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IP/Entertainment Case Law Updates

Mena v. Fox Entertainment Group

District court grants defendants’ motion to dismiss plaintiff’s copyright-infringement action, finding no substantial similarity between plaintiff’s copyrighted screenplay and the pilot episode of defendants’ television series.

Plaintiff Steven Mena, author of a copyrighted screenplay for Transience, a feature-length film, brought suit against defendants, entities involved with the production of Past Life, a television series that aired on defendant Fox Network for a short time in 2010, for copyright infringement, alleging that the pilot for the television show infringed on his copyright in the Transience screenplay. Transience tells the story of a detective who is attempting to solve a series of abductions and murders and who is aided by a nine-year-old girl, the patient of an old psychiatrist friend, whose nightmares turn out to be flashbacks of her own death in a previous life at the hands of the killer. Past Life was an hour-long television series featuring two main characters, a former New York Police Department detective and a psychiatrist, both of whom are employed by a private institute dedicated to solving mysteries in the past lives of its patients. The pilot episode concerns a fourteen-year-old boy who experiences flashbacks and who, throughout the course of the pilot, the main characters discover is actually the reincarnation of an eight-year-old girl who disappeared along with her sister before the boy was born. Following the clues from the boy’s “regressions,” the main characters and a team of FBI investigators eventually solve the mystery of the girls’ disappearance. The district court granted defendants’ motion to dismiss, finding no substantial similarity between the works.

Defendants’ motions to dismiss assumed both that plaintiff held valid copyrights and that defendants had access to plaintiff’s screenplays, and the only issue before the court was substantial similarity between the works. At the outset, the court reiterated that, under Second Circuit precedent, both the “more discerning observer test” (used to filter out the protectible elements from the unprotectible elements of the works) and the “total concept and feel” test were applicable – contrary to arguments made by both plaintiff and defendants. Finding that plaintiff’s screenplay was a work comprising “original combinations of ideas and concepts, as well as components drawn from the public domain” (both protectible and unprotectible elements), the court applied the “more discerning observer test” to the individual protectible elements of plaintiff’s work, and then employed the ”total concept and feel” analysis to consider his screenplay as a whole. Based on both of those tests, the court concluded that Past Life did not infringe Transience.

The court first considered the setting, mood and theme of the two works and concluded that these elements were significantly different, with Transience exhibiting all of the hallmarks of a “dark crime drama” and Past Life intending to be a “more lighthearted investigatory adventure.” The court noted that the plaintiff’s work was set in a small Midwestern community, with all of the action in the story occurring in or around the same town, while in Past Life, the protagonists travel in locations on the East Coast (Connecticut, New York City and Washington, D.C.) and rural locations in Virginia and North Carolina. The pilot also used sweeping urban vistas and stock images of well-known locations and Transience did not. The mood in Transience is dark, with chilling imagery, several violent scenes, blood, brutality and dark characters struggling with “failed relationships, accidental deaths, estranged family members, guilt, violence and terminal illness.” In contrast, Past Life is clearly intended to appeal to a more general audience, with characters who are more likeable and less developed, who often engage in humorous banter and reveal little beyond what is necessary to drive the plot, and only hints of violence in a few brief flashbacks that imply drowning. The court found that both works featured reincarnation as a theme, but concluded that the general concept of reincarnation was not a protectible element, and the treatment of reincarnation, even though both a prominent theme and a plot device in both works, was viewed and presented very differently, including that Transience examines the nature and implications of reincarnation at length, while Past Life offers only cursory and conclusory explanations for the phenomenon.

With respect to the elements of narrative and plot, the court acknowledged that any review of the works must recognize the obvious parallels between the plots. Both works are “crime procedurals” in which the investigators solve the decades-old mysteries with clues from past-life flashbacks. The plots of both rely on the process of inducing and interpreting “regressions,” identifying “triggers,” and deciphering disjointed clues to discern the trauma that happened to a reincarnated individual in a prior life in order to resolve a contemporary problem. Both include similar plot points, such as an initial flashback; a concerned parent meeting with a psychiatrist; attempts to induce flashbacks to gather more clues; the struggle to decode a difficult clue obtained from a flashback; an incident that increases the sense of urgency for the protagonists; a climactic moment in which the reincarnated person buckles under the strain of the past-life memories; an event that prompts the reincarnated person to disappear and the search that ensues; and an emotional reunion with members of the reincarnated person’s family from his or her past life. The court concluded, however, that these commonalities were insufficient to support a finding of substantial similarity absent substantial similarities between specific scenes or sequences. The common plot points also generally flowed from the concept of a crime procedural involving reincarnation and would likely be found in any story involving an individual with past-life memories of a crime, making them scènes à faire that that are not protectible.

