                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


DENISE DANIELS; THE MOODSTERS              No. 18-55635
COMPANY,
               Plaintiffs-Appellants,        D.C. No.
                                          2:17-cv-04527-
                  v.                         PSG-SK

THE WALT DISNEY COMPANY; DISNEY
ENTERPRISES, INC.; DISNEY                  ORDER AND
CONSUMER PRODUCTS AND                       AMENDED
INTERACTIVE MEDIA INC.; DISNEY               OPINION
INTERACTIVE STUDIOS, INC.; DISNEY
SHOPPING, INC.; PIXAR,
               Defendants-Appellees.


       Appeal from the United States District Court
           for the Central District of California
       Philip S. Gutierrez, District Judge, Presiding

        Argued and Submitted November 6, 2019
                 Pasadena, California

                  Filed March 16, 2020
                  Amended May 4, 2020
2             DANIELS V. THE WALT DISNEY CO.

    Before: Jerome Farris, M. Margaret McKeown, and
        Barrington D. Parker, Jr., * Circuit Judges.

                            Order;
                  Opinion by Judge McKeown


                          SUMMARY **


                             Copyright

    The panel filed (1) an order amending its opinion,
denying a petition for panel rehearing, and denying on behalf
of the court a petition for rehearing en banc; and (2) an
amended opinion affirming the district court’s dismissal of
an action alleging copyright infringement by the Disney
movie Inside Out of plaintiffs’ characters called The
Moodsters.

     Affirming the denial of plaintiff’s claim under the
Copyright Act, the panel held that The Moodsters, lightly
sketched anthropomorphized characters representing human
emotions, did not qualify for copyright protection because
they lacked consistent, identifiable character traits and
attributes and were not especially distinctive.       The
Moodsters also did not qualify for copyright protection
under the alternative “story being told” test.

    *
      The Honorable Barrington D. Parker, Jr., United States Circuit
Judge for the U.S. Court of Appeals for the Second Circuit, sitting by
designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
            DANIELS V. THE WALT DISNEY CO.                3

    The panel also affirmed the district court’s denial of
plaintiff’s claim for breach of an implied-in-fact contract
under California law, based on her disclosure of information
about The Moodsters to various employees of Disney and its
affiliates.


                       COUNSEL

Patrick Arenz, Esq.(argued), Ronald J. Schutz and Brenda L.
Joly, Robins Kaplan LLP, Minneapolis, Minnesota, for
Plaintiffs-Appellants.

Mark Remy Yohalem, Esq. (argued), Glenn D. Pomerantz,
Erin J. Cox, Kenneth M. Trujillo-Jamison, and Anne K.
Conley, Munger, Tolles & Olson LLP, Los Angeles,
California, for Defendants-Appellees.


                         ORDER

   The opinion filed on March 16, 2020, slip op. 18-55635,
and appearing at 952 F.3d 1149, is hereby amended. An
amended opinion is filed concurrently with this order.

    With these amendments, the panel has voted to deny the
petition for panel rehearing.

    The full court has been advised of the petition for
rehearing and rehearing en banc and no judge has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
4           DANIELS V. THE WALT DISNEY CO.

   The petition for panel rehearing and petition for
rehearing en banc are DENIED. No further petitions for en
banc or panel rehearing shall be permitted.



                         OPINION

McKEOWN, Circuit Judge:

    Literary and graphic characters—from James Bond to
the Batmobile—capture our creative imagination. These
characters also may enjoy copyright protection, subject to
certain limitations. Here we consider whether certain
anthropomorphized characters representing human emotions
qualify for copyright protection. They do not. For guidance,
we turn to DC Comics v. Towle, our court’s most recent
explanation of the copyrightability of graphically-depicted
characters. DC Comics v. Towle, 802 F.3d 1012 (9th Cir.
2015).

    Denise Daniels developed a line of anthropomorphic
characters called The Moodsters, which she pitched to
entertainment and toy companies around the country,
including The Walt Disney Company. Under Towle, “lightly
sketched” characters such as The Moodsters, which lack
“consistent, identifiable character traits and attributes,” do
not enjoy copyright protection. Id. at 1019, 1021. We affirm
the district court’s dismissal of Daniels’s complaint.

