Stromback v. New Line Cinema

• Decision Date: 14 September 2004
• Docket Number: No. 02-2387.,No. 02-2388.,02-2387.,02-2388.
• Citation: 384 F.3d 283
• Parties: Douglas Alan STROMBACK, Plaintiff-Appellant/Cross-Appellee, v. NEW LINE CINEMA, Defendant-Appellee/Cross-Appellant, Larry Hess, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

384 F.3d 283

Douglas Alan STROMBACK, Plaintiff-Appellant/Cross-Appellee, v. NEW LINE CINEMA, Defendant-Appellee/Cross-Appellant, Larry Hess, et al., Defendants-Appellees.

No. 02-2387.

No. 02-2388.

United States Court of Appeals, Sixth Circuit.

Argued June 8, 2004.

Decided and Filed September 14, 2004.

Rehearing Denied October 8, 2004.

Appeal from the United States District Court for the Eastern District of Michigan, John Corbett O'Meara, J.

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Andrew J. Kochanowski (argued and briefed), Sommers, Schwartz, Silver & Schwartz, Southfield, MI, for Plaintiff-Appellant.

Herschel P. Fink (argued and briefed), Honigman, Miller, Schwartz & Cohn, Detroit, MI, for Defendants-Appellees.

Before MARTIN and SUTTON, Circuit Judges; QUIST, District Judge.^*

OPINION

QUIST, District Judge.

Plaintiff, Douglas Alan Stromback ("Stromback"), sued Defendant, New Line Cinema ("NLC"), and others, alleging violations of the Copyright Act, 17 U.S.C. § 106, and the Lanham Act, 15 U.S.C. § 1125, and alleging various state law claims under Michigan and/or California law. Stromback's claims all arise out of his allegations that the movie "Little Nicky," which is owned and distributed by NLC, infringes Stromback's poem entitled "The Keeper" as well as his original treatment and outline of a screenplay based upon "The Keeper" poem entitled "The Keeper."¹ The district court granted summary judgment to NLC on all of Stromback's claims and dismissed the case. Stromback filed this timely appeal. We affirm on all issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

In late 1998 and early 1999, Stromback, an actor, aspiring screenwriter, and former professional hockey player, created an original poem entitled "The Keeper." Stromback then created an original treatment and original outline of a screenplay based upon "The Keeper" poem and entitled each one "The Keeper." Later, Stromback created several original screenplays of "The Keeper." Stromback registered the poem and a version of the screenplay with the Copyright Office. Stromback also registered several versions of the screenplay with the Writers Guild of America.

Stromback alleges that in early 1999, he shared the poem and the screenplay with Larry Hess and John Apothaker to solicit their comments on his work. According to Stromback, Hess and Apothaker subsequently passed copies of "The Keeper" poem and screenplay to NLC. In November 2000, NLC released a movie it produced called "Little Nicky," starring Adam Sandler. Stromback alleges that after seeing "Little Nicky" in the theater, he realized that it contained substantial similarities to his works, including similarities in theme, character treatment and development, idiosyncratic character traits, and scene selection. A description of the two works follows.²

The Keeper

The registered screenplay version of "The Keeper" is a story about "Ted," who brings down the corrupt Governor of California, "John." Racial themes are presented throughout the story. Ted is white. Ted's adoptive mother is "Martina," an older black lady. Ted's grandfather, "Fred," is an 87-year-old black man who lives in a nursing home and is apparently losing his mental faculties. When Ted was young, Fred taught Ted to speak in rhymes, as Ted often does throughout the story. Fred thought that being able to rhyme was the secret to succeeding in life because Muhammed Ali spoke in rhymes. Fred told Ted that he was teaching Ted how to rhyme so that Ted would deliver the family "from the gutter." Ted regularly talks to himself in his apartment, apparently responding in a schizophrenic manner to voices inside his head. Ted asks Martina to explain the voices and why he is troubled but she is reluctant to tell him the truth, which is that he was abandoned in a dumpster as a baby by his birth mother. Eventually, Ted's mother told him that they found him on church grounds and that his mother was an eighteen year old girl who was having an affair with a politician.

The story opens with Ted starting a new job at the "national paper." Ted is hired to work in the basement of the building organizing old files. Ted's boss, "Dave," calls the basement "the cave" or "the dungeon." Ted works in the evening and often sleeps during work. Ted is attracted to a female writer named "Sue." Ted concocts and carries out a plan to approach Sue in the dark and reveal his feelings toward her through a rhyme. Sue figures out that Ted was the person who approached her in the dark but she won't date him because he is "totally weird."

