FLIER, J.—
In this idea submission case, plaintiff Eric Ryder challenges the trial court's grant of summary judgment to defendants James Cameron and
Released in 2009, Avatar is a science fiction film written and directed by Cameron. Set in the future on Pandora, a moon of a fictional gas giant planet, it explores a world of flying mountains and lush bioluminescent rain forests teeming with exotic flora and fauna unlike anything on Earth. An indigenous species of humanoids called "Na'vi" live there — 10-foot-tall, blue-skinned, long-tailed, preternaturally strong beings living in harmony with their natural surroundings and worshipping their deity "Eywa." Pandora is also occupied by humans affiliated with the "Resources Development Administration," or RDA, and its "Sec-Ops" security force, which mines a valuable mineral called "unobtainium" used on Earth. The film's title refers to genetically engineered "avatar" bodies resembling Na'vi that human scientists control via a mental link and use to interact with the native Na'vi.
The film begins as Jake Sully, a 22-year-old paraplegic ex-Marine, is brought to Pandora to replace his deceased twin brother as an avatar operator. Upon arriving, he meets Colonel Miles Quaritch, the imposing head of Sec-Ops, and Dr. Grace Augustine, head of the avatar program, among others. Jake begins training as an avatar operator, joyfully discovering his avatar allows him to experience walking again. Meanwhile, Quaritch recruits Jake to secretly provide intelligence on the Na'vi in exchange for expensive surgery to restore the use of his legs once back on Earth.
While out in the wilds of Pandora in his avatar form, Jake gets separated from his group when he is attacked by a panther-like predator, barely escaping by jumping into a rushing waterfall. As night falls, Neytiri, a Na'vi female, finds him and is about to shoot him when a jellyfish-like "woodsprite" lands on her arrow. She interprets that as a sign from Eywa and spares his life. Later that night, she saves Jake when he is attacked by a pack of "viperwolves." She refuses to bring him back to her village until woodsprites land all over his body. She then brings him back to the gigantic "Hometree"
In his avatar form, Jake trains to become a Na'vi warrior, while in his human form he continues to provide intelligence to Quaritch. He also chronicles his experiences with the Na'vi through entries in a video diary. Eventually he falls in love with Neytiri and the Na'vi, which undermines his loyalty to Quaritch and the RDA. When he passes all the Na'vi tests, he is accepted into the clan, and he and Neytiri choose each other as lifelong mates. At that point, Jake's allegiance fully switches from the RDA to the Na'vi.
When Jake cannot convince the Na'vi to leave Hometree at the request of the RDA, which wants to mine the unobtainium at the site, Quaritch leads his forces into an attack on the Na'vi and Hometree. The Na'vi are defeated, Hometree is destroyed, and Jake's secret deal with Quaritch is exposed to Neytiri and the clan. Although Quaritch holds Jake and Grace prisoner, they manage to escape. When Grace is mortally wounded in the ensuing shootout, the Na'vi try to save her by transferring her consciousness into her avatar body, but they are too late. She dies.
Once again linked with his avatar, Jake regains the Na'vi's trust by taming a legendary flying dinosaur-like creature and rallies thousands of other Na'vi warriors from neighboring clans to fight Quaritch and Sec-Ops. Jake leads the Na'vi into battle. When it seems the Na'vi will be defeated, the Pandoran wildlife join the fight and overwhelm the Sec-Ops soldiers. Jake and Neytiri enter a final battle against Quaritch, who dons a robotic suit. In human form, Jake becomes exposed to deadly Pandoran air, and Neytiri kills Quaritch to save him. In the final scene, Jake undergoes the same Na'vi ritual used to try to save Grace, but this time it works — Jake's consciousness is permanently transferred into his avatar body and he leaves his human form behind.
