Order Granting Motion To Dismiss Royal Palm's Complaint

Case 2:17-cv-02336-PSG-FFM Document 39 Filed 08/17/17 Page 1 of 8 Page ID #:702
UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA JS-6
CIVIL MINUTES - GENERAL
Case No. CV 17-2336 PSG (FFMx) Date August 17, 2017
Title Royal Palm Filmworks, Inc. v. Fifty-Six Hope Road Music, Ltd. et al.
Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy Hernandez Not Reported
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s):
Not Present Not Present
Proceedings (In Chambers): Order GRANTING Defendants Motion to Dismiss
Before the Court is Defendant Fifty-Six Hope Road Music, Ltd.s and Defendant Hope
Road Merchandising, LLCs motion to dismiss Plaintiff Royal Palm Filmworks, Inc.s
Complaint. See Royal Palm Filmworks, Inc. v. Fifty-Six Hope Road Music, Ltd. et al., CV 17-
2336 PSG (FFMx), Dkt. # 27 (Mot.). The Court finds this matter appropriate for decision
without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15. After considering the arguments in
the supporting and opposing papers, the Court GRANTS Defendants motion to dismiss.
I. Background
Defendants own and control the rights, assets, and property of the late singer Robert
Nesta Marley, known professionally and around the globe as Bob Marley. Mot. 2:12-14.
Plaintiff alleges that it intends to produce a motion picture based on an unpublished screenplay,
currently entitled Rebels, which embod[ies] fictional and artistic depictions of Marley.
Complaint, Dkt. # 1, 1 (Compl.).
On November 6, 2015, Defendants mailed a letter to Golden Island Filmworks Ltd.

(Golden Island), Plaintiffs affiliate, stating that the proposed motion picture was unauthorized
and that Golden Island did not have the right to create a biographical depiction of Bob Marley,
or to otherwise exploit his music, name, image, likeness or other works. Id. 3, Ex. 2 at 1.
This was followed soon after by another letter informing Plaintiff that certain rights to Marleys
songs that Golden Island had purportedly acquired were in fact invalid, and that therefore any
use of Marleys songs in Plaintiffs film would infringe upon [Defendants] rights in and to the
Bob Marley music catalog. Id. 3, Ex. 3 at 5. (Royal Palm claims that it has no intention of
using such material in any future motion picture adaption of its draft screenplay. Id. 5(E).)
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CENTRAL DISTRICT OF CALIFORNIA

Additional letters of concern were received by Plaintiff in the following months. Id. 3, Exs. 4-
5.1
Plaintiff filed this action on March 26, 2017, seeking declaratory judgment that the
Defendants . . . have no right to cause any Interference with the production, distribution and
exploitation of Royal Palm Copyrights and that the Actionable Communications are not subject
to the California litigation privilege. Id. 20. These Royal Palm Copyrights specifically
include the following: the unpublished motion picture screenplay; a life story agreement by and
between Plaintiff and Graceamber Entertainment, Ltd. providing rights to music producer Danny
Simss life story; any and all derivative works based on the screenplay, life story rights, or
eventual film; and all other and related intellectual property. Id. 1(A)-(D). Plaintiff seeks a
declaration that Defendants may not prevent, enjoin, interfere with, restrict, claim any rights to
damages for any use thereof, by Royal Palm or its assignees based on alleged trademark or
copyright infringement, rights of privacy or publicity, California Civil Code Section 3344.1, or
otherwise. Id. 1.
On June 27, 2017, Plaintiff filed a motion for partial summary judgment. Dkt. # 30. On
June 29, the Court granted Defendants ex parte application and Plaintiffs motion was denied
without prejudice. Dkt. # 36.
On the same day that Plaintiff filed its motion for partial summary judgment, Defendants
filed this motion to dismiss, alleging lack of subject matter jurisdiction and failure to state a
claim for declaratory relief. In the alternative, Defendant requests a more definite statement of
Plaintiffs claims. See generally Mot.
II. Legal Standard
Federal courts have limited jurisdiction and therefore only possess power authorized by
Article III of the United States Constitution and statutes enacted by Congress pursuant thereto.2
1
The November 6 letter was not Defendants first brush with Plaintiffs film; on June 8, 2016,
Defendants mailed a letter to NTL Trust, which was apparently facilitating financing for the
film, requesting that it cease using images to which Defendants owned the rights when
promoting the project. Id. 3, Ex. 1. After receiving this letter, NTL removed the unauthorized
image from its website. Id. 3, Ex. 3 at 3.
2
It may be true that there aint no rules when one is jamming, but there are many rules
governing the jurisdiction of federal courts. See Bob Marley and the Wailers, Jamming, on



