NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1959
                                       ___________

                                ISABELLA TANIKUMI,
                                 a/k/a L. Amy Gonzalez,
                                                Appellant

                                             v.

          THE WALT DISNEY COMPANY; DISNEY ENTERPRISES, INC.;
                  DISNEY WORLDWIDE SERVICES, INC.;
                     ABC CORP, 1-10 (a fictitious name)
                  ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                         (D.C. Civil Action No. 2-14-cv-05877)
                      District Judge: Honorable William J. Martini
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 18, 2015

             Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

                           (Opinion filed: September 29, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Amy Gonzales, who writes under the pen name Isabella Tanikumi, appeals from

the District Court’s order dismissing her complaint in this copyright infringement case.

Tanikumi also appeals from the District Court’s subsequent order denying her motion to

reopen the judgment. For the following reasons, we will affirm.

                                             I.

       Tanikumi is the author of two autobiographical books, Yearnings of the Heart and

Living My Truth, An Internal Odyssey (together, “Yearnings”).1 In September 2014,

Tanikumi commenced this action in the United States District Court for the District of

New Jersey against the defendants, the Walt Disney Company, Disney Enterprises Inc.,

and Disney Worldwide Services, Inc. (“Disney”), alleging that Disney’s animated motion

picture Frozen infringes the copyright of her books. Tanikumi asked the District Court to

order Disney to cease and desist from all sales, distribution, and marketing of Frozen in

any media format, and sought $250,000,000.00 as well as punitive damages.

       Disney moved to dismiss the complaint on the ground that it failed to state a claim

of copyright infringement because the works are not substantially similar. See Fed. R.

Civ. P. 12(b)(6). Although it appears that Tanikumi and Disney stipulated to an

extension of time for Tanikumi to oppose the motion, the District Court never learned of

the stipulation, and, by order entered February 19, 2015, the District Court granted


1
 Tanikumi alleges that Living My Truth was copyrighted in 2010 and then “reprinted” as
Yearnings, with copyright dates of 2010 and 2013. (Compl. ¶ 1.) Tanikumi argues
generally that Disney plagiarized her “works.” Because the District Court referred to
both works together as Yearnings, we will do so as well.
                                            2
Disney’s motion without a response from Tanikumi. Immediately thereafter, Tanikumi

notified the District Court that she had attempted to timely file the stipulation regarding

the extension, and asked the court to vacate its order so that it could consider her

forthcoming opposition brief.

       On March 18, 2015, Tanikumi filed an opposition brief. The District Court

construed the post-judgment filing as a motion to vacate the judgment pursuant to Rule

60(b) of the Federal Rules of Civil Procedure, and, by order entered April 1, 2015, denied

relief. This timely appeal followed.

                                              II.

       We have jurisdiction to review the District Court’s orders under 28 U.S.C. § 1291.

See Fed. R. App. P. 4(a)(4)(A)(vi); Wiest v. Lynch, 

, 127 (3d Cir. 2013).

We review the District Court’s order granting Disney’s motion to dismiss de novo. See

McMullen v. Maple Shade Twp., 

, 98 (3d Cir. 2011). Dismissal for failure to

state a claim is proper if a party fails to allege sufficient factual matter, which if accepted

as true, could “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007)).

We ordinarily review the denial of a Rule 60(b) motion for abuse of discretion. See In re

Cendant Corp. PRIDES Litig., 

, 170 (3d Cir. 2000). A court abuses its

discretion when its ruling “rests upon a clearly erroneous finding of fact, an errant

conclusion of law[,] or an improper application of law to fact.” 

the

legal grounds that a district court relied on in denying Rule 60(b) relief, we may review
                                               3
the court’s legal conclusions de novo. See Koshatka v. Phila. Newspapers, Inc., 

, 333 (3d Cir. 1985) (“[I]f the court’s denial was based upon the interpretation and

application of a legal precept, review is plenary.”).

                                             III.

                                             A.

       Tanikumi first claims that the District Court failed to follow the appropriate “two-

step” procedure in adjudicating her Rule 60(b) motion; according to Tanikumi, the court

should have first granted Rule 60(b) relief (and vacated its order dismissing the

complaint), and then considered Disney’s motion to dismiss anew in light of her

opposition brief.

