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IP/Entertainment Case Law Updates

Montgomery v. Holland

Second Circuit affirms dismissal of copyright infringement claim targeting 2014 television miniseries Rosemary’s Baby, holding it was not substantially similar to plaintiff’s short stories.

 Pro se plaintiff Wilhelmina “Mina” Montgomery sued the director Agnieszka Holland as well as various actors, producers, and production and distribution entities associated with the 2014 television miniseries Rosemary’s Baby, alleging that it infringed 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: A Synopsis of the Fictionalized Story. The district court dismissed the complaint, finding that no infringement occurred because the miniseries was not substantially similar to the short stories. (Read our summary of the district court’s decision here.) On plaintiff’s appeal, the Second Circuit affirmed.

The Second Circuit began by assessing substantial similarity through a comparison of the “overall feel” of the works. The court found that neither plaintiff’s True Story (a naturalistic character sketch that closes with the mysterious disappearance of the narrator’s close friend after he moves in with a pair of elderly Nazis) nor plaintiff’s Fictionalized Story (a Nazi-hunting thriller) were similar to defendants’ miniseries, a horror story involving Satanists employing supernatural powers.

The court next considered plaintiff’s argument that the court improperly applied the “pattern” test, which conceives of a copyright as covering the pattern of a work, its sequence of events and the development of the interplay of characters. In doing so, the court analyzed purported similarities in the plot elements, portions of dialogue and common significant dates of the parties’ works, and found that none of those elements would permit a jury to find the works were substantially similar.

The court found that the alleged common plot elements between the works that plaintiff identified—including an interracial friendship, an investigation, a mysterious disappearance and an incident involving a strange photograph—were merely random similarities scattered throughout the works that could not support a finding of substantial similarity.

Turning to portions of dialogue that plaintiff identified as having been copied “verbatim” by defendants, the court found that they were limited to isolated word choices, short common phrases and purportedly similar expressions of common ideas, such as the concept of feeling transported in time—all of which lack the originality required for copyright protection. The court also rejected plaintiff’s argument regarding common elements in the settings of the works, holding that the fact the works refer to a disappearance that occurred in the 1980s is unprotectable, and that the settings of cafes, bridges crossing the Seine, apartments and parties are similarly unprotectable scenes a faire.

Summary prepared by Tal Dickstein and David Forrest