Shah v. Netflix

District court dismisses Indian screenwriter’s copyright infringement suit alleging Netflix ripped off Bollywood film to create hit show Squid Game, holding that while both works at issue depict characters fighting to survive a series of deadly games, plaintiff failed to show substantial similarities and failed to demonstrate that he had legal or beneficial ownership of his film.

Plaintiff Soham Shah is an Indian writer and filmmaker. In 2006, he wrote the story “Luck,” which he subsequently adapted into a screenplay and, eventually, a movie. The Hindi-language film Luck was released in 2009. Its plot involves an indebted protagonist who lives with his mother in Mumbai and joins a game of luck “with life-or-death stakes.” The district court noted specifically in its analysis that while the film depicts “high stakes gambling,” the focus of the players and the games’ organizers is to find individuals who have “good luck.” At the end of the story, the protagonist, his friends and his love interest all succeed and survive the game and the movie closes with “[h]ighly choreographed, Bollywood-style dancing and singing.”

In 2021, Netflix released the first season of the South Korean show Squid Game. The first season also involves an indebted protagonist who lives with his mother and who “competes to make money in a terrifying game, also with life-or-death stakes.” In Squid Game, players compete in six children’s games and the losing players either die during the games or are killed afterward by masked guards. The protagonist ultimately wins the game, but he returns to Seoul to find that his mother has died, and he remains tormented by the death of his childhood friend, against whom he competed in the final game. The show ends with the protagonist leaving to visit his daughter in America and figure out who was running the games (and potentially seek revenge).

Shah sued Netflix Inc., Netflix Worldwide Entertainment LLC, which holds the U.S. copyrights for Squid Game, and Squid Game creator Hwang Dong-Hyuk, alleging that the show infringed on his copyright in both the film Luck and his screenplay. Defendants moved to dismiss the complaint for failure to state a claim, arguing that Squid Game and Luck are not substantially similar and that Shah failed to adequately allege his copyright ownership of the film or that defendants had access to his film or screenplay. Hwang, a resident of South Korea, moved to dismiss on the additional ground that the court lacked personal jurisdiction over him.

As an initial matter, the district court addressed Hwang’s motion to dismiss due to lack of personal jurisdiction. It noted that in situations with multiple defendants and the court indisputably has personal jurisdiction over some of them, if a facial challenge to an underlying cause of action is raised by all defendants, the court can address that challenge without taking up the jurisdictional issue.

The district court then looked at defendants’ motion to dismiss for failure to state a claim, noting that a plaintiff must adequately plead ownership of a valid copyright and copying of original elements of that work. To meet the second prong, the plaintiff must establish both that the defendant actually copied the plaintiff’s work and that there is a substantial similarity between the defendant’s work and the protectable elements of the plaintiff’s work. The district court first reviewed whether Shah had standing to allege copyright infringement of Luck. While there was some dispute over whether the copyright laws of India or the United States applied in determining ownership, the district court concluded that Indian law applied because both Shah and the film’s production company are Indian and because the film was produced in India. However, under Indian copyright law, the original owner of a movie is its “author,” which in this case is the film’s producer, not Shah. While Shah tried to argue that he is a beneficial owner of the work because he has a right to claim royalties from the film, the district court noted that Second Circuit law holds that “mere interest” in a copyright is not sufficient to establish beneficial ownership. Accordingly, the court found that Shah failed to adequately plead that he had either legal or beneficial ownership in the film’s copyright and dismissed his claim for infringement of the film for lack of standing.

Regarding the screenplay, the district court analyzed whether Luck and Squid Game are substantially similar, noting that the standard for substantial similarity is whether “an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.” As some aspects of a work may not be protectable, the court’s analysis must discern whether any similarities are due to “protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.”

The district court began its analysis by comparing the two works, including the concept, feel, theme, characters, pace, plot and setting. It first noted that the general plot idea of a life-or-death game is not copyrightable, both because general plot ideas themselves cannot be copyrighted and because the idea has been explored in many previous works, such as the Hunger Games series. The district court held that the idea of a protagonist fighting to survive a deadly game is not original and constitutes an “unprotectible scène à faire,” which necessarily must follow from the premise of the work. It also found that the plot of the two works diverged significantly—Squid Game has numerous subplots (such as a detective investigating the deadly games) that have no parallel in Luck, while Luck has a romantic subplot that has no counterpart in Squid Game. Similarly, the games that the protagonists play are dramatically different—while the games in Luck are explicitly designed to test the players’ luck (such as shooting a gun at another player without knowing whether the gun is loaded), the participants in Squid Game are forced to play a series of children’s games, some of which are specific to Korea. And while all the main participants in Luck survive, only the protagonist in Squid Game survives. Shah raised five specific plot points that he believed were “too similar to arise from chance,” but the district court disagreed and determined that none of the points were substantially similar.

Turning to the pacing, sequencing and settings of the two shows, the district court concluded that they are significantly different. Squid Game is set in Seoul, in a building designed to look like a playhouse on an unnamed island off the Korean coast. The games feature nearly 500 contestants who are forced to spend all their time in a single room with bunk beds, with no electronics or a way to connect with the wider world, wearing uniforms and playing games that contrast with the deadly nature of the games. In contrast, Luck begins in Mumbai, before the players relocate to Cape Town to compete in the games. The games only feature 16 players, who spend their free time in a posh hotel and are generally able to leave and spend their winnings at will. Unlike the “dark and dystopian” themes of Squid Game, Luck is a stylized Bollywood movie with choreographed dancing and singing.

Thematically, the district court also found significant differences between the works. In Squid Game, every character is substantially in debt and, while they join the games to get out of debt, the games themselves are designed to test the humanity of desperate people. However, only the protagonist of Luck is revealed to be in debt, with the central premise of Luck being that fortune and fate are an “immutable characteristic.” In Squid Game, each player’s success necessarily comes at the expense of another; the same is not true in Luck. The district court then analyzed the characters in each work. While some similarities exist between the protagonists (being in significant debt and living with a widowed mother), the district court found that these were overshadowed by the many substantial differences. For example, while the protagonist of Luck was in debt due to his father’s poor decisions and strove to pay off the debt, save his mother’s home and keep her from knowing the truth, the protagonist of Squid Game was in debt due to his own irresponsible decisions, resulting in his mother hiding her ATM card from him and changing the PIN (which he then correctly guesses before losing the money betting on horse racing). The district court also compared the supporting characters who created the games in each work, but any similarities exist “only at a high level of abstraction too general to be protectible.”

Finally, the district court held that the total concept and overall feel of the works are entirely distinct, and these meaningful differences extend beyond just a difference in genre. Luck is much more upbeat and lighter in tone than Squid Game and its “emphasis on luck lends it a sense of magical realism.” Squid Game, on the other hand, is a dark story that presents an unsettling view of the world. While Luck ends with the main characters happy and triumphant, Squid Game ends with everyone dead except for the protagonist, who seemingly seeks revenge. Having found that there is no substantial similarity between the works, the district court granted defendants’ motion to dismiss on all counts with prejudice.

Summary prepared by David Grossman and Alex Loh