SIMON, District Judge.
Lars Erickson has sued Michael John Blake for copyright infringement of Mr. Erickson's musical work, Pi Symphony. Mr. Blake has moved to dismiss the complaint
In considering a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint and construe them in favor of the plaintiff. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010).
Mr. Erickson, who lives in Omaha, Nebraska, composed the work Pi Symphony in 1992 and registered it with the U.S. Copyright Office. Pi Symphony is an orchestral piece with two movements that is inspired by the number pi.
In February 2011, Mr. Blake published a YouTube video of a musical work titled "What Pi Sounds Like." Like Mr. Erickson, Mr. Blake assigned a number to each note of a musical scale and then constructed a melody by playing the notes in the order of the digits of pi. "What Pi Sounds Like" is a short canon based on this melody.
In Nebraska, Mr. Blake moved to dismiss Mr. Erickson's complaint, arguing that the two musical works bear no similarity beyond the idea of putting the digits of pi to music. Mr. Blake further argued that the federal court in Nebraska lacked personal jurisdiction over him. Mr. Blake also asked, in the alternative, for the case to be transferred to the District of Oregon. The federal court in Nebraska agreed with Mr. Blake that it lacked personal jurisdiction over him and that venue in Nebraska was improper. It therefore transferred the case to this court without ruling on Mr. Blake's motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. At the parties' request, and following additional briefing, I will now resolve the remainder of Mr. Blake's motion to dismiss.
A motion to dismiss for failure to state a claim should be granted when there is no cognizable legal theory to support the claim, or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.2010). Although the court must accept as true all well-pleaded factual allegations in the complaint, the court does not have to credit the plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
To establish copyright infringement, Mr. Erickson must prove (1) ownership of the copyright and (2) copying by Mr. Blake of "the constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977), superseded on other grounds by 17 U.S.C. § 504(b). Mr. Erickson's ownership of his copyright is not disputed. To prove that Mr. Blake copied his work, Mr. Erickson can rely on circumstantial evidence (1) that Mr. Blake had access to the copyrighted work and (2) that there is substantial similarity between the copyrighted work and Mr. Blake's work. Krofft, 562 F.2d at 1162. Mr. Erickson has alleged facts that could establish Mr. Blake had access to the copyrighted work. Thus, the question before the court is whether the complaint states a plausible claim that the copyrighted work and the allegedly infringing work are substantially similar.
In the Ninth Circuit, the plaintiff establishes substantial similarity by demonstrating that the allegedly infringing work is both objectively similar (the "extrinsic test") and subjectively similar (the "intrinsic test") to the copyrighted work. Id. at 1164. The intrinsic test, which is based on the ordinary person's subjective impressions of the compared works as a whole, is typically a question reserved for the jury. Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir.2004). Whether there is sufficient objective similarity under the extrinsic test, however, may be decided by the court as a matter of law on a motion to dismiss. See Christianson v. West Pub.
When applying the extrinsic test, the court must analytically dissect the works to evaluate any similarities on an element-by-element basis. See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir.1994). Not every constituent element of a copyrighted work is protected by the copyright. See Feist, 499 U.S. at 348, 111 S.Ct. 1282 ("The mere fact that a work is copyrighted does not mean that every element of the work may be protected.... [C]opyright protection may extend only to those components of a work that are original to the author.").
First, it is axiomatic that a copyright only protects expression, not the idea behind the expression. 17 U.S.C. § 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system,
Second, and closely related, is the doctrine of merger. If a non-protectable idea can only be expressed in one way, the resulting expression will also not be protected by copyright; otherwise, the holder of the copyright for that expression would effectively have a copyright over the underlying idea. See CDN Inc. v. Kapes, 197 F.3d 1256, 1261. Consider, for example, the degree of copyright protection afforded to a line of stuffed dinosaur toys. The idea of a stuffed dinosaur toy can only be expressed in the form of a stuffed animal shaped like a dinosaur. Thus a defendant's line of stuffed dinosaur toys cannot be said to infringe on the plaintiff's toys if the only similarities are the physiognomy of the dinosaur species and the fact that the toy is made out of plush fabric filled with soft material. See Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir.1987).
Merger most often applies to claims of infringement described at high levels of abstraction, for abstract descriptions of expression blur easily into the ideas behind the expression. Cf. CDN, 197 F.3d at 1262 ("[T]he higher the level of abstraction copied, the less likely [the copy] will be [an] infringement of a copyright."). For example, the Aliotti court suggested that similarities related to the choice of material, distinctive forms of stitching, or exaggerated facial features — elements at a lower level of abstraction — could be protectable elements of a line of stuffed dinosaur toys. See Aliotti, 831 F.2d at 900-01; cf. Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 68-69 (1st Cir.2009) (merger and scènes à faire doctrines foreclosed copyright protection based solely on realistic depiction of frog in format of a stuffed, plush toy; nonetheless, distinctive stitching pattern, idiosyncratic color combination, unique pose and placement of flag on frog's underbelly were all protected elements).
Third, "expressions that are standard, stock, or common to a particular subject matter or medium are not protectable [elements] under copyright law." Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003). Such scènes à faire are more common in literary or dramatic works, in which certain themes or character types flow directly from common plot ideas. See Campbell, 718 F.Supp.2d at 1115 (generic characters of the "cocky kid" and "older
Finally, as a constitutional matter, facts cannot be protected by copyright. See Feist, 499 U.S. at 363, 111 S.Ct. 1282. Thus the publisher of a phone book cannot prevent others from copying the facts contained within that phone book (e.g., the names, towns and phone numbers of phone service subscribers). Id. Similarly, an artist who makes lifelike jellyfish sculptures "may not prevent others from copying elements of expression that nature displays for all observers." Satava, 323 F.3d at 812. In Christianson, the Ninth Circuit held on a motion to dismiss that an outline map of the United States and the grouping of states as used by the National Reporter System were elements within the public domain and therefore not protected by the copyright of plaintiff's illustration. 149 F.2d at 203-04. In such a case, as in Satava and Feist, the copyright holder could only prevent others from directly copying his own version of such a map (or jellyfish or phone book), but he could not prevent others from making their own version. Id. at 204.