Cameron originally conceived of the story in 1995 in a detailed 102-page "scriptment," which he describes as a "highly detailed script-length treatment that, like a treatment, was in a narrative rather than dialogue form, and laid out the story, characters, setting and many of the visual images for Avatar in great detail." Starting in 1996, Cameron circulated the scriptment to generate interest, and between 1995 and 1997, he began to explore the technology necessary to make Avatar. By 1997, however, he decided not to move forward with the film because the technology was not sufficiently developed. In 2005, Cameron decided the technology was available to make Avatar, so he revisited the project. Between December 2005 and May 2006, he wrote the first draft of the screenplay. Principal photography began in April 2007. Both before and during filming, Cameron rewrote and refined the screenplay,
Between 1996 and 1998, Ryder, a 3-D computer animator, wrote a science fiction short story entitled KRZ 2068 (KRZ) based on Joseph Conrad's classic story Heart of Darkness (1899). In 1998, Ryder and his wife created a business proposal surrounding KRZ to finance the project as a 3-D animated film for distribution via the Internet, television, or through DVD and video sales. As relevant here, the proposal had a "Notice to Recipients" that stated the proposal was being "delivered to a limited number of parties for informational purposes only. By your receipt of this document, you agree that (i) this Proposal and its contents are confidential; (ii) neither you, nor any person or entity with which you are associated, nor any of their ... respective agents, representatives or employees will copy, reproduce, or distribute to others this Proposal, in whole or in part, at any time without the prior written consent of Channel Modus;[
In early 1999, Ryder sent the KRZ story and proposal to Andrew Wald, a movie producer and friend of his father-in-law. Wald believed KRZ had potential as a feature film and agreed to help Ryder get it made into a movie. In early 2000, Wald contacted a development executive at Lightstorm, Jay Sanders, about KRZ, and he, Ryder, Sanders, and another independent producer Toni Baffo met at the Lightstorm offices in February 2000. Wald provided Sanders a copy of the KRZ story, and, according to Ryder, the proposal.
Although Sanders liked the story, he felt it needed to be refined. So between that initial meeting and either December 2000 (according to defendants) or December 2001 (according to Ryder), Ryder, Wald, and Baffo met
During this period Ryder continued to revise the KRZ story, and in mid-2000 Wald brought in screenwriter Stuart Hazeldine to write a treatment for KRZ on "spec" (i.e., without up-front payment, on speculation the project might later sell). After Hazeldine finished the treatment, Ryder, Wald, Baffo, and Hazeldine had a meeting with Sanders, Sanchini, and Landau, during which Hazeldine pitched KRZ to them. Cameron did not attend the pitch meeting. Lightstorm passed on the project. At no point did anyone at Lightstorm disclose the existence of the Avatar scriptment to Ryder.
Ryder, Wald, and Baffo continued developing and trying to sell KRZ. Sanders left Lightstorm in March 2001 and took his KRZ file with him. He joined Ryder, Wald, Hazeldine, and Baffo in seeking to sell KRZ elsewhere. Hazeldine wrote two drafts of a screenplay for KRZ, which the group submitted to various studios and directors without success. In 2004, Hazeldine retitled KRZ as The Adjuster and resubmitted it to Lightstorm, which again passed. Shortly after, Ryder and his group stopped pitching the project. Lightstorm's records indicate the submission entry for The Adjuster in Lightstorm's database was "[m]odified" in January 2006.
As set forth in the drafts of Ryder's short story and Hazeldine's later screenplays, KRZ takes place in the future mostly on Europa, an ice-covered moon of Jupiter. It tells the story of corporate assassin Kate Shepherd — named Marlowe in Ryder's short stories — who Ryder described in the KRZ proposal as a "strong, sexy, intelligent cyberbabe." She works for the Malloc super-corporation, which harvests organisms from ocean vents beneath Europa's icy surface. To do so, the corporation uses humans as well as organic-bionic hybrid robots called "KRY's," which have "Y's" on their foreheads and "limitation chips" that block emotions and free will. Kurtz, the foreman on Europa, is a robot called a "KRZ," which has a smaller limitation chip than KRY's and is self-aware and self-motivated.
