew, Inc. v. Poof Apparel Corp.,
528 F.3d 696 (9th Cir. 2008) ........................................................................... 24
20
Desny v. Wilder,
21 46 Cal. 2d 715 (1956) ...................................................................................... 24
22 Duckhole, Inc. v. NBC Universal Media LLC,
2013 WL 5797279 (C.D. Cal. Sept. 6, 2013) .................................................. 16
23
EKB Textiles, Inc. v. Target Corp.,
24 2011 WL 13085924 (C.D. Cal. June 21, 2011) .............................................. 22
25 Erickson v. Pardus,
551 U.S. 89 (2007) ............................................................................................ 5
26
Feist Publications, Inc. v. Rural Telephone Service Co., Inc.,
27 499 U.S. 340 (1991) .......................................................................................... 6
28 Fleischer Studios v. Ralph A. Freundlich, Inc.,
73 F.2d 276 (2d Cir. 1934) .............................................................................. 21
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Foman v. Davis,
1 371 U.S. 178 (1962) ........................................................................................ 25
2 Fred Fisher, Inc. v. Dillingham,
298 F. 145 (S.D.N.Y. 1924) ............................................................................ 14
3
Gallagher v. Lions Gate Entmt Inc.,
4 2015 WL 12481504 (C.D. Cal. Sept. 11, 2015)....................................... passim
5 Harold Lloyd Ent., Inc. v. Moment Factory One, Inc.,
2015 WL 12765142 (C.D. Cal. Oct. 29, 2015) ................................................. 9
6
Heim v. Universal Pictures Co.,
7 154 F.2d 480 (2d Cir. 1946) ............................................................................ 14
8 Hosp. Bldg. Co. v. Tr. of Rex Hosp.,
425 U.S. 738 (1976) .......................................................................................... 5
9
L.A. Printex Indus., Inc. v. Aeropostale, Inc.,
10 676 F.3d 841 (9th Cir. 2012) ....................................................................... 8, 21
11 Mandeville-Anthony v. Walt Disney Co.,
2012 WL 4017785 (C.D. Cal. July 28, 2012) ....................................... 8, 20, 22
12
Metcalf v. Bochco,
13 294 F.3d 1069 (9th Cir. 2002) ................................................................. 5, 7, 14
14 Metro-Goldwyn-Mayer, Inc. v. Am. Honda Co., Inc.,
900 F. Supp. 1287 (C.D. Cal. 1995).......................................................... 10, 12
15
Montz v. Pilgrim Films & Television, Inc.,
16 649 F.3d 975 (9th Cir. 2011) ........................................................................... 24
17 Moss v. United States Secret Serv.,
572 F.3d 962 (9th Cir. 2009) ........................................................................... 25
18
Newton v. Diamond,
19 388 F.3d 1189 (9th Cir. 2004) ........................................................................... 8
20 Oracle Am., Inc. v. Google Inc.,
750 F.3d 1339 (Fed. Cir. 2014) ....................................................................... 13
21
Paramount Pictures Corp. v. Carol Pub. Group,
22 11 F. Supp. 2d 329 (S.D.N.Y. 1998) ................................................................. 9
23 Quirk v. Sony Pictures Entmt Inc.,
2013 WL 1345075 (N.D. Cal. Apr. 2, 2013) .................................................... 5
24
Rogers v. Koons,
25 960 F.2d 301 (2d Cir. 1992) ............................................................................ 22
26 Rosenfeld v. Twentieth Century Fox Film,
2009 WL 212958 (C.D. Cal. Jan. 28, 2009) ................................... 8, 10, 16, 20
27
Roth Greeting Cards v. United Card Co.,
28 429 F.2d 1106 (9th Cir. 1970) ........................................................................... 7

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Satava v. Lowry,
1 323 F.3d 805 (9th Cir. 2003) ....................................................................... 7, 21
2 Segal v. Rogue Pictures,
544 F. Appx 769 (9th Cir. 2013)...................................................................... 8
3
Shaw v. Lindheim,
4 919 F.2d 1353 (9th Cir. 1990) .................................................................. passim
5 Sheldon v. MetroGoldwyn Pictures Corp.,
81 F.2d 49 (2d Cir. 1936) .............................................................................. 1, 9
6
Sid & Marty Krofft Television Prods., Inc. v. McDonalds Corp.,
7 562 F.2d 1157 (9th Cir. 1977) ........................................................................... 6
8 Silberstein v. John Does,
242 F. Appx 720 (2d Cir. 2007) ..................................................................... 22
9
Stewart v. Abend,
10 495 U.S. 207 (1990) .......................................................................................... 8
11 Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2004) ............................................................................. 7
12
Thomas v. Walt Disney Co.,
13 2008 WL 425647 (N.D. Cal. Feb. 14, 2008)............................................... 8, 20
14 Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ............................................................................. 5
15
Universal City Studios, Inc. v. Film Ventures Intl, Inc.,
16 543 F. Supp. 1134 (C.D. Cal. 1982)................................................................ 16
17 Universal Pictures Co. v. Harold Lloyd Corp.,
162 F.2d 354 (9th Cir. 1947) ........................................................................... 14
18
Walt Disney Prods. v. Air Pirates,
19 581 F.2d 751 (9th Cir. 1978) ........................................................................... 15
20 Wilder v. CBS Corp.,
2016 WL 693070 (C.D. Cal. Feb. 13, 2016) ................................................... 24
21
Williams v. Crichton,
22 84 F.3d 581 (2d Cir. 1996) ................................................................................ 9
23 Williams v. Gerber,
552 F.3d 934 (9th Cir. 2008) ............................................................................. 5
24
Wilson v. Walt Disney Co.,
25 2014 WL 4477391 (N.D. Cal. July 30, 2014) ................................................. 20
26 Worth v. Selchow & Righter Co.,
827 F.2d 569 (9th Cir. 1987) ............................................................................. 9
27
28