                     BACKGROUND

I. The Moodsters

   Daniels is an expert on children’s emotional intelligence
and development. She designed and promoted initiatives
            DANIELS V. THE WALT DISNEY CO.                 5

that help children cope with strong emotions like loss and
trauma. The Moodsters were devised as a commercial
application of this work. Daniels hired a team to produce
and develop her idea under the umbrella of her new
company, The Moodsters Company. The initial product was
The Moodsters Bible (“Bible”), a pitchbook released in
2005. It provided a concise way to convey Daniels’s idea to
media executives and other potential collaborators, and
included a brief description of the characters, themes, and
setting that Daniels envisioned for her Moodsters universe.

    The Moodsters are five characters that are color-coded
anthropomorphic emotions, each representing a different
emotion: pink (love); yellow (happiness); blue (sadness); red
(anger); and green (fear). Daniels initially named The
Moodsters Oolvia, Zip, Sniff, Roary, and Shake, although
these names changed in each iteration of the characters.

     In 2007, Daniels and her team released a 30-minute pilot
episode for a television series featuring The Moodsters,
titled “The Amoodsment Mixup” (“pilot”). The pilot was
later available on YouTube.

   Between 2012 and 2013, Daniels and her team
developed what they call the “second generation” of
Moodsters products: a line of toys and books featuring The
Moodsters that were sold at Target and other retailers
beginning in 2015.

    Daniels and The Moodsters Company pitched The
Moodsters to numerous media and entertainment companies.
One recurring target was The Walt Disney Company and its
affiliates, including Pixar. Daniels alleges that she or a
member of her team had contact with several different
Disney employees between 2005 and 2009.
6           DANIELS V. THE WALT DISNEY CO.

    The claimed contact began in 2005, when a member of
The Moodsters Company shared information about The
Moodsters with an employee of Playhouse Disney. Daniels
alleges that in 2008 she was put in touch with Thomas
Staggs, the Chief Financial Officer of the Walt Disney
Company, and that Staggs later informed her that he would
share materials about The Moodsters with Roy E. Disney,
the son of a Disney founder, and Rich Ross, the President of
Disney Channels Worldwide. Finally, Daniels alleges that
she spoke by phone with Pete Docter, a director and
screenwriter, and they discussed The Moodsters, although
no year or context for this conversation is alleged in the
Complaint.

II. Disney’s Inside Out

    Disney began development of its movie Inside Out in
2010. The movie was released in 2015, and centers on five
anthropomorphized emotions that live inside the mind of an
11-year-old girl named Riley. Those emotions are joy, fear,
sadness, disgust, and anger. Docter, who directed and co-
wrote the screenplay, stated that his inspiration for the film
was the manner with which his 11-year-old daughter dealt
with new emotions as she matured.

III. District Court Proceedings

   Daniels filed suit against Disney in 2017 for breach of an
implied-in-fact contract, arising from Disney’s failure to
compensate Daniels for the allegedly disclosed material used
to develop Inside Out. Daniels then filed an amended
complaint, joining The Moodsters Company as a co-plaintiff
and alleging copyright infringement of both the individual
Moodsters characters and the ensemble of characters as a
whole.
             DANIELS V. THE WALT DISNEY CO.                  7

    Disney filed a motion to dismiss, asserting that Daniels
failed to meet the legal standard for copyright in a character,
and that the copyright “publication” of the Bible and pilot
doomed Daniels’s implied-in-fact contract claim. The
district court granted Disney’s motion to dismiss, and
granted Daniels leave to file an amended complaint on the
copyright claims. Disney filed a motion to dismiss the
Amended Complaint, which the district court granted on the
ground that The Moodsters are not protectable by copyright.

                        ANALYSIS

I. Copyright Protection for The Moodsters

    Although characters are not an enumerated
copyrightable subject matter under the Copyright Act, see 17
U.S.C. § 102(a), there is a long history of extending
copyright protection to graphically-depicted characters. See,
e.g., Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1452 (9th
Cir. 1988); Walt Disney Prods. v. Air Pirates, 581 F.2d 751,
755 (9th Cir. 1978). However, “[n]ot every comic book,
television, or motion picture character is entitled to
copyright protection.” Towle, 802 F.3d at 1019. A character
is entitled to copyright protection if (1) the character has
“physical as well as conceptual qualities,” (2) the character
is “sufficiently delineated to be recognizable as the same
character whenever it appears” and “display[s] consistent,
identifiable character traits and attributes,” and (3) the
character is “especially distinctive” and “contain[s] some
unique elements of expression.” Id. at 1021 (internal
citations and quotation marks removed).

