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IP/Entertainment Case Law Updates

Novak v. Warner Bros. Pictures, LLC, et al.

Ninth Circuit affirms grant of summary judgment in favor of Warner Brothers on copyright infringement and breach of contract claims.

Plaintiffs Deborah Novak, John Witek, and Witek & Novak, Inc. hold the copyright in Ashes to Glory, a documentary film that portrays the rebuilding of Marshall University’s football program after it lost all but a handful of its players, coaches, and prominent supporters in a disastrous plane crash in 1970. Defendants Warner Brothers Pictures and several related parties produced the dramatic film We Are Marshall, which is based on the same historical facts as Ashes to Glory. Plaintiff filed suit against defendants alleging copyright infringement, breach of contract, and unfair competition. The district court granted summary judgment (previously summarized by us) in favor of Warner Brothers on all claims, concluding that plaintiffs failed to raise a triable issue of fact regarding the copyright claim because Plaintiffs could not demonstrate substantial similarity between the subject works. Plaintiffs appealed and the Ninth Circuit affirmed, holding that the two works are not substantially similar.

The Ninth Circuit initiates its analysis by stating that proof of infringement requires a fact-based showing that We Are Marshall and Ashes to Glory are substantially similar. In comparing the concrete elements between the two works, the court focused on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. Except for matters of historical fact, the court found that these elements of the two works are not substantially similar.

Plaintiffs first asserted that the district court imposed an improperly severe “bodily appropriation” standard of infringement. As evidence of the district court’s improper standard, plaintiffs pointed to the district court’s reliance on a quote in Narell v. Freeman, for the proposition that “historical facts and theories may be copied, as long as the defendant does not bodily appropriate the expression of the plaintiff.” In rejecting this argument, the Ninth Circuit held that neither Narell nor the district court substituted the “bodily appropriation” standard for the “substantial similarity” standard.

Plaintiffs also argued, under the “inverse ratio” rule, that the quantum of proof required to show copying is ostensibly lessened because defendant had full access to Ashes to Glory before producing We Are Marshall. The Ninth Circuit, however, stated that “‘no amount of proof of access will suffice to show copying if there are no similarities’ between the protected expressions in the two works.” Even under a relaxed standard, explained the court, the requisite similarities must be concrete and articulable. The only concrete or articulable similarities between Ashes to Glory and We Are Marshall, wrote the court, consist of unprotectable scènes à faire, and historical facts, which, like all facts, may not be copyrighted.

Plaintiffs also argued that the evidence of substantial similarity may be shown in the sequencing of events in the two films, especially in the two works’ opening montages. Upon comparing the two films, the court disagreed. The Ninth Circuit found that Ashes to Glory differs significantly from We Are Marshall by including the film’s title and many additional shots of the town of Huntington and the university campus in its opening sequences.

Finally, the Ninth Circuit held that the district court did not commit error in granting summary judgment for Warner Brothers on the breach-of-contract claim. In noting that the parties had not reached agreement on the purchase price, the Ninth Circuit emphasized that the failure to reach a meeting of the minds on all material points prevents the formation of a contract. Nor have plaintiffs produced evidence, stated the court, of disclosure of their work under conditions that would permit a jury to find an implied contract.

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