Tuesday, August 29, 2006

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.

1 comment:

Anonymous said...

press release /Syriana ( clooney , Warner Bros ) in french court again .


The film Syriana, produced by Warner Bros and Section eight (George Clooney) in the French courts. Stιphanie Vergniault, a French writer residing in Jordan, but also a lawyer and expert in gopolitics has just taken the matter to court in the TGI in Paris against the authors of the said film which won an oscar to George Clooney for the best second role in the Oscar ceremony. Last June, Stιphanie Vergniault lost her case in the TGI deciding in matters of special emergency,as the judge estimated she had not evidenced her case well enough, but this time, Stιphanie Vergniault adds two scripts - Conakry (protectected in 2000) and Oversight (protected in 2004) - the result of over 7 years of work on the plots in the petrol world, which she consideres as having been pirated by the defendants, but she also files several experts' reports who, considering the many similitudes (plots, characters, evolutions of the characters, dialogues, places), concluded that Syriana was in fact a pirated copy of both works written by Stιphanie Vergniault. She does hope that the French court will now acknowledge thte pirating so taht she may recover her moral and financial rights over the film Syriana (and she already claims as a provision 2M euros and hopes to be awarded 25% of the incomes of the film, i.e. US$100M....., but she also expects the TGI to appoint an expert, which was refused by the former judge she claimed had substituted the expert without being competent for that).
In her summons, Stιphanie Vergniault further accuses Robert Baer (a former CIA agent - very present in the Middle East -, just like Stιphanie Vergniault) who took an active part in the film Syriana and she does not exclude that he had her scripts in his hands, long before the same was registered and may have given it to Mr Gaghan , the author of Syriana..
An element which is even more troubling as the film Syriana is claimed to have been originating and shot as the adaptation of the memories of Robert Baer when it very widely resembles the script written by Stιphanie Vergniault entitled Oversight and isindeed very far from the book written by the same Robert Baer "SEE NO EVIL", ( elements which did result in the film being classed as an original work – a last minute decision before the Oscar ceremony, by the Motion and Pictures Academy of America ) .
Stιphanie Vergniault is very determined to have her rights recognized and considers Warner Bros and its partners very unfair and of bad faith, including George Clooney, which is very disappointing .
"I expected those people to be more straight and honest, especially George Clooney who embodies the honest American citizen" before adding "which means that his featuring is nothing more than mere marketing!", how very disappointing! .. " and she further adds " while George Clooney boasts his Oscar throughout the world, I am mourning the film I did write, and for which I settled in Jordan at my expenses in order to coproduce it and which was produced in my back without informing me, /…. obviously I am deeply hurt of such practices! «

Maξtre vιronique Clavel Barrister in Paris
(Tel 0033 1 43 22 79 08 ) is the counsel of the writer.

9 sept 2006