Case: 18-55635, 03/16/2020, ID: 11630408, DktEntry: 43-1, Page 1 of 15
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`No. 18-55635
`
`D.C. No.
`2:17-cv-04527-
`PSG-SK
`
`
`OPINION
`
`DENISE DANIELS; THE MOODSTERS
`COMPANY,
`
`Plaintiffs-Appellants,
`
`
`
`v.
`
`
`THE WALT DISNEY COMPANY; DISNEY
`ENTERPRISES, INC.; DISNEY
`CONSUMER PRODUCTS AND
`INTERACTIVE MEDIA INC.; DISNEY
`INTERACTIVE STUDIOS, INC.; DISNEY
`SHOPPING, INC.; PIXAR,
`Defendants-Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Philip S. Gutierrez, District Judge, Presiding
`
`Argued and Submitted November 6, 2019
`Pasadena, California
`
`Filed March 16, 2020
`
`
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`
`
`
`No. 18-55635
`
`D.C. No.
`2:17-cv-04527-
`PSG-SK
`
`
`OPINION
`
`DENISE DANIELS; THE MOODSTERS
`COMPANY,
`
`Plaintiffs-Appellants,
`
`
`
`v.
`
`
`THE WALT DISNEY COMPANY; DISNEY
`ENTERPRISES, INC.; DISNEY
`CONSUMER PRODUCTS AND
`INTERACTIVE MEDIA INC.; DISNEY
`INTERACTIVE STUDIOS, INC.; DISNEY
`SHOPPING, INC.; PIXAR,
`Defendants-Appellees.
`
`
`
`Appeal from the United States District Court
`for the Central District of California
`Philip S. Gutierrez, District Judge, Presiding
`
`Argued and Submitted November 6, 2019
`Pasadena, California
`
`Filed March 16, 2020
`
`
`
`
`
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`
`2
`
`
`DANIELS V. THE WALT DISNEY CO.
`
`Before: Jerome Farris, M. Margaret McKeown, and
`Barrington D. Parker, Jr.,* Circuit Judges.
`
`Opinion by Judge McKeown
`
`
`SUMMARY**
`
`Copyright
`
`
`
`
`The panel affirmed the district court’s dismissal of an
`
`action alleging copyright infringement by the Disney movie
`Inside Out of plaintiffs’ characters called The Moodsters.
`
` Affirming the denial of plaintiff’s claim under the
`Copyright Act, the panel held that The Moodsters, lightly
`sketched anthropomorphized characters representing human
`emotions, did not qualify for copyright protection because
`they lacked consistent, identifiable character traits and
`attributes and were not especially distinctive.
` The
`Moodsters also did not qualify for copyright protection
`under the alternative “story being told” test.
`
`The panel also affirmed the district court’s denial of
`
`plaintiff’s claim for breach of an implied-in-fact contract
`under California law, based on her disclosure of information
`
`
`* The Honorable Barrington D. Parker, Jr., United States Circuit
`Judge for the U.S. Court of Appeals for the Second Circuit, sitting by
`designation.
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
`
`3
`
`
`
`about The Moodsters to various employees of Disney and its
`affiliates.
`
`
`
`COUNSEL
`
`
`Patrick Arenz, Esq.(argued), Ronald J. Schutz and Brenda L.
`Joly, Robins Kaplan LLP, Minneapolis, Minnesota, for
`Plaintiffs-Appellants.
`
`Mark Remy Yohalem, Esq. (argued), Glenn D. Pomerantz,
`Erin J. Cox, Kenneth M. Trujillo-Jamison, and Anne K.
`Conley, Munger, Tolles & Olson LLP, Los Angeles,
`California, for Defendants-Appellees.
`
`
`
`OPINION
`
`
`McKEOWN, Circuit Judge:
`
`Literary and graphic characters—from James Bond to
`the Batmobile—capture our creative imagination. These
`characters also may enjoy copyright protection, subject to
`certain limitations. Here we consider whether certain
`anthropomorphized characters representing human emotions
`qualify for copyright protection. They do not. For guidance,
`we turn to DC Comics v. Towle, our court’s most recent
`explanation of the copyrightability of graphically-depicted
`characters. DC Comics v. Towle, 802 F.3d 1012 (9th Cir.
