                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 18-2085
                                     ______________

                                   JENNIE NICASSIO,

                                                                Appellant
                                             v.

                          VIACOM INTERNATIONAL, INC.;
                          PENGUIN RANDOM HOUSE LLC
                                ______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civ. No. 2-17-cv-00805)
                       Honorable Nora B. Fischer, District Judge
                                   ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                  February 13, 2019

            BEFORE: HARDIMAN, SCIRICA, and COWEN, Circuit Judges

                                   (Filed: July 2, 2019)
                                    ______________

                                       OPINION*
                                     ______________




____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.

       Jennie Nicassio appeals from the order of the United States District Court for the

Western District of Pennsylvania granting the motion to dismiss for failure to state a

claim filed by Viacom International, Inc. (“Viacom”) and Penguin Random House LLC

(“Penguin”). We will affirm.

                                             I.

       Nicassio is the author of an illustrated children’s book entitled Rocky: The

Rockefeller Christmas Tree (“Rocky”). She copyrighted this work, “which is the story of

a young Christmas tree that dreams of becoming the Rockefeller Center Christmas tree in

New York City.” Nicassio v. Viacom Int’l, Inc., 309 F. Supp. 3d 381, 385 (W.D. Pa.

2018) (citing A1, A3). Penguin subsequently published Albert: The Little Tree with Big

Dreams (“Albert”). “Nicassio claims that Albert mirrors the story of Rocky, as it too

‘tells the tale of a young Christmas tree that wishes to one-day stand in a big city’ and

otherwise ‘contains substantial material copied from’ Rocky.” Id. (quoting A5). Viacom

released an animated version of Albert, which allegedly also contains substantial copied

material.

       Nicassio filed this action against Viacom and Penguin (collectively “Appellees”).

She asserted, inter alia, claims of copyright infringement, and Appellees filed a joint

motion to dismiss. The District Court granted their motion and dismissed Nicassio’s

complaint with prejudice.

       The District Court considered at some length the “dispositive issue” of “whether

there are ‘substantial similarities’ between Rocky and Albert.” Id. at 387-88 (citing Dam

                                             2
Things from Denmark v. Russ Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir. 2002)). It

recognized that an author can protect only the expression of an idea—and not the idea

itself. Under the scènes à faire doctrine, situations and incidents that naturally (and not

just necessarily) flow from the basic plot premise also are not protected. After

summarizing the respective works and examining their purported similarities and

differences, the District Court determined that Rocky and Albert are not substantially

similar as a matter of law:

               Regardless of whether the basic plot idea of a little tree aspiring to
       be the Rockefeller Christmas Tree in New York is “commonplace,” it is far
       too generic to be considered protectable under copyright law. [Tanikumi v.
       Walt Disney Co., 616 F. App’x 515, 521 (3d Cir. 2015)] (generic plot and
       theme ideas are not protectable). Nor are the themes of perseverance,
       adversity, or encouragement in a children’s story protectable. See, e.g.
       [Cavalier v. Random House, Inc., 297 F.3d 815, 828 (9th Cir. 2002)] (“The
       themes of teaching children to have confidence, to overcome their fears,
       and to try are . . . too general to be protected.”). As such, Nicassio cannot
       circumvent dismissal by conjuring up a host of hypothetical ways that
       Defendants could have told Albert differently, such as by using other
       characters, themes, or expressions. ([A161-A164]). This tactic ignores the
       fundamental rule that not all copying is copyright infringement, Feist Pub.,
       Inc. v. Rural Tel. Svc. Co., [499 U.S. 340, 361 (1991)], and “fails to
       address the underlying issue: whether a lay observer would consider the
       works as a whole substantially similar to one another.’” [Williams v.
       Crichton, 84 F.3d 581, 590 (2d Cir. 1996)].

Id. at 393 (footnote omitted). While acknowledging that both works share the same basic

story concept and theme (i.e., that anything can be accomplished with perseverance and

positive thinking), the District Court pointed out that Albert explores other themes

(including the importance of family, empathy, and forgiveness) by using different plot

twists, sequences and expressions. Likewise, the District Court observed that the

respective characters are not substantially similar.

                                              3
       In the end, the District Court explained that, despite some similarities, Nicassio

failed to state a claim for copyright infringement against Appellees:

