383 F.3d 965 (9th Cir. 2004), 01-57255, Grosso v. Miramax Film Corp.

Docket Nº:01-57255.
Citation:383 F.3d 965
Party Name:Jeff GROSSO, Plaintiff-Appellant, v. MIRAMAX FILM CORP., a New York Corporation; Miramax Books; Spanky Pictures, a New York Corporation; David Levien, an individual; Brian Koppelman, an individual; Ted Demme, an individual; Joel Stillerman, an individual, Defendants-Appellees.
Case Date:September 08, 2004
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 965

383 F.3d 965 (9th Cir. 2004)

Jeff GROSSO, Plaintiff-Appellant,

v.

MIRAMAX FILM CORP., a New York Corporation; Miramax Books; Spanky Pictures, a New York Corporation; David Levien, an individual; Brian Koppelman, an individual; Ted Demme, an individual; Joel Stillerman, an individual, Defendants-Appellees.

No. 01-57255.

United States Court of Appeals, Ninth Circuit.

Sept. 8, 2004.

Argued and Submitted April 7, 2003.

Amended March 15, 2005.

Page 966

John A. Marder, Steven J. Renick, and Sylvia Havens, Manning & Marder, Kass, Ellrod, Ramirez, Los Angeles, CA, for the plaintiff-appellant.

Richard L. Charnley, Nelson, Thompson, Pegue & Thornton, Santa Monica, CA, for the defendants-appellees.

Page 967

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-10939-ABC.

Before: SCHROEDER, Chief Judge, THOMPSON, and GRABER, Circuit Judges.

SCHROEDER, Chief Judge:

Jeff Grosso appeals the district court's judgment in favor of the defendants, Miramax Film Corp. and others ("Miramax"), in his action alleging breach of contract under California law and violation of his copyright in his screenplay The Shell Game. Grosso claims that Miramax stole the ideas and themes of his work when they made the movie Rounders. In this appeal we consider two separate district court orders: one granting summary judgment on Grosso's copyright claim and one dismissing his state law claim as preempted by the Copyright Act. We affirm the district court's grant of summary judgment in favor of Miramax on the copyright claim, but we reverse its dismissal of the state law claim.

Summary judgment on Grosso's copyright claim was proper. As the district court carefully and correctly explained, the two works are not substantially similar. The works do not have substantially similar genre, mood, and pace; their themes, settings, and characters are different; their plots and sequences of events are not parallel. Both works have poker settings but the only similarities in dialogue between the two works come from the use of common, unprotectable poker jargon.

Grosso's state law claim is for breach of implied contract. It seeks compensation not for the actual written script, but for the idea allegedly embodied in the script and shared with Miramax. See Desny v. Wilder, 299 P.2d at 257 (Cal.1956). We conclude that the district court erred in holding the claim preempted by the Copyright Act and in granting Miramax's motion to dismiss under Federal Rule of Civil Procedure 12(b) (6).

In Desny, 299 P.2d at 257, the California Supreme Court explained that where an idea is furnished by one party to another, a contract sometimes may be implied even in the absence of an express promise to pay. The Court held that a contract exists where "the circumstances preceding and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances, show a promise [to pay] of the type usually referred to as 'implied' or 'implied in fact.' " Id. at 270. The Desny rule is justified on the theory that the bargain is not for the idea itself, but for the services of conveying that idea. See Donahue v. Ziv Television Programs, Inc., 245...

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