StudioFest LLC v. William Morris Endeavor Entertainment

District court denies WME’s, Dave Franco’s and Alison Brie’s motion to dismiss copyright infringement suit claiming that their film Together copied StudioFest’s screenplay Better Half, finding that Together and Better Half—both about couples that physically fuse together—share similarities in how they invert Plato’s Symposium myth of humans being separated by Zeus, their use of Spice Girls song “2 Become 1” and other scenes.

Plaintiff StudioFest LLC, a film production, financing and distribution company, is the owner of the copyright in a screenplay written by Patrick Phelan titled Better Half. In the course of producing a film based on the Better Half screenplay—which is “about two people who become fused together”—StudioFest and its casting director sent a full copy of the screenplay to actors Dave Franco and Alison Brie, as well as their agents at William Morris Endeavor (WME). Franco passed on the project. Later, another client of Franco’s agent at WME, Michael Shanks, wrote a screenplay titled Together, which was ultimately made into a motion picture starring Franco and Brie. StudioFest thereafter filed a copyright infringement suit against WME, Franco, Brie, Shanks and production company Neon Rated LLC, claiming that the Together screenplay and film copied protected elements of the Better Half screenplay. Defendants moved to dismiss the complaint—which stated one cause of action for copyright infringement on direct, vicarious and contributory liability theories—on the grounds that the two works are not substantially similar as a matter of law.

For purposes of its analysis, the court summarized the Better Half screenplay and the Together film. According to StudioFest, the Better Half screenplay was written after Phelan read Plato’s Symposium, which describes the origin of man as one in which humans were round beings with eight limbs and two faces, only to be split in two by Zeus’ lightning bolt when the gods began to fear humans’ strength. In Better Half, the male protagonist, Art, is a classics professor who recounts the Symposium tale to his students, telling them, “We spend our lives … searching for our missing half.” During Art’s telling of the myth, a sharpie outline of a “humanoid CREATURE with two faces, back to back on the same head” is displayed on the classroom projector. Art, who has had problems with becoming too attached in relationships, meets Daphne—a tattoo artist who has had the opposite relationship issues—at a bar and the two spend the night together. When they awake, they find that they are physically attached by a growth of skin connecting their navels. Art’s ex-girlfriend arrives shortly thereafter and the two hide in the bathroom, only to be discovered by the ex-girlfriend in an apparent act of intimacy. In later scenes, Art and Daphne attempt to detach their bodies, but the attachment grows stronger. They unsuccessfully attempt to separate themselves with electric shocks and a chainsaw, and also visit the emergency room, where a doctor shows them a doodle similar to the one Art had shown his students when recounting the Symposium tale. Throughout Better Half, Art and Daphne discuss their conundrum by referencing Symposium as well as other pop culture references, including recurring references to the Spice Girls song “2 Become 1,” which Art owns on vinyl. By the end of the screenplay, Art and Daphne have accepted their situation and dance together to the record, only to wake up the next morning detached.

Together, on the other hand, is described as a “supernatural ‘body horror’ thriller” that “explores a long-time couple’s relationship following an unknowing encounter with a supernatural substance that progressively attracts their bodies to one another.” The couple, Millie and Tim, find themselves in a cave while escaping a rainstorm, where they discover a pool of water, which they drink from before falling asleep. When they wake up, their legs are attached by a thin layer of skin, which they’re able to detach. As the story proceeds, Tim finds himself inexplicably physically drawn to Millie, and when the two touch, they again momentarily become physically attached. At one point, Tim and Millie have sex in a bathroom stall at the school where Millie works and their bodies are momentarily attached. The couple then hides in the stall from Millie’s coworker. Millie later talks of her and Tim’s relationship with the coworker, who recounts the story of Symposium, saying that Zeus had doomed humans “to spend our lives in search of the other half.” In the middle of the night, Millie and Tim awake to find their bodies physically attaching, which they separate with a small electric saw. As the pull of their bodies increases, they resign themselves to their fate and, while conjoining, dance to the Spice Girls’ “2 Become 1,” which is played from a vinyl record Tim had given to Millie.

Noting that defendants had not challenged plaintiff’s copyright ownership or that they had access to plaintiff’s work, the court focused on the question of whether the works were substantially similar. Ninth Circuit precedent applies both an “extrinsic test”—which “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression”—and an “intrinsic test”—which “test[s] for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.” For purposes of a motion to dismiss a copyright infringement claim as a matter of law, however, only the extrinsic test is used. When analyzing screenplays, the court assesses substantial similarity by looking at similarities in the plot, characters, themes, mood, pace, dialogue and sequence of events.

The court found that StudioFest had adequately pleaded similarities in the plots and sequences of events between Better Half and Together. While the court noted that “[t]he broad concept of conjoined lovers” is too generic to be protectable, StudioFest successfully pointed to allegations of specific plot elements shared by the two works, such as couples who wake up to find their bodies joined together, their struggles to detach their bodies, and their ultimate acceptance of their fate while dancing together. More importantly, the court found similarity in how both works reverse Plato’s Symposium story: “rather than depicting a split followed by a search for reunion, the protagonists are forcibly merged, and the narrative centers on their struggle to separate.” While defendants argued that Symposium is not a protectable element of either work, the court found distinct the way in which the Symposium story was used in both Better Half and Together—in scenes in which the Symposium story is discussed and as it’s used to frame the plots of the works.

The court also found that StudioFest had alleged sufficient similarities in devices used to advance the plots of the works, including crude drawings of conjoined beings, awkward marriage proposals and scenes where the conjoined couples are discovered by a minor character in apparent sexual acts in a bathroom stall. The works’ similarities in the use of and reference to the Spice Girls song “2 Become 1,” played on a vinyl record, also convinced the court that StudioFest had adequately pleaded substantial similarity. While recognizing that reference to a song alone may not be sufficient to establish substantial similarity, here both works featured recurring references to the song and the use of the song in a pivotal concluding moment.

The court further held that StudioFest had adequately pleaded similarities in the themes of Better Half and Together. Describing a theme as a work’s “overarching message,” the court stated that both works here explored “themes of codependency and enmeshment in relationships” that were “expressed by inverting the myth in Plato’s Symposium.” The works’ similar use of the inverted Symposium myth indicated to the court that the films must have a “close ‘overarching message or underlying meaning.’”
The court was less convinced that StudioFest had pleaded substantial similarity between the mood, pace, dialogue, characters, setting, or selection, coordination, and arrangement of elements between Better Half and Together. However, it found that the similarities between the plots, sequences of events and themes were substantial enough to deny defendants’ motion to dismiss, and thus held that review of other elements was unnecessary.

Additionally, defendants moved to dismiss StudioFest’s claims for secondary copyright infringement liability, which were included in its single claim for direct, vicarious and contributory liability. However, noting that defendants’ motion on this ground would not “dispose of an entire claim,” as required, the court denied the motion.

Summary prepared by Todd Densen and Kyle Petersen