See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Thus, federal courts
cannot consider claims for which they lack subject matter jurisdiction. See Wang ex rel. United
States v. FMC Corp., 975 F.2d 1412, 1415 (9th Cir. 1992).
Federal Rule of Civil Procedure 12(b)(1) provides for a party, by motion, to assert the
defense of lack of subject-matter jurisdiction. This defense may be raised at any time, and the
Court is obligated to address the issue sua sponte. See Fed. R. Civ. P. 12(h)(1) (providing for
waiver of certain defenses but excluding lack of subject matter jurisdiction); Grupo Dataflux v.
Atlas Global Grp., L.P., 541 U.S. 567, 571 (2004) (Challenges to subject-matter jurisdiction
can of course be raised at any time prior to final judgment.); Moore v. Maricopa Cty. Sheriffs
Office, 657 F.3d 890, 894 (9th Cir. 2011) (The Court is obligated to determine sua sponte
whether it has subject matter jurisdiction.). The plaintiff bears the burden of establishing that
subject matter jurisdiction exists. See United States v. Orr Water Ditch Co., 600 F.3d 1152,
1157 (9th Cir. 2010). If the Court finds that it lacks subject matter jurisdiction at any time, it
must dismiss the action. See Fed. R. Civ. P. 12(h)(3).
Furthermore, the question of standing is an essential and unchanging part of the case-or-
controversy requirement of Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). Standing is not subject to waiver and therefore must be considered by the court
regardless of whether or not it is raised by the parties. United States v. Hays, 515 U.S 737, 742
(1995). For each claim and each form of relief, the burden lies on the plaintiff to establish
standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006); see also Hays, 515
U.S. at 743 (burden is on party seeking exercise of jurisdiction to clearly . . . allege facts
demonstrating that he is a proper party to invoke judicial resolution of the dispute.). To
establish standing, a party must demonstrate an invasion of a legally protected interest that is
concrete and particularized, actual and imminent, and that is fairly traceable to the
challenged action and redressable by a favorable ruling. Arizona State Legislature v. Arizona
Indep. Redistricting Commn, 135 S. Ct. 2652, 2663 (2015).
III. Discussion
Defendants argue that Plaintiffs sole federal claim, brought under the Copyright Act, is
unripe and non-justiciable and thus that there is no actual case or controversy sufficient to create
subject matter jurisdiction. See Mot. 3:25-14:1. They further assert that Plaintiff lacks standing
to bring suit. See id. 14:2-25. The Court agrees and will address each argument in turn.
Exodus (Island 1977).



