Plaintiffs contend that the 2012 Warner Brothers movie Trouble with the Curve (TWTC) is an intentional infringement of the plaintiff’s screenplay Omaha. While there were disputes as to the timing of the drafting of the TWTC screenplay and its authorship, both parties moved for summary judgment on the issue of similarity between the two works. The court granted defendants’ motion for summary judgment, finding that any similarities between the two works are not protectable as a matter of copyright law.
The court noted that, in the Ninth Circuit, summary judgment is appropriate for plaintiff where the works are so overwhelmingly identical that the possibility of independent creation is precluded, while summary judgment for a defendant is appropriate if no reasonable juror could find substantial similarity of ideas and expression. The court also noted that the Ninth Circuit employs two tests for determining whether a work is substantially similar to another: the “intrinsic” test (which examines an ordinary person’s subjective impressions of the similarities between two works) and the “extrinsic” test, an objective test based on specific expressive elements, which focuses on articulable similarities between the plots, themes, dialogues, moods, settings, paces, characters, and sequences of events in the two works. However, at summary judgment, courts apply only the extrinsic test. Finally, the court recognized that, in conducting the extrinsic test, it “must take care to inquire only whether the protectable elements, standing alone, are substantially similar” and recognized also that ideas, familiar stock scenes and themes that are staples of literature, and scènes à faire that flow necessarily or naturally from a basic plot premise are not protectable.
With these principles in mind, the court examined the relevant aspects of the works – their plots and sequences of events, characters, themes, dialogues, and settings, moods, and paces and found that any similarities between the two works are not protectable as a matter of law. The court reached this conclusion even after considering the testimony, submitted by plaintiffs, of three purported experts with respect to the similarity issue: professors and deans of film and comparative literature at highly respected universities.
The court found that the two plots share the idea of a father-daughter baseball story but noted that such an idea and the scènes à faire that necessarily flow from that basic plot premise cannot sustain a finding of infringement. Moreover, though the father characters are similar in that they are both gruff, old-school, stubborn widowers who miss their wives and have trouble communicating with their daughters, their characters flow naturally from the works’ shared premise of an older baseball-devoted father attempting to become closer with his daughter. Additionally, though the two works share the themes of father-daughter reconciliation, the breaking-down of emotional barriers, and the importance of family, these themes are inherent to many father-daughter stories. To the extent that the works share the same “skeletal structure,” the skeleton was so generic and the differences so substantial that the remaining similarities were not protectable under copyright law.