In the world of entertainment litigation, the most difficult type of case for a plaintiff to win is the one in which a screenwriter makes a claim that their concept was copied to create a film or television series. They are challenging because it is hard to establish in a concrete fashion how a two-hour movie or lengthy series was “copied” from a 10-page treatment or 10-minute pitch. And, given how often certain tropes crop up in entertainment projects, it is difficult for a screenwriter to show that the alleged copying was of something other than stock characters, settings, or themes.
Sometimes these claims are postured as copyright infringement allegations, and at other times as breaches of implied contract. No matter how they are postured, they are nigh impossible to win. One article noted that studios and networks have prevailed in almost 50 straight cases in this area and that only two of those cases even made it to a jury. Tough odds, to be sure. Our office is often approached with “concept theft” cases and we almost always decline given the court’s past treatment of such claims.
But, there recently arose a glimmer of hope for creators with purloined concepts. The Ninth Circuit issued a memorandum in the matter of Jon Astor-White v. Daniel Strong; et al. that reversed a district court’s grant of a Fed.R.Civ.P. 12(b)(6) motion disposing of the plaintiff’s claim. It is one of the few decisions in which the plaintiff prevailed, though even here the spoils of victory amount only to the right to file an amended complaint. But, the language of the memorandum, and the competing positions taken by the panel, two of whom write separately, are fascinating.
Astor-White alleged, in his pro per complaint, that the defendants’ television series Empire infringed his rights in a treatment he wrote entitled King Solomon. The district court found that he failed to allege facts establishing a possibility of access and substantial similarity. It then dismissed without leave to amend.
In reversing, the Ninth Circuit, which complimented Astor-White’s pro per complaint to his attorney during oral arguments (he retained counsel after filing), found that Astor-White should have been provided an opportunity to amend his complaint to allege additional facts as to both access and substantial similarity and that such an amendment would not necessarily be futile.
Though the Astor-White decision issued as a memorandum (as opposed to a precedential opinion), the topics addressed therein were compelling enough to draw both a concurrence and a dissent from the panel.
The Honorable Kim McLane Wardlaw, in a concurrence, noted that the dissenting position (and by extension that of the district court) “threaten[ed] the copyright protection for treatments, long recognized as a genre of protected literary works, and disregard[ed] their very nature.” This defense of the value of treatments is heartening news for scribes all over Hollywood and beyond, whose work has long been devalued and near-impossible to protect during that vulnerable period between when it is pitched and picked up by a studio or network.
Judge Wardlaw also adroitly notes the entertainment industry’s historic lack of diversity and how unique the treatment at issue was at the time it was written many years ago: “While diversity in television still has a long way to go, a lot has changed on primetime television in the 11 years since Astor-White wrote the treatment for King Solomon. In the decades prior, black families were mostly represented, if at all, on sitcoms.” And Astor-White’s treatment, for a dramatic show “featuring complex, black lead characters,” was basically unheard of at the time it was created. These factors, she notes, go to establish that the plaintiff could allege copying of original content in a manner sufficient to survive a motion to dismiss.
The Honorable Jacqueline H. Nguyen, fresh off her dissent in the “Blurred Lines” case (which forecast that the majority opinion upholding the jury’s finding of infringement would cast a pall over the music industry and create an onslaught of new litigation; this has not come to pass, as music litigation has maintained its normal pace), fires off another dissent here. She does not see the screenwriter’s claims in as kind of a light as the majority, writing that she would deny the right to amend because any amendment would be futile given that there was no actionable copying. She discounts the creativity embodied in the screenwriter’s work, disagreeing with Judge Wardlaw’s conclusion that the work was highly original at the time of its creation.
In doing so, she relies on a doctrine that appears, upon inspection, to be inherently flawed. The “filtration test,” as it has come to be known, requires that the court or jury “filter out and disregard” what is not protectable in the allegedly infringed-upon work before comparing for similarity. The problem with this doctrine is twofold: (1) every single work can be viewed at a level of abstraction where each of its elements is not protectable; and (2) the law is clear that the “selection and arrangement” of otherwise unprotectable elements is itself protectable by copyright. For example, music notes, colors of paint, generic shapes, and individual words, existing in a vacuum, do not enjoy protection. But, if you were to “filter” them out of a finished work before review, there would be no remaining work to compare.
Judge Nguyen notes that after filtering out the standard elements in the screenwriter’s treatment, the similarities between the treatment and Empire don’t amount to a whole lot. And that the district court on remand may have difficulty conducting its own comparison given the majority’s guidance.
It seems that the filtration test is what separates the two judges, in combination with Judge Wardlaw’s acknowledgment of how creative and original the screenwriter’s treatment was in its depiction of black characters enmeshed in dramatic storylines when viewed through the temporal lens of the year it was created, 2007. Now, all eyes turn to the district court, its application of the Ninth Circuit’s directives, and whether that application will dim the glimmer of one of the very few recent cases that would aid a screenwriter in pursuing a concept theft claim.
Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.
The Silent Treatment: TV Network Suffers Rare Defeat In A ‘Concept Theft’ Copyright Case curated from Above the Law
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