Litchfield v. Spielberg

• Decision Date: 06 July 1984
• Docket Number: No. 83-6045,83-6045
• Parties: , 1984 Copr.L.Dec. P 25,680, 10 Media L. Rep. 2102 Lisa LITCHFIELD, Plaintiff-Appellant, v. Steven SPIELBERG; MCA Inc.; Universal City Studios, Inc.; Extra-Terrestrial Productions; Kathleen Kennedy; Ned Tanen; and Melissa Mathison, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1352

736 F.2d 1352

222 U.S.P.Q. 965, 1984 Copr.L.Dec. P 25,680,

10 Media L. Rep. 2102

Lisa LITCHFIELD, Plaintiff-Appellant, v. Steven SPIELBERG; MCA Inc.; Universal City Studios, Inc. Extra-Terrestrial Productions; Kathleen Kennedy Ned Tanen; and Melissa Mathison Defendants-Appellees.

No. 83-6045.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 5, 1984.

Decided July 6, 1984.

Ralph Francis Server, Los Angeles, Cal., for plaintiff-appellant.

Louis P. Petrich, Youngman, Hugate & Leopold, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT, FERGUSON, and REINHARDT, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

The issues: (1) Did the producers of the motion picture, E.T.,--The Extra Terrestrial, infringe the copyright of a musical play, Lokey from Maldemar, and (2) was summary judgment proper on the issue of substantial similarity?

Litchfield wrote and copyrighted Lokey from Maldemar. Subsequently the defendants produced E.T.

Litchfield sued for copyright infringement, unfair competition, and various state claims, alleging that E.T. was copied from her play. The district court granted defendants' motion for summary judgment on the copyright claim and dismissed the remaining claims.

On appeal, the main question is whether summary judgment was proper on the issue of substantial similarity. We hold that it was.

FACTS

The district judge's findings of fact of June 10, 1983 state the case accurately:

Plaintiff Lisa Litchfield is the author of a one-act play entitled "Lokey from Maldemar." Litchfield wrote the play in 1978, and public performances were given in Los Angeles in September 1978. Subsequently, she submitted a copy of "Lokey" to defendant Universal City Studios, Inc., in the hope that the work would be purchased for purposes of developing a motion picture. These aspirations were disappointed, however, when Universal rejected "Lokey" as unsuitable for film treatment in October 1979. Nonetheless, plaintiff continued her efforts to market the work, adapting a "screenplay outline" of "Lokey" in 1980 from the 1978 theatrical version. Despite repeated efforts to find a receptive buyer for her works, plaintiff failed to find success in Hollywood.

As originally developed in 1978, "Lokey" was a musical play about the adventures of two aliens, Fudinkle and Lokey, who are temporarily stranded on Earth when their spacecraft is immobilized by gravity. After landing near the North Pole, the aliens meet Lisa Marie, her younger brother Michael, and their father, a scientist stationed at the Sorenson Research Center at the North Pole. After temporarily detaining the children with an energy field, the aliens quickly learn English and are invited home by Lisa Marie to meet her father. At the cabin, Lokey demonstrates his extraordinary extra-terrestrial powers by psychokinetically taking a gun away from her father; reviving the father from a heart attack; projecting a map of the Earth on the cabin wall through mind power; and revealing his own destiny as a future ruler of his planet. Lisa Marie demonstrates her own terrestrial charms, teaching Lokey to kiss and inducing him to promise to send "mind pictures" to her after the aliens' departure. Fudinkle and Lokey then travel to a beach in Japan, where they capsize a fishing boat filled with porpoise hunters. Next, the aliens travel to the Andes Mountains, where they meet Tollie Marx, a prophetic witch. Finally, all of the characters appear on the On June 11, 1982, the defendants' film "E.T.--The Extraterrestrial" opened at commercial movie theaters. "E.T." is the story of a small alien accidentally left behind when his fellow explorers are forced to hastily leave Earth. E.T. is lured, by hunger and curiosity, into the California suburban home of 10-year-old Elliot, his brother and sister, and their mother. During the following days, E.T. learns a few words of English; discovers television, beer, and other appurtenances of contemporary American life; and constructs a transmitter to "phone home." The children, in turn, learn that E.T. possesses unearthly powers: E.T. levitates objects through psychokinesis; heals a small cut with his glowing finger; revives a wilted flower; and establishes a psycho-physical empathy with Elliot. Yet E.T.'s powers are not total; as time passes, E.T. gradually deteriorates. After an apparently unsuccessful attempt to contact his people, E.T. is captured by the scientific investigators who have stalked his existence since he was left behind by his spaceship. Following his capture E.T. appears to have expired, but he revives when he senses that his people are returning for him. A chase ensues, and the film concludes with E.T. bidding farewell to earthling friends and returning home.

edge of the Pacific Ocean, where the aliens bid the humans farewell as they return to their ship.

