Constantino Basile v. Sony Pictures Entertainment Inc., a Delaware corporation;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CONSTANTINO BASILE,
Plaintiff-Appellant,
v.
SONY PICTURES ENTERTAINMENT
INC., a Delaware corporation; et al.,
Defendants-Appellees.
No. 14-56418
D.C. No. 2:14-cv-04264-DMG-
JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Constantino Basile appeals pro se from the district court’s order dismissing
his action alleging that defendants’ movie Men in Black 3 infringed upon his
copyrighted works “Crisis on Jupiter” and “The World of Jupiter.” We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal under Federal Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627
F.3d 338, 341 (9th Cir. 2010), and we affirm.
The district court properly dismissed Basile’s copyright infringement action
because there is no substantial similarity, as a matter of law, between protected
elements of Basile’s copyrighted works and comparable elements of defendants’
film, and any similarities in the general concepts are unprotected. See Funky
Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076-78 (9th Cir.
2006) (absent direct copying, a plaintiff must show substantial similarity to prevail
on a copyright infringement claim); Cavalier v. Random House, Inc., 297 F.3d
815, 823 (9th Cir. 2002) (“Scenes-a-faire, or situations and incidents that flow
necessarily or naturally from a basic plot premise, cannot sustain a finding of
infringement.”); Berkic v. Crichton, 761 F.2d 1289, 1292-94 (9th Cir. 1985)
(setting forth factors to determine substantial similarity).
Contrary to Basile’s contention, the district court did not abuse its discretion
in failing to consider evidence irrelevant to the dispositive legal issue of whether
there was substantial similarity between the works. See Aceves v. Allstate Ins. Co.,
68 F.3d 1160, 1164-66 (9th Cir. 1995) (setting forth standard of review and

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discussing relevance).
All pending motions and requests are denied.
AFFIRMED.

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