   A. Application of the Towle Test to The Moodsters

   Disney does not dispute that the individual Moodster
characters meet the first prong of the Towle test: each has
8           DANIELS V. THE WALT DISNEY CO.

physical as well as conceptual qualities. Because they have
physical qualities, The Moodsters are not mere literary
characters.

    The second prong presents an insurmountable hurdle for
Daniels.      Towle requires that a character must be
“sufficiently delineated to be recognizable as the same
character whenever it appears.” Id. Although a character
that has appeared in multiple productions or iterations “need
not have a consistent appearance,” it “must display
consistent, identifiable character traits and attributes” such
that it is recognizable whenever it appears. Id.

     Consistently recognizable characters like Godzilla or
James Bond, whose physical characteristics may change
over various iterations, but who maintain consistent and
identifiable character traits and attributes across various
productions and adaptations, meet the test. See Tono Co. v.
William Morrow & Co., 33 F. Supp. 2d 1206, 1215 (C.D.
Cal. 1998) (finding that Godzilla is consistently a “pre-
historic, fire-breathing, gigantic dinosaur alive and well in
the modern world”), Metro-Goldwyn-Mayer, Inc. v. Am.
Honda Motor Corp., 900 F. Supp. 1287, 1296 (C.D. Cal.
1995) (noting that James Bond has consistent traits such as
“his cold-bloodedness; his overt sexuality; his love of
martinis ‘shaken, not stirred;’ his marksmanship; his ‘license
to kill’ and use of guns; his physical strength; his
sophistication”). By contrast, a character that lacks a core
set of consistent and identifiable character traits and
attributes is not protectable, because that character is not
immediately recognizable as the same character whenever it
appears. See, e.g., Olson, 855 F.2d at 1452–53 (holding that
television characters from “Cargo” are too “lightly
sketched” to be independently protectable by copyright).
             DANIELS V. THE WALT DISNEY CO.                   9

    In addressing The Moodsters, we first distinguish
between the idea for a character and the depiction of that
character. The notion of using a color to represent a mood
or emotion is an idea that does not fall within the protection
of copyright. See 17 U.S.C. § 102(b) (“In no case does
copyright protection for an original work of authorship
extend to any idea . . . regardless of the form in which it is
described, explained, illustrated, or embodied in such
work.”); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 344–45 (1991) (internal quotation marks and
citation removed) (“The most fundamental axiom of
copyright law is that no author may copyright his ideas ….”);
Frybarger v. Int’l Bus. Mach. Corp., 812 F.2d 525, 529 (9th
Cir. 1987) (“[I]deas themselves are not protected by
copyright and cannot, therefore, be infringed.”). So it is no
surprise that the idea of color psychology is involved in
everything from decorating books to marketing and color
therapy. Color and emotion are also frequent themes in
children’s books, such as Dr. Seuss’s classic, My Many
Colored Days, and Anna Llenas’s The Color Monster: A
Story of Emotions.

    Notably, colors themselves are not generally
copyrightable. Boisson v. Banian, 273 F.3d 262, 271 (2d
Cir. 2001) (“Color by itself is not subject to copyright
protection.”); see also 38 C.F.R. § 202.1(a) (“[M]ere
variations of . . . coloring” are not copyrightable). Nor is the
“idea” of an emotion copyrightable. See Feist, 499 U.S. at
350. Taken together, these principles mean that Daniels
cannot copyright the idea of colors or emotions, nor can she
copyright the idea of using colors to represent emotions
where these ideas are embodied in a character without
sufficient delineation and distinctiveness.
10           DANIELS V. THE WALT DISNEY CO.

    In analyzing whether The Moodster characters are
“sufficiently delineated,” we carefully examine the graphic
depiction of the characters and not the ideas underlying
them. We look first to the physical appearance of The
Moodsters. Unlike, for example, the Batmobile, which
“maintained distinct physical and conceptual qualities since
its first appearance in the comic books,” the physical
appearance of The Moodsters changed significantly over
time. Towle, 802 F.3d at 1021. In the 2005 Bible and 2007
television pilot, the five Moodsters have an insect-like
appearance, with skinny bodies, long ears, and tall antennas
that act as “emotional barometers” to form a distinctive
shape and glow when an emotion is strongly felt. By the
second generation of toys, The Moodsters look like small,
loveable bears. They are round and cuddly, have small ears,
and each dons a detective’s hat and small cape.

