Kelly Van v. James Cameron

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY VAN,
Plaintiff - Appellant,
v.
JAMES CAMERON; TWENTIETH
CENTURY FOX; DUNE
ENTERTAINMENT, INC.;
LIGHTSTORM ENTERTAINMENT,
INC.; INGENIOUS FILM PARTNERS,
LLC; INGENIOUS FILM PARTNERS 2;
FUTURE SERVICE INC.,
Defendants - Appellees.
No. 12-55416
D.C. No. 3:10-cv-01051-AJB-WVG
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted December 17, 2013**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
FILED
APR 01 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Kelly Van appeals pro se from the district court’s judgment dismissing her
action alleging that defendants’ movie Avatar infringed upon her copyrighted
novel, Sheila the Warrior: The Damned. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal for failure to state a claim, Hebbe v. Pliler,
627 F.3d 338, 341 (9th Cir. 2010), and for an abuse of discretion the denial of a
motion brought under Federal Rule of Civil Procedure 60(b), Lal v. California, 610
F.3d 518, 523 (9th Cir. 2010). We affirm.
The district court properly dismissed Van’s copyright infringement claims
because there was no substantial similarity between protected elements of her
copyrighted novel and comparable elements of defendants’ film as a matter of law,
and any similarity in the general concepts of humans traveling to another planet or
individuals flying is unprotected. See Benay v. Warner Bros. Entm’t, Inc., 607
F.3d 620, 624–25 (9th Cir. 2010) (setting forth extrinsic test to assess substantial
similarity between specific expressive elements of copyrighted works at issue, such
as plot, sequence of events, theme, dialogue, mood, setting, pace, and characters);
Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1077 (9th Cir.
2006) (substantial similarity focuses on only concrete, protectable elements of
works standing alone, not nonprotectable elements, such as generic concepts or
ideas).
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The district court did not abuse its discretion when it denied Van’s motion
for relief under Rule 60(b) because Van failed to establish any basis for relief. See
Sch. Dist. No. 1J, Multnomah Cnty., Or., v. ACandS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993) (setting forth grounds for reconsideration under Fed. R. Civ. P. 60(b));
see also Lal, 610 F.3d at 524 (to constitute extraordinary circumstances, attorney
must engage in “neglect so gross that it is inexcusable” (quoting Cmty. Dental
Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)).
Defendants’ motion to submit DVD copies of Avatar, filed on July 31, 2012,
is granted.
Van’s motion to accept evidence, filed on September 12, 2012, is granted.
Van’s motion to accept her oversized reply brief, filed on September 12,
2012, is granted, and the Clerk is directed to file the reply brief submitted on
September 12, 2012.
All other pending motions are denied.
AFFIRMED.
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