Everette Silas; Sherri Littleton v. Home Box Office, Inc.;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVERETTE SILAS; SHERRI
LITTLETON,
Plaintiffs - Appellants,
v.
HOME BOX OFFICE, INC.; et al.,
Defendants - Appellees.
No. 16-56215
D.C. No. 2:15-cv-09732-GW-FFM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted February 8, 2018**
Pasadena, California
Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,***
District Judge.
Appellants Everette Silas and Sherri Littleton appeal the district court’s
order dismissing their copyright infringement complaint. We have jurisdiction
* 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).
*** The Honorable Joseph F. Bataillon, United States Senior District
Judge for the District of Nebraska, sitting by designation.
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291, and we affirm.
1. Reviewing for abuse of discretion, see Lee v. City of L.A., 250 F.3d
668, 689 (9th Cir. 2001) (citation omitted), we conclude that the district court did
not abuse its discretion in taking judicial notice of the actual “Ballers” episodes
from which Appellants took screenshots and referenced specific timestamps in
their complaint.
2. We review an order dismissing a complaint under Federal Rule of
Civil Procedure 12(b)(6) de novo. Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d
1005, 1014 (9th Cir. 2012) (citation omitted). To establish copyright infringement,
Appellants must show that “the works at issue are substantially similar in their
protected elements.” Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.
2002) (citation omitted). Applying the “extrinsic test,” see Smith v. Jackson, 84
F.3d 1213, 1218 (9th Cir. 1996), we objectively compare Appellants’ “Off Season”
with “Ballers” to determine whether the two works are substantially similar only as
to protectable elements. See Cavalier, 297 F.3d at 822–23 (noting that general plot
ideas, familiar stock scenes, situations or incidents that flow naturally from a basic
plot premise, etc., are not protected by copyright law). Here, despite some surface
similarities, the two works are clearly different. See Silas v. Home Box Office,
Inc., 201 F. Supp. 3d 1158, 1173–83 (C.D. Cal. 2016). As the district court
correctly explained in great detail, the plots, characters, themes, moods, settings,

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pace, dialogue, and sequence of events between the two works are similar in only
the broadest strokes. The alleged similarities identified by Appellants fall under
the category of general plot ideas, familiar stock scenes, or scenes-a-faire, which
are not protectable. See Cavalier, 297 F.3d at 823. The district court did not err in
dismissing Appellants’ copyright infringement claim.
AFFIRMED.

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