                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ELIJAH SCHKEIBAN, an individual,                 No. 12-56964

              Plaintiff - Appellant,             D.C. No. 2:12-cv-00636-R-MAN

  v.
                                                 MEMORANDUM*
JAMES CAMERON, an individual;
LIGHTSTORM ENTERTAINMENT,
INC., a California corporation;
TWENTIETH CENTURY FOX FILM
CORPORATION, a Delaware corporation;
DUNE ENTERTAINMENT, LP, a
Delaware limited partnership,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                          Submitted December 17, 2013**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff Elijah Schkeiban appeals the district court’s dismissal of his

complaint alleging that James Cameron’s movie Avatar infringed the copyright of

his book and screenplay Bats and Butterflies. We review a dismissal under Rule

12(b)(6) de novo, Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and affirm.

      The district court correctly ruled that Avatar and Bats and Butterflies are not

“substantially similar in their protected elements.” Cavalier v. Random House,

Inc., 297 F.3d 815, 822 (9th Cir. 2002). There are “few real similarities” between

the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events

in Avatar and Schkeiban’s work. Funky Films, Inc. v. Time Warner Entm’t Co.,

L.P., 462 F.3d 1072, 1078 (9th Cir. 2006). Any similarities consist of

unprotectable “general plot ideas” or scènes à faire flowing naturally from these

ideas. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).

      Because we affirm the district court’s ruling that the works are not

substantially similar, we do not need to reach the court’s alternative ground for

dismissal that Schkeiban did not adequately allege that the defendants had access

to his work. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th Cir.

2010) (holding that the plaintiffs had not shown sufficient similarity to prevail

even if the defendants had access to their work).




                                          2
      The defendants’ motion to submit commercially available copies of Avatar

on DVD, filed on May 8, 2013, is granted.

      Schkeiban’s motion to submit annotated copies of Avatar on DVD, filed on

November 12, 2013, is denied. Schkeiban’s motion to submit highlighted copies

of the book Bats and Butterflies, filed on December 9, 2013, is also denied.

However, our disposition of the appeal would not be affected even if we were to

grant these motions.

      AFFIRMED.




                                         3
