Elijah Schkeiban, an individual v. James Cameron, an individual

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIJAH SCHKEIBAN, an individual,
Plaintiff - Appellant,
v.
JAMES CAMERON, an individual;
LIGHTSTORM ENTERTAINMENT,
INC., a California corporation;
TWENTIETH CENTURY FOX FILM
CORPORATION, a Delaware corporation;
DUNE ENTERTAINMENT, LP, a
Delaware limited partnership,
Defendants - Appellees.
No. 12-56964
D.C. No. 2:12-cv-00636-R-MAN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, 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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Plaintiff Elijah Schkeiban appeals the district court’s dismissal of his
complaint alleging that James Cameron’s movie Avatar infringed the copyright of
his book and screenplay Bats and Butterflies. We review a dismissal under Rule
12(b)(6) de novo, Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and affirm.
The district court correctly ruled that Avatar and Bats and Butterflies are not
“substantially similar in their protected elements.” Cavalier v. Random House,
Inc., 297 F.3d 815, 822 (9th Cir. 2002). There are “few real similarities” between
the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events
in Avatar and Schkeiban’s work. Funky Films, Inc. v. Time Warner Entm’t Co.,
L.P., 462 F.3d 1072, 1078 (9th Cir. 2006). Any similarities consist of
unprotectable “general plot ideas” or scènes à faire flowing naturally from these
ideas. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).
Because we affirm the district court’s ruling that the works are not
substantially similar, we do not need to reach the court’s alternative ground for
dismissal that Schkeiban did not adequately allege that the defendants had access
to his work. See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 625 (9th Cir.
2010) (holding that the plaintiffs had not shown sufficient similarity to prevail
even if the defendants had access to their work).
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The defendants’ motion to submit commercially available copies of Avatar
on DVD, filed on May 8, 2013, is granted.
Schkeiban’s motion to submit annotated copies of Avatar on DVD, filed on
November 12, 2013, is denied. Schkeiban’s motion to submit highlighted copies
of the book Bats and Butterflies, filed on December 9, 2013, is also denied.
However, our disposition of the appeal would not be affected even if we were to
grant these motions.
AFFIRMED.
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