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Counts v. Meriwether

District court grants defendants’ motion for summary judgment on copyright infringement claim brought by two screenwriters against creators of Fox sitcom “New Girl,” finding no evidence defendants had access to plaintiffs’ screenplay and that works were not substantially similar.

Screenwriters Stephanie Counts and Shari Gold sued Twenty-First Century Fox Inc., Elizabeth Meriwether, William Morris Endeavor Entertainment and Chernin Entertainment LLC, among others, alleging that the defendants copied their screenplay “Square One” to create the hit sitcom “New Girl.” After whittling down plaintiffs’ claims in several rounds of motions to dismiss in earlier court proceedings, defendants moved for summary judgment on plaintiffs’ remaining copyright infringement claims. The district court granted the motion.

The district court first considered whether plaintiffs could prove the required element of access to their screenplay, through either a “reasonable opportunity” or “reasonable possibility” of viewing plaintiffs’ work. Absent direct evidence of access, plaintiffs may establish access through circumstantial evidence showing a chain of events between plaintiffs’ work and defendants’ access to that work. In 2008 and 2009, producer Holly Harter sent copies of  plaintiffs’ screenplay to agents at Endeavor (which later merged with William Morris to become WME). Plaintiffs parted ways with Harter in October 2009 and no further progress was made on advancing “Square One.” In 2010, Meriwether contacted Katherine Pope, President of Television at Chernin, regarding a concept for a show that was eventually called “New Girl.” Plaintiffs alleged that after Harter sent their screenplay to WME, different agents for Meriwether and Chernin at WME accessed “Square One” and passed it on to Meriwether or Chernin. The district court concluded that plaintiffs failed to establish a link between the agent at WME to whom Harter sent the screenplay and Meriwether’s and Chernin’s agents, or Meriwether and Chernin. Absent this link, the court held that“Plaintiffs’ theory is simply one of bare corporate receipt …”   

The district court next considered whether the two works are substantially similar. Although it found the parties’ experts on this issue to be qualified, the court noted that expert testimony was less critical in this case because the works targeted a general audience and specialized knowledge was not necessary to make a comparison. Ultimately, the district court determined that “Square One” and “New Girl” were not substantially similar in plot and sequence of events, characters, mood, pace, setting, themes and dialogue. The court said that “after sifting through various mischaracterizations of the plot [by Plaintiffs] and excluding scenes a faire, the Court finds that few similarities remain.” While the Ninth Circuit has allowed copyright protection for characters who are especially distinctive, the district court found that none of the characters in “Square One” were sufficiently distinctive to be afforded copyright protection or substantially similar to the characters in “New Girl.” The plaintiffs argued that the female protagonists in both works are in their 20s and 30s and characterized as “optimists, sexually inexperienced, feminine, have a hard time fitting in, attempt to cook and be domestic for their roommates and use outdated phrases.” The district court said “most of these similarities are ordinary” and cannot be afforded protection. Although the protagonist in both works has an unfaithful partner named “Spencer,” the district court pointed out that a character’s name is not protectable. Further, among other findings, the district court noted that although both “New Girl” and “Square One” take place in a living room with an L-shaped couch and a television, with a secondary setting at a bar or restaurant, these stock settings are not protectable and appear in many other sitcoms including “Seinfeld,” “Friends” and “How I Met Your Mother.” The court concluded that no reasonable jury could find substantial similarity of protectable elements.