Ninth Circuit Says Copyright Suit Against AppleTV+ Shyamalan Series Can Proceed

On February 22, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded the U.S. District Court for the Central District of California’s dismissal of a copyright suit filed against Apple Inc. and other defendants explaining that dismissal was improper at the pleading stage because reasonable minds could differ on the issue of substantial similarity.

The suit was brought by Francesca Gregorini—writer, director, and producer of the film The Truth About Emanuel. She claimed that the first three episodes of Defendants’ AppleTV+ series, Servant, infringed her copyright. In May 2020, U.S. District Judge Walters dismissed Gregorini’s complaint on the ground that the works were not substantially similar as a matter of law. Gregorini appealed to the Ninth Circuit.

Considering Substantial Similarity at the Pleading Stage

The Ninth Circuit noted that to state a claim for copyright infringement, a plaintiff must allege that the defendant copied enough of the plaintiff’s expression of those ideas or concepts to render the two works “substantially similar.” To assess substantial similarity, courts use a two-part analysis consisting of a “extrinsic test” and a “intrinsic test.”

In reviewing a district court’s ruling on a motion to dismiss, courts turn to the extrinsic test, which “‘focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.’” Benay v. Warner Bros. Ent., 607 F.3d 620, 624 (9th Cir. 2010) (quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)), overruled on other grounds by Skidmore, 952 F.3d at 1051.

Further, dismissal at the pleading stage is appropriate when “as a matter of law the similarities between the two works are only in uncopyrightable material or are de minimis.” Courts must also establish that nothing disclosed during discovery could alter the conclusion that the allegedly infringing works are, as a matter of law, not substantially similar to the original copyrighted work.

Improper Dismissal

Thus, the Ninth Circuit concluded that the district court’s dismissal of Gregorini’s suit at this early stage of the case was “improper” because “reasonable minds could differ on the issue of substantial similarity” and discovery could shed light on the issues. The Ninth Circuit added that expert testimony would aid the court “in objectively evaluating similarities in cinematic techniques, distinguishing creative elements from scènes à faire, determining the extent and qualitative importance of similar elements between the works, and comparing works in the different mediums of film and television.”

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