       We see no error in the District Court’s approach here. In general, a motion for

relief under Rule 60(b) should not be granted unless the movant can demonstrate a

meritorious claim or defense. Lepkowski v. U.S. Dep’t of the Treasury, 

,

1314 (D.C. Cir. 1986). “The requirement that parties seeking Rule 60(b) relief show

some prospect of succeeding on the merits flows from the basic principle that courts

should revive previously-dismissed claims only if they have some reason to believe that

doing so will not ultimately waste judicial resources.” Thomas v. Holder, 

,

903 (D.C. Cir. 2014). “[T]o obtain relief under Rule 60(b), a litigant must give the trial

court reason to believe that vacating the judgment will not be an empty exercise in any

new proceedings.” United States v. Kayser-Roth Corp., 

, 95 (1st Cir. 2001)

(quotation marks and citation omitted).
                                              4
       In this case, the District Court chose to consider Tanikumi’s opposition brief out

of time, but ultimately determined that nothing in the brief warranted revisiting its initial

ruling that she had failed to state a claim upon which relief could be granted. While it

would not have been error for the District Court to take the approach that Tanikumi

suggests, it would have been an “empty exercise” for the court to vacate its order

dismissing the complaint only to immediately enter another order of dismissal. Cf.

Ahmed v. Dragovich, 

, 209 (3d Cir. 2002) (explaining that when a plaintiff

files a post-judgment motion to amend the complaint, the court should consider the

motion under the standards of both Rules 60(b) and 15(a) because it “would be a needless

formality for the court to grant the motion to reopen the judgment only to deny the

motion for leave to amend”).

       In a closely related argument, Tanikumi also contends that the District Court

erroneously applied a conflated, heightened standard to her copyright infringement claim

by ruling on it in a Rule 60(b) motion. According to Tanikumi, because the court failed

to follow the two-step approach described above, it applied “brutal standards” and

“continue[d] to look for special circumstances in [her] opposition arguments.” (Br. 6-7.)

We disagree. The District Court’s opinion makes clear that it first considered whether

Tanikumi had demonstrated extraordinary circumstances justifying reopening the

judgment under Rule 60(b), see Moolenaar v. Gov’t of V.I., 

, 1346 (3d Cir.

1987), and then considered whether the complaint stated a plausible copyright

infringement claim in light of the arguments set forth in Tanikumi’s post-judgment filing,
                                              5
see 

. Accordingly, it is clear that the District Court did not apply

any improper legal standards here.

       Tanikumi next contends that the District Court erred by comparing the works’

similarities at the pleadings stage. It is well established, however, that a district court

may consider items that are integral to the complaint on a motion to dismiss. See In re

Rockefeller Ctr. Props., Inc. Sec. Litig., 

, 287 (3d Cir. 1999); see also

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 

, 1196 (3d Cir.

1993) (explaining that a district court may consider an “undisputedly authentic document

that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are

based on the document”). Furthermore, although the question of substantial similarity in

a copyright infringement case is one of fact, a district court is permitted to consider the

disputed works in deciding a Rule 12(b)(6) motion. See Peter F. Gaito Architecture, LLC

v. Simone Dev. Corp., 

, 64 (2d Cir. 2010) (“When a court is called upon to

consider whether the works are substantially similar, no discovery or fact-finding is

typically necessary, because what is required is only a visual comparison of the works.”)

(quotation marks and citation omitted). In this case, because Tanikumi’s books and

Disney’s motion picture were integral to the complaint and part of the record before the

court, the District Court did not err in considering the works to determine that Tanikumi

had failed to state a plausible copyright infringement claim.

                                              B.

       Tanikumi also challenges the District Court’s determination that she failed to state
                                               6
a claim of copyright infringement. To establish a claim of copyright infringement, the

plaintiff must establish that the defendant copied protectable elements of her work.2 See

Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 

, 206 (3d Cir.

