                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 7 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CHRISTOPHER WAYNE FILLMORE,                      No.    17-56059

                Plaintiff-Appellant,             D.C. No.
                                                 2:16-cv-04348-AB-SS
 v.

BLUMHOUSE PRODUCTIONS, LLC; et al., MEMORANDUM*

                Defendants-Appellees.


CHRISTOPHER WAYNE FILLMORE,                      No.    17-56360

                Plaintiff-Cross-Appellee,        D.C. No.
                                                 2:16-cv-04348-AB-SS
 v.

BLUMHOUSE PRODUCTIONS, LLC; et al.,

                Defendants-Cross-Appellants.

                   Appeal from the United States District Court
                      for the Central District of California
                   Andre Birotte, Jr., District Judge, Presiding

                             Submitted June 5, 2019**


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before:      FARRIS, TROTT, and SILVERMAN, Circuit Judges.

      Christopher Wayne Fillmore appeals pro se the district court’s dismissal for

failure to state a claim of his copyright infringement action against Blumhouse

Productions, LLC, and other defendants. Defendants cross-appeal the district

court’s denial of their motion for attorneys’ fees under the Copyright Act. We

have jurisdiction under 28 U.S.C. § 1291. We review the dismissal de novo,

Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018), and we review the denial of

fees for an abuse of discretion, Shame on You Prods., Inc. v. Banks, 893 F.3d 661,

665 (9th Cir. 2018). We affirm.

      The district court properly exercised its discretion in taking judicial notice of

Fillmore’s manuscript and defendants’ film because these works formed the basis

of Fillmore’s claim, and he referred to them extensively in his first amended

complaint. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir.

2012) (decision to incorporate documents by reference into complaint is reviewed

for abuse of discretion); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.

2003) (discussing doctrine of incorporation by reference). Contrary to Fillmore’s

assertions, the court did not dismiss his complaint because of inadequate pleading,

but because he simply could not plead a plausible case for copyright infringement.

      The district court correctly concluded that Fillmore failed sufficiently to

allege defendants’ access via widespread dissemination of his manuscript. See


                                          2
Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (standard for

showing of access). The district court also correctly concluded that the plot,

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

manuscript and film were markedly different and that, under the extrinsic test, the

protectable elements of the two works were not substantially similar. See

Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018) (standard for

substantial similarity); Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624-25

(9th Cir. 2010) (extrinsic test applicable at pleading stage objectively compares

elements of works). Accordingly, the first amended complaint did not state a claim

for copyright infringement. See Skidmore, 905 F.3d at 1125 (setting forth elements

of copyright infringement claim). The district court properly exercised its

discretion in dismissing the complaint with prejudice and without leave to amend

because amendment would be futile. See Rentmeester v. Nike, Inc., 883 F.3d 1111,

1125 (9th Cir. 2018), cert. denied, 139 S. Ct. 1375 (2019).

      The district court properly weighed the relevant factors and acted within its

discretion in denying defendants’ motion for attorneys’ fees under 17 U.S.C.

§ 505. See Shame on You Prods., 893 F.3d at 665; Perfect 10, Inc. v. Giganews,

Inc., 847 F.3d 657, 675 (9th Cir. 2017).

      AFFIRMED.




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