NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1959

___________

ISABELLA TANIKUMI, 

a/k/a L. Amy Gonzalez,

 Appellant

v.

THE WALT DISNEY COMPANY; DISNEY ENTERPRISES, INC.;

DISNEY WORLDWIDE SERVICES, INC.; 

ABC CORP, 1-10 (a fictitious name)

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-14-cv-05877)

District Judge: Honorable William J. Martini

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 18, 2015

Before: AMBRO, VANASKIE and SLOVITER, Circuit Judges

(Opinion filed: September 29, 2015)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Amy Gonzales, who writes under the pen name Isabella Tanikumi, appeals from 

the District Court’s order dismissing her complaint in this copyright infringement case. 

Tanikumi also appeals from the District Court’s subsequent order denying her motion to 

reopen the judgment. For the following reasons, we will affirm. 

I.

Tanikumi is the author of two autobiographical books, Yearnings of the Heart and 

Living My Truth, An Internal Odyssey (together, “Yearnings”).1 In September 2014, 

Tanikumi commenced this action in the United States District Court for the District of 

New Jersey against the defendants, the Walt Disney Company, Disney Enterprises Inc., 

and Disney Worldwide Services, Inc. (“Disney”), alleging that Disney’s animated motion 

picture Frozen infringes the copyright of her books. Tanikumi asked the District Court to 

order Disney to cease and desist from all sales, distribution, and marketing of Frozen in 

any media format, and sought $250,000,000.00 as well as punitive damages. 

Disney moved to dismiss the complaint on the ground that it failed to state a claim 

of copyright infringement because the works are not substantially similar. See Fed. R. 

Civ. P. 12(b)(6). Although it appears that Tanikumi and Disney stipulated to an 

extension of time for Tanikumi to oppose the motion, the District Court never learned of 

the stipulation, and, by order entered February 19, 2015, the District Court granted 

 

1 Tanikumi alleges that Living My Truth was copyrighted in 2010 and then “reprinted” as 

Yearnings, with copyright dates of 2010 and 2013. (Compl. ¶ 1.) Tanikumi argues 

generally that Disney plagiarized her “works.” Because the District Court referred to 

both works together as Yearnings, we will do so as well. 
3

Disney’s motion without a response from Tanikumi. Immediately thereafter, Tanikumi 

notified the District Court that she had attempted to timely file the stipulation regarding 

the extension, and asked the court to vacate its order so that it could consider her 

forthcoming opposition brief. 

On March 18, 2015, Tanikumi filed an opposition brief. The District Court 

construed the post-judgment filing as a motion to vacate the judgment pursuant to Rule 

60(b) of the Federal Rules of Civil Procedure, and, by order entered April 1, 2015, denied 

relief. This timely appeal followed. 

II.

We have jurisdiction to review the District Court’s orders under 28 U.S.C. § 1291. 

See Fed. R. App. P. 4(a)(4)(A)(vi); Wiest v. Lynch, 710 F.3d 121, 127 (3d Cir. 2013).

We review the District Court’s order granting Disney’s motion to dismiss de novo. See

McMullen v. Maple Shade Twp., 643 F.3d 96, 98 (3d Cir. 2011). Dismissal for failure to 

state a claim is proper if a party fails to allege sufficient factual matter, which if accepted 

as true, could “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 

We ordinarily review the denial of a Rule 60(b) motion for abuse of discretion. See In re 

Cendant Corp. PRIDES Litig., 234 F.3d 166, 170 (3d Cir. 2000). A court abuses its 

discretion when its ruling “rests upon a clearly erroneous finding of fact, an errant 

conclusion of law[,] or an improper application of law to fact.” Id. In examining the 

legal grounds that a district court relied on in denying Rule 60(b) relief, we may review 
4

the court’s legal conclusions de novo. See Koshatka v. Phila. Newspapers, Inc., 762 F.2d 

329, 333 (3d Cir. 1985) (“[I]f the court’s denial was based upon the interpretation and 

application of a legal precept, review is plenary.”). 

III.

A.

Tanikumi first claims that the District Court failed to follow the appropriate “twostep” procedure in adjudicating her Rule 60(b) motion; according to Tanikumi, the court 

should have first granted Rule 60(b) relief (and vacated its order dismissing the 

complaint), and then considered Disney’s motion to dismiss anew in light of her 

opposition brief. 

