Funky Films v. Time Warner Entertainment Co.

• Decision Date: 30 August 2006
• Docket Number: No. 04-55578.,04-55578.
• Citation: 462 F.3d 1072
• Parties: FUNKY FILMS, INC., a California corporation; Gwen O'Donnell, Plaintiffs-Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership; Home Box Office, a division of Time Warner Entertainment Company, L.P., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

462 F.3d 1072

FUNKY FILMS, INC., a California corporation; Gwen O'Donnell, Plaintiffs-Appellants, v. TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership; Home Box Office, a division of Time Warner Entertainment Company, L.P., Defendants-Appellees.

No. 04-55578.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2006.

Filed August 30, 2006.

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Robert F. Helfing (argued), Los Angeles, CA, and Rex T. Reeves, Newport Beach, CA, for the appellants.

Jeffrey A. Conciatori (argued), Margret Caruso, New York, NY, and Christopher Tayback, Los Angeles, CA, for the appellees.

Appeal from the United States District Court for the Central District of California; Cormac J. Carney, District Judge, Presiding. D.C. No. CV-03-00964-CJC.

Before B. FLETCHER, FERGUSON, and CALLAHAN, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge.

Gwen O'Donnell and Funky Films, Inc. (collectively, "appellants"), creators of the screenplay "The Funk Parlor," appeal the district court's summary judgment to Time Warner Entertainment Company and Home Box Office (collectively, "HBO"), creators of the award-winning television mini-series "Six Feet Under," for copyright infringement. Appellants assert that the district court erred in concluding that "The Funk Parlor" and "Six Feet Under" are not substantially similar. They also appeal the district court's denial of a request for additional discovery. For the reasons set forth below, we affirm the judgment of the district court.

I

Between October 1997 and July 1999, Gwen O'Donnell drafted "The Funk Parlor," a screenplay tracing the lives of a small, family-run funeral parlor in Connecticut. Sometime in 1998, O'Donnell was injured in an automobile accident and sought treatment from Stacey Smith, a chiropractor. During these appointments, the two discussed O'Donnell's screen-play; eventually, Smith took an interest in the script and asked O'Donnell if she would like him to give a copy to his friend and client Chris Albrecht, the President of Original Programing at HBO. O'Donnell agreed and gave Smith a copy of "The Funk Parlor." Three months later, Carolyn Strauss, Albrecht's top lieutenant, solicited Alan Ball to develop "Six Feet Under" for HBO.¹

Appellants allege that "The Funk Parlor" and "Six Feet Under" are substantially similar and that HBO unlawfully infringed upon appellants' copyrighted work. "As a determination of substantial similarity requires a detailed examination of the works themselves," Williams v. Crichton, 84 F.3d 581, 583 (2d Cir.1996) (internal citation and quotation marks omitted), we begin with a discussion of the works at issue.

A

"The Funk Parlor" takes place in a small, family-run funeral home in Connecticut. John Funk Sr., the patriarch, has committed suicide, and the deteriorating funeral parlor has been handed down to his two sons, John Jr. and Tom. John, the older brother who had moved away to start his own business promoting nightclubs in Los Angeles, reluctantly decides to remain in Connecticut after his father's death to help out with the struggling venture. Applying his business acumen, John revives it, all the while staving off an attempted takeover by a larger competitor. Meanwhile, he attracts the attention of Sophie, a neighbor and longtime acquaintance, and the two become romantically involved. Sophie repeatedly talks of entering a convent to become a nun, although in actuality she is a psychopathic murderer whose killing sprees breathe new life (as it were) into the Funk business. John and Sophie intend to marry, but John eventually figures out that he is Sophie's next target and that he must kill her (which he does) to spare his own life.

Tom, who had been running the funeral home during John's absence and who expresses an interest in Sophie as well, is murdered midway through the play. After Tom's death, John continues operating the business to bring it out of debt. After Sophie's death, John sells the business, moves to New York, and returns to the nightclub business.