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STATUTES
1
17 U.S.C. 102............................................................................................................ 6
2
17 U.S.C. 412.......................................................................................................... 24
3
Cal. Bus. & Prof. Code 17200 ................................................................................ 23
4
Fed. R. Civ. P. 12 ......................................................................................................... 5
5
Fed. R. Civ. P. 15 ....................................................................................................... 25
6
Fed. R. Civ. P. 8 ........................................................................................................... 5
7
8 OTHER AUTHORITIES
9 2 M. Nimmer, Nimmer on Copyright (Nimmer) 143.4 (1976) ......................... 5, 8
10 Oasis, COLLINSDICTIONARY.COM,
https://www.collinsdictionary.com/us/dictionary/english-
11 thesaurus/oasis ................................................................................................. 11
12 Oasis, OXFORDDICTIONARIES.COM,
https://en.oxforddictionaries.com/thesaurus/oasis .......................................... 11
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 INTRODUCTION
2 In its Complaint, Plaintiff Esplanade Productions, Inc. (Esplanade)
3 voluminously details substantial similarities between its Zootopia the original
4 Zootopia and Defendant Disneys1 identically titled movie, which Disney
5 produced after Esplanade had pitched its Zootopia to the studio twice. The
6 characters, both individually and collectively, are strikingly similar. Compl. 63-
7 69. The overall themes and settings parallel each other. Id. 54-57. Essentially
8 verbatim dialogue including a signature line that if you want to be an elephant,
9 you can be an elephant appears in both. Id. 58-62. Mood, pace and artwork
10 are substantially similar. Id. 77-79. And, tellingly, even the very name of the
11 work a unique title is the same. Id. 80. Having conceded access for purposes
12 of this motion, and having admitted many of these similarities, Disneys motion to
13 dismiss must be denied.
14 In the face of the clear-cut allegations of copyright infringement, Disney
15 desperately distorts the Complaint and attempts to obfuscate its wrongdoing by
16 focusing on the parts of its movie it did not copy from Esplanades work. As a
17 matter of fact and of law, these attempts are unavailing. As a factual matter, the
18 allegations in the Complaint speak for themselves despite Disneys attempt to
19 rewrite them. As a legal matter, Disneys argument that the Complaint should be
20 dismissed because some of its movie was not copied from Esplanade is plainly
21 wrong. As Learned Hand wrote, no plagiarist can excuse the wrong by showing
22 how much of his work he did not pirate. Sheldon v. MetroGoldwyn Pictures
23 Corp., 81 F.2d 49, 56 (2d Cir. 1936). The fact that differences between the works
24 exist is simply immaterial, particularly in light of the many striking and substantial
25 similarities that prove infringement.
26
27 1
Esplanade refers to Defendants collectively as Disney except where
28 otherwise specified.

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1 Disney also attempts to take a scalpel and surgically dissect (and cherry-pick)
2 Esplanades allegations, thereby ignoring much of the Complaint and misapplying
3 basic copyright law. Copyrighted works and their elements are considered in toto.
4 Infringement may lie on the selection, arrangement and combination of elements,
5 even unprotectable elements. As detailed below, Disneys microscopic, element-by-
6 element approach, while facile, lacks merit. For example, for one character (Judy),
7 Disney admits 15 similar character traits (and acknowledges allegations of visual
8 similarity), yet argues none of these traits, by itself, is protectable. Disney blithely
9 ignores that a character consists of a combination of traits, and the combination is at
10 issue, not any individual trait.
11 Disney papers over the fact Esplanades work as a whole, including the
12 selection, arrangement and combination of its elements, is protectable and is the real
13 subject of this action. As shown below, the Complaint alleges Disneys Zootopia is
14 infringing because it bears a substantial and non-coincidental similarity to its
15 forebear and namesake, Esplanades Zootopia. Scores of similarities of theme,
16 setting, character, dialogue, plot, mood, pace, and artwork exist, both by themselves
17 and by their selection, arrangement and combination.
18 ALLEGATIONS OF THE COMPLAINT
19 Esplanade owns the copyright to a work created by its CEO, director and
20 employee, Gary Goldman, titled Zootopia (the Goldman Zootopia).2 The
21 Goldman Zootopia, which consists of a treatment, synopsis, character descriptions
22 and character illustrations, involves a human animator who creates a cartoon world
23 of animated anthropomorphic animals called Zootopia. Disneys movie, also
24 titled Zootopia (the Disney Zootopia), copies substantial elements of that
25 Goldman-created world, calls it Zootopia, and uses substantially similar settings,
26
2
Although Esplanades copyrighted work is titled Zootopia, Disney calls it
27
Looney in a transparent attempt to hide its copying of Esplanades title. Looney
28 is the title of one segment of the Goldman Zootopia franchise.

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1 characters, dialogue, mood, pace, artwork, plot points and story structure to express
2 substantially similar themes. While Disney asserts it did not copy the character or
3 live-action story of the human animator, the Complaint in fact focuses primarily on
4 Disneys copying of the cartoon world of Zootopia.3
5 Unlike many plaintiffs whom Disney disparages as coming out of the
6 woodwork (Mot. 1:10-12), Goldman is a highly accomplished motion picture
7 writer and producer. Id. 23. He has written screenplays for a number of major
8 movies, including Big Trouble in Little China, Total Recall, Navy Seals, and Next,
9 and worked as a script doctor for others, including Basic Instinct, Judge Dredd, and
10 Waterworld. Id. 25. He also has produced major movies such as Minority Report
11 and Next. Id.
12 Throughout his career, Goldman has worked with the industrys top producers
13 and studios, including Disney. Id. 28, 29. In 2007, in particular, Disney hired
14 Goldman to write a screenplay called Blaze with Marvel comic creator Stan Lee.
15 Disneys Executive Vice-President, Brigham Taylor, oversaw the project, and both
16 Taylor and Lee praised Goldmans work. Id. 29.
17 In 2000, Goldman conceived, created, and wrote the Goldman Zootopia,
18 which he further developed and wrote between 2000 and 2009. Id. 30. He wrote
19 detailed descriptions of the franchises main characters, including their character
20 traits, physical appearances, and personal histories (Character Descriptions). Id.
21 31. In addition, he wrote a synopsis (Synopsis) and a treatment (Treatment) for
22 the first segment of the Goldman Zootopia franchise entitled Looney, about a human
23 3
Disney complains Esplanade refused to provide it with a copy of the work.
24 Mot. 2:18-20. In doing so, Disney misrepresents settlement discussions between the
parties and ignores that it received copies in 2000 and 2009. Compl. 38, 42.
25
Furthermore, there is no requirement that the copyrighted work be attached to a
26 complaint for copyright infringement. See Cabell v. Zorro Prods. Inc., 2017 WL
2335597, at *8 (N.D. Cal. May 30, 2017) (neither party has attached copies of the
27
works at issue for the court to consider, nor does it seem appropriate to do so at this
28 phase in the case).

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1 animator who created the world of Zootopia, which Goldman registered with the
2 Writers Guild of America in 2000. Id. 33. Esplanade also engaged an established
3 animator and character designer to create, as a work-made-for-hire, visual images of
4 the animal characters (Character Illustrations). Id. 32.4
5 On two separate occasions, Goldman pitched his project to Disney. In 2000,
6 he met with David Hoberman, the CEO of Mandeville Films, at Disneys offices.
7 Id. 36. Hoberman was Disneys former President of Motion Pictures, and
8 Mandeville had a production contract with Disney. Id. Goldman presented the
9 Goldman Zootopia, including themes, plot, settings, characters, and artwork, with
10 the understanding it was being offered for sale to Disney. Id. 37, 38. Hoberman
11 responded favorably and Goldman gave him copies of the materials, which
12 Hoberman said he would provide to Disney for review. Id. 38. Hoberman later
13 informed Goldman that Disney had passed. Id. 39.
14 In 2009, after Goldman had further developed the Goldman Zootopia, he was
15 working on Blaze with Brigham Taylor at Disney. Id. 40. On February 12, 2009,
16 Goldman met with Taylor to pitch the work. Id. Goldman presented the Goldman
17 Zootopia, including themes, plot, settings, characters, and artwork, and gave Taylor
18 copies of the Character Descriptions, Character Illustrations, Treatment, Synopsis,
19 and other materials. Id. 41, 42. Taylor told Goldman he would show the
20 materials to Disneys animation departments to see if Disney was interested. Id.
21 However, Disney eventually passed. Id. 43.
22 Thereafter, Disney produced the Disney Zootopia. In March 2016, Disney
23 released the movie in the United States. Disney also exploited the Disney Zootopia
24 by, inter alia, offering it for sale and rental in various non-theatrical forms such as
25 DVDs, on-demand, and other Internet-based platforms; licensing rights; displaying
26 characters in theme parks; and creating, manufacturing, and distributing
27 4
On February 10, 2017, Esplanade filed to register the Character Descriptions,
28 Character Illustrations, Synopsis, and Treatment with the Copyright Office. Id. 34.

