                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 22 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 TROY WALKER,                                    No. 08-16308

               Plaintiff - Appellant,            D.C. No. 3:06-CV-04931-SI

   v.
                                                 MEMORANDUM *
 VIACOM INTERNATIONAL, INC.; et
 al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                       Susan Illston, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Troy Walker appeals pro se from the district court’s order granting summary

judgment for defendants in his copyright action. We have jurisdiction pursuant to

          *
             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).

LS/Research
28 U.S.C. § 1291. We review de novo, Funky Films, Inc. v. Time Warner Entm’t

Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006), and we affirm.

       The district court properly granted summary judgment because Walker

failed to show that his comic strip was substantially similar to defendants’ cartoon

and thus, he failed to satisfy the extrinsic test for showing infringement. See id. at

1077 (explaining that the extrinsic test considers articulable similarities between

characters and plot and that “[a] plaintiff who cannot satisfy the extrinsic test

necessarily loses on summary judgment”) (citation and internal quotation marks

omitted). Accordingly, we do not reach Walker’s contentions regarding access and

independent creation.

       Walker’s request to enter new evidence is denied. See Kirshner v. Uniden

Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (“Papers not filed with the

district court or admitted into evidence by that court are not part of the clerk’s

record and cannot be part of the record on appeal.”).

       AFFIRMED.




LS/Research                                2