Like "The Funk Parlor," "Six Feet Under" takes place in a funeral home and begins with the death of the patriarch, Nathaniel Fisher, and return of the "prodigal son," Nate, who receives an equal share of the business along with his younger brother, David. Nate decides to stay and help David maintain the business, which, like the Funk business, struggles against a larger competitor. The story traces the interpersonal relationships and romantic lives of each of the Fisher sons. It also revolves around the lives of the mother, Ruth, and sister, Claire, as well as other characters who come into contact with members of the Fisher family. The father, though deceased, reemerges throughout the drama. He continues to interact with each remaining character of the Fisher family, often helping them piece together problems that seemed irresolvable during his lifetime.

At the beginning of the drama, Nate begins a relationship with Brenda Chenowith, a massage therapist he meets on an airplane. David, who is gay, struggles with his sexuality and begins a relationship with Keith, a police officer he meets at church.

B

The district court conducted an independent analysis of the "The Funk Parlor" and the first three episodes of "Six Feet Under," comparing the two works for their setting, plot, characters, theme, mood, pace, dialogue, and sequence of events. The court determined that the works' few similarities operate at a general, abstract level and that no jury could reasonably find substantial similarities between the two works. Accordingly, the court granted HBO's motion for summary judgment.² Appellants filed a timely notice of appeal.

II

We review the district court's grant of summary judgment de novo, see Government of Guam v. United States, 179 F.3d 630, 632 (9th Cir.1999), viewing the evidence in the light most favorable to the non-moving party to determine the presence of any issues of material fact. See Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044 (9th Cir.1994). Summary judgment is appropriate only when "there is no genuine issue as to any material fact," see Fed.R.Civ.P. 56(c), and only if "the evidence . . . is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A

A plaintiff bringing a claim for copyright infringement must demonstrate "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Appellants' ownership in the copyright is undisputed; they need only demonstrate a triable issue of fact whether HBO "cop[ied] anything that was `original' to" their work. Id. Absent evidence of direct copying, "proof of infringement involves fact-based showings that the defendant had `access' to the plaintiff's work and that the two works are `substantially similar.'" See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000). Because the district court assumed, without deciding, appellees' access to "The Funk Parlor," we must decide whether the two works are substantially similar.

"When the issue is whether two works are substantially similar, summary judgment is appropriate if no reasonable juror could find substantial similarity of ideas and expression." Kouf, 16 F.3d at 1045 (internal citations and punctuation omitted). Although "summary judgment is not highly favored on the substantial similarity issue in copyright cases," Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir. 1985), substantial similarity "may often be decided as a matter of law." Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir.1977). Indeed, "[w]e have frequently affirmed summary judgment in favor of copyright defendants on the issue of substantial similarity." Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th Cir.1990). See Berkic, 761 F.2d at 1292 ("we have frequently affirmed summary judgments in favor of copyright defendants on the substantial similarity issue") (citing cases); see also Kouf, 16 F.3d at 1045-1046 (finding no substantial similarity as a matter of law).

B

The substantial-similarity test contains an extrinsic and intrinsic component. At summary judgment, courts apply only the extrinsic test; the intrinsic test, which examines an ordinary person's subjective impressions of the similarities between two works, is exclusively the province of the jury. See Shaw, 919 F.2d at 1360-61. A "plaintiff who cannot satisfy the extrinsic test necessarily loses on summary judgment, because a jury may not find substantial similarity without evidence on both the extrinsic and intrinsic tests." Kouf, 16 F.3d at 1045.

Extrinsic analysis is objective in nature. "[I]t depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed." Krofft, 562 F.2d at 1164. The extrinsic test focuses on "articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events" in the two works. Kouf, 16 F.3d at 1045 (citations omitted). In applying the extrinsic test, this court "compares, not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters." Berkic, 761 F.2d at 1293.

"[P]rotectable expression includes the specific details of an author's rendering of ideas." Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.2002). However, scenes à faire, which flow naturally from generic plot-lines, are not protectable. See id. We "must take care to inquire only whether `the protectable elements, standing alone, are substantially similar.'" Cavalier v. Random House, 297 F.3d 815, 822 (9th Cir.2002) (quoting Williams, 84 F.3d at 588 (emphasis in original)). In so...