Moonbug Entm't Ltd. v. BabyBus (Fujian) Network Tech. Co., Ltd

1

MOONBUG ENTERTAINMENT LIMITED, et al., Plaintiffs, v. BABYBUS (FUJIAN) NETWORK TECHNOLOGY CO., LTD, et al., Defendants.

No. 21-cv-06536-EMC

United States District Court, N.D. California

May 15, 2024

ORDER DENYING DEFENDANTS' RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AND FOR NEW TRIAL

Docket No. 651, 652

EDWARD M. CHEN United States District Judge

I. INTRODUCTION

This is a copyright infringement case tried by a jury which rendered a verdict in the Plaintiffs favor. Plaintiffs Moonbug Entertainment Limited and Treasure Studio, Inc. (collectively, “Moonbug”) hold copyrights in the CoComelon franchise, including their works on the CoComelon Nursery Rhymes YouTube Channel. Defendants Babbu Co., Ltd. and BabyBus (Fujian) Network Technology Co., Ltd (“BabyBus Tech.”) (collectively “BabyBus”) offered a competing YouTube channel under the “Super JoJo” brand. Moonbug alleged copyright infringement by BabyBus's Super JoJo videos and misrepresentation. After a 10 day trial, the jury found BabyBus liable for copyright infringement and misrepresentation and awarded a total of $17,718,114.00 in actual damages and lost profits. Docket No. 579 at 6 (Jury Verdict).

BabyBus filed two post-trial motions on all claims under Federal Rules of Civil Procedure Rule 50(b)-for judgment as a matter of law, and Rule 59(a)-for a new trial. For the following reasons, the Court denies both motions.

II. FACTS

A. Notice of Copyright Infringement

In 2021, Moonbug sent notice of infringement to BabyBus and YouTube, alleging that their JJ character was being infringed by BabyBus's Super JoJo character (“JoJo”). Docket No. 383-2. Since 2019, BabyBus operated the Super JoJo Nursey Rhymes YouTube channel that featured the infringing Super JoJo character. Trial Exhibit (TE) 116. The JJ character features prominently on Moonbug's CoComelon YouTube channel. Moonbug submitted DMCA takedown notices to YouTube requesting removal of the infringing JoJo videos. Id. In response, BabyBus submitted counternotices to YouTube stating that their videos were noninfringing, which led to the reinstatement of the SuperJoJo channel and various videos. Moonbug then filed a lawsuit against Defendant for copyright infringement of its CoComelon franchise, claiming that the whole Super JoJo series was infringing, including the central JoJo character, his family, art, thumbnails, and at least six videos and thirteen SuperJoJo channels. Docket No. 307 at 1, 8 (Supp. FAC). Moonbug accused BabyBus of infringing the following: the JJ character, the JJ family characters, the animal characters, and 39 specific copyrighted works. Jury Verdict at 2-6.

B. Pre-Trial Order on Whether the JJ Character is Copyrightable

Prior to trial, the Court determined whether the JJ character, the main character in CoComelon's animated children's show, was copyrightable subject matter. The Court held that JJ was, reasoning that “although some of JJ's traits (e.g. name “JJ”) standing alone, may not be unique,] when combined with all of JJ's other physical and conceptual traits, the combination of those elements “crosses the binary threshold of copyrightability.” Docket No. 242 at 15-16 (Order on Summary Judgment). The jury was therefore instructed that the JJ character was copyrightable-in other words, entitled to copyright protection. See Docket No. 562 at 10 (Jury Instruction). The Court did not determine whether the family characters and the animal characters were entitled to copyright protection, nor whether SuperJoJo infringed on Moonbug's copyrights. Those issues remained for trial.

C. Jury Trial

1. Factual Copying

In the ten day trial, the jury saw a significant amount of evidence that BabyBus copied CoComelon's JJ character and YouTube videos to create BabyBus' JoJo character and its SuperJoJo YouTube series of videos. There was both direct and circumstantial evidence that BabyBus had access to CoComelon characters and works and closely considered them. Mr. Yan explained that BabyBus allowed employees to reference other company's images and other content for inspiration. Id. at 492. BabyBus witnesses admitted that they looked at CoComelon's JJ when developing JoJo. TT 731-34, Docket No. 544-1. BabyBus designer Mr. Xiaohui Chen even conceded that he used JJ when designing JoJo. TT 1323-24.