2002). A plaintiff can establish that the defendant copied her work by demonstrating that

there are substantial similarities between the two works. Dam Things from 

. “[T]his inquiry involves distinguishing between the author’s expression and

the idea or theme that he or she seeks to convey or explore,” because the former is

protected and the latter is not. Kay Berry, Inc. v. Taylor Gifts, Inc., 

, 208

(3d Cir. 2005). The court must determine whether the allegedly infringing work is

similar because it appropriates the unique expressions of the original work, “or merely

because it contains elements that would be expected when two works express the same

idea or explore the same theme.” 

that Yearnings and Frozen are not substantially similar, the District

Court ably summarized the works as follows:

              Yearnings of the Heart follows the trajectory of the author’s life and
       how she emotionally overcame external tragedies and inner insecurities.
       The book begins with the author growing up in Huaraz, a city in the
       mountains of Peru. Her family survives a devastating earthquake. She
       suffers a kitchen accident that scars her face and leaves her with emotional
       insecurities. She endures romantic jiltings several times as a teenager. She

2
  A plaintiff must also plead facts establishing that the defendant had access to the
copyrighted work in order to state a claim of copyright infringement. Dam Things from
Den. v. Russ Berrie & Co., 

, 561 (3d Cir. 2002). Because the District Court
concluded that the works in this case were not substantially similar, it did not reach the
issue of whether Tanikumi’s complaint established access as well. Because we affirm the
District Court’s holding in this regard, we do not reach this issue either.
                                               7
      moves to Lima to study nursing and lives with her sister Laura, with whom
      she shares an intense sisterly bond. She dates a man she ultimately rejects
      because of his alcoholism. Tragically, Laura dies when she is hit by a
      drunk driver.

             The author moves to the United States where she becomes a physical
      therapist. She finds a dermatologist who is able to take the scars off her
      face. She falls in love with a man named Eduardo who shows interest in
      her, but she feels shy and makes up a false reason why she cannot be with
      him.

             Eventually she meets a television producer, gets married, and has a
      family. At the end of the book, she reconnects with Eduardo on Facebook.
      They have an awkward meeting after which Eduardo unfriends her on
      Facebook. The book ends with the author pondering the meaning of her
      connection with Eduardo.3

            Frozen’s credits state that it was inspired by Hans Christian
      Andersen’s story, “The Snow Queen.” Frozen tells the story of two sisters,

3
 Tanikumi summarizes the themes of her autobiography on the back cover of Living My
Truth as follows:

              In this compelling, introspective account of her life, Isabella
      Tanikumi takes her readers on a journey through the various phases of her
      remarkable life—from her family’s survival of the devastating 1970
      earthquake in Huaraz, Peru, to the trials of overcoming the heartbreaks of
      youth; from the triumph of conquering personal insecurities and exploring
      the reaches of her intellect, to facing the tragic, untimely death of her
      beloved sister. . . . Despite language barriers and the consequent obstacles
      of fitting in, the author wittily narrates her struggles with assimilation into
      American life and culture and the forging of many enduring friendships—
      most notably Julie, who rescued her from the depths of grief. Into her
      lyrical prose the author interweaves a dialogue with her long lost love,
      “Eduardo Davidio,” with whom, from the time of their first meeting, she
      felt an undeniable connection. . . . Ultimately, the author shares her
      gratitude and joy in every day, and her insatiable thirst for life.

(A130.)


                                             8
      Elsa and Anna, who are princesses of a make-believe Nordic kingdom
      called Arendelle. Arendelle is surrounded by mountains and fjords. Elsa,
      the older sister, has magical abilities to create ice and snow. As the
      children frolic in an indoor snowstorm of Elsa’s creation, she accidentally
      zaps Anna in the head with a surge of cryokinetic energy, causing an injury.
      Trolls are able to heal Anna. Nevertheless, the family decides to isolate
      Elsa from the world and her sister until she learns to control her powers.
      Later, Elsa and Anna’s parents die in a shipwreck.

              When Elsa comes of age, she becomes the queen. Emissaries from
      far [and] wide come to her coronation. One of those emissaries is Prince
      Hans of the Southern Isles, with whom Anna falls immediately in love. At
      the coronation ball, Anna asks Elsa for permission to marry Hans. Elsa
      refuses. The sisters have a fight, and in the course of doing so, Elsa
      accidentally exposes her powers to a crowd of horrified onlookers.
      Embarrassed and accused of being a witch, Elsa flees to the mountains to
      live alone in an ice castle. Inadvertently, she creates a permanent winter in
      the kingdom during her flight.

