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Monday, March 5, 2018


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Ninth Circuit:

Movie ‘Elysium’ Was Not Infringement On Plaintiff’s Copyrighted Screenplay


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment in favor of Sony Pictures and others in an action brought by a writer who alleges that the 2013 science fiction movie “Elysium” infringes on his copyrighted screenplay.

A three-judge panel on Thursday said in a memorandum opinion that it agrees with Judge Phyllis J. Hamilton of the Northern District of California that plaintiff Steve Wilson Briggs failed to show that defendant Neill Blomkamp, the film’s writer-director, had access to his work. The opinion also says that Briggs did not demonstrate that there were “striking similarities” between his screenplay, “Butterfly Driver,” and the Sony movie.

“Elysium” reportedly grossed $286 million worldwide.

Appellant’s Contentions

Briggs, of San Mateo, represented himself on appeal. He said in his Ninth Circuit brief that among about 100 similarities cited in the complaint:

“[T]he Plaintiff’s Butterfly Driver is set on an impoverished future Earth, where the hero fights his way to a giant satellite world for the super-rich—for medical aid to save his daughter. The hero suffers brutal headaches that force him to his knees, clutching his head, screaming. In battle with a villain (reprogrammed to live forever) the hero suffers a headache.

“The Appellee’s Elysium is set on an impoverished future Earth, where the hero fights his way to a giant satellite world for the super-rich—for medical aid to save himself and his girlfriend’s daughter. The hero suffers brutal headaches that force him to his knees, clutching his head, screaming. In battle with a villain (re-atomized to live forever) the hero suffers a headache.”

Unique Aspects

Briggs continued:

“The two works share a plot, a unique never-before-used setting (a satellite for the super-rich, orbiting Earth), a hero with a never-before-used affliction (recurring implosive headaches), a reprogrammed villain, and many, many other aspects. They are similar to each other, yet unlike anything else.”

He asserted that in 2007, Blomkamp—“then, an undiscovered short-filmmaker, living in California” (now a recent Academy Award nominee)—accessed the “Butterfly Driver” script which was posted from February to August of that year “on Academy Award-winning actor Kevin Spacey’s social network, Trigger Street.” He described as “a massive, U.S. based social network/marketplace, connecting filmmakers and screenwriters, exclusively.”

In any event, he put forth, under case law, access and copying may be inferred based on the similarity of the works.

District Court Decision

Hamilton said in her decision that Briggs “speculates that defendant Neill Blomkamp” saw the screenplay on but “failed to provide any evidence supporting his assertion that defendants had access to his screenplay.”

Even if he did post the screenplay, and send it a copy to friends and relatives, as he claimed, Hamilton said, this would not constitute such “wide dissemination sufficient to support an inference that defendants had access to his work, or to raise a triable issue as to access.”

She added:

“He also contends that over a 23-month period he sent queries to agents seeking representation, posted short synopses of the storyline on screenwriter websites, and entered screenwriting competitions. Again, these communications and Internet postings do not constitute evidence of wide dissemination of the screenplay.”

The jurist went on to declare:

“Had plaintiff provided some evidence of access (even circumstantial), he could potentially show infringement by demonstrating that the two works are ‘substantially similar.’ Because plaintiff lacks any evidence of access, however, he can establish copyright infringement only by showing ‘striking similarity.’…Here, while there may be some superficial similarities between the two works, a close examination of the screenplay and the film reveals many significant differences and few real similarities among the protectable elements.”

Ninth Circuit Opinion

Thursday’s memorandum opinion—emanating from a panel comprised of Chief Judge Sidney Thomas and Senior Judges Stephen S. Trott and Barry G. Silverman—says:

“The district court properly granted summary judgment on Briggs’s copyright infringement claim because Briggs failed to raise a genuine dispute of material fact as to whether defendants accessed his screenplay Butterfly Driver, or whether Briggs’s screenplay and defendants’ film Elysium are either strikingly or substantially similar.”

The opinion adds:

“Summary judgment was proper because Briggs’s speculations about access did not raise a triable dispute.”

Briggs commented:

“I’m prepared to submit a Writ of Certiorari to the Supreme Court, perhaps after I petition for rehearing. Of course, I disagree with the Ninth’s decision—but I’m not necessarily surprised, given the Ninth’s consistent pattern in infringement cases against California’s film and music industry. The fact the decision was an unpublished opinion is disappointing, but also not surprising. As explained in the appellate brief, my case relied on prevailing, current law. The lower court’s ruling was based on vacated/reversed law. I don’t think the Appellate Court could have upheld the lower court’s ruling with a published opinion.”

The case is Briggs v. Sony Pictures Entertainment, Inc., No. 14-17175.


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