In an unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment in favor of defendants, Darlene Hunt and Showtime Networks finding that the plaintiff could not establish any genuine issue of fact as to whether defendants had access to her screenplay prior to the creation of The Big C, a Showtime television series. Radin v. Hunt, et al., Case No. 11-57228 (9th Cir., Nov. 26, 2012) (Bright, J.; Graber, J.; Ikuta, J.) (non-precedential).

While plaintiff Nancy Radin, a breast cancer survivor, was taking screenwriting courses at the UCLA Extension School from 2006 until 2009, she developed a screenplay titled Quality of Life, which she based on her experience with cancer.  After submitting portions of her screenplay to several UCLA professors, in March 2009, Radin submitted the full Quality of Life screenplay to a UCLA screenwriting contest. Other than the submission to the contest (which Radin did not win), the screenplay was never published.

Around the same time, in May 2008, screenwriter Darlene Hunt began working on a screenplay that she submitted to Showtime Networks in January 2009, which eventually became the Showtime television series The Big C.  The show about a teacher who begins to live her life in a no-holds barred manner after being diagnosed with cancer aired on Showtime in August 2010.  After learning of the show, Radin brought an action for copyright infringement claiming that the defendants created and broadcast derivative works based on her screenplay.

Absent evidence of direct copying, proof of copyright infringement requires the plaintiff to show that the defendant had access to the plaintiff’s work and that the two works are “substantially similar.”  If evidence of access to the work is not available, however, courts may infer such access and copying of the work at issue if the plaintiff can show a “striking similarity” between the copyrighted work and the accused work.

In this case, the 9th Circuit agreed that the defendants did not have access to Radin’s screenplay because it was not “widely disseminated,” nor did Radin provide any evidence to show a chain of events that could have lead to defendants’ access to Radin’s work.  Moreover, Radin was unable to show that her screenplay and The Big C television series were so “strikingly similar” such that the Showtime series could have come about only through copying.

In particular, the district court noted that although Radin was able to show certain conceptual similarities between the screenplay and the show (i.e., both works focus on middle-aged female school teachers facing terminal cancer, and both characters are dealing with troubled marriages and families, participating in support groups and are attracted to their physicians), none of the plot lines comprised protectable, expressive elements under copyright law.  Furthermore, the district court identified substantial differences between the works that undercut any argument of “striking similarity” between them. Agreeing with the district court’s full analysis, the appeals court affirmed summary judgment for the defendants as to Radin’s copyright infringement claim.

The court also upheld the district court’s denial of additional discovery to Radin, finding that Radin did not provide adequate justification for her request for additional time. Radin also did not set forth any reasonable likelihood that additional discovery would lead to useful evidence to support her theories of the defendants’ access to her screenplay.

Finally, the Court also upheld the district court’s award of attorneys’ fees to the defendants under 17 USC § 505, as well as the district court’s refusal to impose Rule 11 sanctions on Radin or her counsel for filing a “frivolous” complaint.

Practice Note:  Just a couple of weeks before The Big C decision, the U.S. Court of Appeals for the Second Circuit, in the precedential case of Alexander v. Murdoch, Case No. 11-4291 (2d Cir., Nov. 13, 2012) (Lynch, J.), reached a similar conclusion on similar facts, finding “no substantial similarity” between a script pitched by the plaintiff (called Loony Ben) and the ABC sitcom Modern Family.  The pilot script for Loony Ben featured a character who suffered from psychological ailments in terms of his interactions with family members which (according to Alexander comprised a large, non-traditional, dysfunctional, contemporary American family.  In affirming the dismissal of Alexander's complaint, the 2d Circuit concluded that to the extent Loony Ben and Modern Family “share a common concept, they do so only at the most general level” and that the similarities “are insufficient to establish infringement.”  Rather, the court found the overlapping character traits and plot lines to be “superficial and de minimis details” and to be “general abstractions insufficiently developed to merit protection” or otherwise standard treatments of modern life and “therefore unprotectable.”  Ideas, themes, subjects, abstract profiles of characters and “scenes a faire” are not protectable under U.S. copyright law.  Therefore, unless an accused infringing work is nearly identical to the original work at issue, it is critical for a plaintiff to prove that the defendant had access to the work, either through wide dissemination or an established chain of events demonstrating such access.