19-3665

Montgomery v. Holland 

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 ASUMMARY ORDER@). 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 12th day of November, two thousand twenty.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

JOSÉ A. CABRANES,

GERARD E. LYNCH,

Circuit Judges.

_______________________________________

Wilhelmina “Mina” Montgomery,

Plaintiff-Appellant,

v. 19-3665

NBC Television, Lionsgate Entertainment 

Corporation, Scott Abbott, Cinestar Pictures, 

LLC, James Wong, Robert Bernacchi, Alixandre 

Witlin, Joshua D. Maurer, Mariel Saldana, Zoe 

Saldana, Netflix, Inc., City Entertainment, 

Kippster Entertainment, Lionsgate Television, 

NBC Universal Media, LLC,

Defendants-Appellees,

Agnieszka Holland, David A. Stern, Time 

Warner, Inc., Cicely Saldana, Tom Patricia, 

Federation Entertainment, Liaison Films, Kasia 

Adamik,
2

Defendants.

_______________________________________

FOR PLAINTIFF-APPELLANT: Wilhelmina ”Mina” 

Montgomery, pro se,

Brooklyn, NY.

FOR DEFENDANTS -APPELLEES: Tom J. Ferber, Ross M. 

Bagley, Pryor Cashman LLP, 

New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Broderick, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Appellant Wilhelmina “Mina” Montgomery, proceeding pro se, sued companies and 

individuals associated with a two-part miniseries called “Rosemary’s Baby,” alleging that the 

miniseries infringed on her copyright on two short stories, Drowning Paris in Mississippi Tears 

or The Groaning Road: The True Story (the “True Story”) and Drowning Paris in Mississippi 

Tears or The Groaning Road: A Synopsis of the Fictionalized Story (the “Fictionalized Story”). 

The district court dismissed the complaint, finding that no infringement occurred because the 

miniseries was not substantially similar to the short stories. Montgomery appeals the dismissal 

moves to strike the appellees’ brief, and moves to view purportedly sealed documents.

1 We 

1 Montgomery’s motion to strike appellees’ brief is denied; the brief was filed in accordance with 

our scheduling order. In addition, Montgomery’s motion to view “sealed documents” is moot, 

because (despite the notation on the docket) there are no sealed documents in this case. The items 

in question are not retrievable from the electronic docket because they are not ordinary documents 

but physical exhibits such as a copy of the Ira Levin novel and DVDs of the Roman Polanski film 
3

assume the parties’ familiarity with the underlying facts, the procedural history of the case, and 

the issues on appeal.

We review de novo both a district court’s grant of a motion to dismiss under Fed. R. Civ. 

P. 12(b)(6) and its grant of a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 

12(c). See Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010) (Rule 

12(c)); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (Rule 12(b)(6)). “In 

deciding Rule 12(c) motions, we employ the same standard applicable to Rule 12(b)(6) motions to 

dismiss, accepting all factual allegations in the Complaint as true and drawing all reasonable 

inferences in the nonmoving party’s favor.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 

72, 78 (2d Cir. 2015) (internal quotation marks and alterations omitted). To survive either motion, 

a plaintiff’s complaint “must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” WC Capital Mgmt., LLC v. UBS Secs., LLC, 711 F.3d 322, 

328 (2d Cir. 2013). In addition to the complaint, we may consider “any written instrument 

attached to it as an exhibit or . . . documents incorporated in it by reference.” Cortec Indus., Inc. 

v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). Pro se filings are liberally construed to raise 

the strongest arguments they suggest. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). 

To state a claim for copyright infringement, a “copyright owner must demonstrate that 

(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 

plaintiff’s.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 110 (2d Cir. 2001) (internal 

and the miniseries itself. The record reflects that Montgomery was served with the items in 

question.
4

quotation marks omitted) (emphasis in original). Here, the district court only considered the issue 

of substantial similarity.2

 See Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir.1986) 

(declining to decide the issue of actual copying because no substantial similarity existed between 

the two works). 

The test for substantial similarity is “whether, in the eyes of the average lay observer, [one 

work is] substantially similar to the protectible expression in the [other].” Williams v. Crichton, 

84 F.3d 581, 587 (2d Cir. 1996). One cannot copyright ideas, scenes a faire,

3 or stock characters

and themes. Id. at 587–88. In evaluating substantial similarity, “we are principally guided by 

comparing the contested design’s total concept and overall feel with that of the allegedly infringed 

work.” Peter F. Gaito Architecture LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) 

(internal quotation marks omitted). In addition, we consider commonalities in the works’ “theme, 

characters, plot, sequence, pace, and setting.” Williams, 84 F.3d at 588. The absence of 

substantial similarity can be decided as a matter of law on a motion to dismiss. Peter F. Gaito 

Architecture LLC, 602 F.3d at 64.