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1 merchandise such as games, toys, books, video games, dolls, and clothing
2 (Zootopia Merchandise). Id. 45-51.
3 ARGUMENT
4 I. STANDARD OF REVIEW
5 Motions to dismiss under Rule 12(b)(6) are disfavored and rarely granted.
6 See Hosp. Bldg. Co. v. Tr. of Rex Hosp., 425 U.S. 738, 746 (1976). Courts take as
7 true all material factual allegations and construe them in the light most favorable to
8 the plaintiff. Williams v. Gerber, 552 F.3d 934, 937 (9th Cir. 2008).
9 Only notice pleading is required. Erickson v. Pardus, 551 U.S. 89, 93 (2007)
10 (per curiam). Rule 8 simply requires a short and plain statement of the claim
11 showing the pleader is entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
12 555 (2007). A complaint need only give notice of the claims and grounds on which
13 they rest. Erickson, 551 U.S. at 93. There merely has to be enough facts to state a
14 claim that is plausible on its face. Twombly, 550 U.S. at 570.
15 II. ESPLANADE SUFFICIENTLY ALLEGES INFRINGEMENT
16 A. Esplanade Need Only Give Notice of Substantial Similarity
17 The elements of a claim for copyright infringement are (1) ownership of a
18 copyright, and (2) copying of original elements of the work. Metcalf v. Bochco, 294
19 F.3d 1069, 1072 (9th Cir. 2002). Copying may be shown by defendants access to
20 plaintiffs work and substantial similarity of the works. Id.
21 Esplanade pleads (1) copyright ownership and (2) copying of original
22 elements based on access to Esplanades work and substantial similarity. Compl.
23 30-43, 53-83. Disney does not challenge, and thus concedes, ownership and
24 access. Under the inverse ratio rule, admitting access lowers the standard of proof
25 for substantial similarity. See Shaw v. Lindheim, 919 F.2d 1353, 1361 (9th Cir.
26 1990) (citing 2 M. Nimmer, Nimmer on Copyright (Nimmer) 143.4 (1976));
27 Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir. 2000); Quirk v. Sony
28 Pictures Entmt Inc., 2013 WL 1345075, at *7 (N.D. Cal. Apr. 2, 2013).

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1 Thus, Esplanade need only show its allegations of substantial similarity,


2 accepted as true and construed in the most favorable light, provide notice of a
3 facially plausible claim under the inverse ratio rules lower standard. It has done so.
4 B. The Court Must Consider the Goldman Zootopia as a Whole,
5 Including the Selection and Arrangement of Even Unprotectable
6 Elements
7 Disney argues Esplanade does not allege sufficient facts to show substantial
8 similarity between individual, protectable elements of the Goldman Zootopia and
9 the Disney Zootopia. Disney misconstrues the law and the Complaint. Esplanade
10 alleges the Goldman Zootopia as a whole, including the selection, arrangement and
11 combination of elements, is protectable and has been infringed. Compl. 44-89.
12 The touchstone of copyright protection is originality. 17 U.S.C. 102. The
13 Supreme Court and the Ninth Circuit have held repeatedly that the originality of a
14 work must be considered as a whole, and the selection, arrangement and
15 combination of even unprotectable elements may establish originality. See Feist
16 Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 348 (1991)
17 (originality requires only a minimal degree of creativity, and even a directory
18 that contains absolutely no protectable written expression, only facts, meets the
19 constitutional minimum for copyright protection if it features an original selection or
20 arrangement [beyond mere alphabetization]).
21 Courts do not, as Disney suggests, base copyright protection solely on each
22 element in isolation; copyright protection also inheres in a work in its entirety. In
23 Sid & Marty Krofft Television Prods., Inc. v. McDonalds Corp., 562 F.2d 1157,
24 1169 (9th Cir. 1977), the Ninth Circuit rejected the analysis on which Disney bases
25 its motion:
26 Lest we fall prey to defendants invitation to dissect the works,
however, we should remember that it is the combination of many
27
different elements which may command copyright protection because
28 of its particular subjective quality.

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1 See also Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir. 2004) (substantial similarity
2 can be found in a combination of elements, even if those elements are individually
3 unprotected); Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1109 (9th
4 Cir. 1970) (proper analysis [] requires that all elements [] including text,
5 arrangement of text, art work, and association between art work and text, be
6 considered as a whole).
7 In Metcalf, the Ninth Circuit reversed summary judgment, finding a triable
8 issue of fact as to whether a script for a television show was substantially similar to
9 the plaintiffs work, even though the individual elements were unprotectable:
10 [T]he similarities proffered by the Metcalfs are not protectable when
considered individually; they are either too generic or constitute
11
scenes a faire []. However, the presence of so many generic
12 similarities and the common patterns in which they arise do help satisfy
13 the extrinsic test. The particular sequence in which an author strings a
significant number of unprotectable elements can itself be a protectable
14
element. Each note in a scale, for example, is not protectable, but a
15 pattern of notes in a tune may earn copyright protection.
16 294 F.3d at 1074. See also Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435,
17 1445 (9th Cir. 1994) (original selection and arrangement of otherwise
18 uncopyrightable components may be protectable); Satava v. Lowry, 323 F.3d 805,
19 811 (9th Cir. 2003) (a combination of unprotectable elements may qualify for
20 copyright protection) (emphasis in original).
21 Disney cites Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002) to
22 no avail. In Cavalier, the court did not consider the selection, arrangement or
23 combination of elements. See generally id. at 824-25. Indeed, the Ninth Circuit
24 noted in Metcalf:
25 In Cavalier, we did not address the protectability of the selection and
sequence of generic elements. Plaintiffs argued unsuccessfully that
26
[there were] many random similarities scattered throughout the
27 works [] but apparently did not make an argument based on the
28 overall selection and sequencing of these similarities.

