Pizzuti v. Nat'l Broad. Co. ("nbc")

• Decision Date: 22 February 2010
• Docket Number: No. CV 08-4013 SVW (FFMx),CV 08-4013 SVW (FFMx)
• Citation: 727 F.Supp.2d 815
• Parties: Mark GABLE a/k/a Mark Pizzuti, Plaintiff, v. NATIONAL BROADCASTING COMPANY ("NBC"), a California corporation, Gregory Thomas Garcia, an individual, 20th Century Fox Film Corporation, a corporation, 20th Century Fox Home Entertainment and Does 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — Central District of California

727 F.Supp.2d 815

Mark GABLE a/k/a Mark Pizzuti, Plaintiff,

v.NATIONAL BROADCASTING COMPANY ("NBC"), a California corporation, Gregory Thomas Garcia, an individual, 20th Century Fox Film Corporation, a corporation, 20th Century Fox Home Entertainment and Does 1 through 10, inclusive, Defendants.

No. CV 08-4013 SVW (FFMx).

United States District Court, C.D. California.

Feb. 22, 2010.

Natasha L. Hill, Steven T. Lowe, Lowe Law, Los Angeles, CA, for Plaintiff.

Eric J. German, Jill Pavian Rubin, Robert H. Rotstein, Mitchell Silberberg and Knupp LLP, Los Angeles, CA, for Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

STEPHEN V. WILSON, District Judge.

I. INTRODUCTION

Defendants NBC Universal, Inc., Gregory Garcia, Twentieth Century Fox FilmCorporation, and Twentieth Century Fox Home Entertainment LLC (collectively "Defendants") move for summary judgment against Plaintiff Mark Gable ("Gable" or "Plaintiff"). Plaintiff claims that the television show My Name is Earl (" Earl ") was copied from Plaintiff's screenplay Karma! Defendants argue that Plaintiff cannot show that Defendants had access to Plaintiff's screenplay or that the two works are substantially similar; thus, summary judgment should be granted.

For the following reasons, the Court GRANTS Defendants' Motions for Summary Judgment.

II. FACTS

A. Background

In late 1994, Plaintiff Gable wrote Karma!, a dramatic screenplay about a dirty cop's journey toward redemption. (Plaintiff's Statement of Genuine Issues ["PSGI"] 3-5 [Docket No. 54].) Gable registered the screenplay with the Writer's Guild of America on March 10, 1995. ( Id. 6.) On September 20, 2004, he registered Karma! with the United States Copyright Office. ( Id. 7.)

In April 1995, Gable, with the help of his girlfriend Cindy Cramer, sent Karma! to four talent/literary agents and two friends working in the entertainment industry. ( Id. 13-15.) Relevant to the current matter, Plaintiff sent the script to David Gersh, a talent agent at The Gersh Agency ("TGA"). ( Id. 14.) Gersh had not solicited the script and claims to have never heard of it. (Defendants' Statement of Uncontroverted Facts ["DSUF"] 2, 5 [Docket No. 22].) Plaintiff did not receive a response from TGA. (PSGI 25.) Plaintiff has produced no documentary evidence supporting his claim that he sent Karma! to TGA.

In 1995, TGA consisted of approximately 20 to 25 agents. (PSGI 32.) One of the agents at TGA during this period was Ken Neisser. ( Id.) Neisser, a literary agent, represented Defendant Gregory Garcia, the subsequent creator of Earl. (Garcia Decl. 6.) Neisser represented Garcia from 1993 until mid-2000, when Garcia left TGA for another agency. (Garcia Decl. 7.)

In the spring of 2000, Garcia left TGA and obtained representation from Creative Artists Agency ("CAA"). ( Id.) Garcia maintains that he conceived of the idea for Earl three years later, in the summer of 2003. ( Id. 10.) Garcia stated that by the late summer/early fall of 2003, he had drafted portions of the pilot episode for Earl and began pitching the concept to various persons working in the television industry. ( Id. 16.) In the fall of 2004, representatives from NBC Universal ("NBCU") expressed interest in Earl, and told Garcia that if he could find an actor to play the title character, "NBC would greenlight the project." ( Id. 17.) After a lengthy casting process, the actor Jason Lee agreed to play Earl in the spring of 2005. ( Id. 17.) The pilot for Earl first aired on September 20, 2005. ( Id. 3.) The show is currently in its fourth season. ( Id.)

In or about September 2005, Plaintiff watched Earl on NBC. Plaintiff contends that he was immediately struck by the similarities between Karma! and Earl. After viewing several episodes, Plaintiff formed the belief that the creator of Earl had infringed upon Plaintiff's copyrighted screenplay, Karma!.

B. Overview of Karma!

Karma! depicts the journey of Frankie Augustus, a dirty cop, who through the help of a guardian angel called "Angel Man," creates good karma for himself and his unborn son by making amends for bad acts in his past. Frankie is a sarcastic forty-year-old Italian American with nomoral compass. The opening scenes of Karma! depict Frankie taking bribes from a drug dealer, his subsequent arrest, prison time, and release.

