Olson v. National Broadcasting Co., Inc.

• Decision Date: 01 September 1988
• Docket Number: 87-5606 and 87-5664,Nos. 86-6325,s. 86-6325
• Citation: 855 F.2d 1446
• Parties: 1988 Copr.L.Dec. P 26,319, 8 U.S.P.Q.2d 1231 Ernest OLSON, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Defendant-Appellee, and Karen Hendel; Stephen Cannell; MCA, Inc. & MCA Television, Ltd., Defendants. Ernest OLSON, Plaintiff-Appellee, v. NATIONAL BROADCASTING COMPANY, INC., Defendant, and Stephen Cannell, MCA, Inc., and MCA Television, Ltd., Defendants-Appellants. Ernest OLSON, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Defendant, and Joseph Cannell, dba Stephen J. Cannell Productions, MCA, Inc., and MCA Television, Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1446

855 F.2d 1446

1988 Copr.L.Dec. P 26,319, 8 U.S.P.Q.2d 1231

Ernest OLSON, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Defendant-Appellee, and Karen Hendel; Stephen Cannell; MCA, Inc. & MCA Television, Ltd., Defendants.

Ernest OLSON, Plaintiff-Appellee, v. NATIONAL BROADCASTING COMPANY, INC., Defendant, and Stephen Cannell, MCA, Inc., and MCA Television, Ltd.,

Defendants-Appellants.

Ernest OLSON, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC., Defendant, and Joseph Cannell, dba Stephen J. Cannell Productions, MCA, Inc., and MCA Television, Ltd., Defendants-Appellees.

Nos. 86-6325, 87-5606 and 87-5664.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 2, 1988.

Decided Sept. 1, 1988.

Russell H. Beatie, Jr., Law Offices of Russell H. Beatie, Jr., New York City, for plaintiff/appellant/appellee.

Ronald S. Rosen, Silverberg, Rosen, Leon & Behr, and Louis P. Petrich, Leopold, Petrich & Smith, Los Angeles, Cal., for defendants/appellees/appellants.

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

Before GOODWIN, CYNTHIA HALL, Circuit Judges, and SCHNACKE, ^* District Judge.

GOODWIN, Circuit Judge:

Plaintiff Ernest Olson appeals a judgment notwithstanding the verdict granted to National Broadcasting Company (NBC) on his claim that NBC's television series "The A-Team" infringed his copyright.

Olson sued NBC, Stephen J. Cannell (individually and dba Stephen J. Cannell Productions), MCA Inc. and MCA Television Ltd. ¹ for infringement of his treatment and screenplay for a television series pilot entitled "Cargo." Olson also alleged pendent state-law claims, which were dismissed before trial.

The jury found by special verdict that "The A-Team" was substantially similar to the treatment and screenplay for "Cargo" and that the substantial similarity resulted from copying of Olson's works. It found that the Cannell defendants, who wrote and developed "The A-Team," had not copied Olson's works. However, the jury found that NBC had copied "Cargo."

NBC moved for j.n.o.v., and, in the alternative, for a new trial. Cannell and the MCA defendants moved for a protective order reversing the jury's finding of substantial similarity, and, in the alternative, for a new trial.

The district court granted each of the defendants' motions. In the memorandum decision explaining its judgment, the court found that Olson had failed to prove that the defendants who created the allegedly infringing work had access to his work. It also found that "The A-Team" was not substantially similar to the "Cargo" works under either the extrinsic test or the intrinsic test. Finally, it found that no reasonable person could conclude that NBC copied the general ideas or protectable expression of "Cargo."

On appeal, Olson does not attack the jury's finding that the Cannell defendants did not have access to his works. He asks the panel to overturn the district court's grant of j.n.o.v. and to reinstate the jury's findings that NBC had access to his works and that "The A-Team" was substantially similar to "Cargo." He asks that the jury's finding of substantial similarity be made binding upon the Cannell defendants.

A district court may grant j.n.o.v. only "if the evidence permits of only one reasonable conclusion as to the verdict." Garter-Bare Co. v. Munsingwear Inc., 723 F.2d 707, 709 (9th Cir.), cert. denied, 469 U.S. 980, 105 S.Ct. 381, 83 L.Ed.2d 316 (1984); see Fed.R.Civ.P. 50(b) (providing that j.n.o.v. is appropriate when a party would have been entitled to a directed verdict under Fed.R.Civ.P. 50(a)). On appeal from j.n.o.v., "we view the evidence in a light most favorable to the party against whom the motion is made." Garter-Bare Co., 723 F.2d at 709.

I. Copyright Claim.

"[I]n order to establish copyright infringement a plaintiff must prove ownership of the copyright and 'copying' by the defendant." Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977). Because the defendants do not dispute Olson's ownership of the copyright, Olson may prevail by demonstrating that the defendants copied his works. Copying is "shown by circumstantial evidence of access to the copyrighted work and substantial similarity between the copyrighted work and defendant's work." Id. Because we affirm the district court's grant of j.n.o.v. on the ground that there existed no substantial similarity between "The A-Team" and "Cargo," we do not reach the question whether the jury properly could have found that NBC had access to Olson's works.