Here, the “total concept and overall feel” of the miniseries is very different from the two 

short stories. Id. at 66 (internal quotation marks omitted). The True Story is a naturalistic 

character sketch that closes with the mysterious disappearance of the narrator’s close friend after 

2 Accordingly, the district court’s description of Montgomery’s stories as “unpublished” played 

no role in its analysis, and any error on that point would have been harmless. Likewise, 

Montgomery’s arguments regarding Holland’s access to her work miss the mark because access is 

probative of actual copying, but not substantial similarity. See Boisson v. Banian, Ltd, 273 F.3d 

262, 267–68 (2d Cir. 2001).

3 Scenes a faire are “sequences of events which necessarily follow from a common theme” or 

“plot situation[].” Reyher v. Children’s Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976).
5

he moves in with a pair of elderly Nazis. The Fictionalized Story appears to be the opening 

portion of a Nazi-hunting thriller. By contrast, the miniseries is a horror story in which a group 

of Satanists employ supernatural powers to commit gruesome murders, and rape and impregnate 

the protagonist.4 

Montgomery argues that the district court failed to apply the “pattern” test, under which, 

she contends, the works are substantially similar. This test conceives of a copyright as 

“cover[ing] the ‘pattern’ of [a] work . . . the sequence of events, and the development of the 

interplay of characters.” Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 240 n.7 (2d 

Cir. 1983) (quoting Zechariah Chafee, Jr., Reflections on the Law of Copyright, 45 Colum. L. Rev. 

503, 513–14 (1945)) (ellipses in original). She also argues that the district court overlooked 

significant similarities between the miniseries and her short stories, including the “plot, the 

verbatim dialogue within similar scenes spoken by similar characters in a similar settings, [and] 

the exact dates in the . . . works.” Appellants’ Br. at 24. Given the absence of any recognizable 

similarity between the protectable elements of the works, these arguments are unavailing. 

A review of the three works at issue in this case reveals that their plots are entirely 

dissimilar. Montgomery identified common plot elements in her amended complaint—including 

an interracial friendship, an investigation, a mysterious disappearance, and an incident involving 

a strange photograph. But her list merely “emphasizes random similarities scattered throughout 

the works,” and such a list “cannot support of finding of substantial similarity because it fails to 

4 Although the miniseries is based largely on Ira Levin’s 1967 novel Rosemary’s Baby and the 

subsequent 1968 theatrical motion picture of the same name, directed by Roman Polanski, the 

district court did not review those works or consider their relationship to the miniseries, since the 

question of copying was not before it.
6

address the underlying issue: whether a lay observer would consider the works as a whole 

substantially similar to one another.” Williams, 84 F.3d at 590 (internal quotation marks omitted). 

The portions of dialogue that Montgomery identified as “verbatim” in her complaint are limited to 

isolated word choices, short common phrases, and purportedly similar expressions of common 

ideas, such as the concept of feeling transported in time. But copyright protections “extend[] only 

to those components of a work that are original to the author”—that is, those that are 

“independently created by [the] author” and “come[] from the exercise of the creative powers of 

the author’s mind.” Boisson v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001). These isolated 

words, phrases, and concepts lack the originality required for copyright protection. Moreover, 

the settings of cafés, bridges crossing the Seine, apartments, and parties are all scenes a faire

arising from the works’ respective depictions of Americans living in Paris, and therefore are not 

protectable. Cf. Williams, 84 F.3d at 589 (while two works shared “a setting of a dinosaur zoo or 

adventure park, with electrified fences, automated tours, dinosaur nurseries, and uniformed 

workers, these settings are classic scenes a faire that flow from the uncopyrightable concept of a 

dinosaur zoo”). Finally, Montgomery’s allegations regarding common significant dates in the 

works are difficult to follow. She largely appeared to draw connections between dates or spans 

of time appearing in the miniseries (or associated with its production) and events in her own life, 

rather than within her copyrighted work. Montgomery also appeared to argue that all three works 

refer to a disappearance that occurred in the 1980s. Like the other alleged similarities, this is a 

trivial element of the works and is not an original expression protectable by copyright. See 

Boisson, 273 F.3d at 268.

In sum, the district court properly concluded that no reasonable jury could find that the 
7

similarities between the works were sufficient to prove “a substantial similarity exists between the 

[miniseries] and the protectible elements of [the short stories].” Yurman Design, Inc., 262 F.3d 

at 110. The absence of substantial similarity is dispositive of Montgomery’s copyright claims, 

regardless of the identity of the defendants. Accordingly, to the extent that Montgomery 

challenges the district court’s decisions dismissing unserved defendants and striking her second 

amended complaint, which attempted to add defendants, any error by the district court was

harmless. Montgomery’s arguments regarding the time she was granted to file her brief in this 

Court have no bearing on whether the district court erred in dismissing her complaint and do not 

compel a different result: she does not identify any arguments that she was unable to raise in her 

brief, and she did not request leave to file an amended complaint. 

We have considered all of Montgomery’s remaining arguments and find them to be without 

merit. Accordingly, we AFFIRM the judgment of the district court, DENY Montgomery’s 

motion to strike the appellees’ brief, and DENY as moot Montgomery’s motion for us to consider 

purportedly sealed records in the district court docket and her motion to view the same.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court