The human base commander, Drew Welles, turns up dead in what appears to be an accident, so Malloc sends Shepherd to investigate. She travels to
Kurtz tells Shepherd he wanted to protect Europa from the devastating over-harvesting and urges her to cover up his murder of Welles. Instead, she reveals the murder to her Malloc supervisor Jeb Fulford. Fulford instructs her to kill Kurtz, but she fails. Kurtz lets her live, imploring her to join him in protecting the Europan ecosystem. She declines, but decides not to oppose his efforts.
Fulford arrives on Europa with a replacement crew of KRZ's. It is revealed Fulford conspired with Welles to use explosives in the mining process and now Fulford wants to replace all the humans with KRZ's. When Kurtz learns this, he rallies the humans to fight back. Kary, Shepherd's KRY companion, reveals he is a KRZ loyal to Malloc and Fulford, and reprograms some of the KRY's to create an army to fight Kurtz.
As the battle rages, Shepherd removes Kurtz's limitation chip, which allows him to feel the human emotions necessary to defeat Kary, but which will also kill him. Kurtz pursues and kills Kary, dying in the process. Meanwhile, Shepherd joins the battle against Fulford, who is threatening to freeze the humans to death by shutting down the nuclear reactor powering the base. She overtakes Fulford and forces him to tell Malloc she should be put in charge of operations. She gives him the opportunity to leave Europa, but he shoots at her, and the ricocheting bullets kill Fulford. In the end, Shepherd becomes the head of operations on Europa.
Ryder filed suit against defendants, alleging claims for (1) breach of fiduciary duty, (2) breach of express contract, (3) breach of implied contract,
We review the grant of summary judgment de novo, considering all the evidence set forth in the moving and opposition papers except evidence for which objections were made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].) Under Code of Civil Procedure section 437c, subdivision (c), a motion for summary judgment must be granted if "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Thus, we must decide whether the defendant has conclusively negated a necessary element of the plaintiff's claim or has established an affirmative defense and has demonstrated no material issue of fact requires a determination at trial. (Code Civ. Proc., § 437c, subd. (o); Guz, supra, at p. 334.) We review the trial court's evidentiary rulings for abuse of discretion. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 [172 Cal.Rptr.3d 732].) We may affirm on any ground supported by the record, and we are not bound by the trial court's reasoning. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376 [63 Cal.Rptr.2d 522].)
On appeal, Ryder asserts a host of challenges to the trial court's grant of summary judgment on his contract and fiduciary duty claims. But each of these claims requires proof that defendants used his ideas for Avatar. (5 Nimmer & Nimmer, Copyright (2015) The Law of Ideas, § 19D.07[A], p. 19D-86 (rel. 72-4/2007) (Nimmer) ["Regardless of the legal theory used to impose an obligation on the idea-recipient, the recipient is legally obligated to
Ryder argues the terms of his KRZ proposal imposed a standard less than "substantial" similarity,
Ryder argues he incurred "detriment" when Sanders developed KRZ while concealing the existence of the Avatar scriptment, relying on expert testimony that standard industry practice should have prompted Lightstorm to disclose the existence of Avatar. But this evidence has nothing to do with whether defendants used elements of KRZ to his detriment. Instead, the prohibition against detrimental use presupposes there is enough similarity between elements in Avatar and KRZ to result in some conceivable harm to Ryder. That standard is consistent with substantial similarity.
Thus, Ryder can recover on his contract claims only if a rational jury could conclude the 12 elements Ryder argues were added to the Avatar film beyond the scriptment were substantially similar to elements in KRZ. As we will explain, these elements bear no substantial similarity, defeating any inference of use as a matter of law.