`2015).
`
`Denise Daniels developed a line of anthropomorphic
`characters called The Moodsters, which she pitched to
`entertainment and toy companies around the country,
`including The Walt Disney Company. Under Towle, “lightly
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
`
`4
`
`sketched” characters such as The Moodsters, which lack
`“consistent, identifiable character traits and attributes,” do
`not enjoy copyright protection. Id. at 1019, 1021. We affirm
`the district court’s dismissal of Daniels’s complaint.
`
`BACKGROUND
`
`I. The Moodsters
`
`Daniels is an expert on children’s emotional intelligence
`and development. She designed and promoted initiatives
`that help children cope with strong emotions like loss and
`trauma. The Moodsters were devised as a commercial
`application of this work. Daniels hired a team to produce
`and develop her idea under the umbrella of her new
`company, The Moodsters Company. The initial product was
`The Moodsters Bible (“Bible”), a pitchbook released in
`2005. It provided a concise way to convey Daniels’s idea to
`media executives and other potential collaborators, and
`included a brief description of the characters, themes, and
`setting that Daniels envisioned for her Moodsters universe.
`
`The Moodsters are five characters that are color-coded
`anthropomorphic emotions, each representing a different
`emotion: pink (love); yellow (happiness); blue (sadness); red
`(anger); and green (fear). Daniels initially named The
`Moodsters Oolvia, Zip, Sniff, Roary, and Shake, although
`these names changed in each iteration of the characters.
`
`In 2007, Daniels and her team released a 30-minute pilot
`episode for a television series featuring The Moodsters,
`titled “The Amoodsment Mixup” (“pilot”). The pilot was
`later available on YouTube.
`
`Between 2012 and 2013, Daniels and her team
`developed what they call the “second generation” of
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
`
`
`
`Moodsters products: a line of toys and books featuring The
`Moodsters that were sold at Target and other retailers
`beginning in 2015.
`
`5
`
`Daniels and The Moodsters Company pitched The
`Moodsters to numerous media and entertainment companies.
`One recurring target was The Walt Disney Company and its
`affiliates, including Pixar. Daniels alleges that she or a
`member of her team had contact with several different
`Disney employees between 2005 and 2009.
`
`The claimed contact began in 2005, when a member of
`The Moodsters Company shared information about The
`Moodsters with an employee of Playhouse Disney. Daniels
`alleges that in 2008 she was put in touch with Thomas
`Staggs, the Chief Financial Officer of the Walt Disney
`Company, and that Staggs later informed her that he would
`share materials about The Moodsters with Roy E. Disney,
`the son of a Disney founder, and Rich Ross, the President of
`Disney Channels Worldwide. Finally, Daniels alleges that
`she spoke by phone with Pete Docter, a director and
`screenwriter, and they discussed The Moodsters, although
`no year or context for this conversation is alleged in the
`Complaint.
`
`II. Disney’s Inside Out
`
`Disney began development of its movie Inside Out in
`2010. The movie was released in 2015, and centers on five
`anthropomorphized emotions that live inside the mind of an
`11-year-old girl named Riley. Those emotions are joy, fear,
`sadness, disgust, and anger. Docter, who directed and co-
`wrote the screenplay, stated that his inspiration for the film
`was the manner with which his 11-year-old daughter dealt
`with new emotions as she matured.
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
`
`6
`
`III. District Court Proceedings
`
`Daniels filed suit against Disney in 2017 for breach of an
`implied-in-fact contract, arising from Disney’s failure to
`compensate Daniels for the allegedly disclosed material used
`to develop Inside Out. Daniels then filed an amended
`complaint, joining The Moodsters Company as a co-plaintiff
`and alleging copyright infringement of both the individual
`Moodsters characters and the ensemble of characters as a
`whole.