             Anna follows Elsa to the mountains. Anna asks Elsa to return to
      Arendelle and end the winter. Elsa states that she does not know how to
      undo the spell and will remain a recluse for Anna’s own safety. The sisters
      have a dispute, and Elsa again accidentally hits Anna with a surge of
      magical energy, this time in the chest. Anna’s hair turns white. The trolls
      advise that there is frost in her heart and that she will eventually freeze to
      death. Only an act of true love can save her.

             Eventually Anna and Elsa return to Arendelle, where it is expected
      that Hans’s kiss will save Anna from death. But Hans refuses to kiss Anna,
      revealing that the marriage was just part of a scheme to take Arendelle’s
      throne; he planned to marry Anna, stage an accident for Elsa, and then
      assume the throne. Hans leaves Anna for dead and goes to kill Elsa, but
      Anna intervenes and saves Elsa’s life. This is the act of true love that saves
      Anna from freezing to death. The winter spell breaks, and the sisters
      reconcile.

(Opinion 2-3, ECF No. 11.) Having reviewed the works, the District Court found that

Yearnings and Frozen are not substantially similar in their protected elements.


                                            9
       We agree with the District Court that Frozen does not appropriate any unique

expressions from Yearnings. Tanikumi contends that there are “many tens, perhaps more

than 100, points of identical characters, events, mishaps, emotions and words and phrases

that are found in both [her] works and Defendants’ Frozen.” (Br. 14.) For example,

Tanikumi explains that both Yearnings and Frozen involve: a village at the foot of snow-

covered mountains; two sisters with “intense sisterly love”; an incident in which the older

sister accidentally injures the younger sister and the younger sister has no memory of the

incident; a traumatic natural disaster; the betrayal of a young girl’s first love; and

romantic scenes set under the shadows of the moon. (Br. 10-13.)

       These works are not substantially similar. As the District Court explained, the

similarities that Yearnings and Frozen share pertain only to generic plot and theme ideas,

not protectable expressions; while both works feature a mountain setting, an intense

sisterly bond, an untrue lover, and a resolution in which the female protagonist comes

into her own without the help of a man, copyright law does not protect such common

topics in autobiographical literature and film. See, e.g., Cavalier v. Random House, Inc.,

, 828 (9th Cir. 2002) (explaining that children’s television series was not

substantially similar to authors’ copyright works despite similarities in themes, including

teaching children to overcome their fears and having magical adventures because such

themes are standard topics in children’s literature); Williams v. Crichton, 

,

588-89 (2d Cir. 1996) (holding that motion picture Jurassic Park was not substantially

similar to children’s book Dinosaur World because nearly all similarities arise from non-
                                              10
copyrightable elements such as a dinosaur zoo). While there are indeed certain

similarities between the works, they concern prototypical settings, plots, and characters

too indistinct to merit copyright protection.

       Furthermore, there are dramatic differences between the mood and overall feel of

these works: Yearnings is—in Tanikumi’s own words—an “introspective account of . . .

her remarkable life,” in which she “beckons her readers to follow her evolution through

the incremental unfolding of deeply personal truths.” (App. 130.) Frozen, by contrast, is

a light-hearted, at times comical and satirical children’s movie involving princesses and

castles, magical powers, and talking animals. See, e.g., Berkic v. Chrichton, 

, 1294 (9th Cir. 1985) (explaining that novel and motion picture were substantially

dissimilar in “the mood evoked as a whole” and in the “total concept and feel of the

works”) (alteration omitted).

       Because Tanikumi failed to allege any legally recognized similarities between

Yearnings and Frozen, the District Court properly held that she failed to state a plausible

claim of copyright infringement.4




4
  Tanikumi also argues on appeal that the image of Elsa on the cover of the Frozen DVD
infringes the image of Isabella on the rear cover of Yearnings. The District Court did not
address this purported claim, and Disney argues that it was not included in the complaint.
There is also some dispute as to whether Disney submitted the wrong DVD cover to the
District Court. In addition, we note that there is no indication in the record as to whether
Tanikumi’s copyright extended to the cover art. All this notwithstanding, we have
reviewed the images and conclude that they are not substantially similar with respect to
any protectable elements.
                                             11
         For these reasons, we will affirm the District Court’s judgment.5




5
    Disney’s motion to expand the record is granted.
                                              12