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Are Rule 12(b)(6) Dismissals In Copyright Infringement Lawsuits In Danger?
Federal district courts in the U.S. Courts of Appeals for the Second and Ninth Circuits have regularly granted Rule 12(b)(6) dismissals of copyright infringement lawsuits against motion pictures and other literary works if, following review of the works in issue, the court determines the plaintiff cannot plausibly state a claim of copyright infringement because the two works are not substantial similar.
Motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure are typically confined to the allegations in the pleadings. However, consistent with the law in other circuits, the Second and Ninth Circuits permit consideration of documents incorporated by reference in or integral to the allegations in a complaint in resolving Rule 12(b)(6) motions. See, e.g., Peter F. Gaito Architecture LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010); Knieval v. ESPN, 393 F.3d 1068 (9th Cir. 2005). Under this rule, courts regularly review the allegedly infringed and infringing works on Rule 12(b)(6) motions.
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