`
`Disney filed a motion to dismiss, asserting that Daniels
`failed to meet the legal standard for copyright in a character,
`and that the copyright “publication” of the Bible and pilot
`doomed Daniels’s implied-in-fact contract claim. The
`district court granted Disney’s motion to dismiss, and
`granted Daniels leave to file an amended complaint on the
`copyright claims. Disney filed a motion to dismiss the
`Amended Complaint, which the district court granted on the
`ground that The Moodsters are not protectable by copyright.
`
`ANALYSIS
`
`I. Copyright Protection for The Moodsters
`
`enumerated
`an
`not
`are
`characters
`Although
`copyrightable subject matter under the Copyright Act, see 17
`U.S.C. § 102(a), there is a long history of extending
`copyright protection to graphically-depicted characters. See,
`e.g., Olson v. Nat’l Broad. Co., 855 F.2d 1446, 1452 (9th
`Cir. 1988); Walt Disney Prods. v. Air Pirates, 581 F.2d 751,
`755 (9th Cir. 1978). However, “[n]ot every comic book,
`television, or motion picture character is entitled to
`copyright protection.” Towle, 802 F.3d at 1019. A character
`is entitled to copyright protection if (1) the character has
`“physical as well as conceptual qualities,” (2) the character
`
`
`
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`
`7
`
`DANIELS V. THE WALT DISNEY CO.
`
`
`
`is “sufficiently delineated to be recognizable as the same
`character whenever it appears” and “display[s] consistent,
`identifiable character traits and attributes,” and (3) the
`character is “especially distinctive” and “contain[s] some
`unique elements of expression.” Id. at 1021 (internal
`citations and quotation marks removed).
`
`A. Application of the Towle Test to The Moodsters
`
`Disney does not dispute that the individual Moodster
`characters meet the first prong of the Towle test: each has
`physical as well as conceptual qualities. Because they have
`physical qualities, The Moodsters are not mere literary
`characters.
`
`The second prong presents an insurmountable hurdle for
`Daniels.
` Towle requires
`that a character must be
`“sufficiently delineated to be recognizable as the same
`character whenever it appears.” Id. Although a character
`that has appeared in multiple productions or iterations “need
`not have a consistent appearance,” it “must display
`consistent, identifiable character traits and attributes” such
`that it is recognizable whenever it appears. Id.
`
`Consistently recognizable characters like Godzilla or
`James Bond, whose physical characteristics may change
`over various iterations, but who maintain consistent and
`identifiable character traits and attributes across various
`productions and adaptations, meet the test. See Tono Co. v.
`William Morrow & Co., 33 F. Supp. 2d 1206, 1215 (C.D.
`Cal. 1998) (finding that Godzilla is consistently a “pre-
`historic, fire-breathing, gigantic dinosaur alive and well in
`the modern world”), Metro-Goldwyn-Mayer, Inc. v. Am.
`Honda Motor Corp., 900 F. Supp. 1287, 1296 (C.D. Cal.
`1995) (noting that James Bond has consistent traits such as
`“his cold-bloodedness; his overt sexuality; his love of
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
`
`8
`
`martinis ‘shaken, not stirred;’ his marksmanship; his ‘license
`to kill’ and use of guns; his physical strength; his
`sophistication”). By contrast, a character that lacks a core
`set of consistent and identifiable character traits and
`attributes is not protectable, because that character is not
`immediately recognizable as the same character whenever it
`appears. See, e.g., Olson, 855 F.2d at 1452–53 (holding that
`television characters from “Cargo” are
`too “lightly
`sketched” to be independently protectable by copyright).
`
`In addressing The Moodsters, we first distinguish
`between the idea for a character and the depiction of that
`character. The notion of using a color to represent a mood
`or emotion is an idea that does not fall within the protection
`of copyright. See 17 U.S.C. § 102(b) (“In no case does
`copyright protection for an original work of authorship
`extend to any idea . . . regardless of the form in which it is
`described, explained, illustrated, or embodied in such
`work.”); see also Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`499 U.S. 340, 344–45 (1991) (internal quotation marks and
`citation removed) (“The most fundamental axiom of
`copyright law is that no author may copyright his ideas ….”);
`Frybarger v. Int’l Bus. Mach. Corp., 812 F.2d 525, 529 (9th
`Cir. 1987) (“[I]deas themselves are not protected by
`copyright and cannot, therefore, be infringed.”). So it is no
`surprise that the idea of color psychology is involved in
`everything from decorating books to marketing and color
`therapy. Color and emotion are also frequent themes in
`children’s books, such as Dr. Seuss’s classic, My Many
`Colored Days, and Anna Llenas’s The Color Monster: A
`Story of Emotions.
