Cabell v. Sony Pictures Entertainment, Inc.

Court grants defendants’ motion for summary judgment in copyright infringement action alleging that the character and storyline of defendants’ motion picture You Don’t Mess With the Zohan are substantially similar to plaintiff’s works about a gay ex-Navy Seal who becomes a hairdresser.

Plaintiff Robert Cabell created several works, including a novel and a comic book, featuring a character named Jayms Blonde, a gay ex-Navy Seal who works as a hairdresser and also serves as a secret agent. In the plaintiff’s works, Blonde uses a blow dryer that is actually a mini Uzi machine gun, and the cover art of plaintiff’s works features Blonde posing with the blow dryer as a weapon.

In 2008, the defendants Sony Pictures Entertainment and Columbia Pictures released a film titled You Don’t Mess With the Zohan. A comedy featuring Adam Sandler, Zohan centers on a former Israeli Mossad counter-terrorism agent who fakes his own death so that he can pursue his dream to work as a hairdresser. Promotional materials for Zohan featured Sandler wielding a blow dryer.

The plaintiff sued Sony, Columbia, Adam Sandler and the screenwriters Robert Smigel and Judd Apatow for copyright infringement and unfair competition under New York General Business Law 368-b. Defendants moved for summary judgment on the ground that the works were not substantially similar.

To determine whether the works were substantially similar, the court applied the “ordinary observer” test. Under this test, a plaintiff must show that the protectable elements of the work would cause an average lay observer to recognize the alleged copy as having been appropriated from the copyrighted work.

The court first analyzed the visual depiction of the works. It noted that the plaintiff declined to specify which Blonde images were infringed but rather argued that all Blonde images stemmed from the same “seminal” image of Blonde wielding the blow dryer as a weapon towards the viewer. The court, however, found that pointing a blow dryer like a weapon was an unprotectable idea not subject to copyright expression. It noted that the plaintiff could not point to any particular expression of that idea as substantially similar. The court further commented that the blow dryers were, in fact, different, as the plaintiff’s was actually a weapon, while Zohan’s was a regular blow dryer that featured flowing red heating elements in its muzzle. Additionally, the fact that both Blonde and Zohan struck fighting poses did not result in substantial similarity, as the court noted that the Second Circuit has held that “fighting poses” are unprotectable ideas.

Aside from these two unprotectable ideas, the court found no substantial similarity in the visual depiction of the works. First the poses struck were different – Blonde stood outstretched with his right leg forward and his left knee bent or with his legs spread, while Zohan struck various poses, including one from the chest up, one looking down at the camera, and one where Zohan stands on one leg and raises his other leg straight into the air. In addition, the court held that the hair and clothing in the two works were not substantially similar. It also found that the background of the disputed images lacked substantial similarity. The court also declined to find that Blonde was entitled to special protection as a comic book character given that such protection is limited to “markedly similar characters.”

After concluding that the visual depiction of the works was not substantially similar, the court held that the defendants did not infringe the plaintiff’s storylines. First, the court noted the storylines shared a common idea of a soldier leaving the military service to become a hairdresser but continuing to use his military skills. However, the court found the expressions of this idea markedly distinct.

Blonde is a gay man who is kicked out of the U.S. Navy Seals under the “Don’t Ask Don’t Tell” policy and ends up working as a hairdresser and enthusiastically acting as a secret agent with a sidekick and specialized weapons. Zohan, by contrast, is a womanizing Israeli, without any sidekick or specialized weapons, who wants out of the spy game and wishes to pursue a career in hairdressing.

The court also found that the works had different concepts and feel as the plaintiff’s humor arose out of gay double entendre and innuendo, whereas Zohan’s humor was derived by exaggerating Israeli and Arab stereotypes. Also, Zohan’s romantic engagements with his “mature” female clients were not substantially similar to Blonde’s romantic engagements. Thus, the court concluded that to the extent there were any similarities between the works, the similarities were unprotectable ideas.

The court additionally granted the defendant’s motion for summary judgment with respect to the plaintiff’s unfair competition claim. First, the court found that the N.Y. General Business law statute cited by the plaintiff had been repealed nearly ten years earlier. Second, the court found that the claim was preempted by the Copyright Act as it was (1) the same subject matter as works protected under the Copyright Act and (2) sought to vindicate rights equivalent to those under the Copyright Act.