After the court has identified which of the alleged similarities are related to unprotected elements, it can determine the proper scope of the copyright. See Apple Computer, 35 F.3d at 1443. If few similarities remain after the unprotected elements are set aside (e.g., facts, ideas, expressions merged with ideas, and scènes à faire), the scope of the copyright is "thin," which means that it only protects the copyrighted work from virtually identical copying. Id. at 1442-43; see also, e.g., Feist, 499 U.S. at 349, 111 S.Ct. 1282. If many of the similarities relate to protected elements, on the other hand, then the scope of the copyright is "broad," and it is easier to demonstrate that the two works, compared as a whole, are substantially similar. See Apple Computer, 35 F.3d at 1443.
Applying the extrinsic test here is made more challenging by the medium of music, "which lack[s] distinct elements of ideas and expression." Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir.2004) ("The application of the extrinsic test ... to musical compositions is a somewhat unnatural task, guided by relatively little precedent."). Unlike with literary works, there is no uniform set of factors to be considered;
The primary similarity between Pi Symphony and "What Pi Sounds Like" is the musical pattern formed by transposing the digits of pi to a set of musical notes. That pattern is not protected by Mr. Erickson's copyright for Pi Symphony. Pi is a noncopyrightable fact, and the transcription of pi to music is a non-copyrightable idea. The resulting pattern of notes is an expression that merges with the non-copyrightable idea of putting pi to music: assigning digits to musical notes and playing those notes in the sequence of pi is an idea that can only be expressed in a finite number of ways.
What may be protected by copyright is the combination of that pattern with other musical elements: the choice of scale, rhythm, harmony, and embellishments or variation, for example. See Granite, 532 F.2d at 721 ("The copyrightability of [the song] is not the four-note sequence [or the melody based on pi ], but the fitting together of this sequence with other melodious phrases into a unique composition."). Pi Symphony and "What Pi Sounds Like" employ different rhythms, different phrasing, different harmonies, and different tempos. The court does not agree with Mr. Erickson that the melodies of Pi Symphony and "What Pi Sounds Like" are sufficiently similar in their cadence or tempo to raise a question of substantial similarity.
Thus, after the similarities based on unprotected elements of Pi Symphony are set aside, very few — if any — similarities remain. Mr. Erickson's copyright is therefore "thin" and protects his work only from virtually identical copying. See, e.g., Krofft, 562 F.2d at 1168 ("When idea and expression coincide, there will be protection against nothing other than identical copying of the work."); Ets-Hokin v. Skyy Spirits Inc., 323 F.3d 763, 766 (9th Cir. 2003) ("When we apply the limiting doctrines, subtracting the unoriginal elements, [plaintiff] is left with only a `thin' copyright, which protects against only virtually identical copying."); Apple Computer, 35 F.3d at 1442. Mr. Erickson's copyright, which is presumed valid, protects his expression of the musical pattern formed by the digits of pi. But what is original about that expression — the cadence, flourishes, harmonies, structure, and so on — is not virtually identical, or even particularly similar, to "What Pi Sounds Like."
Put another way, as the plaintiff did in Aliotti, Mr. Erickson is asserting similarities at a high level of generality. To overcome the merger doctrine, articulable similarities with greater specificity are needed. Mr. Erickson "may prevent others from copying the original features he contributed [to the melody of pi ], but he may not prevent others from copying elements of expression that nature displays for all observers." Satava, 323 F.3d at 812. Mr. Blake's musical work, therefore, does not infringe on Mr. Erickson's copyright.
Mr. Erickson has also asserted a claim of unfair competition in general terms, without specifying the law on which he relies. Because Mr. Erickson invokes the court's supplemental jurisdiction, he presumably intends to assert state law, and as the complaint was first filed in the District of Nebraska, the relevant state law is presumably that of Nebraska. The count could be dismissed for failing to state the law on which it is based.
Before concluding, the court notes that Mr. Erickson's grievance may be based not so much on any "copying" by Mr. Blake, but rather on the perception that Mr. Erickson's years of hard work in promoting Pi Symphony were undermined by the sudden popularity of Mr. Blake's work and the media attention it received. For example, Mr. Erickson includes in his unfair competition count a general allegation that Mr. Blake "has and is engaging in acts of unfair competition, unlawful appropriation, unjust enrichment, wrongful deception of the purchasing public, and unlawful trading on Plaintiff's goodwill and the public's acceptance of Plaintiff's copyright works."
For the reasons stated above, the motion to dismiss [10] is GRANTED.
Mr. Erickson's arguments also appear to conflate the extrinsic and intrinsic tests. The court agrees that it cannot at this stage gauge the overall feel of similarity between the two works; that is the purpose of the intrinsic test, which is generally reserved for the jury. But the court must first apply the extrinsic test and dissect the copyrighted work to determine whether specific, articulable similarities are related to elements that are by themselves protected by the copyright. "[O]nly those elements of a work that are protectable ... can be compared when it comes to the ultimate question of illicit copying[.]" Apple Computer, 35 F.3d at 1443. If the only concrete similarities between the two works relate to elements not protected by copyright (such as facts or general ideas), then there can be no infringement. To meet the extrinsic test, Mr. Erickson must do more than assert that the two works would sound substantially similar to any listener. Mr. Erickson, however, has not provided this court with more specific arguments sufficient to satisfy that test.
Satava, 323 F.3d at 813.