Litchfield sued for copyright infringement, violation of the Lanham Act, unfair competition, misrepresentation of story authorship, breach of implied in fact contract and breach of confidence. On February 9, 1983, the district court dismissed the Lanham Act, state unfair competition and misrepresentation of story authorship claims. Plaintiff appealed this interlocutory order, but asked for and was granted voluntary dismissal in August, 1983.

On June 16, 1983, the district court granted summary judgment to the defendant on the copyright infringement claim and dismissed the pendent state claims. Plaintiff filed notice of appeal of the summary judgment order on July 13, 1983.

A. Subject Matter Jurisdiction

Defendants question the court's jurisdiction over the unfair competition and misrepresentation of story authorship claims because the July 13 notice of appeal did not name these claims.

A mistake in designating the judgment appealed from does not cause the loss of the appeal as long as intent to appeal from a specific judgment can be fairly inferred from the notice, and appellee is not misled by the mistake. Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir.1981). An appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment. Id. Here, the premature appeal of the interlocutory order had been filed and served, and the issues were fully briefed. Defendants have shown no prejudice resulting from our review of these claims.

B. Copyright Infringement

(1) Elements

To prove copyright infringement, the plaintiff must show (1) ownership of the copyright, (2) access to the copyrighted work, and (3) substantial similarity between the copyrighted work and the defendant's work. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977). The parties agree that plaintiff owns the copyright to Lokey. For the purposes of the motion for summary judgment, defendants concede they had access. The only issue is whether summary judgment was proper as to substantial similarity.

Substantial similarity is usually an extremely close issue of fact and summary judgment has been disfavored in cases involving intellectual property. Twentieth Century-Fox Film Corporation v. MCA, Inc., 715 F.2d 1327, 1330 n. 6 (9th Cir.1983). It is appropriate, however, if reasonable minds could not differ as to the absence of We review the propriety of summary judgment de novo. Twentieth Century-Fox, 715 F.2d at 1328. The evidence and inferences must be viewed in the light most favorable to the plaintiff. Id.

                substantial similarity in expression.   See v. Durang, 711 F.2d 141, 143 (9th Cir.1983)
                

2. Comparison of E.T. and Lokey

Before considering a motion for summary judgment on the issue of substantial similarity, the court must make a detailed comparison of the allegedly infringing and infringed works. To this end, the district judge (1) read the 1978 and 1980 versions of Lokey, (2) read the "continuity" script of E.T., and (3) viewed E.T. at defendants' screening room.

Litchfield claims that it was prejudicial error to view E.T. outside the presence of her counsel. She alleges that the version of E.T. shown may have differed in some material respects from the version that is shown publicly.

There is no record that Litchfield objected formally to the showing of E.T., nor does it appear that she asked to review the film. We will not review an issue not raised or objected to below unless necessary to prevent manifest injustice. Komatsu, Ltd. v. States Steamship Co., 674 F.2d 806 (9th Cir.1982).

Our de novo review of the issue of substantial similarity removes any prejudice that might have resulted from this alleged error. We need not consider it.

Our own, independent review of the works is based on reading of (1) the two versions of Lokey, and (2) the continuity script of E.T. We express no opinion whether reading a continuity script will suffice to allow comparison of a motion picture with other works in all cases. Cf. Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661 (2d Cir.1939). In this instance, comparison based on the continuity script is permissible because neither party has claimed that the continuity varies from the movie. See Jason v. Fonda, 698 F.2d 966 (9th Cir.1982), incorporating by reference, 526 F.Supp. 774, 777 (C.D.Cal.1981).

3. Summary Judgment on the Issue of Substantial Similarity

We may uphold summary judgment if no reasonable jury could find substantial similarity between E.T. and Lokey. See v. Durang, 711 F.2d at 143.

To prove infringement, a plaintiff must show that the works are substantially similar in both ideas and expression. Sid & Marty Krofft, 562 F.2d at 1164.

Similarity of ideas may be shown by an extrinsic test which focuses on alleged similarities in the objective details of the works. Id. The extrinsic test requires a comparison of plot, theme, dialogue, mood, setting, pace and sequence. Jason v. Fonda, 698...