`
`are not generally
`themselves
`colors
`Notably,
`copyrightable. Boisson v. Banian, 273 F.3d 262, 271 (2d
`Cir. 2001) (“Color by itself is not subject to copyright
`
`
`
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`9
`
`DANIELS V. THE WALT DISNEY CO.
`
`
`
`protection.”); see also 38 C.F.R. § 202.1(a) (“[M]ere
`variations of . . . coloring” are not copyrightable). Nor is the
`“idea” of an emotion copyrightable. See Feist, 499 U.S. at
`350. Taken together, these principles mean that Daniels
`cannot copyright the idea of colors or emotions, nor can she
`copyright the idea of using colors to represent emotions
`where these ideas are embodied in a character without
`sufficient delineation and distinctiveness.
`
`In analyzing whether The Moodster characters are
`“sufficiently delineated,” we carefully examine the graphic
`depiction of the characters and not the ideas underlying
`them. We look first to the physical appearance of The
`Moodsters. Unlike, for example, the Batmobile, which
`“maintained distinct physical and conceptual qualities since
`its first appearance in the comic books,” the physical
`appearance of The Moodsters changed significantly over
`time. Towle, 802 F.3d at 1021. In the 2005 Bible and 2007
`television pilot, the five Moodsters have an insect-like
`appearance, with skinny bodies, long ears, and tall antennas
`that act as “emotional barometers” to form a distinctive
`shape and glow when an emotion is strongly felt. By the
`second generation of toys, The Moodsters look like small,
`loveable bears.1 They are round and cuddly, have small ears,
`and each dons a detective’s hat and small cape. This
`physical transformation over time was not insubstantial, and
`it would be difficult to conclude that the 2005 Moodsters are
`the same characters as those sold at Target in 2015.
`
`
`1 Although the second generation of toys was developed between
`2012 and 2013—after Disney began to develop Inside Out in 2010—that
`iteration remains relevant because the Towle test asks whether a
`character has displayed “consistent, identifiable character traits and
`attributes” whenever it appears. 802 F.3d at 1021.
`
`
`
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`10
`
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`DANIELS V. THE WALT DISNEY CO.
`
`Mindful that physical appearance alone is not decisive,
`we also consider whether The Moodsters have maintained
`consistent character traits and attributes. Across the various
`iterations The Moodsters have consistently represented five
`human emotions, and those emotions have not changed. But
`other than the idea of color and emotions, there are few other
`identifiable character traits and attributes that are consistent
`over the various iterations. In the 2005 Bible, each character
`is described in a few short paragraphs. For example, the Zip
`character is described as having “an infectious laugh and
`wakes up each morning with a smile on his face and a
`friendly attitude.” By the 2007 pilot and the second
`generation of toys, these characteristics are not mentioned
`and are not evident from the depiction of Zip. “Lightly
`sketched” characters of this kind, without identifiable
`character traits, are not copyrightable under the second
`prong of Towle. See id. at 1019 (citing Olson, 855 F.3d at
`1452–53).
`
`Perhaps the most readily identifiable attribute of The
`Moodsters is their relationship to emotions. The 2005 Bible
`explains that each character relates to emotions in its own
`way when something new happens—the “anger” Moodster
`might become angry, whereas the “sad” Moodster might
`become sad. The Moodsters behave in a similar fashion in
`the 2007 pilot, where each character is especially prone to a
`particular emotion such as anger or sadness. But by 2015,
`the five Moodsters are “mood detectives,” and help a young
`boy uncover how he feels about situations in his life.