               The Court acknowledges some similarity between the works as
       identified by Nicassio, including, most notably their use of the phrase: “the
       most famous Christmas tree in the world,” and having the trees displayed
       before a large crowd in a setting resembling Rockefeller Center in New
       York City. ([A5-A6, A8]). Nevertheless, these similarities are, at most, a
       “random scattershot” of various aspects of the works which “would be
       expected when two works express the same idea or explore the same
       theme.” Williams, 84 F.3d at 590; [Kay Berry, Inc. v. Taylor Gifts, Inc.,
       421 F.3d 199, 208 (3d Cir. 2005)]. Even if, as Nicassio insists, the
       identified similarities are not “indispensable” to conveying this basic
       theme, the works’ “total concept and overall feel . . . as instructed by good
       eyes and common sense” would not lead a lay observer to conclude that
       Defendants’ alleged copying, if proven, was of protectable aspects of
       Rocky. [Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d
       57, 66 (2d Cir. 2010)]; Dam Things, 290 F.3d at 562; see also Williams, 84
       F.3d at 589 (explaining that consideration of the works’ total concept and
       feel is especially appropriate when comparing children’s works, which are
       “often less complex than those aimed at an adult audience”); Cavalier, 297
       F.3d at 824 (“[T]he general premise of a child, invited by a moon-type
       character, who takes a journey through the night sky and returns safely to
       bed to fall asleep . . . [is] not protected by copyright law.”). As in
       Tanikumi, “[w]hile there are indeed certain similarities between the works,
       they concern prototypical settings, plots, and characters too indistinct to
       merit copyright protection.” Tanikumi, 616 F. App’x at 521.

Id. at 394-95.

                                               II.

       Nicassio presents a large number of arguments in this appeal.1 She specifically

identifies six issues in his appellate brief, initially arguing that the District Court ignored


       1
        The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1338, and we have appellate jurisdiction under 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of a motion to dismiss. See, e.g., Tanksley
v. Daniels, 902 F.3d 165, 171 (3d Cir. 2018), cert. denied, 2019 WL 659816 (U.S. Feb.
19, 2019).
                                               4
the dictionary definition of “generic” and erroneously defined “generic plot” as any

simple plot. She also challenges its holding that plot elements naturally flowing from a

generic plot are unprotectable under the scènes à faire doctrine. The District Court also

purportedly erred by excusing copying by considering material added by the accused

infringer; failed to consider the sequence, settings, and dramatic significance of the

copied parts “in assessing the plausibility of an improper taking from the viewpoint of a

lay reader”; and “erred by not identifying either a genre for the original work or generic

plot elements, as a first step to determine whether a particular element is a scènes à faire,

and then compounding this error by failing to consider whether a lay observer might

plausibly find the copying unfair.” (Appellant’s Brief at 2.) Finally, Nicassio contends

that the District Court failed “to give a rationale defining the line between idea and

expression, and [failed] to define that line.” (Id.) In her reply brief, she asserts that

Appellees use a chain of legal errors consisting of the following:

       . . . . 1) redefining the term “generic” to mean simple; 2) expanding the
       definition of scènes à faire to encompass any plot element which might be
       said to naturally follow from its simple formulation of the original plot; 3)
       ignoring the totality of the copying of the original children’s novel [Rocky];
       4) focusing the court instead on irrelevant subject matter which it added to
       the copied parts of [Albert]; 5) avoiding any consideration of the dramatic
       equivalence of substituted plot elements; 6) ignoring the sequence of the
       parallel plot elements in both stories; 7) essentially ignoring the plausibility
       standard of FRCP 12; and 8) avoiding the inescapable question of fact
       respecting fairness without even advancing a position on whether
       reasonable persons might differ with the conclusion which it urges.

(Appellant’s Reply Brief at 1.)

       However, the District Court properly applied the governing Rule 12(b)(6)

standards as well as the principles governing claims of copyright infringement. We agree

                                               5
with the District Court that Rocky and Albert are not substantially similar as a matter of

law.

       It is undisputed that the “substantial similarity” requirement implicates a factual

inquiry. Furthermore, the District Court appropriately recognized that the complaint

must be viewed in the light most favorable to the plaintiff and that it must decide whether

the well-pleaded factual allegations plausibly give rise to an entitlement to relief. See,

e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016); Eid v. Thompson,

740 F.3d 118, 122 (3d Cir. 2014). We recently upheld a Rule 12(b)(6) dismissal

premised on the absence of substantial similarity. See Tanksley, 902 F.3d at 168-77.

“[C]ourts have justified consideration of substantial similarity at the pleading stage by

noting that ‘no discovery or fact-finding is typically necessary.’” Id. at 172 (quoting

Peter F. Gaito, 602 F.3d at 64). Instead, all that is needed is a visual comparison of the

respective works. See, e.g., id. “[W]here no reasonable juror could find substantial

similarity, justice is best served by putting a ‘swift end to meritless litigation.’” Id.

(quoting Hoehling v. Universal City Studies, Inc., 618 F.2d 972, 977 (2d Cir. 1980)).