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1 294 F.3d at 1074-75.5 Thus, the selection, arrangement and combination of


2 elements is, itself, a protectable element.
3 C. Infringement Concerns Copying of Material from Plaintiffs Work,
4 Not the Portion of Infringement in Defendants Work
5 Disney argues that some of its movie (particularly aspects of story and
6 character) and some of the Goldman Zootopia (particularly the human animators
7 story and character) are not copied. This argument is baseless.
8 Copyright infringement is based on similarities between works; differences
9 provide no defense. In L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841
10 (9th Cir. 2012), the Ninth Circuit cited Nimmer for the rule that it is entirely
11 immaterial that, in many respects, plaintiffs and defendants works are dissimilar, if
12 in other respects, similarity as to a substantial element of plaintiffs work can be
13 shown. Id. at 851; see also Stewart v. Abend, 495 U.S. 207, 238 (1990) ([A]
14 taking may not be excused merely because it is insubstantial with respect to the
15 infringing work.) (emphasis in original; citation, quotation omitted). Thus, courts
16 focus on the relationship to the plaintiffs work because a contrary rule that
17 measured the significance of the copied segment in defendants work would allow
18 an unscrupulous defendant to copy large or qualitatively significant portions of
19 anothers work and escape liability by burying them beneath non-infringing material
20 in the defendants own work []. Newton v. Diamond, 388 F.3d 1189, 1195 (9th
21 Cir. 2004).
22
5
Likewise, the cases on which Disney relies in its analysis of substantial
23 similarity did not consider the selection, arrangement and combination of elements.
24 See, e.g., Segal v. Rogue Pictures, 544 F. Appx 769, 770 (9th Cir. 2013); Gallagher
v. Lions Gate Entmt Inc., 2015 WL 12481504, at *3-14 (C.D. Cal. Sept. 11, 2015);
25
Mandeville-Anthony v. Walt Disney Co., 2012 WL 4017785, at *2-4 (C.D. Cal. July
26 28, 2012); Campbell v. Walt Disney Co., 718 F. Supp. 2d 1108, 1111-16 (N.D. Cal.
2010); Rosenfeld v. Twentieth Century Fox Film, 2009 WL 212958, at *2-3 (C.D.
27
Cal. Jan. 28, 2009); Thomas v. Walt Disney Co., 2008 WL 425647, at *2-6 (N.D.
28 Cal. Feb. 14, 2008).

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1 Accordingly, in Sheldon, Learned Hand wrote: [I]t is enough that substantial


2 parts were lifted; no plagiarist can excuse the wrong by showing how much of his
3 work he did not pirate. 81 F.2d at 56; see also Worth v. Selchow & Righter Co.,
4 827 F.2d 569, 570 n. 1 (9th Cir. 1987) ([T]he relevant inquiry is whether a
5 substantial portion of the protectable material in the plaintiffs work was
6 appropriated not whether a substantial portion of defendants work was derived
7 from plaintiffs work.).
8 Indeed, contrary to Disneys argument, the amount of copying need not be
9 substantial when measured quantitatively. In Harold Lloyd Ent., Inc. v. Moment
10 Factory One, Inc., 2015 WL 12765142, at *7 (C.D. Cal. Oct. 29, 2015), the court
11 denied a motion to dismiss where the defendant appropriated about 1% of the
12 copyrighted work. See also Shaw, 919 F.2d at 1363 (Even if a copied portion be
13 relatively small in proportion to the entire work, if qualitatively important, the finder
14 of fact may properly find substantial similarity.).
15 Furthermore, it is immaterial that portions of a plaintiffs work were not
16 copied. Sheldon, 81 F.2d at 56; Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.
17 1996) (no copier may defend the act of plagiarism by pointing out how much of the
18 copy he has not pirated) (citation, quotation omitted). See also Paramount Pictures
19 Corp. v. Carol Pub. Group, 11 F. Supp. 2d 329, 334 (S.D.N.Y. 1998) (Copying
20 only small portions of a series of copyrighted works offers no protection for a
21 defendant.).
22 D. Esplanade Sufficiently Alleges Its Zootopia Is Infringed
23 The Complaint alleges in detail how the Disney Zootopia is substantially
24 similar to the Goldman Zootopia, i.e., the Disney Zootopia has substantially similar
25 settings, characters, dialogue, mood, pace, artwork, and plot, which together express
26 substantially similar themes. Compl. 53-83. Furthermore, Esplanade alleges not
27 only substantial similarity in these elements, but also substantial similarity in the
28

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1 selection, arrangement and combination of elements. Id. 53, 57, 62, 64, 76, 79,
2 80, 81, 82. Thus, Esplanade sufficiently pleads infringement.
3 1. Themes
4 The Complaint alleges five substantially similar themes: (1) whether, in a
5 diverse society as represented by Zootopias different species, one can be anything
6 he or she wants; (2) whether, to do so, one can overcome not only the prejudices
7 inherent in a diverse society such as Zootopia, but also the prejudices within oneself
8 as a member of a part of such a society; (3) whether one should try to change or
9 redefine oneself despite his or her nature as manifested in the zoology of Zootopia;
10 (4) whether a diverse society can achieve utopian ideals and judge others fairly as
11 individuals, not stereotypes, based on merit not natural order; and (5) whether a
12 balance can be struck between utopian and counter-utopian world views, nature and
13 individuality, and self-acceptance and self-improvement. Compl. 54.
14 Disney addresses only the first two themes, ignoring the others, and claims in
15 conclusory fashion they are stock. Plainly, they are not stock and may be the
16 basis of substantial similarity. See, e.g., Metro-Goldwyn-Mayer, Inc. v. Am. Honda
17 Co., Inc., 900 F. Supp. 1287, 1298 (C.D. Cal. 1995) (finding themes substantially
18 similar where both involve the idea of a handsome hero who, along with a beautiful
19 woman, lead a grotesque villain on a high-speed chase, the male appears calm and
20 unruffled, there are hints of romance between the male and female, and the
21 protagonists escape with the aid of intelligence and gadgetry).6
22
23 6
The cases on which Disney relies cite only one or two extremely general themes
24 and are thus inapposite. See Cavalier, 297 F.3d at 828 (teaching children to have
confidence and to try); Basile v. Warner Bros. Entmt, 2016 WL 5867432, at *8
25
(C.D. Cal. Jan. 4, 2016) (good-versus-evil); Rosenfeld, 2009 WL 212958, at *3
26 (following ones dreams); Gallagher, 2015 WL 12481504, at *13 (horror
27 resulting from manipulat[ion] by third parties); and Campbell, 718 F. Supp. 2d at
1113 (self-reliance and teamwork).
28

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1 The thematic similarities here are substantial. Furthermore, they are used in
2 combination with each other and in combination with the works similar settings,
3 characters, and dramatic conflicts. Compl. 53, 79, 81, 82.
4 2. Settings
5 Esplanade alleges multiple settings also are substantially similar and, in
6 combination, are unique to these works. Id. 55-57. Disney notes both are set in a
7 motion picture cartoon world made up of animated, anthropomorphic animal
8 characters. While that general context may not be protectable by itself, the
9 Complaint goes much further, specifically delineating many similar settings,
10 including: (1) a society of different species, from different natural worlds, in which
11 the species interact feely; (2) Zootopia where different species live together in
12 different habitats; (3) a present day technological world where the animal characters
13 go to work in the morning and come home at night; and (4) a society with an
14 established class and power structure based on the animals characteristics such as
15 the nature of their species. Id. 55.
16 In addition, Esplanade alleges the works have similar particular settings,
17 including: (1) human-like physical environments with modern civilized features
18 rather than natural environments such as a forest or jungle; (2) the heroes parents
19 homes and workplaces in small towns where the heroes grow up and return;
20 (3) clubs in Zootopia with similar names the Mystic Spring Oasis and the
21 Watering Hole;7 (4) schools where animals are taught biology and ecology;
22 (5) institutional workplaces, with tough bosses, where the heroes succeed and fail;
23 (6) private male-only rooms where characters are bullied as youths; (7) academies
24
7
Disney oddly suggests the clubs names are not similar. But an oasis is a type
25
of watering hole, and leading thesauruses list watering hole as the first synonym
26 of oasis. See, e.g., Oasis, COLLINSDICTIONARY.COM,
https://www.collinsdictionary.com/us/dictionary/english-thesaurus/oasis
27
[https://perma.cc/99NY-3FWH]; Oasis, OXFORDDICTIONARIES.COM,
28 https://en.oxforddictionaries.com/thesaurus/oasis [https://perma.cc/8FY4-VHR6].