A. Actual Case or Controversy
The Declaratory Judgment Act (DJA), which Plaintiff invokes in its request for a
declaratory judgment, provides that [i]n a case of actual controversy within its jurisdiction . . .
any court of the United States . . . may declare the rights and other legal relations of any
interested party seeking such a declaration, whether or not further relief is or could be sought.
28 U.S.C. 2201(a). To bring a claim for declaratory relief in this Court, Plaintiff must
therefore demonstrate that there is in fact an actual case or controversy sufficient to satisfy
Article III, and that the claim arises under federal law. See Franchise Tax Bd. Of Cal. v.
Construction Laborers Vacation Trust for S. Cal., 463 U.S. 1, 19 (1983) (Federal courts have
regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory
judgment defendant brought a coercive action to enforce its rights, that suit would necessarily
present a federal question.); Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir.
2005). Such a dispute must be definite and concrete, touching the legal relations of parties
having adverse legal interests, be real and substantial, and admi[t] of specific relief through
a decree of a conclusive character, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007) (quoting Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240-241
(1937)). Ultimately, to prevail on a claim for declaratory judgment, a plaintiff must demonstrate
both the reality and the immediacy of the potential legal dispute. MedImmune, 549 U.S. at 127.
i. Reality
Plaintiffs Complaint does not allege sufficient facts to establish the reality of a dispute
arising under federal law. A dispute is not sufficiently real if it involves contingent future
events that may not occur as anticipated, or indeed may not occur at all. Thomas v. Union
Carbide Agric. Co., 473 U.S. 568, 580-81 (1985). Instead, it must have taken on a fixed and
final shape so that a court can see what legal issues it is deciding, what effect its decision will
have on the adversaries, and some useful purpose to be achieved in deciding them. Public Serv.
Commn of Utah v. Wycoff Co., 344 U.S. 237, 244 (1952). Courts in this Circuit have held that
declaratory relief under the Copyright Actwhich is the only claim arising under federal law
pleaded in the Complaintrequires a particular showing: that the alleged infringer has
completed all preparatory work on the allegedly infringing product. See, e.g., Kelly v.
University Press of Miss., No. CV 16-2960 PA (GJSx), 2016 WL 4445986, at *4 (C.D. Cal.
Aug. 16, 2016). The logic behind this requirement is that if a court were to entertain declaratory
relief based on an unfinished work, the relief requested would necessarily take the form of an
advisory opinion. Veoh Networks, Inc. v. UMG Recordings, Inc., 522 F. Supp. 2d 1265, 1269
(S.D. Cal. 2007).



The Complaint here does not contain sufficient allegations showing that the proposed film
has taken on a fixed shape such that a decision by the Court would not be merely advisory.
Plaintiff admits that the motion picture screenplay, although pending registration in the United
States Copyright Office, see Compl. 1(A), is unfinished and subject to change. See id. 6. In
addition, Plaintiff seeks a declaration regarding derivative works including motion pictures to
be produced or created and [a]ll other and related intellectual property. Id. 1(C)-(D).
These are hypothetical and prospective works, and are therefore not substantially fixed,
particularly with respect to [their] potentially infringing characteristics, as courts have required.
Sierra Applied Scis., Inc. v. Advanced Energy Indus., Inc., 363 F.3d 1361, 1379 (Fed Cir. 2004).
Plaintiff has not demonstrated any relationship between its planned film, its screenplay,
its life story rights, or any other work and Defendants intellectual property. It is presently
unknown, for example, which music or images will be used in Plaintiffs film, and thus whether
they would infringe upon Defendants copyrights. Plaintiff has not pleaded that the final film
will give rise to potential copyright claims, and hence there is currently no real dispute. As one
court succinctly put it, The court simply [cannot] determine at this [nascent] stage whether
plaintiffs film, if completed, would infringe on existing copyrights. Team Angry Filmworks,
Inc. v. Geer, 171 F. Supp. 3d 437, 447 (W.D. Pa. 2016) (internal quotation marks omitted). It
appears that Plaintiff here is attempting the same gambit as the plaintiff in the Central District
case KTS Karaoke, Inc. v. Sony/ATV Music Publg LLC, No. CV-12-00014-MWF (JEMx), 2014
WL 12567169 (C.D. Cal. Jan. 14, 2014); to wit, utilize the Court in arranging their business
relationship with Defendants to avoid future liability. Id. at *3. However admirable Plaintiffs
attempt at avoiding copyright infringement might be, this Court agrees with that previous
decision that such a move is a bridge too far. Id.
ii. Immediacy
The Complaint also fails to allege facts establishing the immediacy of a dispute. In an
action for declaratory judgment involving the validity or infringement of a copyright, the
defendants actions must have caused the plaintiff to harbor a real and reasonable apprehension
that he will be subject to liability if he continues to manufacture his product. Roberts v.
Gainsforth, No. CV 14-07595-AB (VBKx), 2014 WL 12596584, at *8 (C.D. Cal. Nov. 24,
2014) (quoting Hal Roach Studios v. Richard Feiner & Co., 883 F.2d 1429, 1442 (9th Cir.
1989), opinion amended and superseded, 896 F.2d 1542 (9th Cir. 1989)). Here, Plaintiff has
actually admitted that it does not believe litigation is imminent. It asserts that none of the
Defendants did or could have a good faith belief in any legally viable claim against Royal Palm
. . . and [the demand letters] were not incident to litigation contemplated in good faith by