We see no error in the District Court’s approach here. In general, a motion for 

relief under Rule 60(b) should not be granted unless the movant can demonstrate a 

meritorious claim or defense. Lepkowski v. U.S. Dep’t of the Treasury, 804 F.2d 1310, 

1314 (D.C. Cir. 1986). “The requirement that parties seeking Rule 60(b) relief show 

some prospect of succeeding on the merits flows from the basic principle that courts 

should revive previously-dismissed claims only if they have some reason to believe that 

doing so will not ultimately waste judicial resources.” Thomas v. Holder, 750 F.3d 899, 

903 (D.C. Cir. 2014). “[T]o obtain relief under Rule 60(b), a litigant must give the trial 

court reason to believe that vacating the judgment will not be an empty exercise in any 

new proceedings.” United States v. Kayser-Roth Corp., 272 F.3d 89, 95 (1st Cir. 2001) 

(quotation marks and citation omitted). 
5

In this case, the District Court chose to consider Tanikumi’s opposition brief out 

of time, but ultimately determined that nothing in the brief warranted revisiting its initial 

ruling that she had failed to state a claim upon which relief could be granted. While it 

would not have been error for the District Court to take the approach that Tanikumi 

suggests, it would have been an “empty exercise” for the court to vacate its order 

dismissing the complaint only to immediately enter another order of dismissal. Cf.

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (explaining that when a plaintiff 

files a post-judgment motion to amend the complaint, the court should consider the 

motion under the standards of both Rules 60(b) and 15(a) because it “would be a needless 

formality for the court to grant the motion to reopen the judgment only to deny the 

motion for leave to amend”). 

In a closely related argument, Tanikumi also contends that the District Court 

erroneously applied a conflated, heightened standard to her copyright infringement claim 

by ruling on it in a Rule 60(b) motion. According to Tanikumi, because the court failed 

to follow the two-step approach described above, it applied “brutal standards” and 

“continue[d] to look for special circumstances in [her] opposition arguments.” (Br. 6-7.) 

We disagree. The District Court’s opinion makes clear that it first considered whether 

Tanikumi had demonstrated extraordinary circumstances justifying reopening the 

judgment under Rule 60(b), see Moolenaar v. Gov’t of V.I., 822 F.2d 1342, 1346 (3d Cir. 

1987), and then considered whether the complaint stated a plausible copyright 

infringement claim in light of the arguments set forth in Tanikumi’s post-judgment filing, 
6

see Iqbal, 556 U.S. at 678. Accordingly, it is clear that the District Court did not apply 

any improper legal standards here. 

Tanikumi next contends that the District Court erred by comparing the works’ 

similarities at the pleadings stage. It is well established, however, that a district court 

may consider items that are integral to the complaint on a motion to dismiss. See In re 

Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999); see also

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 

1993) (explaining that a district court may consider an “undisputedly authentic document 

that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are 

based on the document”). Furthermore, although the question of substantial similarity in 

a copyright infringement case is one of fact, a district court is permitted to consider the 

disputed works in deciding a Rule 12(b)(6) motion. See Peter F. Gaito Architecture, LLC 

v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (“When a court is called upon to 

consider whether the works are substantially similar, no discovery or fact-finding is 

typically necessary, because what is required is only a visual comparison of the works.”) 

(quotation marks and citation omitted). In this case, because Tanikumi’s books and 

Disney’s motion picture were integral to the complaint and part of the record before the 

court, the District Court did not err in considering the works to determine that Tanikumi 

had failed to state a plausible copyright infringement claim. 

B.

Tanikumi also challenges the District Court’s determination that she failed to state
7

a claim of copyright infringement. To establish a claim of copyright infringement, the 

plaintiff must establish that the defendant copied protectable elements of her work.2 See

Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 

2002). A plaintiff can establish that the defendant copied her work by demonstrating that 

there are substantial similarities between the two works. Dam Things from Den., 290 

F.3d at 561. “[T]his inquiry involves distinguishing between the author’s expression and 

the idea or theme that he or she seeks to convey or explore,” because the former is 

protected and the latter is not. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 208 

(3d Cir. 2005). The court must determine whether the allegedly infringing work is 

similar because it appropriates the unique expressions of the original work, “or merely 

because it contains elements that would be expected when two works express the same 

idea or explore the same theme.” Id. 

