1 20

- 3529 Shull v. Sorkin 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY O RDER ” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19 th da y of July , two thousand twenty

- one
. P resent : D EBRA A NN L IVING STON , Chief Judge, R OBERT D. S ACK , D ENNY C HIN , Circuit Judges

.

_____________________________________ D ENISE K. S HULL , T HE R ETHINK G ROUP , I NC ., Plaintiff s -

Appell ants ,

v. 20

- 3529
TBTF P RODUCTIONS , I NC ., S HOWTIME N ETWORKS I NC ., CBS C ORPORATION , B RIAN K OPPELMAN , D AVID L EVIEN , D AVID N EVINS , A NDREW R OSS S ORKIN , Defendant s -

Appell ees .

_____________________________________
For Plaintiff s - Appell ants: A VRAM T URKEL , Borstein Turkel , P

. C

. , New York , NY ; Jonathan E. Moskin, on the brief , Foley & Lardner LLP, New York, NY2 For Defendants

- Appell ees: E LIZABETH A. M C N AM A RA (Rachel F. Strom and Meenakshi Krishnan , on the brief ) , Davis Wright Tremaine LLP, New York, NY Appeal from a judgment and order of the United States District Court for the Southern District of New York ( Daniels , J. )

. UPON DUE CONSIDERATION , IT IS HEREBY ORD ERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are AFFIRMED

. Plaintiffs

- Appellants Denise K. Shull (“Shull”) and The ReThink Group, Inc. (together, “Plaintiffs”) commenced this action against Defendants

- Appellants TBTF Productions, Inc., Showtime Netw orks Inc., CBS Corporation, Brian Koppelman, David Levien, and Andrew Ross Sorkin (collectively, “Defendants”) on December 31, 2018, alleging, inter alia , that Defendants committed copyright infringement. Broadly, Plaintiffs allege that Defendants’ televi sion show, Billions , is an unauthorized derivative work based on key elements of Plaintiffs ’ book, Market Mind Games : A Radical Psychology of Investing, Trading, and Risk (“ Market Mind Games ”)

. I n Plaintiffs’ view, Defendants portray the fictional charact er of Dr. Wendy Rhoades (“Dr. Rhoades”)
in Billions in substantially the same manner as Shull portrays the fictional characterization of herself in Market Mind Games . The district court granted Defendants’ motion to dismiss on October 4, 2019, concluding that Plaintiffs failed to state copyright infringement claim s because they failed to allege plausibly that Market Mind Games and Billions are substantially similar. After the district court entered judgment, Plaintiffs filed a motion to vacate or set aside the judgment and for leave to file an amended complaint , which the district court denied

. Plaintiffs appeal, challenging the district cour t’s judgment dismissing their complaint and order denying their post

- judgment motion for leave to amend. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.3 A. Motion to Dismiss
We rev iew de novo the district court’s judgment granting Defendants’ motion to dismiss.
Stratte

- McClure v. Morgan Stanley , 776 F.3d 94, 99

– 100 (2d Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true , to ‘ 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)). “A claim has facial plausibility when the plaintiff pleads factual content that all ows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In considering a motion to dismiss , a court generally

“ must limit itself to facts stated in the complaint or in documents attached to the complai nt as exhibits or incorporated in the complaint by reference.” Kramer v. Time Warner Inc. , 937 F.2d 767, 773 (2d Cir. 1991). A district court “may also consider matters of which judicial notice may be taken under Fed. R. Evid. 201.” Id. Here, Plaintiffs argue that reversal is required because the district court improperly relied on facts it judicially noticed via a “quick internet search” to refute the allegations in the complaint.
We disagree

. Even assuming arguendo that the district court i mproperly took judicial notice of the fact “that there are numerous in