The protagonist is enlisted as a spy by the corporation. Both protagonists are not acting as "spies." Jake in Avatar arguably becomes a "spy" when Quaritch enlists him to gather clandestine intelligence about the Na'vi. In KRZ, while at points Shepherd is called a spy for Malloc, she is not acting as a spy on Europa and her mission is always known — she has gone to investigate Welles's death. Further, the clandestine aspect of Jake's mission in Avatar is a significant plot point leading to Neytiri's rejection of Jake. In KRZ, because there is no clandestine aspect to Shepherd's Europa mission, her job description as a spy has no impact on the plot.
The protagonist survives a life-threatening situation by escaping into a rushing torrent of water. This element does not appear at all in KRZ. In Avatar, during Jake's first foray into the wilds of Pandora in his Na'vi avatar,
The corporation depends on the spy to facilitate the continued mining. Again, Jake and Shepherd are not both acting as spies. Nor does the corporation in KRZ rely on Shepherd as a "spy" to facilitate the mining of the organisms on Europa. Because her intentions are known, the corporation simply relies on her to investigate Welles's death and get the mining operations back on track on Europa.
The material is mined to great devastation to satisfy "quarterly" reports for the corporation on Earth. The only alleged similarity for this element is that both works use the term "quarterly." Quarterly reports are common features of corporations, so they cannot constitute an actionable similarity. Further, the Avatar scriptment embodied the idea of devastating the natural world to satisfy corporate greed, and Selfridge mentions his next "report." That Selfridge refers to "quarterly" reports in the Avatar film is too insignificant to constitute an actionable similarity to KRZ's mention of quarterly quotas.
The mining is managed using a large table-based light map. This alleged element in the two stories is entirely different. In KRZ, an illuminated table map shows where Kurtz has mapped out Europan sea life. Avatar has no table-based map; instead, it incorporates a 3-D projected display showing mining areas.
There is a mutiny between the top two corporate executives triggered by an escalation in explosive violence. This element does not appear in KRZ or Avatar. In KRZ, Kurtz, the robotic foreman, kills Welles, the human base commander. Neither is a corporate executive. In a scene appearing in the Avatar shooting script, but cut from the final film, Quaritch bullies Selfridge into approving an all-out attack on the Na'vi. Assuming Quaritch qualifies as a "corporate executive," he does not mutiny against Selfridge.
The spy betrays the mission and leads a mutiny. Again, Shepherd is not acting as a spy. Nor does anything in KRZ bear any similarity to Jake turning against Quaritch and the RDA and leading the indigenous Na'vi in an armed, violent attack against the RDA.
Explosives are depicted as being used in the mining process. The use of explosives related to mining is too obvious and insubstantial to be an
Mining explosives are later fashioned into a bomb to be used for non-mining purposes. The use of explosives as weapons bears no resemblance in the two stories. In KRZ, some of the characters use small explosive charges stored on belts, whereas in Avatar, mining explosives are bundled onto large pallets that are then dropped from aircraft onto the Na'vi.
The primary characters unilaterally "upload" information into video diaries, which can be viewed by others. This element apparently refers to Shepherd using a smartphone-like device called a "Diary" to download information and send and receive messages. Nothing in Avatar resembles that element. Instead, Jake records himself in a traditional video log by sitting in front of a camera and describing his experiences.
Whereas the scriptment is characterized by "exploration," Avatar the movie gains in conflict, suspense, and interest by changing its protagonist from a benign member of the scientific research mission to a corporate spy who — under cover of a benign mission — is in fact sent to infiltrate the inhabitants and further the mining operations, only to double-cross the corporation and join the lunar beings' insurrection. Nothing like this occurs in KRZ. Again, Shepherd is not acting as a spy for the corporation sent to Europa under cover of a "benign mission." Nor was she sent to "infiltrate" the "inhabitants" of Europa, only to join the "lunar beings'" insurrection. Indeed, there are not even "inhabitants" on Europa like the indigenous Na'vi on Pandora. Instead, the "inhabitants" and "lunar beings" are KRY's and humans sent from Earth to harvest the organism in Europa's oceans, which bear no similarity whatsoever to the Na'vi.
