See v. Durang

• Decision Date: 22 July 1983
• Docket Number: No. 82-6102,82-6102
• Parties: , 1983 Copr.L.Dec. P 25,553 John William SEE, Plaintiff-Appellant, v. Christopher DURANG and L.A. Stage Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 141

711 F.2d 141

219 U.S.P.Q. 771, 1983 Copr.L.Dec. P 25,553

John William SEE, Plaintiff-Appellant, v. Christopher DURANG and L.A. Stage Company, Defendants-Appellees.

No. 82-6102.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 7, 1983.

Decided July 22, 1983.

John R. Fuchs, Mulryan & Fuchs, Santa Monica, Cal., for plaintiff-appellant.

Edmund S. Schaffer, Beverly Hills, Cal., Stern & Miller, Santa Monica, Cal., for defendants-appellees.

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

Before BROWNING, Chief Judge, CHOY and FERGUSON, Circuit Judges.

PER CURIAM:

The district court granted summary judgment for defendants-appellees on the ground that no reasonable person could find any substantial similarity of expression between plaintiff's "Fear of Acting" and defendant's "The Actor's Nightmare." We affirm.

I.

Summary judgment was appropriate. Plaintiff has cited no authority for the contention that the court must always view a production of the play, rather than relying solely on the script. That course might be desirable where the question of substantial similarity is close, but here it is not. In any event, it was not alleged that defendant copied his play from the revised version of plaintiff's play, which plaintiff wished to have performed for comparison, but instead from plaintiff's first draft, which was before the court.

The court properly concluded that judgment should not be deferred to afford plaintiff an opportunity to present evidence at trial that defendant had previously copied another author's play, which defendant denied. Had the case been tried, the court could have excluded such evidence as minimally relevant and presenting serious problems of delay and confusion.

Summary judgment did not preclude reasonable discovery. The only discovery plaintiff suggests is the production of early drafts of defendant's play on the theory they might reflect copying from plaintiff's play that was disguised or deleted in later drafts. Copying deleted or so disguised as to be unrecognizable is not copying.

II.

No special standard is applied in determining whether summary judgment is appropriate on the issue of substantial similarity of expression in a copyright case. Contrary to plaintiff's contention, Sid & Marty Krofft Television Productions v. McDonald's Corp., 562 F.2d 1157 (9th Cir.1977), does not hold that summary judgment is always inappropriate on the issue of substantial similarity of expression if there is a substantial similarity of ideas. Plaintiff offers neither authority nor reason supporting such a per se rule. Summary judgment is proper if reasonable minds could not differ as to the presence or absence of substantial similarity of expression. Jason v. Fonda, 698 F.2d 966 (9th Cir.1982), incorporating by reference Jason v. Fonda, 526 F.Supp. 774, 777 (C.D.Cal.1981). Sid & Marty Krofft, 562 F.2d at 1165 (9th Cir.1977), rejected the suggestion in Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir.1946), that summary judgment can be granted for the defendant only if the similarities are "trifling."

We also disagree with plaintiff's contention that the district court improperly applied the "scenes a faire" doctrine. The court's characterization of the doctrine as relating to unprotected "ideas" may have been technically inaccurate, but the court properly applied the doctrine to hold unprotectable forms of expression that were either stock scenes or scenes that flowed necessarily from common unprotectable ideas. "Common" in this context means common to the works at issue, not necessarily, as plaintiff suggests, commonly found in other artistic works. Nor has the doctrine "fallen into disuse in this circuit" as plaintiff suggests. See Jason v. Fonda, 698 F.2d 966, incorporating by reference 526 F.Supp. at 777.

The district court correctly concluded that no reasonable trier of fact could find the two plays to be substantially similar in their form of expressing common ideas.

Although our reasons differ from those of the district court with respect to a few of the alleged similarities relied upon by plaintiff, we have no difficulty joining in the district court's conclusion as to each of these alleged similarities.

Alleged similarities one, two, four, five, six, seven, eight, nine, twelve, and nineteen follow obviously from the unprotected idea of a surprised understudy, and are therefore unprotected "scenes a faire."

Alleged similarities ten, thirteen, fourteen, fifteen, sixteen, seventeen, and twenty are not in fact similarities. There is no similarity between the...