Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Entertainment Law & FinanceFeaturesCopyrightsEntertainment and Sports LawIntellectual PropertyLitigation

Are Rule 12(b)(6) Dismissals In Copyright Infringement Lawsuits In Danger?

By Alan Friedman
October 01, 2020

Federal district courts in the U.S. Courts of Appeals for the Second and Ninth Circuits have regularly granted Rule 12(b)(6) dismissals of copyright infringement lawsuits against motion pictures and other literary works if, following review of the works in issue, the court determines the plaintiff cannot plausibly state a claim of copyright infringement because the two works are not substantial similar.

Motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure are typically confined to the allegations in the pleadings. However, consistent with the law in other circuits, the Second and Ninth Circuits permit consideration of documents incorporated by reference in or integral to the allegations in a complaint in resolving Rule 12(b)(6) motions. See, e.g., Peter F. Gaito Architecture LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010); Knieval v. ESPN, 393 F.3d 1068 (9th Cir. 2005). Under this rule, courts regularly review the allegedly infringed and infringing works on Rule 12(b)(6) motions.

Until recently, the Second and Ninth Circuits have both been receptive to such dismissals. However, a pair of recent "unpublished" Ninth Circuit reversals of Rule 12(b)(6) dismissals involving prominent motion pictures — Zindel v. Fox Searchlight Pictures Inc., 18-56087 (9th Cir. 2020); Alfred, II v. The Walt Disney Co., 19-55669 (9th Cir. 2020) — stand in contrast to a recent Second Circuit decision affirming such a dismissal.  (Under Ninth Circuit Rule 36-3, "unpublished" decisions are not precedent for unrelated copyright decisions. However, they may be cited by litigants and may influence how district court judges approach future Rule 12(b)(6) motions.)

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
How Secure Is the AI System Your Law Firm Is Using? Image

In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.

COVID-19 and Lease Negotiations: Early Termination Provisions Image

During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant's space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.

Pleading Importation: ITC Decisions Highlight Need for Adequate Evidentiary Support Image

The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.

The Power of Your Inner Circle: Turning Friends and Social Contacts Into Business Allies Image

Practical strategies to explore doing business with friends and social contacts in a way that respects relationships and maximizes opportunities.

Authentic Communications Today Increase Success for Value-Driven Clients Image

As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.