In determining that Yearnings and Frozen are not substantially similar, the District 

Court ably summarized the works as follows: 

Yearnings of the Heart follows the trajectory of the author’s life and

how she emotionally overcame external tragedies and inner insecurities. 

The book begins with the author growing up in Huaraz, a city in the 

mountains of Peru. Her family survives a devastating earthquake. She 

suffers a kitchen accident that scars her face and leaves her with emotional 

insecurities. She endures romantic jiltings several times as a teenager. She 

 

2 A plaintiff must also plead facts establishing that the defendant had access to the 

copyrighted work in order to state a claim of copyright infringement. Dam Things from 

Den. v. Russ Berrie & Co., 290 F.3d 548, 561 (3d Cir. 2002). Because the District Court 

concluded that the works in this case were not substantially similar, it did not reach the 

issue of whether Tanikumi’s complaint established access as well. Because we affirm the 

District Court’s holding in this regard, we do not reach this issue either. 
8

moves to Lima to study nursing and lives with her sister Laura, with whom 

she shares an intense sisterly bond. She dates a man she ultimately rejects 

because of his alcoholism. Tragically, Laura dies when she is hit by a 

drunk driver.

The author moves to the United States where she becomes a physical 

therapist. She finds a dermatologist who is able to take the scars off her 

face. She falls in love with a man named Eduardo who shows interest in 

her, but she feels shy and makes up a false reason why she cannot be with 

him.

Eventually she meets a television producer, gets married, and has a 

family. At the end of the book, she reconnects with Eduardo on Facebook. 

They have an awkward meeting after which Eduardo unfriends her on 

Facebook. The book ends with the author pondering the meaning of her 

connection with Eduardo.3

Frozen’s credits state that it was inspired by Hans Christian 

Andersen’s story, “The Snow Queen.” Frozen tells the story of two sisters, 

 

3 Tanikumi summarizes the themes of her autobiography on the back cover of Living My 

Truth as follows:

In this compelling, introspective account of her life, Isabella 

Tanikumi takes her readers on a journey through the various phases of her 

remarkable life—from her family’s survival of the devastating 1970 

earthquake in Huaraz, Peru, to the trials of overcoming the heartbreaks of 

youth; from the triumph of conquering personal insecurities and exploring 

the reaches of her intellect, to facing the tragic, untimely death of her 

beloved sister. . . . Despite language barriers and the consequent obstacles 

of fitting in, the author wittily narrates her struggles with assimilation into 

American life and culture and the forging of many enduring friendships—

most notably Julie, who rescued her from the depths of grief. Into her 

lyrical prose the author interweaves a dialogue with her long lost love, 

“Eduardo Davidio,” with whom, from the time of their first meeting, she 

felt an undeniable connection. . . . Ultimately, the author shares her 

gratitude and joy in every day, and her insatiable thirst for life. 

(A130.) 
9

Elsa and Anna, who are princesses of a make-believe Nordic kingdom 

called Arendelle. Arendelle is surrounded by mountains and fjords. Elsa, 

the older sister, has magical abilities to create ice and snow. As the 

children frolic in an indoor snowstorm of Elsa’s creation, she accidentally 

zaps Anna in the head with a surge of cryokinetic energy, causing an injury. 

Trolls are able to heal Anna. Nevertheless, the family decides to isolate 

Elsa from the world and her sister until she learns to control her powers. 

Later, Elsa and Anna’s parents die in a shipwreck.

When Elsa comes of age, she becomes the queen. Emissaries from 

far [and] wide come to her coronation. One of those emissaries is Prince 

Hans of the Southern Isles, with whom Anna falls immediately in love. At 

the coronation ball, Anna asks Elsa for permission to marry Hans. Elsa 

refuses. The sisters have a fight, and in the course of doing so, Elsa 

accidentally exposes her powers to a crowd of horrified onlookers. 

Embarrassed and accused of being a witch, Elsa flees to the mountains to 

live alone in an ice castle. Inadvertently, she creates a permanent winter in 

the kingdom during her flight.