Defendants. Compl. 5(B). Although the letters from Defendants attached to the Complaint
assert their rights to the Marley intellectual property, they give no indication of intent to file an
immediate lawsuit. The letters may not have said, Dont worry about a thing, cause every little
thing is gonna be all right,3 but nor did they suggest imminent legal action. The facts here are
analogous to those in Manning v. Dimech, No. CV 15-05762 RSWL (PJWx), 2015 WL 9581795
(C.D. Cal. Dec. 30, 2015), in which a plaintiff similarly did not support [a contention of
imminence] with any evidence or supporting factual allegations, and therefore failed to allege
an actual controversy under the DJA. Id. at *5.
Furthermore, even if copyright infringement were to result from Plaintiffs production of

its film, neither the Complaint nor the attached exhibits allege, specifically or approximately,
when Plaintiff will begin production or release the film. The Court cannot conclude from the
face of the Complaint that, but for lack of a declaratory judgment, plaintiff would immediately
be able to begin production. It is further unclear from the Complaint the extent to which
Plaintiff has incurred obligations or expenses with respect to the production of the proposed
film. Although not dispositive, development costs can help indicate whether Plaintiff has taken
sufficient steps to demonstrate immediacy. See, e.g., Sobini Films v. Tri-Star Pictures Inc., No.
CV 01-06615 ABC (RNBx), 2001 WL 1824039, at *6 (C.D. Cal. Nov. 21, 2001). Here, the
Complaint presents no information of this sort.4 In the absence of any pleaded facts indicating
3
See Bob Marley and the Wailers, Three Little Birds, on Exodus (Island 1977).
4
Plaintiffs Opposition includes the supplemental declaration of Rudy Langlais, Plaintiffs CEO,
see Dkt. # 37-1, which includes information relating to the films production. However, that
declaration will not be considered by the Court. Generally, the scope of review on a motion to
dismiss for failure to state a claim is limited to the contents of the complaint. Marder v. Lopez,
450 F.3d 445, 448 (9th Cir. 2006); Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980
(9th Cir. 2002) (Ordinarily, a court may look only at the face of the complaint to decide a
motion to dismiss.). Although courts may also consider attached exhibits, documents
incorporated by reference, and matters properly subject to judicial notice, In re NVIDIA Corp.
Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014), cert. denied sub nom. Cohen v. Nvidia Corp.,
135 S. Ct. 2349 (2015), the Langlaiss declaration does not constitute any of these exceptions
because it was not attached to the original Complaint. In the context of a 12(b)(1) challenge to
subject matter jurisdiction, a court can consider extrinsic evidence, but only if the Complaint is
faced with a factual attack. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a factual
attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise
invoke jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
Here, however, Defendants have mounted a facial attack because they assert[] that the
allegations contained in [the] complaint are insufficient on their face to invoke federal



