In response to a copyright claim that the Netflix series “Stranger Things” infringed the plaintiff’s unpublished screenplays, Netflix and the other defendants filed a Rule 12(b)(6) motion to dismiss, arguing that the works were not substantially similar as a matter of law.  In connection with the motion, Netflix submitted – and the Court accepted – copies of the allegedly infringed screenplays and the allegedly infringing three seasons of “Stranger Things.”

Netflix provided a detailed analysis to demonstrate that the competing works were not “substantially similar” under the “extrinsic similarity” test, which applies at the Rule 12(b)(6) pleading stage.  Under this test, the Court conducts an objective analysis of similarities between the competing works’ plot, themes, dialogue, settings, pacing, characters and sequence of events after filtering out non-protectable similarities (e.g., scenes-a-faire elements, historical facts and general ideas).

In contrast to the Plaintiff’s screenplays – which Netflix described as telling the story of an epileptic army veteran’s quest to free his dead wife’s spirit from a giant English-speaking angel/demon – Netflix explained that “Stranger Things” focuses on a group of teenagers dealing with common teenage issues (e.g., conflicts with adults, romantic crushes), while engaging with and fighting off science fiction monsters, evil scientists and Russian military personnel.

In opposition, Plaintiff relied heavily on Zindel v. Fox Searchlight Pictures, Inc., 815 F. App’x 158 (9th Cir. 2020) and Alfred v. Walt Disney Co., 821 F. App’x 727 (9th Cir. 2020).  In these recent unpublished decisions (issued in June and July, 2020), the Ninth Circuit reversed Rule 12(b)(6) dismissals of copyright claims asserted against “The Shape of Water” and “Pirates of the Caribbean: Curse of the Black Pearl.”  Invoking those decisions, the Plaintiff argued that (i) pre-discovery dismissal of copyright claims involving literary works for lack of substantial similarity is, in the words of Zindel, “virtually unheard of,” and (ii) it was “critical” for the District Court to have “the benefit of expert analysis of the works” (citing both Zindel and Alfred). Notably, the Plaintiff did not support its claim that expert testimony was “critical” with any argument as to where it was needed to respond to any aspect of Netflix’s extrinsic test analysis.

In denying the motion, the District Court made no mention whatsoever of the plots, characters, themes or other elements of the extrinsic similarity test and offered no analysis of whether it deemed the works in issue similar in any respect.  Instead, relying entirely on the unpublished decision in Alfred, the District Court ruled that “additional evidence such as expert testimony may help inform the question of substantial similarity in this case” and the determination of what similar elements “are indeed unprotectible material.”  (Emphasis added.)  In issuing this ruling, the District Court did not identify any aspect of Netflix’s extrinsic test analysis for which it deemed expert testimony necessary following its opportunity to review the allegedly infringed and infringing works before it on Netflix’s motion to dismiss.

Irish Rover Entertainment, LLC v. Sims, et al., slip op. Case No. 2:20-cv-06293 (CBM) (C.D. Cal. Jan. 21, 2021)