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1 where the heroes excel and are recognized for their accomplishments; (8) media
2 venues in which the heroes publicly express prejudice and damage relationships
3 with partners; and (9) asylums where the protagonists address issues of madness and
4 out-of-control Zootopian characters. Id. 56.
5 Disney ignores almost all these allegations. Instead, it isolates two of what it
6 calls the main settings and argues neither is protectable by itself. Mot. 21:9-12.
7 As discussed above, this misstates the Complaint and the law. See Section II.B,
8 supra. Disney also claims some settings are generic scenes a faire and asserts the
9 Disney Zootopia includes settings that are not copied. Mot. 21:12-14. Settings like
10 clubs with similar names, i.e., the Mystic Spring Oasis and the Watering Hole;
11 schools where animals are taught biology and ecology; private, male-only rooms
12 where characters are bullied as youths; media venues in which the heroes publicly
13 express prejudice; and asylums, among others, do not naturally flow from the
14 premise of a modern world of animated, anthropomorphic animal characters. See
15 Metro-Goldwyn-Mayer, 900 F. Supp. at 1298 (substantial similarity where the
16 settings both involve the idea of a high-speed chase with the villain in hot pursuit).
17 Disney relies on inapposite cases like Cavalier, which have single generic settings
18 like the night sky. 297 F.3d at 824. Moreover, the combination of settings, and
19 the combination of settings with other elements, are also protectable.
20 3. Dialogue
21 Esplanade alleges the dialogue also is substantially similar, i.e., the works
22 share key words and lines, including the most important words and lines in the
23 works. Compl. 58-62. First, the works have virtually identical key lines from the
24 main characters expressing the central utopian theme:
25
Goldman Zootopia: If you want to be an elephant, you can be an
26
elephant.
27 Disney Zootopia: You want to be an elephant when you grow up, you
28 be an elephant.

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1 Id. 60. These lines, which are a centerpiece of both works (a fact not denied by
2 Disney), go well beyond substantial similarity; they are virtually identical and
3 demonstrate copying.
4 The Complaint further alleges other lines use similar substance to express the
5 counter-utopian themes, such as:
6 Goldman Zootopia (in character description): He has no hope that he
can change or improve; or that anyone else can change or improve.
7
Disney Zootopia (in lines from that character): Everyone comes to
8 Zootopia thinking they can be anything they want. Well, you cant.
9 You can only be what you are.

10 Id. 61.
11 In addition, the works use the word Zootopia not just as a title but also in
12 dialogue. Zootopia is a portmanteau of zoo and utopia. Id. 59. It is more
13 than just a word in these works; among other things, it relates to settings (e.g.,
14 diverse species of animals from different habitats living together in one place) and
15 the central themes (e.g., whether someone in a diverse society can be whatever he or
16 she wants). Esplanade first used the word in 2000, and alleges Disney never used
17 the word prior to the Disney Zootopia. Id.
18 Disney claims one line of dialogue is not enough for substantial similarity.
19 But that reflects neither the breadth of the allegations of the Complaint nor the law.
20 The three uses of dialogue alleged are examples of substantially similar dialogue,
21 not an exhaustive list. Id. 61, 62. And, in Baxter v. MCA, Inc., 812 F.2d 421 (9th
22 Cir. 1987), the Ninth Circuit wrote:
23 [N]o bright line rule exists as to what quantum of similarity is
permitted before crossing into the realm of substantial similarity. []
24 Even if a copied portion be relatively small in proportion to the entire
25 work, if qualitatively important, the finder of fact may properly find
substantial similarity.
26
Id. at 425 (citations omitted). See also Oracle Am., Inc. v. Google Inc., 750 F.3d
27
1339, 1379 (Fed. Cir. 2014) (under Ninth Circuit law, no merit to argument that
28
copying could not be shown based on nine lines among 2.8 million lines of code);
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1 Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 361 (9th Cir. 1947)
2 (defendant need not copy a large portion of original work); Heim v. Universal
3 Pictures Co., 154 F.2d 480, 488 (2d Cir. 1946) (copying may be shown by a single
4 brief phrase); Fred Fisher, Inc. v. Dillingham, 298 F. 145, 147-48 (S.D.N.Y. 1924)
5 (L. Hand, J.) (eight-note sequence).8
6 4. Characters
7 The characters are substantially similar in two respects, i.e., the ensemble and
8 individual characters. Furthermore, each combines with other elements to express
9 the works similar themes. Compl. 63-69.9
10 Disney argues characters must be distinctive and cannot be based on a
11 common idea of an anthropomorphic animal. But, Goldmans characters are
12 distinctive with many traits beyond that idea. In Shaw, the Ninth Circuit found a
13 triable issue because similarities between characters point[ed] to copying of more
14 than a general theme or plot idea []. 919 F. 2d at 1363. The characters had
15 striking similarities based on the following general characteristics:
Both leads are well dressed, wealthy and have expensive tastes. The
16
most striking similarity is their self-assuredness, and unshakeable faith
17 in the satisfactory outcome of any difficult situation. [.] [T]he
totality of the similarities between the two characters [] belies any
18 claim of literary accident.
19 Id.; see also Metcalf, 294 F.3d at 1073-74; Chase Riboud v. Dreamworks, Inc., 987
20 F.Supp. 1222, 1227-28 (C.D. Cal. 1998). Esplanades characters are far more
21 distinctively alleged.
22
8
The unreported District Court case relied on by Disney, Gallagher, 2015 WL
23 12481504, does not establish a requisite quantum of similar dialogue, nor does it
24 require that a complaint allege every similar line of dialogue.
9
Disney asserts none of the characters individually are copyrightable, relying
25
on cases such as Gallagher, 2015 WL 12481504, at *7. But those cases analyze
26 whether particular characters are copyrightable in and of themselves. Esplanade
does not rely on an argument that any individual character is copyrightable in and of
27
itself; rather it alleges its work as a whole, including its literary and visual images of
28 characters, is protectable.