`
`Finally, in every iteration the five Moodsters each have
`a completely different name. For example, the red/anger
`Moodster was originally named Roary in the 2005 Bible,
`then Rizzi in the 2007 pilot, and as of 2015 was named Razzy
`in Moodsters toys and the Meet the Moodsters storybook.
`
`
`
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`11
`
`DANIELS V. THE WALT DISNEY CO.
`
`
`
`The other four characters have gone through similar name
`changes over the three iterations. While a change of name is
`not dispositive in our analysis, these changes across the three
`iterations further illustrate that Daniels never settled on a
`well-delineated set of characters beyond their representation
`of five human emotions.
`
`The Batmobile in Towle again provides a useful contrast
`to this case. There, we recognized that from the time of the
`1966 television series to the 1989 motion picture, the
`Batmobile had numerous
`identifiable and consistent
`character traits and attributes. It was always a “crime-
`fighting car” that allowed Batman to defeat his enemies.
`Towle, 802 F.3d at 1021. It consistently had jet-engines and
`far more power than an ordinary car, the most up-to-date
`weaponry, and the ability to navigate through landscapes
`impassible for an ordinary vehicle. Id. at 1021–22. Beyond
`the emotion it represents, each Moodster lacks comparable
`identifiable and consistent character traits and attributes
`across iterations, thus failing the second prong of the Towle
`test.
`
`Finally, even giving Daniels the benefit of the doubt on
`Towle’s second prong, we conclude that The Moodsters fail
`the third prong—they are not “especially distinctive” and do
`not “contain some unique elements of expression.” Id.
`(internal quotation marks and citations removed). Daniels
`identifies The Moodsters as unique in that they each
`represent a single emotion. But this facet is not sufficient to
`render them “especially distinctive,” particularly given their
`otherwise generic attributes and character traits. In contrast,
`the Batmobile in Towle had a “unique and highly
`recognizable name,” unlike each Moodster, which had three
`entirely different names. Id. at 1022. Developing a
`character as an anthropomorphized version of a specific
`
`
`
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`
`DANIELS V. THE WALT DISNEY CO.
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`12
`
`to establish a
`itself,
`in
`is not sufficient,
`emotion
`copyrightable character. See Rice v. Fox Broad. Co., 330
`F.3d 1170, 1175 (9th Cir. 2003) (declining to extend
`copyright protection to “the magician … dressed in standard
`magician garb—black tuxedo with tails, a while tuxedo shirt,
`a black bow tie, and a black cape with red lining” whose role
`is “limited to performing and revealing magic tricks”).
`Taken
`together, The Moodsters are not “especially
`distinctive,” and do not meet the third prong of the Towle
`test.
`
`B. The Story Being Told Test
`
`Since the 1950s, we have also extended copyright
`protection to characters—both literary and graphic—that
`constitute “the story being told” in a work. Warner Bros.
`Pictures v. Columbia Broad. Sys., 216 F.2d 945, 950 (9th
`Cir. 1954); see also Rice, 330 F.3d at 1175–76; Halicki
`Films, LLC v. Sanderson Sales & Mktg., 547 F.3d 1213,
`1224 (9th Cir. 2008). A character is not copyrightable under
`this test where “the character is only the chessman in the
`game of telling the story.” Warner Bros. Pictures, 216 F.2d
`at 950. This is a high bar, since few characters so dominate
`the story such that it becomes essentially a character study.
`
`Warner Brothers and Towle are two different tests for
`character copyrightability. See Rice, 330 F.3d at 1175
`(“characters that are ‘especially distinctive’ or the ‘story
`being told’ receive protection apart from the copyrighted
`work” (emphasis added)). Thus, we do not embrace the
`district court’s view that Towle represents the exclusive test
`for copyrightability.
`
`The Warner Brothers test is therefore available, but it
`affords no protection to The Moodsters. Neither the Bible
`nor the pilot episode exhibits any prolonged engagement
`
`
`
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`13
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`DANIELS V. THE WALT DISNEY CO.