- house performance coaches who are currently on Wall Street,” App’x at 295, we need not disturb the district court’s decision. Based on our de novo review of the works at issue, the dis trict court properly concluded that Plaintiffs’ copyright infringement claims are deficient as a matter of law. “To establish a claim of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituen t elements of the work that are original.’” Abdin v. CBS Broad. Inc. , 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. , 499 U.S. 340, 361 (1991)). To satisfy the second of these elements, a4 plaintiff “must demonstrate t hat: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of [ the ] plaintiff’s [work].” Id. (internal quotation marks a nd emphasis omitted). We have explained that courts may resolve the question of substantial similarity as a matter of law at the pleadings stage based on a review of the works in their entirety

. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp. , 602 F.3d 57, 6 3

– 6 5 (2d Cir. 2010)

. First, t he district court properly concluded that the works are not substantially similar under the “ more discerning observer ” test. The “ more discerning observer” test requires us to assess “substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed [work].” Abdin , 971 F.3d at 66 (internal quotation marks omitted). “[W]e examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting.” Id. (internal quotation marks omitted). A review of these factors illustrates that Billions and Market Mind Games are not substantially similar

. The plot of Market Min d Games , to the extent there is one , is wholly dissimilar from that of Billions . Likewise, the similarities that exist between Dr. Rhoades in Billions and the fictional version of Shull in Market Mind Games

— namely their gender and occupation

— are generaliz ed and non

- protectible. Id. at 72 (noting that “ stock similarities ” such as hair color, race, and profession “ are non - protectible generalized traits that cannot support a plausible character infringement claim ”). Bearing these and other distinctions in mind , the total concept and feel of Market Mind Games is quite different from that of Billions : Whereas Market Mind Games is an academic book that draws on fictional stories to illustrate Shull’s ideas, Billions is an entirely fictional ser ial television drama that, as the district court described it, seeks to portray “the drama that lies in the age old trifecta of money, power, and sex , ” App’x at 291. See Abdin ,5 971 F.3d at 73 “ ([W] here the ‘total concept and feel’ of competing works is di fferent, we will not find infringement.” ) Second, the district court properly concluded that the works are not substantially similar under the so - called “quantitative and qualitative” approach. We have described this approach as requiring a court to cons ider: (1) quantitatively, whether “the amount of the copyrighted work that is copied” is “more than de minimis ”; and (2) qualitatively, whether the copying “concerns the copying of expression, rather than ideas, facts, work s in the public domain, or any ot her non

protectable elements.” Castle Rock Ent., Inc. v. Carol Pub. Grp., Inc. , 150 F.3d 132, 138 (2d Cir. 1998) (internal quotation marks and alterations omitted). A review of the works unveils no actionable copying, let alone copying that exceeds the de
minimis threshold

. As noted above, the stock similarities between Dr. Rhoades and the fictional version of Shull cannot support a plausible infringement claim. Nor can the supposed similarities between the psychological advice that Dr. Rhoades and Shull offer

. Plaintiffs , among other things, cannot copyright the idea that one should eat, sleep, and exercise to perform well. See Abdin , 971 F.3d at 67 (“[F]acts and ideas are not protected by copyright.”). And to the extent Plaintiffs allege that Billions copies a one

- on - one counseling session that takes place in Market Mind Games concerning a bad trade, they are mistaken. The counseling sessions in the two works take place in entirely different contexts , resulting from different traumas and leading to different psychologica l revelations

. Accordingly, even assuming that the district court erred in consulting the internet, it properly dismissed the copyright infringement claims here on the ground that the works at issue are not substantially similar, dooming the se claims as a matter of law.6 B. Post
- Judgment Motion for Leave to Amend We review the “denial of a postjudgment motion for leave to replead for abuse of discretion.” Williams v. Citigroup Inc. , 659 F.3d 208, 212 (2d Cir. 2011). But we review de

novo the denial of such a motion “on the grounds that amendment would be futile.” Jackson v. Abernathy , 960 F.3d 94, 97 (2d Cir. 2020). “An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Luc ente v. Int’l Bus. Machs. Corp. , 310 F.3d 243, 258 (2d Cir. 2002). Plaintiffs argue that the district court abused its discretion in denying their post

