Francesca Gregorini v. Apple Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2022
• Docket: 20-55664
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FRANCESCA GREGORINI, Nos. 20-55664 20-55846 Plaintiff-Appellant, D.C. No. v. 2:20-cv-00406-JFW-JC

APPLE INC.; M. NIGHT SHYAMALAN, an individual; BLINDING EDGE MEMORANDUM* PICTURES, INC., a Pennsylvania corporation; UNCLE GEORGE PRODUCTIONS, a Pennsylvania corporation; ESCAPE ARTISTS, INC.; DOLPHIN BLACK PRODUCTIONS, a California corporation; TONY BASGALLOP, an individual; ASHWIN RAJAN, an individual; JASON BLUMENTHAL, an individual; TODD BLACK, an individual; STEVE TISCH, an individual,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted February 14, 2022 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,** District Judge.

Plaintiff-Appellant Francesca Gregorini, writer, director, and producer of the

film The Truth About Emanuel, brought this copyright suit alleging that the first

three episodes of Defendants’ television series, Servant, infringed her copyright.

She appeals from the district court’s dismissal of her complaint on the ground that

the works were not substantially similar as a matter of law. We have jurisdiction

under 28 U.S.C. § 1291, and we review dismissals under Federal Rule of Civil

Procedure 12(b)(6) de novo. Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116 (9th

Cir. 2018), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe

Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc). We reverse.

To state a claim for copyright infringement, a plaintiff must allege, as

relevant here, that the defendant “cop[ied] enough of the plaintiff’s expression of

those ideas or concepts to render the two works ‘substantially similar.’” Id. at

1117 (quoting Mattel, Inc. v. MGA Ent., Inc., 616 F.3d 904, 913-14 (9th Cir.

2000)). To assess substantial similarity, we use “a two-part analysis consisting of

the ‘extrinsic test’ and the ‘intrinsic test.’” Id. at 1118. The extrinsic test, which is

“the only test relevant in reviewing the district court’s ruling on a motion to

dismiss,” id., “focuses on articulable similarities between the plot, themes,

** The Honorable Dana L. Christensen, United States District Judge for the District of Montana, sitting by designation.

2 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.

While “dismissal at the pleading stage is by no means unprecedented,”

Rentmeester, 883 F.3d at 1123, even “summary judgment is not highly favored on

questions of substantial similarity in copyright cases . . . .” Shaw v. Lindheim, 919

F.2d 1353, 1355 (9th Cir. 1990) (quoting Narell v. Freeman, 872 F.2d 907, 909

(9th Cir. 1989)), overruled on other grounds by Skidmore, 952 F.3d at 1051.

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.” 3 William F. Patry, Patry on Copyright § 9:86.50 (2021). It must also

be the case that “[n]othing disclosed during discovery could alter the fact that the

allegedly infringing works are as a matter of law not substantially similar to” the

original copyrighted work. Rentmeester, 883 F.3d at 1123.

Here, 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 . . . .” Cavalier v. Random House, Inc., 297 F.3d 815, 822

(9th Cir. 2002) (quoting Shaw, 919 F.2d at 1355). Moreover, this is “a case in

which discovery could shed light on [the] issues that actually matter to the

3 outcome.” Rentmeester, 883 F.3d at 1123. In particular, 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.1

REVERSED AND REMANDED.

1 Because we reverse on the merits, we also necessarily reverse the district court’s award of attorney’s fees.