imminent litigation, the Complaint cannot satisfy the requirements of the DJA. Therefore, there
is no actual case or controversy, and so the Court lacks subject matter jurisdiction.
B. Standing
The Court further agrees with Defendants that, [e]ven if Royal Palms claims were ripe
for adjudication, Plaintiff has failed to allege facts sufficient to confer standing. Under the
DJA, direct and immediate hardship is required to create standing. See Addington v. U.S. Airline
Pilots Assn, 606 F.3d 1174, 1180 (9th Cir. 2010) (declining to grant declaratory relief because
[t]o meet the hardship requirement, a litigant must show that withholding review would result
in direct and immediate hardship and would entail more than possible financial loss.) (internal
quotation marks omitted). The Complaint does not allege a concrete and particularized injury. It
claims that Defendants have committed an interference with contract, yet fails to state a claim
for tortious interference or plead any resulting injury. Compl. 19(A). As Defendants note,
[w]hile a talismanic recitation of injury would have been insufficient to sustain Royal Palms
complaint, the fact that Royal Palm did not even attempt to plead injury speaks
Volumes. Mot. 14:14-17. Although Plaintiff attempts to outline an injury in its opposition by
asserting that Defendants knew that [their conduct] could and would prevent financing and
production of the film, such claims are not present in the Complaint. Plaintiffs Opposition to
Defendants Motion to Dismiss, Dkt. # 37, 1:19-23. Without a sufficient allegation of injuryin
other words, that Plaintiff does not in fact feel all right5the Court must dismiss Plaintiffs
complaint for lack of standing. See Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990) (A
federal court is powerless to create its own jurisdiction by embellishing otherwise deficient
allegations of standing.).
IV. Leave to Amend
Whether to grant leave to amend rests in the sound discretion of the trial court. See Bonin
v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). The court considers whether leave to amend
would cause undue delay or prejudice to the opposing party, and whether granting leave to
amend would be futile. See Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355
(9th Cir. 1996).
jurisdiction. Id. When evaluating a facial attack, a court must accept the allegations of the
complaint as true, GunVault, Inc. v. Wintrode Enters., Inc., No. ED CV 12-01459 JAK (RZx),
2014 WL 12589336, at *3 (C.D. Cal. Feb. 24, 2014), but there is no obligation to look beyond
the face of the complaint.
5
See Bob Marley and the Wailers, One Love/People Get Ready, on Exodus (Island 1977).



Here, the Court believes that granting Plaintiff leave to amend would ultimately be futile.
Although it might be able to cure its Complaints insufficiency with regards to injury, it will be
unable to satisfy the DJAs requirements of reality and immediacy. Until its motion picture is
produced or at least reaches some level of tangibility, no real dispute could exist because it could
not yet be liable for potential copyright infringement. If Plaintiff actually produces something to
which liability might potentially attach, then the Court may be able to consider declaratory relief.
Until that time, however, any amendment to the Complaint would be futile. Therefore, the Court
will not grant Plaintiff leave to amend.
V. Conclusion
Plaintiffs Complaint fails to establish the existence of an actual case or controversy

under the DJA necessary to create subject matter jurisdiction. In addition, Plaintiff has failed to
plead any sort of concrete and particularized injury to confer standing. For these reasons, the
Court GRANTS Defendants motion to dismiss.
IT IS SO ORDERED.

Order Granting Motion To Dismiss Royal Palm's Complaint

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Case 2:17-cv-02336-PSG-FFM Document 39 Filed 08/17/17 Page 1 of 8 Page ID #:702

UNITED STATES DISTRICT COURT

Present: The Honorable Philip S. Gutierrez, United States District Judge

On November 6, 2015, Defendants mailed a letter to Golden Island Filmworks Ltd.

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II. Legal Standard

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Exodus (Island 1977).

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A. Actual Case or Controversy

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Furthermore, even if copyright infringement were to result from Plaintiffs production of

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IV. Leave to Amend

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Plaintiffs Complaint fails to establish the existence of an actual case or controversy

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