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IP/Entertainment Case Law Updates

Montgomery v. Holland

District court grants dismissal of short-story writer’s copyright infringement claim against creators and producers of television miniseries Rosemary’s Baby, holding that purported superficial and immaterial similarities of interracial friendship, among others, were not protectable.

Pro se plaintiff Mina Montgomery sued Agnieska Holland and various actors, producers, and production and distribution entities associated with the 2014 television miniseries Rosemary’s Baby, alleging that it infringed on two of plaintiff’s short stories, Drowning Paris in Mississippi Tears OR The Groaning Road – The True Story and Drowning Paris in Mississippi Tears OR The Groaning Road – The Fictionalized Story

Defendants, who were properly served and appeared in the action, moved for dismissal based on the pleadings, which the court granted.  The court held that even assuming access, there was no actionable substantial similarity between the works. 

Although defendants had implied in their briefing that previous versions of Rosemary’s Baby could be a source for some of the purported similarities, the court expressly stated that it would not consider any such similarities in reaching its decision on the pending motions, as doing so would require a factual finding as to the origin of the copying, and as such, it fell outside the appropriate scope of a decision under Federal Rules of Civil Procedure 12(c) and 12(b)(6).

Rather, the court based its decision entirely on the lack of similarity between the miniseries and the protectable elements of plaintiff’s short stories.  After an extensive exposition of the plotlines and details of both of plaintiff’s works and the miniseries, the court conducted a “general comparison” and a comparison of the characters, and then analyzed other purported similarities, holding that none of these elements would permit a jury to find the works in question were substantially similar.

As to the general comparison, the court analyzed the “tone and feel” of the works.  It noted that the Rosemary’s Baby miniseries is “a dramatic horror series” with its “main visual themes” being “violence, sex and Satanism.”  In contrast, plaintiff’s works are “far more realist” and contain “no explicit murder or death, and no sex.”  While one of plaintiff’s stories ends on a “suspenseful, eerie” note, that alone was not sufficient to mask that the overall tone and feel of the short stories and the miniseries nevertheless “differ in nearly every relevant way.”

The court then considered purported similarities between the characters in the works at issue.  Plaintiff alleged that the presence of an interracial couple at the center of Rosemary’s Baby, as well as an interracial friendship between Rosemary and a friend played by a Caucasian actress, copied plaintiff’s short story, which included a friendship between an African American woman and a woman who, like Rosemary’s friend in the miniseries, was “blond and white.”  The court rejected this argument, citing previous decisions holding that age and race are not protectable characteristics and reasoning that on the same logic, gender is likewise unprotectable.  The court then noted that the characters themselves, beyond basic racial and gender similarities, were not at all alike. 

Turning to other elements that plaintiff identified as being similar, the court likewise found them to be not subject to protection.  Plaintiff’s short stories and the miniseries all are set in Paris; plaintiff noted miniseries scenes in which characters walked the city streets of Paris, met in cafes and admired Paris’s historic bridges as improperly copying scenes in which her characters did the same activities.  The court found these overlaps to originate from the Parisian setting of the works, and as such, they were unprotectable scenes a faire common to stories with a similar setting.  Likewise, isolated identical dialogue, such as when English-speaking characters inquired of Parisian locals, “Parlez-vous anglais?” was similarly unprotectable given the context.  

Finally, while recognizing the Second Circuit’s directive to give a “liberal reading” to complaints advanced by pro se plaintiffs, the court determined that no amendment could remedy the lack of substantial similarity between the works at issue, and dismissed plaintiff’s claims with prejudice. 

Summary prepared by Linna Chen and Erin Smith Dennis