Totems made of body parts are depicted as having significant meaning. The alleged "totems" are portrayed very differently in the two works. In early drafts of the KRZ story, Kurtz makes sculptures out of KRY and human body parts. In Avatar, a single giant skull from a Great Leonopteryx is revered by the Na'vi because the creature was ridden by the legendary "Toruk Macto."
Ryder's fraud claims are based on allegations that Sanders, on behalf of Lightstorm, accepted KRZ for development, telling him KRZ was "unique" and an attractive film opportunity. At the same time, Lightstorm, through Sanders, did not disclose the "fully developed scriptment" for Avatar that was "substantially similar to KRZ, and that [Lightstorm] fully intended to prepare Avatar for film production." Ryder alleged Lightstorm concealed the Avatar scriptment because it "intended to secretly share KRZ and Ryder's submissions with James Cameron for the purpose of surreptitiously assisting Cameron's continuing development" of Avatar. It also sought to induce Ryder "to take KRZ off the market by giving Ryder information about [Lightstorm's] supposed good faith intentions and its interest in the unique KRZ project."
Ryder offered no evidence supporting an inference defendants made any intentional misrepresentations or false promises. For Sanders, there was no evidence his interest in KRZ was anything but genuine. In fact, Sanders believed so strongly in KRZ that when he left Lightstorm in March 2001 he took the KRZ file with him and joined Ryder, Wald, Hazeldine, and Baffo in seeking to sell KRZ elsewhere. It defies logic that he would have continued to pursue KRZ after leaving Lightstorm if he had been misrepresenting Lightstorm's interest in KRZ simply to either feed ideas from KRZ to Cameron for use in Avatar years later or keep KRZ off the market while Avatar was dormant. As for Sanchini and Landau, there was no evidence they were ever interested in developing KRZ, let alone using KRZ either to obtain
Ryder has also failed to offer any evidence of resulting harm. Even if defendants concealed their use of the KRZ development process to obtain ideas for Avatar, defendants never actually used any of those ideas because, as we outlined above, the elements added to the Avatar film beyond the scriptment were not substantially similar to any elements in KRZ. Likewise, even if defendants sought to keep KRZ out of the market between 2000 and 2001, Ryder offered no evidence he could have sold KRZ elsewhere or otherwise missed any other development opportunities during that time. Indeed, the undisputed evidence showed Sanders, Wald, Baffo, and Ryder unsuccessfully attempted to sell KRZ for years after Lightstorm passed but before Avatar was released, including by resubmitting it to Lightstorm, which again passed.
Thus, summary judgment was proper on Ryder's fraud claims.
Prior to the hearing on defendants' summary judgment motion, Ryder filed a motion for discovery sanctions based on defendants' failure to produce documents as previously ordered by the court. At a status conference, the court stated it was tentatively inclined to grant the motion. In response, defendants produced more than 19,000 pages of documents. By that point, defendants' motion for summary judgment was pending, so the court continued the hearing and ordered the parties to file supplemental summary judgment briefing addressing the new documents. The parties did so. The trial
We affirm the court's ruling, but for a different reason — the motion remains moot because it implicated the issue of access and we have affirmed summary judgment on the lack of similarity as a matter of law. Ryder argued to the trial court and again on appeal that the newly produced documents shed light on the issue of Cameron's indirect access to KRZ through the involvement of Landau, Sanchini, and others in the Avatar development process. On appeal, he claims he was prejudiced because he was unable to use those documents in depositions to explore that issue. These contentions do not implicate the issue of similarity, which is independent of access. Thus, even if Ryder were permitted to depose witnesses with the new documents, it would not change the outcome of this appeal. (Cf. Funky Films, supra, 462 F.3d at pp. 1081-1082 [denying plaintiff's request to take additional discovery on access because summary judgment was proper on lack of substantial similarity].)
The judgment is affirmed. Respondents shall recover costs on appeal.
Bigelow, P. J., and Grimes, J., concurred.