- judgment motion for leave to amend in large part because they were not afforded an opportunity to repl ead. Again, we disagree. The district court properly denied Plaintiffs’ motion for leave to amend because Plaintiffs’ proposed amendments as to their remaining claims would be futile. “In the ordinary course, the Federal Rules of Civil Procedure provide that courts ‘should freely give leave’ to amend a complaint ‘when justice so requires.’” Williams , 659 F.3d at 212 (quoting Fed. R. Civ. P. 15(a)(2)). “Where, however, a party does not seek leave to file an amended complaint until after judgment is enter ed, Rule 15’s liberality must be tempered by considerations of finality.” Id. at 213. Thus, “[a]s a procedural matter, ‘[a] party seeking to file an amended complaint postjudgment must first have the judgment vacated or set aside pursuant to [Rules] 59(e ) or 60(b).’” Id. (quoting Ruotolo v. City of New York , 514 F.3d 184, 191 (2d Cir. 2008)). We have held that “it is an abuse of discretion to deny a motion under Rule 59(e) . . . when the plaintiff was never given an opportunity to replead in the first p lace.” Metzler Inv. Gmbh v. Chipotle Mexican Grill, Inc. , 970 F.3d 133, 144 (2d Cir. 2020). But even when a plaintiff has not had one such opportunity, a district court may properly deny her post

- judgment motion for leave to amend if her proposed amendme nts would be futile. See Williams , 659 F.3d7 at 214 (“It is well established that leave to amend need not be granted where the proposed amendment would be futile.” (internal quotation marks and alterations omitted)). Here, Plaintiffs’ proposed amended complaint includes additional factual allegations pertaining to their claims for copyright infringement and a new claim under Section 43(a) of the Lanham Act for false endorseme nt. Plaintiffs’ amended copyright claims fail for the same reasons their original copyright claims failed. As highlighted above, the district court properly dismissed Plaintiffs’ copyright infringement claims after a careful review of the works, in their entirety, led it to conclude they are not substantially similar as a matter of law. No amount of repleading can remedy this deficiency. See Gaito , 602 F.3d at 64

– 65 (holding that courts may resolve the issue of substantial similarity as a matter of law at the pleadings stage based on a complete review of the works at issue). Plaintiffs’ Lanham Act claim suffers from a similar flaw. To state a claim for false endorsement under Section 43(a) of the Lanham Act, a plaintiff must plausibly allege: “(1) that the mark . . . is distinctive as to the source of the good or service at i ssue, and (2) that there is [a] likelihood of confusion between the plaintiff’s good or service and that of the defendant.” See Electra v. 59 Murray Enters., Inc. , 987 F.3d 233, 257 (2d Cir. 2021) (internal quotation marks omitted). As to the second of t hese elements, a court may dismiss a Section 43(a) claim “as a matter of law where the court is satisfied that the products or marks are so dissimilar that no question of fact is presented.” Pirone v. MacMillan, Inc. , 894 F.2d 579, 584 (2d Cir. 1990) (in ternal quotation marks omitted). We have previously explained that “the absence of substantial similarity leaves little basis for asserting a likelihood of confusion or palming off for purposes of a claim under [S]ection 43(a) of the Lanham Act.” See War ner Bros. Inc. v. Am. Broad. Cos. , 720 F.2d 231, 246 (2d Cir. 1983) (internal quotation marks omitted). Given the8 absence of substantial similarity here

— and, indeed, given the considerable dissimilarity between Dr. Rhoades in Billions and the fictionalize d version of Shull in Market Mind Games

— Plaintiffs “cannot possibly show confusion as to source or sponsorship” sufficient to state a claim under Section 43(a) of the Lanham Act. Pirone , 894 F.2d at 585 (internal quotation marks omitted). Accordingly, the district court properly denied Plaintiffs’ post

- judgment motion for leave to amend.

* * * We have considered Plaintiffs’ remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk