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Ninth Circuit:
Infringement Suit Was Axed Precipitously
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has reversed the dismissal with prejudice of a copyright action by the writer/director/producer of the 2013 film “The Truth About Emanuel” against Apple TV+ and others, rejecting the District Court judge’s conclusion that the defendants’ allegedly infringing work, the first three episodes of the television series “Servant,” were insufficiently similar for an action to lie.
It’s premature, at the pleading stage, to make that determination., a three-judge panel held Tuesday in a memorandum opinion.
Plaintiff Francesca Gregorini set forth in her Jan. 15, 2020 complaint that “Servant” “is a wholesale copy” of her movie, “the misappropriation is not a mere borrowed premise, idea or story.” She alleged that the series’ executive producer, defendant M. Night Shyamalan, “has gone so far as to appropriate not just the plot of Emanuel—but also its use of cinematic language, creating a substantially similar feeling, mood, and theme.”
In each work, the pleading recites, the leading character is a “pretty, white, 18-year old” female who has lost a baby “resulting in the delusion that a reborn doll is that baby. She hires a nanny, who cares for the “baby,” and the lead character “channels her maternal instincts towards a doll—but also more genuinely directs them to the real-life vulnerable surrogate-daughter caring for her ‘baby.’ ”
District Court’s Ruling
In ordering dismissal on May 28, 2020, District Court Judge John F. Walter of the Central District of California said:
“Though Emanuel and Episodes 1 through 3 of Servant share a basic plot premise, they tell completely different stories.”
He declared:
“[T]he alleged similarities between the works pale in comparison to the differences in the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events., and the Court concludes that the works at issue are not substantially similar as a matter of law.”
Walter, on July 21, 2020, ordered Gregorini to pay $162,467.30 to the defendants to cover the cost of their attorney fees.
Ninth Circuit Opinion
In reversing and remanding, the three-judge panel—comprised of Circuit Judges John B. Owens and Eric D. Miller, joined by District Court Judge Dana L. Christensen of the District of Montana, sitting by designation—observed that while dismissing a copyright infringement suit at the pleading stage without leave to amend is not unprecedented, it is not a favored procedure. Neither is summary judgement, the judges noted.
Reasonable minds could differ on the issue of similarity, they said, commenting that discovery could be enlightening. They added:
“In particular, expert testimony would aid the court in objectively evaluating similarities in cinematic techniques, distinguishing creative elements from scene à faire [customary elements of a genre], determining the extent and qualitative importance of similar elements between the works, and comparing works in the different mediums of film and television.”
The case is Gregorini v. Apple, Inc., 20-55664.
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Reproduced in the complaint are shots of the nanny with a doll in “The Truth About Emanuel,” at left, and in “Servant.” |
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