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Forlenza v. AT&T

April 12, 2004


The opinion of the court was delivered by: Audrey B. Collins, United States District Judge.


On February 20, 2004, Defendants filed a motion to dismiss Plaintiff's Complaint. The Court received Plaintiff's opposition on March 8, 2004, and Defendants' reply on March 15, 2004. The motion came on regularly for hearing on April 12, 2004. Upon consideration of the parties' submissions, oral argument, and the case file, the Court GRANTS Defendants' motion.


On November 12, 2003, Plaintiff Francis Forlenza ("Forlenza") commenced this copyright and false endorsement action against AT&T, Young & Rubicam, Inc., and Wunderman *fn1 (collectively "Defendants"). In 1990, Forlenza created a mural entitled "My Fifteen Minutes - Tumbling Waves." (Compl. P 9.) The mural is contained within a swimming pool at the Phoenix Hotel in San Francisco, California. (Id.) Since its creation, the mural has become famous, with articles about it appearing in New York magazine, the Los Angeles Times, áand other widely circulated publications. (Id.) Forlenza has obtained a copyright registration for the mural. (Compl. P 23.)

Forlenza alleges that the mural has become distinctly associated with him, "so that when people think of plaintiff and his art, they think of the mural, and among those who know plaintiff, those that see the mural, think of plaintiff." (Compl. P 35.)

In 2002, Defendant AT&T hired an advertising agency, Defendant Young & Rubicam, Inc., to create televisionácommercials. (Compl. PP 11, 12.) The commercials display Forlenza's mural. Despite Forlenza's requests, AT&T has refused to stop airing the commercials. (Compl. PP 19, 20.) Forlenza alleges that Defendants have deceived others into mistakenly believing that he is affiliated with, or has otherwise sponsored, Defendants' commercials. (Compl. P 36.)


A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the complaint. See Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). "The Rule 8 standard contains 'a powerful presumption against rejecting pleadings for failure to state a claim.'" Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997). A Rule 12(b)(6) dismissal is proper only where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988);áaccord Gilligan, 108 F.3d at 249 ("A complaint should not be dismissed 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief").

The Court must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. See Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). Moreover, the complaint must be read in the light most favorable to plaintiff. See id. However, the Court need not accept as true any unreasonable inferences, unwarranted deductions of fact, and/or conclusory legal allegations cast in the form of factual allegations. See, e.g., Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

Moreover, in ruling on a 12(b)(6) motion, a court generally cannot consider material outside of the complaint (e.g., those facts presented in briefs, affidavits, or discovery materials). See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). A court may, however, consider exhibits submitted with the complaint. See id. at 453-54. Also, a court may consider documentsáwhich are not physically attached to the complaint but "whose contents are alleged in [the] complaint and whose authenticity no party questions. Id. at 454. Further, it is proper for the court to consider matters subject to judicial notice pursuant to Federal Rule of Evidence 201. Mir, M.D. v. Little Co. of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988).


A. Copyright Infringement Claim

Defendants argue that Forlenza's copyright claim should be dismissed because their display of the mural was de minimis. *fn2 The Court agrees. "For an unauthorized use of a copyrighted work to be actionable, there must be substantial similarity between the plaintiff's and the defendants' works." Newton v. Diamond, 349 F.3d 591, 594 (9th Cir. 2003) (citations omitted). A use is de minimis if the average audience would not recognize the appropriation due to the lack of substantial similarity between the works. Id. at 595 ("To say that a use is de minimis because no audience would recognize the appropriation is thus to say that the works are not substantially similar."). In this case, Defendants' allegedáinfringement was de minimis because Forlenza's mural and Defendants' commercials are not substantially similar as a matter of law.

Courts generally consider both quantitative and qualitative factors in determining whether a use is de minimis in cases involving "fragmented literal similarity." Id. at 596 (citing 4 Nimmer on Copyright ยง 13.03[A][2], at 13-45). "Fragmented literal similarity exists where the defendant copies a portion of the plaintiff's work exactly or nearly exactly, without appropriating the work's overall essence or structure. Because the degree of similarity is high in such cases, the dispositive question is whether the similarity goes to trivial or substantial elements. The substantiality of the ...

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