`
`
`
`with character development or a character study of The
`Moodsters. Although the characters are introduced in the
`Bible, along with short descriptions, these pithy descriptions
`do not constitute the story being told. The pilot contains
`even less character development—rather, each of The
`Moodsters serves primarily as a means by which particular
`emotions are introduced and explored. The Moodsters are
`mere chessmen in the game of telling the story.
`
`Daniels’s final argument is that even if the individual
`Moodsters are not protectable under the Towle or “story
`being told” regimes, the ensemble of five characters together
`meets one or both of those tests. Daniels’s ensemble claim
`does not change the distinctiveness or degree of delineation
`of the characters, and so The Moodsters as an ensemble are
`no more copyrightable than the individual characters.
`
`The district court did not err in dismissing Daniels’s
`claims for copyright infringement.
`
`II. Implied-in-Fact Contract
`
`Daniels also puts forth a claim for breach of an implied-
`in-fact contract. Under California law, a plaintiff can
`recover compensation for an idea conveyed to a counter-
`party where no explicit contract exists only where (1)
`“before or after disclosure he has obtained an express
`promise to pay,” or (2) “the circumstances preceding and
`attending disclosure, together with the conduct of the offeree
`acting with knowledge of the circumstances, show a promise
`of the type usually referred to as ‘implied’ or ‘implied-in-
`fact.’” Desny v. Wilder, 46 Cal. 2d 715, 738 (1956). The
`Ninth Circuit has developed a multi-part test to evaluate
`Desny claims, asking whether (1) the plaintiff prepared or
`created the work in question, (2) the work was disclosed to
`the defendant for sale, and (3) the disclosure was made
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
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`14
`
`“under circumstances from which it could be concluded that
`the offeree voluntarily accepted the disclosure knowing the
`conditions on which it was tendered and the reasonable value
`of the work.” Grosso v. Miramax Film Corp., 383 F.3d 965,
`967 (9th Cir. 2004).
`
`Daniels’s implied-in-fact contract claim is based on the
`disclosure of information about The Moodsters to various
`employees of Disney and its affiliates between 2005 and
`2009. These discussions were a part of Daniels’s effort to
`find a partner with whom she could develop and grow the
`Moodsters brand and commercial opportunities.
`
`There is no dispute that Daniels created the characters in
`question, and we accept as true that the alleged conversations
`took place. But the existence of a conversation in which an
`idea is disclosed is, by itself, an insufficient basis to support
`an implied-in-fact contract.
`
`Daniels alleges that “she was aware and relied on
`customs and practices in the entertainment industry when
`she approached Disney˖Pixar about a partnership,” and that
`“Disney˖Pixar accepted the disclosure of the ideas in The
`Moodsters with an expectation that it would have to
`compensate Daniels and The Moodsters Company if
`Disney˖Pixar used this idea in any television, motion picture,
`merchandise, or otherwise.”
`
`But we are told no more. Daniels offers only bare
`allegations, stripped of relevant details that might support
`her claim for an implied-in-fact contract. No dates are
`alleged, and no details are provided. There is no basis to
`conclude that Disney either provided an express offer to pay
`for the disclosure of Daniels’s idea or that the disclosure was
`made “under circumstances from which it could be
`concluded that [Disney] voluntarily accepted the disclosure
`
`
`
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`DANIELS V. THE WALT DISNEY CO.
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`
`
`knowing the conditions on which it was tendered and the
`reasonable value of the work.” Id.
`
`15
`
`To survive a motion to dismiss, Daniels is required under
`California law to do more than plead a boiler-plate
`allegation, devoid of any relevant details. The district court
`did not err in dismissing Daniels’s claim for an implied-in-
`fact contract.
`
`CONCLUSION
`
`There is no dispute that the 2005 Moodsters Bible and
`the 2007 pilot television episode are protected by copyright.
`But Daniels cannot succeed on her copyright claim for The
`Moodsters characters, which are “lightly sketched” and
`neither sufficiently delineated nor representative of the story
`being told. Daniels also fails to allege sufficient facts to
`maintain an implied-in-fact contract claim against Disney
`under California law.
`
`AFFIRMED.
`
`
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