Gilbert-Daniels v. Lions Gate Entertainment, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2024
• Docket: 24-153
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NICOLE GILBERT-DANIELS, No. 24-153 D.C. No. Plaintiff - Appellant, 2:23-cv-02147-SVW-AGR v. MEMORANDUM* LIONS GATE ENTERTAINMENT, INC.; STARZ ENTERTAINMENT, LLC; CHERNIN ENTERTAINMENT, LLC; KATORI HALL; LIZ GARCIA; PATRIK IAN POLK,

Defendants - Appellees.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted December 5, 2024** Pasadena, California

Before: GRABER, SANCHEZ, and H.A. THOMAS, Circuit Judges.

Nicole Gilbert-Daniels appeals the summary judgment entered in favor of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Lions Gate Entertainment, Inc., et al. (“Defendants”) in this copyright infringement

action under the Copyright Act of 1976, alleging that Defendants’ television show

P-Valley infringed on Gilbert-Daniels’ works entitled Soul Kittens Cabaret

(“SKC”). SKC consists of three copyrighted works: the script of a 2006 musical

stage play, the script of a 2010 musical stage play, and a 2014 motion picture of

the stage performance. P-Valley premiered on Starz in 2020. On appeal, Gilbert-

Daniels argues that the district court (1) abused its discretion in striking the expert

report and declaration of Robert Aft, and (2) erred in its analysis of substantial

similarity. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

1. We review for abuse of discretion the district court’s decision to strike

expert testimony, see Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807,

813 (9th Cir. 2014), and afford a district court’s evidentiary rulings a “high degree

of deference,” United States v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000). The

district court did not abuse its discretion in striking Aft’s expert report and

declaration. Aft’s expert report and declaration merely restate many of the “same

generic similarities in expressive content” that Gilbert-Daniels had already

presented. Rice v. Fox Broad. Co., 330 F.3d 1170, 1180 (9th Cir. 2003), overruled

on other grounds by Skidmore v. Led Zeppelin, 952 F.3d 1051, 1069 (9th Cir.

2020) (en banc). Even if we were to consider Aft’s expert report and declaration,

the outcome of our analysis of substantial similarity would not change.

2 24-153 2. We review de novo the district court’s grant of summary judgment.

Swirsky v. Carey, 376 F.3d 841, 844 (9th Cir. 2004). To establish copyright

infringement, Gilbert-Daniels must show that (1) Defendants had access to her

works,1 and (2) SKC and P-Valley are substantially similar in protected expression.

See Rice, 330 F.3d at 1174 (stating standard). Because “no reasonable juror could

find substantial similarity of ideas and expression” between SKC and P-Valley, the

district court did not err in granting summary judgment to Defendants. Funky

Films, Inc. v. Time Warner Ent. Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (citation

omitted), overruled on other grounds by Skidmore, 952 F.3d at 1069.

In determining whether two works are substantially similar, “we employ a

two-part analysis: an objective extrinsic test and a subjective intrinsic test.”

Swirsky, 376 F.3d at 845. For purposes of summary judgment, “only the extrinsic

test is important.” Id. Under the extrinsic test, we filter out unprotectable elements

and then compare remaining “articulable similarities between the plot, themes,

dialogue, mood, setting, pace, characters, and sequence of events.” Rice, 330 F.3d

at 1174 (citation omitted).

Many of the purported similarities between the works are based on

unprotectable elements such as generic plot devices, see Funky Films, 462 F.3d at

1 Because Gilbert-Daniels fails to raise a genuine issue of material fact regarding substantial similarity, we need not address the element of access. See Skidmore, 952 F.3d at 1064.

3 24-153 1081, and Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985); familiar stock

scenes and themes, see Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th

Cir. 2002), and Berkic, 761 F.2d at 1293–94; or scènes à faire that “flow naturally”

from the basic premise of dancers or performers at a cabaret or exotic dancing

venue, Rice, 330 F.3d at 1177 (quoting Metcalf v. Bochco, 294 F.3d 1069, 1074

(9th Cir. 2002)).

As the district court aptly noted, there are abundant dissimilarities in the

respective works’ plots, themes, dialogue, moods, paces, characters, and settings.

What remains after filtering out the unprotectable elements consists of “random

similarities scattered throughout the works,” about which we are “particularly

cautious.” Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984). Caution is

especially warranted here, as several of Gilbert-Daniels’ proffered comparisons

reference materials that are not copyrighted, mischaracterize the works, or fail to

cite directly to the materials at issue. Accordingly, we conclude that no reasonable

jury could find substantial similarity between the protected aspects of SKC and P-

Valley.

Our analysis does not change under Metcalf because there is no “striking”

similarity between the two works’ sequence and arrangement of unprotectable

elements as compared to those at issue in Metcalf. 294 F.3d at 1073–74.

AFFIRMED.

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