Plaintiffs argued that several scenes in Past Life were directly drawn from Transience, including an opening scene in which a bright light against a dark background grows so as to appear that the viewer is emerging from the light, a scene involving a flashback by the reincarnated victim suggesting her death, a scene in which the victim runs away and is found by the protagonist, scenes involving a tower that becomes significant to the plot development, and a situation involving a false lead. The court disagreed, finding that, to the extent that these scenes and scenarios were protectible, they were treated very differently in both works. In addition, the court noted that certain elements, including the use of the white light and the idea of passing through that light and emerging on the other side, and a sequence in which a young person, haunted by unexplained visions of the past, runs off to a strange location and is later found and questioned, are general and recognizable plot elements not entitled to protection. Similarly, the “red herring” of a false lead is a routine element of any detective story, according to the court, and therefore not protectible.

The court likewise rejected plaintiff’s argument that Past Life appropriated key characters from Transience, including the reincarnated victims, the detectives and the psychiatrists. Noting that “[t]he bar for substantial similarity in a character is set quite high,” the court concluded that the works’ treatment of the various characters significantly differed such that no substantial similarity could be found. The facts that both reincarnated victim characters embody the concept of reincarnation and that their “regressions” serve as a source of clues, alone, could not sustain a finding of substantial similarity, according to the court. Neither could the fact that both were girls in their past lives, especially since, as the court noted in a footnote, the similarity between the past lives ended there. Likewise, although both male detectives shared certain characteristics (both are tough, capable, determined detectives who follow clues and facts, both are widowers, and both are practical and skeptical of reincarnation), the “image of the hardscrabble detective is … a recurrent figure throughout literature and serves as a stock character in myriad genres,” and “the motivation of a lost loved one, a despair mitigated only by the thrill of the chase, and the promise of love renewed are all familiar plot devices.” According to the court, plaintiff’s list of alleged common attributes between the two characters amounts to “only a general sketch of a character” – an unprotectible idea – not a “recognizable identity that can be linked to a particular figure” – the protected expression of that idea. Beyond these general character traits, the two detectives were also different dramatic characters. The psychiatrist characters were also portrayed very differently, in their discoveries of the reincarnated victim’s “status,” their beliefs about reincarnation and, in particular, the way that they interacted with detective protagonists, according to the court.

After reviewing the works with the “more discerning observer” standard and finding no substantial similarity, the court turned to the “total concept and feel” standard to consider plaintiff’s “original contributions” in terms of how he “selected, coordinated, and arranged” the elements of the work, in order to determine whether Transience and Past Life are substantially similar, and concluded that the “total concept and feel” of Past Life was sufficiently different from that of Transience. While Transience was, in plaintiff’s words, an “unapologetically dramatic, intense, and emotional thriller with little comic relief and hopeful endings," Past Life was not, containing, the court noted, many instances of comic repartee designed to make the characters appeal to a wider audience. And while “exciting” in some scenes, Past Life did not include those gruesome and suspenseful elements that made Transience far more “dramatic, intense, and emotional.” The court also found that the selection, coordination, and arrangement of scenes and elements differed substantially in both works, each of which contained subplots and twists not found in the other. Likewise, even arguably similar scenes occurred at different times in the stories, important clues were discovered by different people and at different stages in the investigation, and analogous characters were developed to different degrees. The court also noted that plaintiff wrote Transience as a feature-length film, “stand-alone and self-contained,” while Past Life was structured as a serial program proceeding episode by episode. “Exercising common sense and reasonable judgment, the [c]ourt is unable to pinpoint any sufficiently original aesthetic decisions that appear to have been copied by Fox. Consequently, [this] court concludes that Transience and Past Life are not substantially similar under [the] ‘total concept and feel’ analysis.”

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