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1 Furthermore, characters with visual as well as literary components are more


2 distinctive and protectable. In Walt Disney Productions v. Air Pirates, 581 F.2d 751
3 (9th Cir. 1978), Disney itself claimed infringement of cartoon characters. The Ninth
4 Circuit agreed because a cartoon character, which has physical as well as
5 conceptual qualities, is more likely to contain some unique elements of expression.
6 Id. at 755. Here, the characters have both similar traits and appearances.
7 (1) The ensemble of characters.
8 Each ensemble represents a diverse cultural society, with a multi-tiered class
9 and power structure, comprised of different species from different places with
10 different natures, sizes, strengths, psychologies, and world views. Compl. 64, 65.
11 The ensembles include animals from different continents and habitats, predators and
12 prey, utopians and anti-utopians, optimists and pessimists, powerful and weak, and
13 leaders and followers, as well as animals for comic relief and sex symbols. Id. The
14 specific matrix of animals with such characteristics is unique and contributes to the
15 expression of themes and dramatic conflicts. Id. It is not just that the ensemble
16 represents a melting pot, as Disney argues; rather, it is the particular components
17 of the ensemble, with characters (as described below) representing particular
18 themes, attitudes, characteristics, etc. that is protectable.
19 The ensembles also are visually similar, which reflects their characteristics:
20
21
22
23
24
25
26
27
28 Id. 65.

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1 (2) Individual characters.


2 Judy. Disneys Judy is a rabbit who is visually similar to Goldmans Mimi, a
3 squirrel, both of whom are small, furry, cute prey animals with big eyes and
4 oversized appendages. Id. 66. Judys character traits are substantially similar to
5 those of Mimi and another Goldman character, Hugo, in the following ways, inter
6 alia: Judy is an outsider in Zootopia; despite her competence, she is underestimated,
7 unappreciated, and not taken seriously due to her species and, thus, is a victim of
8 prejudice; she is an underdog, but is brave, energetic, determined, and enthusiastic;
9 she helps others by, among other things, rescuing them when they are in jeopardy;
10 her small size gets her in and out of places unlike others; she is good natured,
11 kindhearted, and constantly trying to improve herself and others; she is naively
12 idealistic and optimistic, representing the utopian view of Zootopia; and she
13 embodies and expresses the key thematic line of both works, i.e., you want to be an
14 elephant when you grow up, you be an elephant. Id.
15 While Disney admits 15 similar character traits (and ignores others), Mot.
16 14:14-20, it argues each trait, alone, is unprotectable. But the combination of this
17 multitude of traits, along with the visual similarity, is protectable. Disney relies on
18 inapposite cases involving single, general character traits. See Gallagher, 2015 WL
19 12481504, at *8 (bubbly); Duckhole, Inc. v. NBC Universal Media LLC, 2013 WL
20 5797279, at *9 (C.D. Cal. Sept. 6, 2013) (smart ethnic character); Campbell, 718
21 F. Supp. 2d at 1115 (cocky attitude); Rosenfeld, 2009 WL 212958, at *3 (young
22 males with blonde girlfriends and villains with diabolical laughs).
23 Disney also asserts it could not find a case in which substantial similarity was
24 based on combining traits of two characters into one. Disney must not have looked
25 very hard. In Universal City Studios, Inc. v. Film Ventures Intl, Inc., 543 F. Supp.
26 1134 (C.D. Cal. 1982), the court found infringement based in part on the similarity
27 between one character in the infringing work, and two characters in the copyrighted
28 work, Jaws. Id. at 1137-38.

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1 Nick. Disneys Nick is a fox who is visually similar to Goldmans Roscoe, a


2 hyena. Both are dog-like predators who appear sly, cynical, and untrustworthy
3 because of their postures, half-lidded eyes, and smirks. Compl. 67. Nicks
4 characteristics are substantially similar to those of Roscoe and another Goldman
5 Zootopia character, Monty, in the following ways, inter alia: Nick lives in
6 Zootopia, but is an outcast because of his reviled species; he is a victim of prejudice
7 and is an underdog; he has no hope that he, or anyone, can change given his nature
8 and the prejudices of society; he is a pessimist who embodies and expresses the
9 cynical world view which opposes the utopian view; he is a prankster who schemes
10 rather than works; he has a bad attitude, and is determined not to seek the approval
11 of those who disdain him; he is uncouth and brutally honest, and takes pride in his
12 obnoxious behavior, but he is likeable due to his humor and charm; he is physically
13 agile; and he gives the counter-utopian lines which establish a central conflict in the
14 works, e.g.: Everyone comes to Zootopia thinking they can be anything they want.
15 Well, you cant. You can only be what you are. Id.
16 Disney admits eight similar traits and ignores others. Mot. 15:28-16:16. And
17 again, Disneys arguments that individual traits are unprotectable and infringement
18 may not be based on traits from two characters lack merit.
19 Supporting Characters. Many supporting characters also are similar, e.g.:
20 Disneys Bellwether is visually similar to Goldmans Quilty, and has characteristics
21 similar to those of Quilty and another Goldman Zootopia character, Fuzz she is an
22 ambitious prey animal who challenges the predator leader of Zootopia but goes too
23 far and ultimately fails. Disneys Bogo, the police chief, has characteristics and an
24 appearance similar to Griz, the leader of Goldmans Zootopia both are big, strong,
25 intimidating, and grizzled, and both see themselves as natural leaders who need
26 not answer to their underlings. Disneys Yax is similar characteristically and
27 visually to Goldmans Max both are tall, horned, Asian mountain animals with
28 similar names who are proprietors of clubs with similar names, the Mystic Spring

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1 Oasis and the Watering Hole. And Disneys Gazelle is similar characteristically
2 and visually to Goldmans Cha both are female African animals with incongruous
3 Latin American traits, who are attractive and function as performers and sex
4 symbols. Compl. 68-69.
5 5. Plot and Sequence of Events
6 Even though the surface level stories are different, the plot structure and
7 sequence of events of the Disney Zootopia also are similar to the Goldman
8 Zootopia. Both Zootopias play out similar conflicts among the characters, including
9 whether one can be what he or she wants, and whether individuals can change by
10 overcoming societal and personal prejudices. Id. 70-76.
11 Disney attempts to obfuscate the similarities by discussing only the human
12 animators story; it does not even mention the similarities to the story of the
13 Goldman Zootopias animal characters, which are numerous and striking. Both
14 Zootopias involve the story of a small, cute, furry, female, prey animal, who is an
15 outsider to Zootopia. Id. 71. She is dismissed by more dominant animals
16 because of her species, and strives to overcome societal prejudice. Id. She is brave,
17 determined, resourceful, and helpful to others in trouble, particularly by using her
18 small size. Id. She becomes friends with an abrasive predator who lives in
19 Zootopia. Id. The predator also suffers prejudice due to his species. Id. The two
20 contrasting protagonists get together and contend with prejudice and preconceived
21 notions of the elite, including a power structure headed by species dominant in a
22 state of nature. Id. She is an enthusiastic optimist while he is a cynical pessimist,
23 and the stories play out that conflict, e.g., whether one can evolve, redefine oneself,
24 and become what he or she wants. Id. Each plot involves a scheme by a third
25 character, a small prey animal, to upend the power structure, but the scheme goes
26 too far and fails. Id.
27 Disney also copied a great many elements of the animators story in the
28 Looney segment of the Goldman Zootopia. In both works, young, uncool heroes

