Bochco Boffo

Steven Bochco’s television series ‘‘City of Angels” was the subject of a 2003 opinion in the 9th Circuit. Plaintiffs sued on three works: a treatment called "Combat Zone," and two scripts, one called “About Face," and the other "As Long as They Kill Themselves." All the works focused on an Army doctor training program set in a inner city hospital in Los Angeles with a predominantly black staff. (Plaintiffs had access themselves to articles in the Los Angeles Times about a simialr program at LA's King Drew Hospital). Reversing a district court’s grant of summary judgment in favor of defendant, the court, per Judge Kozinski, took a “wholistic” approach to extrinsic similarities:

"[T]he presence of so many generic similarities and the common patterns in which they arise do help the Metcalfs satisfy the extrinsic test. The particular sequence in which an author strings a significant number of unprotectible elements can itself be a protectible element. Each note on a scale, for example, is not protectible, but a pattern of notes in a tune may earn copyright protection. A common 'pattern' [that] is sufficiently concrete . . . warrants a finding of substantial similarity."[1]

Metcalf v. Bochco confused protectibility with infringement, and in doing so unwittingly provided a tempting roadmap on how plaintiffs can best position their case: focus on the overall selection and sequence of similarities, rather than pointing to individual similarities. Metcalf’s shelf-life, however, appears to have been short. On the copyrightability side, in Satava v. Lowry,[2] the Ninth Circuit acknowledged the principle that a combination of unprotectable elements may qualify for protection citing Metcalf, but then added: “It is not true that any combination of unprotectable elements automatically qualifies for copyright protection,”[3] finding the sculptural work at bar not protectible. Similarly, in Lamps Plus, Inc. v. Seattle Lighting Fixture Co.[4] the Ninth Circuit found a lamp unprotectible as a “mechanical” combination of four-preexisting elements, citing Satava.[5]

The approach taken in Bochco may have been the result of confusion over defendant Bochco’s access to the work. The access was alleged to have come via a friend of both parties, actor Michael Warren, with whom plaintiffs had worked with in developing their scripts. Mr. Warren appeared in Bochco’s work. Plaintiffs alleged that Warren told them he intended to provide the scripts to Bochco. Warren was a defendant, but was dismissed before trial, and testified on Bochco’s behalf, stating he had not given plaintiffs’ script to Bochco. Before the trial court, earlier at the summary judgment stage (the stage which formed the basis for the appeal), the district judge held that “plaintiffs’ interrogatory responses attesting to their submission of plaintiff’s works to Defendant Warren, and to Defendant Bochco, constitute sufficient evidence to establish that Defendant Bochco and Waren had access ….”[6]

This is a unique approach to finding access: plaintiff states in interrogatory responses that a third party told plaintiff he intended to provide defendant with a copy of the work. Regardless of any wrinkles in the laws of evidence, the substantive law of copyright does not regard such responses as satisfying the legal standard of access: there must be reasonable evidence that defendant in fact received the manuscript (absent widespread distribution). In Bochco, no such evidence existed. On appeal, the very slim reed created by the trial court became a mighty redwood tree:

"Indeed, here we have more than access: One of the defendants, Michael Warren, allegedly stated that he had read three versions of the script, and had passed them on to defendant Steven Bochco, who had also read them and liked them. Warren and Bochco were intimately involved with “City of Angels,” as star and writer, respectively. If the trier of fact were to believe that Warren and Bochco actually read the scripts, as alleged by the Metcalfs, it could easily infer that the many similarities between plaintiffs’ scripts and defendants’ work were the result of copying, not mere coincidence."[7]

Mere allegations are not, however, sufficient, to survive summary judgment. Bochco went even further, though, by suggesting that allegations of access through an intermediary are sufficient to send the case to a jury, which may then find for plaintiff based on striking similarity and the inverse ratio theory. Bochco is singularly insensitive to the invitation to strike suits its created.

Indeed, on remand the jury found for defendants. Yesterday, the Ninth Circuit affirmed. The opinion goes into great detail on the issue of plaintiff's attempts to prove access through Warren, and is well worth reading for those in the trenches. Hats off to the outstanding lawyering of Lincoln Bandlow and Ed Ruttenberg, who tried the case and did the 9th Circuit briefing.


[1] 294 F.3d 1069, 1074 (9th Cir. 2002). The district court opinion, by Judge Kelleher, is 17 pages, but unreported. See Metcalf v. Bochco, CV 00-4550 RJK (C.D. Cal. March 27, 2001). Metcalf also contains an important interpretation of Cavalier v. Random House, Inc., 297 F.3d 815 (9th Cir. 2002), limiting that opinion to plaintiff’s unsuccessful effort to satisfy the extrinsic test by pointing to “random similarities scattered throughout the works.” 294 F.3d at 1079. Satisfying the intrinsic test is an entirely different matter than satisfying the extrinsic test, 3D, Ltd. v. Spectratek Technologies, Inc., 2002 U.S. App. LEXIS 15057 (9th Cir. July 18, 2002) (affirming grant of summary judgment for non infringement of polygon designs).
[2] 323 F.3d 805, 811-812 (9th Cir. 2003).
[3] 323 F.3d at 811.
[4] 345 F.3d 1140 (9th Cir. 2003).
[5] 345 F.3d at 1147.
[6] See district court opinion at p.11 ¶1.
[7] 294 F.2d at 1075.