    Mindful that physical appearance alone is not decisive,
we also consider whether The Moodsters have maintained
consistent character traits and attributes. Across the various
iterations The Moodsters have consistently represented five
human emotions, and those emotions have not changed. But
other than the idea of color and emotions, there are few other
identifiable character traits and attributes that are consistent
over the various iterations. In the 2005 Bible, each character
is described in a few short paragraphs. For example, the Zip
character is described as having “an infectious laugh and
wakes up each morning with a smile on his face and a
friendly attitude.” By the 2007 pilot, these characteristics
are not mentioned and are not evident from the depiction of
Zip. The other four Moodsters similarly lack consistent
characteristics and attributes in the 2005 Bible and 2007
pilot. “Lightly sketched” characters of this kind, without
identifiable character traits, are not copyrightable under the
            DANIELS V. THE WALT DISNEY CO.                11

second prong of Towle. See id. at 1019 (citing Olson, 855
F.3d at 1452–53).

    Perhaps the most readily identifiable attribute of The
Moodsters is their relationship to emotions. The 2005 Bible
explains that each character relates to emotions in its own
way when something new happens—the “anger” Moodster
might become angry, whereas the “sad” Moodster might
become sad. The Moodsters behave in a similar fashion in
the 2007 pilot, where each character is especially prone to a
particular emotion such as anger or sadness. But by 2015,
the five Moodsters are “mood detectives,” and help a young
boy uncover how he feels about situations in his life.

    Finally, in every iteration the five Moodsters each have
a completely different name. For example, the red/anger
Moodster was originally named Roary in the 2005 Bible,
then Rizzi in the 2007 pilot, and as of 2015 was named Razzy
in Moodsters toys and the Meet the Moodsters storybook.
The other four characters have gone through similar name
changes over the three iterations. While a change of name is
not dispositive in our analysis, these changes across each
iteration further illustrate that Daniels never settled on a
well-delineated set of characters beyond their representation
of five human emotions.

    The Batmobile in Towle again provides a useful contrast
to this case. There, we recognized that from the time of the
1966 television series to the 1989 motion picture, the
Batmobile had numerous identifiable and consistent
character traits and attributes. It was always a “crime-
fighting car” that allowed Batman to defeat his enemies.
Towle, 802 F.3d at 1021. It consistently had jet-engines and
far more power than an ordinary car, the most up-to-date
weaponry, and the ability to navigate through landscapes
impassible for an ordinary vehicle. Id. at 1021–22. Beyond
12           DANIELS V. THE WALT DISNEY CO.

the emotion it represents, each Moodster lacks comparable
identifiable and consistent character traits and attributes
across iterations, thus failing the second prong of the Towle
test.

    Finally, even giving Daniels the benefit of the doubt on
Towle’s second prong, we conclude that The Moodsters fail
the third prong—they are not “especially distinctive” and do
not “contain some unique elements of expression.” Id.
(internal quotation marks and citations removed). Daniels
identifies The Moodsters as unique in that they each
represent a single emotion. But this facet is not sufficient to
render them “especially distinctive,” particularly given their
otherwise generic attributes and character traits. In contrast,
the Batmobile in Towle had a “unique and highly
recognizable name,” unlike each Moodster, which had three
entirely different names. Id. at 1022. Developing a
character as an anthropomorphized version of a specific
emotion is not sufficient, in itself, to establish a
copyrightable character. See Rice v. Fox Broad. Co., 330
F.3d 1170, 1175 (9th Cir. 2003) (declining to extend
copyright protection to “the magician … dressed in standard
magician garb—black tuxedo with tails, a while tuxedo shirt,
a black bow tie, and a black cape with red lining” whose role
is “limited to performing and revealing magic tricks”).
Taken together, The Moodsters are not “especially
distinctive,” and do not meet the third prong of the Towle
test.

     B. The Story Being Told Test

    Since the 1950s, we have also extended copyright
protection to characters—both literary and graphic—that
constitute “the story being told” in a work. Warner Bros.
Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th
Cir. 1954); see also Rice, 330 F.3d at 1175–76; Halicki
            DANIELS V. THE WALT DISNEY CO.                 13

Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213,
1224 (9th Cir. 2008). A character is not copyrightable under
this test where “the character is only the chessman in the
game of telling the story.” Warner Bros. Pictures, 216 F.2d
at 950. This is a high bar, since few characters so dominate
the story such that it becomes essentially a character study.

