See v. Durang, No. 82-6102

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before BROWNING, Chief Judge, CHOY and FERGUSON; PER CURIAM
• Citation: 711 F.2d 141
• Parties: , 1983 Copr.L.Dec. P 25,553 John William SEE, Plaintiff-Appellant, v. Christopher DURANG and L.A. Stage Company, Defendants-Appellees.
• Docket Number: No. 82-6102
• Decision Date: 22 July 1983

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.

Page 142

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.

Page 143

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...