After his release, Frankie is in dire straits. Behind on his rent, he attempts to steal money from a blind street performer, and eventually picks the pocket of a man on the subway. Disgruntled with the small amount of money in the stolen wallet, Frankie thumbs through the wallet to find a picture of an angel. Frankie stares at it, and states:

A picture of an angel, well that's appropriate. Anyone with a buck and some chump change, better have an angel to pray too [sic], huh? ... Yea! Well Mr. Guardian angel where are you now?! I stole your buddies [sic] wallet right under his nose and you're nowhere to be found. Shit! I'm hip to your shit!! ... You ever hear of angel dust? That's what's you're gonna be. Actually I wouldn't mind a hit of that right now. A little numbness would do me some good.

(Decl. of Jill Rubin, Exh. D., pg. 82-83 [ Karma! screenplay].) As Frankie speaks, he attempts to light the picture on fire, but it will not ignite. Instead, Frankie looks at the picture and sees the angel shaking his finger at Frankie. Frankie responds by throwing the picture into the wind. The wind carries the picture away over the river, but then carries it back and drops it on Frankie's shoulder. An angel then appears before Frankie.

The script refers to the angel as "Angel Man" and describes him as follows: "[The angel] look's [sic] like a young man about 27 years old. With opalescent skin, and white hair, resembling an albino, and a slender physique, clothed in blue gun metal. There's a solid gold sword hanging from his waist." ( Id. at 83.) Angel Man warns Frankie that he has "fallen off the path like a stray dog" and asks Frankie to meet him in front of Frankie's mother's grave at twelve midnight the next night. ( Id.)

The next night, Frankie goes to his mother's grave. It is pouring down rain, and the cemetery is empty. When Angel Man appears, he closes his eyes and makes a prayer with his hands, which instantly stops the rain. Angel Man also brings dying flowers back to life with the wave of his hand. Then, Angel Man tells Frankie that he has come to help Frankie save the soul of his unborn son. Frankie, being single, thinks Angel Man has the wrong person. However, Angel Man tells Frankie that Frankie had sex with a girl named Betty Alonzo who is now pregnant with his child. Angel Man then warns Frankie:

Your sons soul [sic] is at stake here! Your sons soul [sic] is coming into this world with your karma along with his Mothers [sic]. And I don't think I have to tell you ... Your karmas [sic] not gonna be up for any awards this year!

( Id. at 89.) Angel Man then "creates a cloud of mist." ( Id.) "A picture forms within the cloud revealing Frankies [sic] unborn son at the age of ten years old. It's obviously Frankies son [sic] he looks just like Frankie. Seemingly destined to follow Frankies [sic] footsteps his son is brandishing a stolen 38 odd special in front of his friends." ( Id.)

Frankie asks what he can do to save his son's soul. Angel Man responds with three instructions: (1) "make amends with the people you've really hurt in the past," (2) "get your life together, stop stealing, stop taking drugs, and get a straight job as soon as possible," and (3) "in the very near future you're going to come into some wealth, use it wisely." ( Id. at 91.)

After his meeting with Angel Man, Frankie begins to follow Angel Man's instructions. Frankie refuses to take drugs, calls a friend and admits stealing money from her, and then visits an ex-girlfriendto confess that he had an affair with her sister while they were dating. Frankie then goes to Times Square where he sees a man drop his wallet. Frankie picks up the wallet, and instead of stealing it, he gives the wallet back to the man. The man then introduces himself to Frankie, and offers him a job as a bartender.

Frankie then purchases a lottery ticket and a scratcher from a liquor store. ¹ Frankie wins three hundred dollars from the scratcher. Frankie flashes back to Angel Man telling him to use it wisely. Accordingly, Frankie buys teenagers some candy that they were about to steal, and revisits the blind street performer, this time putting money into his tin instead of taking it out.

As the screenplay continues, Frankie again runs into the blind street performer, but this time the street performer has been shot. After Frankie assists the blind man, the blind man turns into Angel Man. Angel Man assures Frankie that he is on the right path, and tells Frankie that "God believes he can resurrect all of his sons who have fallen." Angel Man tells Frankie that wealth will still follow.

In another scene, it appears that Angel Man is watching Frankie's progress. Frankie is walking down a deserted alley at night and hears a cat's meow coming from a row of trash cans. Frankie searches through the cans and finds an abandoned kitten. He rescues the kitten and takes it home to his friend, Tori Ann. Angel Man watches the entire scene, smiling.

Throughout this period, Frankie is staying with Toni Ann, a drug-using struggling model. Tori Ann is 13-years younger than Frankie and becomes his love interest. Tori Ann observes the changes that Frankie is making in his life, and eventually, she decides to turn her life around too. She tells Frankie that she is going to clean up her act, stop selling drugs, get a job, and join a recovery program. Frankie tells Tori Ann how proud he is of her, and they make love passionately.

Eventually, Frankie is approached by a drug dealer named James Randson. James demands that Frankie act as a drug courier for one of his shipments. Frankie takes this opportunity to redeem himself as a police officer. Frankie visits his old...