Anna follows Elsa to the mountains. Anna asks Elsa to return to 

Arendelle and end the winter. Elsa states that she does not know how to 

undo the spell and will remain a recluse for Anna’s own safety. The sisters 

have a dispute, and Elsa again accidentally hits Anna with a surge of 

magical energy, this time in the chest. Anna’s hair turns white. The trolls 

advise that there is frost in her heart and that she will eventually freeze to 

death. Only an act of true love can save her.

Eventually Anna and Elsa return to Arendelle, where it is expected 

that Hans’s kiss will save Anna from death. But Hans refuses to kiss Anna, 

revealing that the marriage was just part of a scheme to take Arendelle’s 

throne; he planned to marry Anna, stage an accident for Elsa, and then 

assume the throne. Hans leaves Anna for dead and goes to kill Elsa, but 

Anna intervenes and saves Elsa’s life. This is the act of true love that saves 

Anna from freezing to death. The winter spell breaks, and the sisters 

reconcile.

(Opinion 2-3, ECF No. 11.) Having reviewed the works, the District Court found that 

Yearnings and Frozen are not substantially similar in their protected elements. 
10

We agree with the District Court that Frozen does not appropriate any unique 

expressions from Yearnings. Tanikumi contends that there are “many tens, perhaps more 

than 100, points of identical characters, events, mishaps, emotions and words and phrases 

that are found in both [her] works and Defendants’ Frozen.” (Br. 14.) For example, 

Tanikumi explains that both Yearnings and Frozen involve: a village at the foot of snowcovered mountains; two sisters with “intense sisterly love”; an incident in which the older 

sister accidentally injures the younger sister and the younger sister has no memory of the 

incident; a traumatic natural disaster; the betrayal of a young girl’s first love; and 

romantic scenes set under the shadows of the moon. (Br. 10-13.) 

These works are not substantially similar. As the District Court explained, the 

similarities that Yearnings and Frozen share pertain only to generic plot and theme ideas, 

not protectable expressions; while both works feature a mountain setting, an intense 

sisterly bond, an untrue lover, and a resolution in which the female protagonist comes 

into her own without the help of a man, copyright law does not protect such common 

topics in autobiographical literature and film. See, e.g., Cavalier v. Random House, Inc., 

297 F.3d 815, 828 (9th Cir. 2002) (explaining that children’s television series was not 

substantially similar to authors’ copyright works despite similarities in themes, including 

teaching children to overcome their fears and having magical adventures because such 

themes are standard topics in children’s literature); Williams v. Crichton, 84 F.3d 581, 

588-89 (2d Cir. 1996) (holding that motion picture Jurassic Park was not substantially 

similar to children’s book Dinosaur World because nearly all similarities arise from non-
11

copyrightable elements such as a dinosaur zoo). While there are indeed certain 

similarities between the works, they concern prototypical settings, plots, and characters 

too indistinct to merit copyright protection.

Furthermore, there are dramatic differences between the mood and overall feel of 

these works: Yearnings is—in Tanikumi’s own words—an “introspective account of . . . 

her remarkable life,” in which she “beckons her readers to follow her evolution through 

the incremental unfolding of deeply personal truths.” (App. 130.) Frozen, by contrast, is 

a light-hearted, at times comical and satirical children’s movie involving princesses and 

castles, magical powers, and talking animals. See, e.g., Berkic v. Chrichton, 761 F.2d 

1289, 1294 (9th Cir. 1985) (explaining that novel and motion picture were substantially 

dissimilar in “the mood evoked as a whole” and in the “total concept and feel of the 

works”) (alteration omitted). 

Because Tanikumi failed to allege any legally recognized similarities between 

Yearnings and Frozen, the District Court properly held that she failed to state a plausible 

claim of copyright infringement.4

 

4 Tanikumi also argues on appeal that the image of Elsa on the cover of the Frozen DVD 

infringes the image of Isabella on the rear cover of Yearnings. The District Court did not 

address this purported claim, and Disney argues that it was not included in the complaint. 

There is also some dispute as to whether Disney submitted the wrong DVD cover to the 

District Court. In addition, we note that there is no indication in the record as to whether 

Tanikumi’s copyright extended to the cover art. All this notwithstanding, we have 

reviewed the images and conclude that they are not substantially similar with respect to 

any protectable elements. 
12

For these reasons, we will affirm the District Court’s judgment.5

 

5 Disney’s motion to expand the record is granted.