NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JON ASTOR

- WHITE, an individual,

Plaintiff

- Appellant,

v. DANIEL WILLIAM STRONG, AKA Strong; et al.,
Defendants

- Appellees. No. 19

- 55735
D.C. No. 2:15

- cv - 06326

- PA

- RAO

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Submitted August 21 , 2020 * * San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Jon Astor

- White appeals from the district court’s Rule 12(b)(6) dismissal of his amended c omplaint for copyright infringement. Astor

- White claims that the defendants’ ( Fox ) television series E mpire infringed his copyright ed treatment of a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 

# FILED

AUG 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

television series , King Solomon

. The parties are familiar with the facts, so we do not repeat them here. We affirm. A panel of our court previously held that Astor

- White’s First Amended Complaint did not state a claim for copyright infringement, but remanded the case
to afford Astor

- White opportunity to amend the complaint

. See Astor

- White v. Strong , 733 F. App’x 407 , 407

– 08 (9th Cir. 2018). He was given two additional opportunities to amend the complaint, but the Third Amended Complaint still fails to plausibly allege that Fox actually “ copied ” and “unlawful [ly] appropriate [d] ” King Solomon

. Skidmore v. Led Zeppelin , 952 F .3d 1051, 1064 (9th Cir. 2020) (en banc)

. Astor

- White does not adequately allege actual copying. King Solomon was not “widely disseminated”; it was share d w ith only three people

. Three Boys Music Corp. v. Bolton , 212 F.3d 477, 482 (9th Cir. 2000), overruled on other grounds by Skidmore , 952 F.3d 1051

. And Astor

- White ’s mere allegation that
th ose three p eople and he had a “working relationship” with or “move [ed] in similar circles” as Fox does not establish that Fox had a “reasonable opportun ity or reasonable possibility of viewing ” King Solomon

. Id. (internal quotation marks omitted). Nor d oes Astor

- White plead similarities that are probative of copying

— rather than “coincidence, independent creation, or prior common source”

— such
that we could reasonabl y infer that Fox copied King Solomon

. Skidmore , 952 F.3d3

at 1064 (quotation omitted)

. Astor

- White also fails to plausibly allege that Fox unlawfully appropriated King Solomon because the works do not share similarities in protectable
expre ssion

. See id. The additional alleged similaritie s are forms of literary expression that are unprotectable as a matter of law. See , e.g. , Berkic v. Crichton , 761 F.2d 1289, 1293 (9th Cir. 1985) (“all situations and incidents which flow naturally from a basic plot premise”); Cavalier v. Random House, Inc. , 297 F.3d 815, 823 (9th Cir. 2002) (“ [f] amiliar stock scenes and themes”). Nor does Astor

White allege similarity in the “ particular way in which the artistic elements form a coherent p attern, synthesis, or design.” Skidmore , 952 F.3d at 1074. T he district
court correctly conclude d as part of the extrinsic test th at the two works only share unprotectable “ideas and concepts, material in the public domain, and sc è nes à faire

. ” Rentmee s ter v. Nike, Inc. , 883 F.3d 1111, 1118 (9th Cir. 2018) , overruled on other ground

s by Skidmore , 952 F.3d 1051

. Astor

- White does not state a viable claim for copyright infringement.
The district court did not abuse its discretion in refusing leave to amend. See Rich v. Shrader , 823 F.3d 1205, 1209 (9th Cir. 2016) ( after “two opportunities to amend,” the district court has “wide discretion in granting or refusing leave to amend” (inte rnal quotation marks and citations omitted)).
AFFIRMED.