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1 start out living in small towns with their parents. Id. 72. Each is bullied by a
2 bigger, stronger, mean kid. Id. The heroes work toward a career dream their
3 parents specifically discourage. Id. They go to academies where they excel,
4 achieve recognition for their work, and earn the chance to go to the big city for their
5 dream jobs. Id.
6 In the big city, the heroes come up against powerful, entrenched bosses who
7 want to maintain control over them. Id. 73. The heroes obsess over work and go
8 to extremes in pursuit of success, even defying their bosses. Id. The heroes have
9 partners who help them succeed. Id. But success goes to the heroes heads: they
10 publicly offend others and alienate their partners, exhibiting their own prejudices.
11 Id. This triggers job crises, resulting in the heroes losing their dream jobs and
12 hard-won statuses. Id. And the crises results in having to leave unfinished
13 important but problematic projects. Id.
14 Discouraged, the heroes return to their parents small-town homes and to lives
15 they sought to escape. Id. 74. They encounter their former bullies, who have
16 overcome their own prejudices and become good people. Id. The heroes learn from
17 their former bullies to overcome their own prejudices and appreciate their former
18 partners. Id. They apologize to their partners and resume work with them on the
19 unfinished projects. Id. To succeed, the heroes solve a problem with the madness
20 of Zootopia characters in an asylum. The heroes overcome their own prejudices,
21 reconcile with their partners, and finish their projects. In so doing, they show one
22 can evolve and become what he or she wants. Id. 75.
23 This plot structure and these events involve, and are driven by, similar
24 settings and characters, and they are used in similar ways to express similar themes.
25 Id. 76. See Shaw, 919 F.2d at 1363 (Even if none of these plot elements is
26 remarkably unusual in and of itself, the fact that both scripts contain all of these
27 similar events gives rise to a triable question of substantial similarity of protected
28 expression.); Wilson v. Walt Disney Co., 2014 WL 4477391, at *2 (N.D. Cal. July

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1 30, 2014) (The sequence of events in both works, from start to finish, is too parallel
2 to conclude that no reasonable juror could find the works substantially similar.).
3 Disney admits many of these similarities, but relies on differences between
4 the works, i.e., the parts of the Goldman Zootopia it did not pirate. That is no
5 defense. See Section II.C., supra. Furthermore, the cases Disney cites are
6 inapposite; they do not have anywhere near the number or particularity of
7 similarities the Complaint alleges.10
8 6. Mood and Pace
9 The mood and pace also are substantially similar. Both works target adults
10 and children, with comic, social, and emotional aspects for each. Compl. 77. The
11 moods involve humor with an undercurrent of pathos, and light moments juxtaposed
12 with dark moments. Id. Both feature disappointment, disillusionment, and sadness,
13 but also comedy and ultimate success. Id. The moods alternate as the characters
14 personalities and utopian/anti-utopian world views battle and characters take turns
15 suffering setbacks and later achieving vindication. Id. Both Zootopias end with a
16 mood of reconciliation and hope for improvement. Id. The pace changes with the
17 mood, sometimes exhibiting frenetic energy while other times slowing down for the
18 exposition of disappointment and disillusionment. Id.
19 Disney claims the undeniably similar moods and pace could probably be
20 similar to other movies, without citing authority or any such movie. Mot. 23:10-11.
21 Disney further fails to address the combination of mood and pace with other
22 elements.
23 10
See Basile, 2016 WL 5867432, at *6 (a humble hero must save his home
24 planet); Gallagher, 2015 WL 12481504, at *4 (students travelling to remote
locations and being murdered); Mandeville-Anthony, 2012 WL 4017785, at *2
25
(anthropomorphic cars [] with the backdrop of a race); Campbell, 718 F. Supp.
26 2d at 1112 (cocky young race-car driver [] who learns life lessons from an older
mentor); Rosenfeld, 2009 WL 212958, at *3 (efforts to replace humans [with
27
robots]); Thomas, 2008 WL 425647, at *3 (young fish in the ocean that are
28 captured by divers and put in a fish tank).

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1 7. Artwork
2 The Complaint amply alleges the two Zootopias have substantially similar
3 artwork, which is apparent from simply glancing at the drawings of the characters.
4 Compl. 3, 32, 65-68, 69(a)-(c), 78, 79. See Section II.D.4, supra.
5 Esplanades character renditions are plainly protectable, as an artist may
6 protect expression of even generic images of animals, much less the original and
7 highly stylized renderings here:
8 An artist may vary the pose, attitude, gesture, muscle structure, facial
expression, coat, or texture of animal. []. Such variations, if
9 original, may earn copyright protection.
10 Satava, 323 F.3d at 813; see also L.A. Printex, 676 F.3d at 850 n.4 (artistic
11 combination of elements is protectable). The factors establishing similarity of
12 artwork include the subject matter, shapes, colors, materials, and arrangement.
13 Cavalier, 297 F.3d at 826.
14 The Goldman Zootopias artwork, copied by Disney, is highly original. The
15 characters are neither real-life nor generic depictions of animals; rather, they are
16 original creative renderings of animal characters, constituting an expressive
17 selection and arrangement. Compl. 79. The shapes, poses, body structures,
18 colors, attitudes, and expressions are plainly original. Id. The artwork also is part
19 of a protectable combination of elements. Id.
20 Most of the authorities cited by Disney do not have substantially similar
21 artwork, as here. Accordingly, Disney concocts an argument that its character
22 images differ because they are three dimensional and clothed. First, to state the
23 obvious, they are not three dimensional; rather, they are two dimensional cartoon
24 images, as are Esplanades works. And even if Disneys mischaracterization was
25 correct, it would be irrelevant. There can, of course, be infringement between two
26 and three dimensional objects. Fleischer Studios v. Ralph A. Freundlich, Inc., 73
27 F.2d 276, 278 (2d Cir. 1934) (This, a three-dimensional form of [Betty Boop] doll,
28 is an infringement of the two-dimensional picture or drawing.); see also Rogers v.

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1 Koons, 960 F.2d 301, 308 (2d Cir. 1992) (puppy sculpture infringed a puppy
2 postcard). Disneys citation of Silberstein v. John Does, 242 F. Appx 720 (2d Cir.
3 2007) is to no avail, the court merely holding the two characters differ substantially
4 with respect to almost every individual element. Id. at 722. Furthermore, adding
5 clothes to a character, while copying body structures, poses, attitudes, colors, and
6 facial expressions does not eliminate substantial similarity. See Cavalier, 297 F.3d
7 at 827 (finding triable issue on substantial similarity despite works differences,
8 including fact plaintiffs star is wearing a costume while none of [defendants]
9 stars are dressed up). Again, Disneys citation does not support its argument. See
10 Mandeville-Anthony, 2012 WL 4017785, at *3 (drawings were of cars, not animals
11 with clothes, and were mere copies of cars designed and built by others).11
12 Finally, as it does throughout its brief, Disney fails to address the combination
13 of artwork for the ensemble of characters or the combination of artwork with other
14 elements. Disney should know better it argued in Air Pirates that a cartoon
15 character with physical as well as conceptual qualities is more likely to contain
16 some unique elements of expression. The Ninth Circuit agreed. 581 F.2d at 755.
17 8. Title
18 The titles are identical. More than just a word, Zootopia expresses setting
19 and theme, and relates to the characters and their conflicts. Compl. 80. Tellingly,
20 Disney never used the word before. Id.12 Although titles are not independently
21
11
22 Disney also argues that merely changing the species of characters eliminates
any potential for similarity. That is absurd. See EKB Textiles, Inc. v. Target Corp.,
23 2011 WL 13085924, at *3 (C.D. Cal. June 21, 2011) (sometimes minor differences
24 serve only to emphasize the extent to which a defendant has deliberately copied
from the plaintiff). Whether hyena or fox, dog-like predators who appears sly,
25
cynical, and untrustworthy because of posture, half-lidded eyes, and a smirk, can be
26 (and, here, are) substantially similar.
12
Disneys claim that a zoo in Denmark may use the name in the future, and a
27
radio station in New York used the name for a concert series, underscores the virtual
28 uniqueness of the name.

