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Are Rule 12(b)(6) Dismissals In Copyright Infringement Lawsuits In Danger?
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 However, a pair of recent "unpublished" Ninth Circuit reversals of Rule 12(b)(6) dismissals involving prominent motion pictures — Zindel v. Fox Searchlight Pictures Inc., 18-56087 (9th Cir. 2020);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 (Under Ninth Circuit Rule 36-3, "unpublished" decisions are not precedent for unrelated copyright decisions.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.)
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