                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 18 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GOLD GLOVE PRODUCTIONS, LLC, a                   No. 14-55797
California Limited Liability Company and
RYAN A. BROOKS, an individual,                   D.C. No. 2:13-cv-07247-DSF-RZ

              Plaintiffs - Appellants,
                                                 MEMORANDUM*
 v.

DON HANDFIELD, an individual; et al.,

              Defendants - Appellees.


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

                        Argued and Submitted April 7, 2016
                               Pasadena, California

Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.

      Ryan A. Brooks and his company, Gold Glove Productions, LLC, appeal the

district court’s grant of summary judgment to defendants in their action under the

Copyright Act against Warner Brothers Pictures, Inc., and other defendants.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Brooks and Gold Glove allege that the motion picture Trouble with the Curve,

which depicts a father-daughter baseball story, infringed their registered copyright

in the screenplay Omaha. We have jurisdiction under 28 U.S.C. § 1291, and we

review the district court’s ruling on summary judgment de novo. Benay v. Warner

Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010). We affirm.

       To prevail on a copyright claim, a plaintiff must show “‘(1) ownership of a

valid copyright, and (2) copying of constituent elements of the work that are

original.’” Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076

(9th Cir. 2006) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,

361 (1991)). Copying may be established by a showing that the defendant had

access to the plaintiff’s work and that the two works are substantially similar.

Benay, 607 F.3d at 624. To establish substantial similarity, the plaintiff must

satisfy both the extrinsic test and the intrinsic test. Id. The extrinsic test is an

objective comparison of specific expressive elements, and the intrinsic test is a

subjective comparison that focuses on whether an ordinary, reasonable audience

would find the works substantially similar in total concept and feel. Id. A plaintiff

who fails the extrinsic test cannot survive summary judgment. Id.

       The district court correctly applied the extrinsic test, focusing on

“‘articulable similarities between the plot, themes, dialogue, mood, setting, pace,


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characters, and sequence of events in the two works.’” Id. (quoting Kouf v. Walt

Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)). First, the plots

and sequences of events of the two works are quite different. The general plot idea

of a father-daughter baseball story is not protectable as a matter of copyright law.

See Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002). Just as importantly,

the two stories are different in numerous and essential respects.

      In analyzing plot and sequence of events, the district court did not abuse its

discretion in discounting the expert opinions. See Rice v. Fox Broad. Co., 330 F.3d

1170, 1180 (9th Cir. 2003). A lay person can easily see that the two stories,

although dealing with the same general subject matter, are quite different.

      The shared themes of Omaha and Trouble with the Curve—father-daughter

reconciliation, the breaking down of emotional barriers, the importance of family,

and pitting old school ways against new ones—are commonplace in father-

daughter stories and in sports movies. See Benay, 607 F.3d at 627. The themes are

not original, protectable elements of the two works. They are scènes-à-faire. See

Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002).

      Finally, the setting, mood, and pace of Omaha and Trouble with the Curve

are obviously different, as is the dialogue. See Benay, 607 F.3d at 628; Kouf, 16

F.3d at 1046.


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      We affirm the district court’s conclusion that, under the extrinsic test, the

works were not substantially similar. See Benay, 607 F.3d at 624.

      AFFIRMED.




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