    Warner Brothers and Towle are two different tests for
character copyrightability. See Rice, 330 F.3d at 1175
(“characters that are ‘especially distinctive’ or the ‘story
being told’ receive protection apart from the copyrighted
work” (emphasis added)). Thus, we do not embrace the
district court’s view that Towle represents the exclusive test
for copyrightability.

    The Warner Brothers test is therefore available, but it
affords no protection to The Moodsters. Neither the Bible
nor the pilot episode exhibits any prolonged engagement
with character development or a character study of The
Moodsters. Although the characters are introduced in the
Bible, along with short descriptions, these pithy descriptions
do not constitute the story being told. The pilot contains
even less character development—rather, each of The
Moodsters serves primarily as a means by which particular
emotions are introduced and explored. The Moodsters are
mere chessmen in the game of telling the story.

    Daniels’s final argument is that even if the individual
Moodsters are not protectable under the Towle or “story
being told” regimes, the ensemble of five characters together
meets one or both of those tests. Daniels’s ensemble claim
does not change the distinctiveness or degree of delineation
of the characters, and so The Moodsters as an ensemble are
no more copyrightable than the individual characters.
14          DANIELS V. THE WALT DISNEY CO.

    The district court did not err in dismissing Daniels’s
claims for copyright infringement.

II. Implied-in-Fact Contract

    Daniels also puts forth a claim for breach of an implied-
in-fact contract. Under California law, a plaintiff can
recover compensation for an idea conveyed to a counter-
party where no explicit contract exists only where (1)
“before or after disclosure he has obtained an express
promise to pay,” or (2) “the circumstances preceding and
attending disclosure, together with the conduct of the offeree
acting with knowledge of the circumstances, show a promise
of the type usually referred to as ‘implied’ or ‘implied-in-
fact.’” Desny v. Wilder, 46 Cal. 2d 715, 738 (1956). The
Ninth Circuit has developed a multi-part test to evaluate
Desny claims, asking whether (1) the plaintiff prepared or
created the work in question, (2) the work was disclosed to
the defendant for sale, and (3) the disclosure was made
“under circumstances from which it could be concluded that
the offeree voluntarily accepted the disclosure knowing the
conditions on which it was tendered and the reasonable value
of the work.” Grosso v. Miramax Film Corp., 383 F.3d 965,
967 (9th Cir. 2004).

    Daniels’s implied-in-fact contract claim is based on the
disclosure of information about The Moodsters to various
employees of Disney and its affiliates between 2005 and
2009. These discussions were a part of Daniels’s effort to
find a partner with whom she could develop and grow the
Moodsters brand and commercial opportunities.

   There is no dispute that Daniels created the characters in
question, and we accept as true that the alleged conversations
took place. But the existence of a conversation in which an
             DANIELS V. THE WALT DISNEY CO.                   15

idea is disclosed is, by itself, an insufficient basis to support
an implied-in-fact contract.

    Daniels alleges that “she was aware and relied on
customs and practices in the entertainment industry when
she approached Disney˖Pixar about a partnership,” and that
“Disney˖Pixar accepted the disclosure of the ideas in The
Moodsters with an expectation that it would have to
compensate Daniels and The Moodsters Company if
Disney˖Pixar used this idea in any television, motion picture,
merchandise, or otherwise.”

    But we are told no more. Daniels offers only bare
allegations, stripped of relevant details that might support
her claim for an implied-in-fact contract. No dates are
alleged, and no details are provided. There is no basis to
conclude that Disney either provided an express offer to pay
for the disclosure of Daniels’s idea or that the disclosure was
made “under circumstances from which it could be
concluded that [Disney] voluntarily accepted the disclosure
knowing the conditions on which it was tendered and the
reasonable value of the work.” Id.

    To survive a motion to dismiss, Daniels is required under
California law to do more than plead a boiler-plate
allegation, devoid of any relevant details. The district court
did not err in dismissing Daniels’s claim for an implied-in-
fact contract.

                       CONCLUSION

    There is no dispute that the 2005 Moodsters Bible and
the 2007 pilot television episode are protected by copyright.
But Daniels cannot succeed on her copyright claim for The
Moodsters characters, which are “lightly sketched” and
neither sufficiently delineated nor representative of the story
16          DANIELS V. THE WALT DISNEY CO.

being told. Daniels also fails to allege sufficient facts to
maintain an implied-in-fact contract claim against Disney
under California law.

     AFFIRMED.
