The use of experts in copyright infringement analyses where copying and substantial similarity are at issue is problematic. In Nichols v. Universal Pictures Corp., 45 F.2d 119, 120 (2d Cir. 1930), Learned Hand argued against using them at all, although admitting it was not reversible error to admit their testimony. (See also his pre-bench article, "Historical and Practical Considerations Regarding Expert Testimony," 15 Harv. L. Rev. 40 (1901)). In Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946), a majority of Jerome Frank and Hand permitted expert testimony at the copying stage, but precluded it at the substantial similarity stage. This drew a vigorous dissent by the great Charles Clark who castigated what he perceived as the "anti-intellectual and book-burning nature of their decision," 154 F.2d at 478.
Judge Clark would have permitted experts at all phases, and while I think experts are a cancer on the legal system, if a jury is hearing an expert blather on at the copying stage about how something is scenes a faire, so common that it could not have been copied by defendant, can we really expect they jury to ignore that testimony when deliberating on substantial similarity?
Two recent decisions by trial courts in the Second Circuit, involving the same expert, Kenneth Dancyger, point out the problems. In A Slice of Pie Productions, LLC v. Wayans Entertainment, 2007 WL 1549139 (D. Conn. May 30, 2007), plaintiff alleged that defendants' movie "White Chicks" infringed a screenplay called "Johnny Bronx." Access was alleged through agents. Claiming striking similarity, plaintiffs submitted an expert report by Dancyger. Defendants moved to strike it for untimely designation; the court agreed, but used it any way for a separate summary judgment opinion (2007 WL 1549141), noting that expert testimony while impermissible at the substantial similarity stage, was permissible at the copying stage.
The rub is that defendant conceded access for summary judgment purposes, but did not concede copying. One can have access but still have not copied. The judge held that "the Movie Defendants' argument about the inadmissibility of expert evidence is inapposite if Dancyger's report could be read to constitute dissection and analysis probative of whether defendants copied plaintiff's screenplay, including regarding striking similarities which could obviate the need for proof of access." Defendants had, however, conceded access. Then, in the separate summary judgment opinion, the court considered Dancyger's report in evaluating substantial similarity, justifying it by this statement, "the Court refers to it, however, because plaintiff relies on it in its briefing for the similarities that it claims a lay observer would detect between the works." This of course is precisely what the Second Circuit has repeatedly held expert testimony is incompetent for. And what a nice trick: just rely on inadmissible testimony in your brief and it will be considered.
In Price v. Fox Entertainment Group, Inc., 2007 WL 125901 (S.D.N.Y. April 27, 2007), decided a month before, the court granted defendants' motion to strike Dancyger's testimony because the court held that no reasonable jury could find the two works (involving the movie "Dodgeball") strikingly similar. The court then added that his report was not needed for the copying stage because "[t]hese are not technical works. The jury is capable of recognizing the similarities between the works without the help of an expert," to which I say Praise the Lord. The court continued that if the report was considered to deal with substantial similarities, Dancyger was incompetent to testify about those issues. In a very surprising move, though, the court let plaintiffs find an another expert who might be competent on substantial similarity, although subject to a renewed Rule 702 or Daubert motion. I don't get that either: the issue is not competency in the sense of training, but rather inadmissibility.
In short, the law may be clear at the circuit level, but in the trenches, things are messy.