In fact, BabyBus presented evidence indicating that their master plan for the Super JoJo videos referenced CoComelon works, and there was an instruction that CoComelons' JJ character should be the “focus of the visuals.” TT 590-91. Development documents showed that the team made SuperJoJo episodes which were nearly identical or similar to CoComelon. TE 3, 5, 9, 23. BabyBus asserted that its characters were original, but admitted to “some” plagiarism with respect to the frame-by-frame shots:

YAN: .. .It was just that in certain frames the JoJo character and the mother character did similar types of moves, and for those there -we admitted that there was some plagiarism.

YAN: In terms of the Yes Yes Vegetable product, pertaining to the frame, frame by frame. in terms of the expression, their pose, their characteristics, those things, yes, there was some plagiarism. But, however, in terms of the character itself and also in terms of the scenes, in terms of the house, in terms of the living room and the restrooms. Those were all okay because those were all our original creation.

TT 633-34. The visual appearances of JJ and JoJo were remarkably similar. Moonbug's expert Fran Krause, a cartoon animator, testified about a substantial number of physical similarities between JJ and JoJo:

A “round” head with “flattening above the ears”.

“Sculptural clay-like” or “Playdough-like” shaped hair that “doesn't have individual strands of hair.”

Solid shaped eyebrows that are a single color.

Similarly sized eyes with “flattening on the bottom” and “realistic irises in the middle.”

A “small button nose with no bridge to it.”

A mouth in a “half-moon shape with two small teeth.”

A “onesie that is turquoise and blue.”

TT 780. Krause also explained generally that the facial features are proportioned and arranged similarly. Id.

He described a substantial number of “nonvisual elements” that were similar between JJ and JoJo, including similar personalities:

The optimism, the happy upbeat personality, the ways that [JJ] interacts with his brother, the ways he interacts with his sister, his mother, his father.

TT 782. JJ and JoJo also have similar levels of maturity:

He does not... act like a regular baby but instead acts like a child a few years older than him and does the same types of things, the same types of themes of events and stories that JJ does. going about his daily routines, learning to swim, learning to brush his teeth and comb his hair and wash his face. All of the regular activities that JJ would do, JoJo is also doing.

TT 783-84. JJ and JoJo also had the same “idealistic mood,” the same “signature celebratory arms-out movement,” and the same “acting similarities” in that they shared the same “realistic observed motion. not cartoony and over the top.” TT 783. The family characters, the parents and brother and sister, also had similar personalities. TT 783.

The YouTube videos had substantial similarities. For instance, in both CoComelon's “Yes Yes Vegetables Song” and the SuperJoJo equivalent, JJ and JoJo slap their highchair with two hands and giggle as the mom brings out a tray of food. TE 1117. They both repeat “yes, yes, yes” to the mom, followed by expressing desire for the vegetable. They both turn their empty bowl sideways while looking at the mom to show they finished eating the vegetables, then immediately rub their stomachs in a circular fashion. They both high-five a plushie after finishing the vegetables, and throw both hands in the air. They both eat green peas and carrots. They both encounter trouble eating the vegetable with a utensil, and their face changes from smiling to concerned with furrowed eyebrows and a closed mouth when the food falls out. They both wear a onesie with teal and yellow colors.

As another example, in CoComelon's “The Bath Song” and the SuperJoJo equivalent, JJ and JoJo both bring a shark-shaped squeaky toy into the bathtub. TE 1129. They both move the shark across the surface of the bath water in a wave motion. They both have an older brother who jumps into the bath with them. The older brother in both pours bubbles into the bathtub, uses a brush with a long handle to scrub JJ/JoJo, and even sings “wash my [body part] doo doo doo doo doo” to the same musical tune while washing a specific body part. Similarities like these abound across numerous other works that were in evidence.

Additionally, Krause testified to these similarities. For example, in comparing CoComelon's “This is the Way” video clip and SuperJoJo's “This is the Way” video clip, Krause explained that the following elements were similar: the quality of the animation, the posing, the camera angle, the background design, the blue and nautical themed tiles in the bathroom, the subject matter. TT 790. In another shot of the same video, he explained that the camera angles, facial expressions, ways of “using the rig and model,” backgrounds, lighting, and color design were “very, very similar.” TT 791.

2. Protectable Selection and Arrangement

At trial, Moonbug presented evidence that the elements that make up the JJ character were protectable in combination under a theory called selection and arrangement theory, and that BabyBus infringed on that protectable combination of elements.

Moonbug presented multiple witnesses who testified to the protectable selection and arrangement of CoComelon characters, style, and works, including a CoComelon creative executive (Katie Nahab), two of the...