       We also find no reversible error in the District Court’s understanding of

unprotected plot concepts or ideas. As Appellees put it, “the crux of Nicassio’s claim of

actionable substantial similarity is that [they] copied Nicassio’s story concept of ‘a little

tree dreaming of becoming the Rockefeller Center Christmas tree.’” (Appellees’ Brief at

15 (quoting Appellant’s Brief at 35).) In the opposition brief she filed with the District

Court, Nicassio stated that “[Appellees’] repeated protest, that ‘the generic plot idea of a

little Christmas tree with dreams of being on display is not protectable’ ([A61]), is not

                                               6
contested.” (A178 (footnote omitted).) While she proceeded to characterize this

formulation as a paper tiger or a gross mischaracterization, she did so because

“Defendants have gone on from such a limited taking to unabashedly copying a great

number of other plot elements” (id.)—and not because she contested Appellees’

understanding of generic plot ideas or their specific formulation of the generic plot at

issue here. In any event, it is well established that copyright law does not protect ideas,

whether they are described as generic, general, or basic in nature. See, e.g., Tanksley,

902 F.3d at 174-75 (stating that neither ideas nor plot elements that flow predictably from

such general idea are protectable); Cavalier, 297 F.3d at 824, 828 (stating that themes of

teaching children to have confidence, overcome fears, and try are too general to be

protected and that basic plot ideas or premises—such as a child who is invited by moon-

type character to take journey through night sky and returns safely to bed to fall asleep—

also do not merit copyright protection).

       Relying on Ninth Circuit case law, the District Court went on to explain that

“scenes a faire applies not only to situations and incidents that necessarily flow from the

basic plot premise, but also ones that naturally flow from it.” Nicassio, 309 F. Supp. 3d

at 388 (citing Cavalier, 297 F.3d at 823). As we stated in Tanksley, this doctrine

excludes from copyright protection “plot elements that flow predictably from a general

idea.” Tanksley, 902 F.3d at 175; see also, e.g., Kay Berry, 421 F.3d at 208 (stating that

elements that would be expected when two works express same idea or explore same

theme are not protected).



                                              7
       Applying these basic principles of law, the District Court properly considered the

storylines, similarities, and significant differences between Rocky and Albert. As

Nicassio observes in her reply brief, concepts like scènes à faire and generic plots should

not be permitted to obscure the basic gist of the “substantial similarity” inquiry:

       . . . . There is obvious tension between the imperative to filter out
       unprotectable elements of a work while keeping sight of the work’s total
       concept and feel (which necessarily includes unprotectable elements). We
       reconcile these competing considerations by recalling that the basic inquiry
       remains whether an ordinary observer would perceive that the defendant
       has copied protected elements of the plaintiff’s work. Other filters, e.g.,
       scènes à faire, total concept and feel, etc., while helpful, are merely tools to
       assist the trier of fact in reaching a proper conclusion.

Tanksley, 902 F.3d at 175. Here, “an ordinary observer would [not] perceive that

[Appellees have copied] protected elements of [Nicassio’s] work.” Id. For instance,

Albert clearly explores themes not present in Rocky, such as the importance of family,

empathy, and forgiving others—and does so by using plot twists that are completely

missing from Rocky:

              In this regard, although Rocky and Albert each contain instances of
       verbal bullying, Albert overcomes additional obstacles to achieve his goal,
       mainly escaping from the violent bully Cactus Pete twice, evading a pack
       of hungry vegetarian bunnies, and suffering defeat when Big Betty is
       selected as the Empire City Christmas tree. Only after soldiering on to
       Empire City to stop Cactus Pete from ruining Christmas does Albert
       become the most famous Christmas tree in the world. In fact, the way
       Albert achieves this fame—being placed on top of Betty, an 80-foot
       evergreen with a severed top—stands in stark contrast to how Rocky is
       merely selected as the contest winner. Also, unlike Rocky, once Albert
       reaches his goal, he realizes that family is more important than being the
       most famous Christmas tree in the world. He then discovers that Pete was
       only trying to ruin Christmas because he was lonely, so he trades places
       with Pete and returns home to spend the holiday with his family at the plant
       nursery. Hence, it is more than clear that the protectable aspects of the
       works’ plots, themes, and sequences are not substantially similar. See

                                              8
       Tanikumi, 616 F. App’x at 520-21; see also Winstead v. Jackson, [509 F.
       App’x 139, 143 (3d Cir. 2013)] (affirming the district court’s dismissal of
       a copyright infringement claim where the similarities in the works’ themes
       and settings were “not unique” to that particular genre).

Nicassio, 309 F. Supp. 3d at 394. Although a defendant cannot immunize itself against

liability for infringement by adding new elements on top of those copied, these

differences show that Albert has not infringed Rocky’s overall “concept and feel.”

Similarly, although some of the characters may share certain aspects in common, there

are also obvious differences, e.g., Rocky is initially a small tree who doubles in size

while Albert remains a small tree throughout the story; Rocky’s only friend is the forest

fairy named Mary Louise while Albert’s friends (who accompany him on his adventures)

include a child named Molly, Maisie (a palm tree), and Gene (a stink–breath weed); and

while the bullying spruce tree is Rocky’s competitor in the contest, Cactus Pete was a

more complex character ultimately driven by a feeling of loneliness and exclusion.

Given these circumstances, “the works’ ‘total concept and overall feel . . . as instructed

by good eyes and common sense’ would not lead a lay observer to conclude that

[Appellees’] alleged copying, if proven, was of protectable aspects of Rocky.” Id. at 395

(quoting Peter F. Gaito, 602 F.3d at 66).

                                             III.

       For the foregoing reasons, we will affirm the order of the District Court.




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