Gilbert v. New Line Productions

Ninth Circuit affirms summary judgment in favor of defendants in copyright action, finding no similarity between protectible expression in works at issue, and affirms award of attorneys’ fees, but partially vacates and remands that award for a specific determination regarding the reasonableness of the billing rate for and time spent by certain of defendants’ counsel.

Plaintiff Sheri Gilbert, the author of the screenplay When Mom's the Other Woman (The Other Woman), brought a copyright infringement action against defendants, entities involved in the making of the 2005 motion picture Monster-in-Law, asserting that they unlawfully copied drafts of her screenplay. The district court granted summary judgment in favor of defendants, holding that neither the Monster-in-Law film nor any of the drafts of the screenplay infringed on any of the drafts of The Other Woman for which plaintiff had sought copyright registration prior to suing defendants (Gilbert had not registered the first draft at the time she sued defendants), and awarded defendants their costs and fees as prevailing parties under the Copyright Act. On appeal, the Court of Appeals for the Ninth Circuit affirmed the district court’s dismissal of plaintiff’s action, finding insufficient similarity between the protectible expression in the various works to maintain a claim. Specifically, the court noted that while the basic plots of Monster-in-Law and The Other Woman are the same – both works tell the story of a mother who meddles in her son's life and tries to break up his engagement – neither basic plot nor elements that naturally flow from those plots, known as scènes à faire, are entitled to copyright protection. The district court found, and the Ninth Circuit agreed, that the very few similarities between the film and plaintiff’s drafts of her screenplay were unprotectible scènes à faire.

While the Ninth Circuit affirmed the district court’s award of attorneys’ fees and costs to defendants, holding that the court properly found that defendants achieved complete success on the merits of plaintiff’s claims, which were objectively unreasonable, the circuit court vacated part of the fee award related to work performed by defendants’ North Carolina counsel (plaintiff first filed her action in North Carolina and the court there transferred it to the Central District of California). The district court made the required specific findings as to what rate and amount of time was reasonable relating to the work of California counsel, properly ruling that defendants were entitled to $801,130 in attorneys’ fees. The court made no determinations with respect to North Carolina counsel, but included an additional $79,282 in the fee award – the amount of defendants’ request for fees attributable to services performed by North Carolina counsel. Noting that it could not determine whether the district court's final award resulted from “an administrative error or the uncritical acceptance of counsel's representations,” the court vacated that potion of the fee award and remanded to the district court for reconsideration.