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1 copyrightable, they factor into the substantial similarity analysis, as the Ninth
2 Circuit wrote in Shaw:
3 [T]itles, in and of themselves, cannot claim statutory copyright.
Nevertheless, [i]f the copying of a title is not an act of copyright
4 infringement, it may [] have copyright significance as one factor in
5 establishing whether the substance of plaintiffs work (not the title) has
been copied. [] Thus, we acknowledge and consider defendants
6
admitted copying of Shaws title in determining whether there is
7 substantial similarity of protected expression between the two works.
8 919 F.2d at 1362 (citations omitted). See also Benay v. Warner Bros. Ent., Inc., 607
9 F.3d 620, 628 (9th Cir. 2010) (copying of a title may [] have copyright
10 significance as one factor in establishing an infringement claim).
11 9. Selection, Arrangement, and Combination of Elements
12 As shown throughout Section II, supra, the selection, arrangement, and
13 combination of elements are protectable. Esplanade plainly alleges infringement on
14 that basis. Disney argues only that Esplanade does not allege what those elements
15 are (Mot. 23:16), but it plainly ignores the many specific allegations in the
16 Complaint. See Compl. 57, 62, 64, 76, 78, 81, 82.13
17 III. ESPLANADE ADEQUATELY ALLEGES STATE LAW CLAIMS
18 Esplanade also alleges facts stating state law claims for breach of implied
19 contract, breach of confidence, and violation of California Business and Professions
20 Code Section 17200 (UCL). Id. 90-113. Disney argues the state law claims
21
13
22 The Complaint alleges Disney infringed not only by distributing the movie,
but also by licensing rights in Zootopia, displaying characters at theme parks, and
23 distributing the Zootopia Merchandise. These infringements involve the use of
24 themes, settings, dialogue, characters, plot, title, and/or artwork that are substantially
similar to those in the Goldman Zootopia, including substantially similar selections,
25
arrangements, and combinations of elements. See generally Compl. 83. Disneys
26 motion fails to address the allegations concerning these other infringements. To the
extent Disneys general arguments are meant to apply, it is noteworthy that some of
27
these infringements, such as the sale of dolls, do not have elements such as dialogue,
28 story, pace, etc., and would have to be evaluated on a different basis than the movie.

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1 fail because the works are not substantially similar. As shown above, however,
2 Esplanade adequately alleges substantially similarity, even though its state law
3 claims do not actually require such a showing at this stage. See, e.g., Montz v.
4 Pilgrim Films & Television, Inc., 649 F.3d 975, 981 (9th Cir. 2011) (en banc)
5 (complaint alleged elements of breach of contract and confidence claims without
6 mention of substantial similarity).
7 Moreover, substantial similarity for the state law claims does not require the
8 similar elements to be protectable under copyright law. As the California Supreme
9 Court held, disclosure of even a widely known and generally understood idea may
10 be protected. Desny v. Wilder, 46 Cal. 2d 715, 733 (1956) (citation and quotation
11 omitted); accord, Benay, 607 F.3d at 631 (finding of no substantial similarity on a
12 copyright claim does not preclude a finding of substantial similarity for purposes of
13 an implied-in-fact contract); Berkla v. Corel Corp., 66 F. Supp. 2d 1129, 1151
14 (E.D. Cal. 1999) (granting summary judgment on copyright claim but allowing
15 breach of confidence claim based on same facts).14
16 IV. ESPLANADE MAY RECOVER STATUTORY DAMAGES AND
17 ATTORNEYS FEES
18 Disney argues Esplanade cannot recover statutory damages and attorneys
19 fees because its theatrical release of the movie predates registration of the Goldman
20 Zootopia, relying on 17 U.S.C. Section 412(2) and Derek Andrew, Inc. v. Poof
21 Apparel Corp., 528 F.3d 696 (9th Cir. 2008). Disney overreaches. In Derek
22 Andrew, the Ninth Circuit held only that the first act of infringement in a series of
23 ongoing infringements of the same kind marks the commencement of one
24 continuing infringement under 412. 528 F.3d at 701 (emphasis added).
25 14
Disney suggests Esplanades UCL claim is derivative of its copyright claim
26 and is thus preempted. Mot. 24 n.8. Not so. Esplanades UCL claim arises from
non-copyright subject matter conduct, such as breach of confidence. Compl. 111.
27
See also Wilder v. CBS Corp., 2016 WL 693070, at *4 (C.D. Cal. Feb. 13, 2016)
28 (UCL claim arising out of breach of confidence not preempted by Copyright Act).

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1 Here, Esplanade may still pursue statutory damages and attorneys fees. The
2 Disney defendants which distribute the movie in theaters differ from those which
3 distribute the movie on DVD; license rights to Zootopia; own theme parks which
4 display infringing characters; and distribute infringing books, games, toys, dolls, and
5 other merchandise. Compl. 9-20. In addition, those activities differ qualitatively
6 from distributing a movie in theaters. Further, the Complaint alleges those acts took
7 place in or about 2016. Id. 48, 49. Therefore, those acts by different entities
8 could have commenced after November 10, 2016 less than three months prior to
9 the February 10, 2017 copyright registration placing them within the safe harbor
10 of Section 412. At the very least, the Court should allow Esplanade to take
11 discovery as to the kinds and dates of the various infringements, and not resolve the
12 issue by this motion.
13 V. IF NECESSARY, ESPLANADE REQUESTS LEAVE TO AMEND
14 Courts freely grant leave to amend. Fed. R. Civ. P. 15(a)(2); Foman v. Davis,
15 371 U.S. 178, 182 (1962). This policy is applied with extreme liberality. See
16 Moss v. United States Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009). Here, if the
17 Court finds the Complaint deficient, Esplanade requests leave to amend.15
18 CONCLUSION
19 For the foregoing reasons, the Court should deny Disneys motion to dismiss.
20
DATED: June 5, 2017 QUINN EMANUEL URQUHART &
21 SULLIVAN, LLP
22
By /s/ Gary E. Gans
23 Gary E. Gans
Attorneys for Plaintiff
24
Esplanade Productions, Inc.
25
26
15
If the Court somehow dismisses Esplanades copyright claim without leave to
27
amend, Esplanade respectfully requests the Court to refrain from ruling on the state
28 law claims and, instead, remand the case to state court.

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ESPLANADES OPPOSITION TO DISNEYS MOTION TO DISMISS