The jury found by special verdict that "The A-Team" was substantially similar to Olson's works in both ideas and protectable expression. The district court granted j.n.o.v., finding that there existed no substantial similarity under either the extrinsic or intrinsic test.

Krofft sets forth a two-part test for determining whether one work is substantially similar to another. See Krofft, 562 F.2d at 1164; see also Aliotti v. R. Dakin & Co., 831 F.2d 898, 900 (9th Cir.1987). The "extrinsic" test, which is used to determine whether there is a substantial similarity in ideas, "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 "intrinsic" test, which is used to compare forms of expression, "depend[s] on the response of the ordinary reasonable person." Id. Although analytic dissection and expert testimony are appropriate under the extrinsic test, they are not appropriate under the intrinsic test. See id. To demonstrate substantial similarity, Olson must prove both substantial similarity of general ideas under the extrinsic test and substantial similarity of the protectable expression of those ideas under the intrinsic test. See id.; Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1753, 84 L.Ed.2d 817 (1985).

"Cargo" features a unit of three Vietnam veterans--Van Druten, Tronski and Brown--who developed a group practice of conducting scams in Vietnam and continue to conduct such scams as civilians. While in Vietnam, they alienated Col. Kilgore and Lt. Brite by humiliating them in order to prevent them from uncovering a scam. Today, Tronski and Brown work together for an air cargo business in Miami. Tronski is romantically involved with Marsha Bainwright, the daughter of the owner of the air freight company.

Olson provides three- to four-line descriptions of each of his characters. He compares Van Druten to John Ritter, describing him as an old-money New York intellectual who has studied medicine; he was the group's navigator in Vietnam, and he is reluctant to become involved in the group's scams but agrees to participate. Tronski, who is compared to Nick Nolte, is an impulsive, quick-thinking "good old boy" from the South; he was a pilot in Vietnam and serves as the trio's leader and strategist. Brown, described as a "Rosie Greer [sic ] type," is depicted as a physically large, athletic, sensitive, emotionally deep man from the deep South. Kilgore is a "militaristic, extremist, schizoid" Southerner. Marsha Bainwright, who resembles Kate Jackson, is said to be wealthy and elegant.

"Cargo" is set in the present. Kilgore and Brite, who are now corrupt Drug Enforcement agents, threaten Tronski and Brown with unjustified smuggling charges, which are to be dropped if they cooperate in breaking up a large Colombian cocaine smuggling ring. Because Van Druten closely resembles the ringleader's son, the DEA agents force Tronski and Brown to enlist his help. After a series of plot episodes that lead the trio to New York City, Florida, Colombia, and much of the adjacent airspace, the unit escapes in a cargo plane carrying a load of drugs, unaware that Kilgore and Brite have sabotaged the plane. After the trio crash lands the plane in the ocean, Kilgore and Brite take them captive, then send divers to salvage the drugs from the plane. The Coast Guard arrives and arrests Kilgore and Brite. The trio flies clothes and gifts to a children's mission in South America.

"The A-Team" includes three members--Peck, Baracus, and Smith--who were wrongly faced with a court martial because, acting under orders from a colonel who died without verifying their story, they robbed the Bank of Hanoi of 100 million yen shortly after the end of the Vietnam war. A fourth man, Murdock, was the trio's pilot in Vietnam. Colonel Lynch, who ran the prison from which the group escaped more than 10 years before, still seeks to find them.

Peck is a suave con artist who is reluctant to participate in the A-Team's adventures. Baracas is a huge, mohawked, pugnacious, mechanical genius. Smith, the leader of the unit in Vietnam, continues to lead the group here. Murdock serves as the group's eccentric, possibly insane pilot. Lynch is a career military man. Amy Allen is an impetuous, dedicated newspaper reporter.

"The A-Team" is set in the present. In the pilot episode, Allen hires the A-Team to help her find a reporter who is missing in Mexico. The A-Team goes to Mexico and, with the reporter's assistance, accomplishes its mission. In the process, it rescues a terrorized town from a band of Mexican revolutionaries. ²

At trial, Olson presented the testimony of an expert witness, William Talbot, who dissected the works and listed and analyzed similarities involving specific criteria such as characters, character relationships, plot incidents, scenes, theme, pace and mood. Talbot explained a chart and a 90-minute film montage which consisted of scenes from 27 episodes of "The A-Team." The district court found that Talbot's testimony and montage were entitled to little weight, given that he deemphasized any dissimilarities between plaintiff's and defendants' works and that his montage in effect compared unprotectable scenes a faire--that is, stock scenes. The district court's decision to discount...