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Expert Witness Soap Opera Plays Out in Federal Court as Daubert Motions Fail
Tuesday, January 6, 2015

A federal magistrate judge has found himself at the center of a soap opera – literally.

As a battle brews between two Spanish-language television networks over copyright claims to the substance of their respective soap operas, Miami Federal Court Judge Jonathan Goodman has found himself faced with having to evaluate experts on telenovelas.

A telenovela, which combines the Spanish words for “television” and “novel,” is actually slightly different from a typical soap opera in that it has a limited run, or an end. Telenovelas are basically novels that play out on television and are popular throughout Mexico, Latin America, Europe, and Asia.

These are just a few of the factual intricacies that Judge Goodman found himself learning about as he attempted to rule on the admissibility of the telenovela experts that both parties offered in the recent U.S. District Court for the Southern District of Florida case of Latele Television, C.A. v. Telemundo Communications Group, LLC, et al. 

For plaintiff, expert Dr. Tomás López-Pumarejo, a Brooklyn College professor and author of a “pioneering book on television serial drama,” is expected to testify that after performing a detailed literary analysis of the two telenovelas in question, he found substantial and striking similarities between the two shows and “leaves – in my opinion – no doubt that [El Rostro de Analía] is a remake of [María María].”

Contradicting López-Pumarejo is expert witness Dr. Carolina Acosta-Alzuru, a University of Georgia professor and author of a book on Venezuelan telenovelas. Acosta-Alzuru is expected to testify that the dissimilarities between El Rostro de Analía and María María “in terms of core plot development, triangle structure, character design, telenovela subgenre, and qualitative characteristics of dialogue far outweigh the limited similarities in the triggering plot.”

Plaintiff, however, told the court that defendant actually hired the author of María María, which originally aired in 1989, to develop El Rostro de Analía and “that the copyright infringement is so obvious that the public and press have designated El Rostro as a remake or retelling of María María.”

However, according to one Mexican actress, the practice of remaking a successful telenovela from the past is not unusual. Adriana Llabrés, who stars on the telenovela Yo No Creo En Los Hombres, tells BullsEye that recreating a new telenovela from one that was previously successful is something that happens all the time, including on her own show, which has been remade twice.

“Most of the soap operas are remakes, and they have been for the past few years,” Llabrés explained to BullsEye. “The writer agrees with the director as to what they want to keep from the past versions based in accordance with the public’s perceived desires. They then may adapt the story to suit the tastes of the viewers.”

What allegedly appears to be different in this case is that while the original writer and new director may have collaborated, the original copyright holder was allegedly left out of the equation.

Considering all of this comparative television evidence and dissecting these two programs, however, will not be a task that Judge Goodman will need to undertake immediately, as he is faced with more than one Daubert motion. Goodman is the judge, not the jury; he is the gatekeeper, not the ultimate umpire on these issues.

The Daubert Decisions

In his December 15 Omnibus Order on Daubert Motions, Goodman explained that his role as gatekeeper “is not intended to supplant the adversary system or the jury’s role because, as Daubert explained, ‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’”

Goodman found that both parties will have “ample opportunity” to cross-examine and attempt to impeach the other’s expert witnesses and that it would be inappropriate for the court to exclude either side’s telenovela expert.

“There is no doubt that the three Daubert motions all generate significant challenges to the proposed expert testimony,” Goodman wrote. “Nevertheless, the Undersigned deems the legal assaults to relate more to the weight of the experts’ opinions and to their credibility, rather than the threshold issue of admissibility.”

Specifically in addressing the qualifications of plaintiff’s expert Dr. López-Pumarejo, the court refuted defendants’ contention that Dr. López-Pumarejo offered only “impermissible legal conclusions” that are the “ultimate issue in the case” and based on the “insufficient methodology” by which he examined only a small percentage of the two telenovela scripts. Dr. López-Pumarejo’s conclusion that María María and El Rostro de Analía were “substantially similar” was formulated after he reviewed 33 episodes of the former and 53 episodes of the latter, totaling about 23 percent of the combined telenovelas’ aired content.

“This alleged deficiency may well generate fodder for fruitful cross-examination but the Undersigned views the objection insufficient to support a request to flat-out exclude his testimony,” Goodman wrote, citing Oceania Cruises, 654 F.3d at 1193- “in most cases, objections to the inadequacies of a study are more appropriately considered an objection going to the weight of the evidence rather than its admissibility.”

Goodman notes that he expects defendants to rigorously cross-examine Dr. López-Pumarejo about his failure to review even a quarter of the telenovelas’ materials and that it is this cross-examination that will provide “sufficient protection” to the parties and to overall fairness of the trial.

In the same manner, the court addresses plaintiff’s complaints and corresponding Daubert challenges to defense expert Dr. Acosta-Alzuru. The court notes that despite plaintiff’s claims that Dr. Acosta-Alzuru is unqualified as an expert, the professor has presented numerous lectures to U.S. State Department officials in Venezuela on her various studies of Spanish-language telenovelas and is the only expert who actually reviewed all 376 hours of the two TV shows, producing summary recaps and plot diagrams of each episode.

“The mere fact that she has not written a telenovela herself is insufficient to preclude her expert testimony, [nor is she] subject to exclusion as an expert merely because she is not a ‘literary expert’ or an expert on copyright infringement,” Goodman wrote. “Moreover, Acosta carefully addressed the existence of unprotectible scène à faire even though she did not use that specific term. Latele can certainly question her at trial about her unfamiliarity with the term, but it has not convinced the Undersigned that Acosta’s unfamiliarity with a few legal terms is reason enough to exclude her, especially given her substantial background in telenovela analysis.”

Cash and Clichés

A scène à faire, French for a “scene that must be done,” is a scene that is rather obligatory or necessary for the story or genre, and in copyright law, this term refers to a creative work that is unprotected because of this mandated or necessitated role.

Perhaps every romantic comedy has to have a love triangle, every action movie a chase scene, and every tragedy a tragic death. Copying such plot twists can be no copyright infringement. 

However, the question for the Latele v. Telemundo jury will be whether or not the story is told differently. They will have full exposure to both sides’ expert testimony and perhaps hours of dramatic television ahead.

How much money Telemundo made as a result of El Rostro is also in dispute and subject to differing expert witness interpretations. Defendants retained CPA expert Ben Sheppard to refute the report of plaintiff expert Steven Berwick regarding the apportionment of Telemundo profits to the show and of the amount that would be attributable to the copyright-infringing portions thereof in the event that liability is, in fact, found.

Judge Goodman denied plaintiff’s Daubert motion to exclude expert witness Sheppard, citing similar reasons as stated above and saying that cross-examination and jury instruction shall cure any alleged deficiencies in the expert analysis. As for defendants’ omnibus motion in limine to exclude Berwick’s opinions, which was not a Daubert motion, the judge will decide in a separate order.  

Defendants have until February 10, 2015, to fulfill plaintiff’s discovery demands.

When it comes to the copyright claims between two TV shows, do we even need experts to testify as to “substantial similarities,” or should we simply let laypeople and juries decide if two shows are too similar to have avoided copyright infringement? 

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