Funk Parlor Deep Six'd

On the same day the latest Bochco appeal was argued, the Ninth Circuit heard argument in a case claiming that HBO's "Six Feet Under" infringed a screenplay called "The Funk Parlor." The district court granted summary judgment to HBO, the Funksters appealed, and the 9th Circuit affirmed in this opinion by Willie's mother. My good friend and train commuting buddy Jeff Conciatori of the Mighty Quinn firm argued for HBO.

Funk Parlor has good language on the “inverse ratio” theory, sometimes more grandly called a “rule.” Originally, there was only one version of this theory, according to which the amount of similarity required at the material appropriation stage is inversely related to the degree of defendant’s access to plaintiffs work: the more access, the less similarity is required for infringement; the less access, the more similarity is required for infringement. The theory has now migrated in some courts to the precedent copying stage.

An early and forceful rejection of the theory came in Judge Clark’s opinion for the Second Circuit in Arc Music Corp. v. Lee, 296 F.2d 186, 187 (2d Cir. 1961), which aptly described the theory as a “superficially attractive apophthegmatic which upon examination confuses more than it clarifies. The logical outcome of the claimed principle is obviously that proof of actual access will render a showing of similarities entirely unnecessary.”

The inverse ratio theory confuses fundamental principles of infringement analysis: access is relevant only in establishing the act of copying, not in establishing the degree thereof. Once copying is established, access is irrelevant and the inquiry shifts to the final stage of the infringement analysis, material appropriation. At that stage, substantial similarity is the sole issue. Substantial similarity is an objective determination, made by comparing the two works from the perspective of the ordinary observer. This comparison is completely unaffected by the defendant’s degree of access.

To be useful, a theory must provide an analytical framework that can explain existing facts and aid in predicting future events. This is accomplished by testing and then verifying hypotheses. The inverse theory is not, however, a theory at all; it does not purport to reflect any past efforts in establishing that individuals who had a high degree of access have a high likelihood of copying more or that those with a lesser degree of access are likely to copy less. Instead, the theory attempts to circumvent the rigorous testing of hypotheses one finds in actual analytical work in favor of establishing a law that does away with the need for proof (hence Judge Clark’s dismissal of it as a “superficially attractive apophthegmatic”). The theory purports to be a law much like Newton’s Law of Universal Gravitation. Under Newton’s law, if we want to learn the force of gravity on the Moon in its orbit around the Earth (that is, what it takes to keep the Moon moving in the same orbit), we can conduct calculations by reference to established facts such as the radius of the Earth and the distance to the Moon. The requisite gravity will be expressed mathematically and will present an actual relationship among the various facts.
The inverse ratio theory similarly attempts to postulate a set relationship between the amount of access and the amount of copying required to prove infringement. Thus, according to the theory, if infringement is 100%, that 100% may be reached by 10% access and 90% copying, by 90% access and 10% copying, or by any figures in between. Unfortunately, there is no necessary relationship between access and copying. Nor is there any basis to believe that the two are fungible relative to each other so that a percentage of one may be readily substituted for the other. There are no equivalents to the radius of the Earth and distance to the Moon that we can use as empirical guideposts with the inverse ratio theory. While it is true that one cannot copy something to which one does not have access, it is also true that one can have complete access to a copyrighted work (indeed have it pasted on the wall of your office when creating your own work) but not copy that work. No degree of access necessarily leads to any degree of copying. The inverse ratio theory is based on a false postulate.Despite rejection by most courts, like the raptors in the motion picture Jurassic Park, the theory is loose and alive, especially in the Ninth Circuit, albeit with many inconsistent and limiting panel statements.

This is where Funk Parlor comes in. HBO moved for summary judgment on lack of access, but the district judge "assumed" it for purposes of his ruling. Such an approach may in fact be a way around some of the negative effects of the first Bochco opinion. Here's the Funk Parlor court's discussion:

"The district court disposed of the motion for summary judgment exclusively on the issue of substantial similarity and, in so doing, assumed for the sake of argument appellees' access to the script. Although appellants wanted to take additional discovery on the issue of access, the court found it unnecessary because appellants could not meet the lower burden required by the substantial-similarity test. Appellants contend, however, that they should be given an opportunity to satisfy an even lower burden of proof under the “inverse-ratio rule,” which applies to those cases in which a party demonstrates the alleged copier's “high degree of access” to the purportedly copied material. See Three Boys Music, 212 F.3d at 485 (“we require a lower standard of proof of substantial similarity when a high degree of access is shown”) (internal citation omitted). Appellants contend that further discovery would allow them to demonstrate such access; that they would prevail under the lower burden of proof required in cases where such a degree of access is shown; and that the district court erred in failing to conduct that inquiry.We do not agree that appellants' invocation of the inverse-ratio rule requires reversal of the district court's decision. “No amount of proof of access will suffice to show copying if there are no similarities,” Krofft, 562 F.2d at 1172, and, in this case, additional discovery would not change the fact that the two works lack any concrete or articulable similarities. Thus, appellants would not be able to demonstrate unlawful copying even under a relaxed version of the substantial-similarity test. Consequently, we affirm the district court's summary judgment in appellees' favor as well as its ruling on additional discovery."

Hopefully Funk Parlor represents a welcome check on prior cases.