Shortly after he begins working at the national paper, Ted begins to obsess about Governor John.³ Governor John is portrayed as a power hungry politician who does no real work and whose ambition is to become president and take over the world. Ted believes that Governor John is "cocky and arrogant" as well as evil, and at various times Ted refers to Governor John as the devil. Ted begins a campaign against Governor John by sending anonymous rhyming riddles to the national paper that the newspaper prints in its editorial page. Eventually it is revealed that Ted has been reading about a "Jokela murder case," in which a reporter ("Jokela") was murdered in the same basement in which Ted now works. Jokela discovered that the then-secretary of state (Governor John's father) was involved in a cult having "some thing to do with the devil." Governor John's father was the prime suspect in the murder but "got off the hook and the case never went to trial." He went on to have a distinguished career as Governor. Ted knows that Governor John's father was responsible for the murder and includes clues about it in his riddles.

Governor John reads the riddles and eventually catches on that the author is out to get him. The Governor and his henchmen decide to kill "that rhyming dude." Ted reveals himself to the Governor and dares him to "get me if you can." Governor John arranges for three individuals to find and murder Ted at the national paper. However, Ted sets a trap in which he uses his "good friend," "Scott," to trick the hit-man into thinking that Scott is actually Ted. The hit-man ends up killing Scott. Having video-taped the murder, Ted tells a dying Scott: "I needed you, you were a good friend, but everybody needs a ladder to get to the top. You're my ladder scott [sic]."

Ted shows the tape of the murder to the police, who eventually link the murder to Governor John. The story ends with the Governor going to jail and Ted being elected as the Governor of California. On election night Sue goes to Ted's hotel room, where he rapes her. Sue has no recourse because Ted now has the power. Ted calls Sue a "bitch" as she leaves.

Little Nicky

Little Nicky is a "comedy" about the Devil, "Satan," and his three sons: "Casius," the strong, tough son; "Adrian," the smart, ruthless son; and "Nicky," the weaker, sweet son, who also has a speech impediment caused by his brother hitting him in the face with a shovel. Adrian and Casius frequently pick on Nicky and "mind wrestle" with him, causing him to do or say things against his will. The grandfather, "Lucifer" (Rodney Dangerfield), appears occasionally but does not really interact with Nicky.

The movie opens with Satan trying to decide if he should retire after 10,000 years of rule. If he does, one of his sons would take over Hell. Casius and Adrian both want the job. Nicky does not want it and prefers that his father keep the job. Satan decides to keep the job and rule for another 10,000 years in order to maintain the balance between good and evil (he does not believe that his sons are capable of doing this). Casius and Adrian are furious at this decision and plan to escape to Earth, where they will try to corrupt as many souls as possible (to threaten the balance between good and evil) in their quest to assume control. During their escape, Casius and Adrian travel through a wall of fire, by which damned souls are intended to fall into, but not leave, Hell. Adrian and Casius cause the wall of fire to freeze and a logjam of souls ensues outside the wall of fire. Without new souls entering, Satan begins to decompose. His only hope is to send Nicky to Earth to force his brothers to drink from a magic flask, in which they will be trapped. Once he has his brothers inside the flask, Nicky must pass through the wall of fire and return to Hell, which will save Satan.

Nicky travels to New York City, where Satan's friend, a talking dog, "Beefy," serves as Nicky's guide. Nicky is also assisted by two cult-worshiping "groupies" named "John" and "Pete." Beefy, John, and Pete all want Nicky to "release his inner evil" in order to overpower Casius and Adrian. Nicky has a difficult time finding his brothers because they hide by randomly "possessing" humans. Casius possesses the Mayor of New York and lowers the drinking age from 21 to 10, causing chaos. All three of them have a difficult time adapting to Earth's cold weather.

While on Earth, Nicky meets and falls in love with a woman named "Valerie." During a chance encounter, Adrian mind wrestles with Nicky and causes him to insult Valerie. However, Nicky wins back Valerie's affection by telling her the truth about his family and mission on Earth. During the story, Nicky is killed several times (e.g., by a train or bus) and is sent back to Hell, where he is re-dispatched to Earth. The final time, Nicky dies trying to save Valerie and goes to Heaven. There, he meets an angel named "Holly," who turns out to be his mother. Holly tells Nicky that she met Satan at a "Heaven and Hell Mixer." Holly tells Nicky releasing his inner good is the key to victory over his brothers. Holly also gives Nicky a magic sphere from God for Nicky to use when it is time.

Nicky manages to trap Casius in the magic flask, but Adrian has assumed the throne of Hell and has caused Hell to rise through Central Park in New York....