`
`E-FILED on 4/4/2011
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`NEIL B. GOLDBERG,
`Plaintiff,
`
`No. C-05-03534 RMW
`
`v.
`JAMES CAMERON, GALE ANN HURD, et
`al.
`
`Defendants.
`
`ORDER GRANTING DEFENDANTS GALE
`ANNE HURD AND PACIFIC WESTERN
`PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT
`[Re Docket No. 175]
`
`Defendants Gale Ann Hurd ("Hurd") and Pacific Western Productions, Inc. ("Pacific
`Western")1 move for summary judgment with respect to plaintiff Neil B. Goldberg's ("Goldberg")
`sole claim for contributory copyright infringement as set forth in his third amended complaint. For
`the reasons stated below, the court grants defendants' motion.
`I. BACKGROUND
`Goldberg contends that a script and soundtrack he sent to New World Pictures in or around
`1979 were misappropriated by Hurd and incorporated into the popular action films "The
`
`1 Pacific Western is referred to as Hurd’s “loan out” company which Goldberg claims is Hurd’s
`alter ego. For simplicity’s sake, the court refers to Hurd as collectively referring to Hurd and Pacific
`Western.
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
`MEC
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`For the Northern District of California
`For the Northern District of California
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`United States District Court
`United States District Court
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`Terminator" ("T-1") and "Terminator 2: Judgment Day" ("T-2"). Since then, two more allegedly
`infringing additions to the franchise have been released: "Terminator 3: Rise of the Machines" ("T-
`3") and "Terminator 4: Salvation" ("T-4"). There has also been a spin-off television program
`entitled "The Sarah Connor Chronicles." The court refers collectively to these works as the
`"Terminator Franchise." Broadly speaking, the Terminator films and television show track the lives
`of Sarah Connor and her son John Connor in their (so far unsuccessful) efforts to avert a robot-
`controlled totalitarian future. Those efforts include fending off increasingly sophisticated robot
`assassins sent back in time to stop the Connors from thwarting the robots' eventual rise to self-
`awareness and world domination.
`In the mid-1970s, Goldberg began composing songs for an album he called Energy.
`Declaration of Neil Goldberg in Opposition to Motion for Summary Judgment ¶4 ("Goldberg
`Decl."). The album included tracks containing "industrial and spacey melodies and sounds." Id. at ¶
`21. Thinking that the music could be a movie soundtrack, Goldberg also wrote an eight-page script
`outline, entitled Long Live Music, describing an epic battle in the future between humans and
`computers, and directing that particular tracks from Energy accompany certain scenes. Goldberg's
`story is about a world where music and the arts have disappeared, and the world's computers have
`gone bad and built robot armies to destroy mankind. In the story, a good professor builds a peaceful
`computer named Ludwig, who teaches humans that the world can be saved through the power of
`music. The humans search the planet for the few surviving musicians, and together with god-like
`heroes from outer space, they use the power of music and dance to defeat the bad computers and
`restore love, happiness, music, and dance to the world.
`Goldberg contends that the films of the Terminator Franchise infringe on his copyright in
`Energy and Long Live Music. He registered his "dramatic work and music" with the United States
`Copyright Office and was issued a certificate of registration, No. Pau 175-490, on November 4,
`1979. Goldberg testified that he sent a promotional package including the script and music to,
`among others, New World Pictures, where Hurd allegedly worked, around 1979. Goldberg Decl. ¶
`6. According to Goldberg, the Terminator films include plot elements and a soundtrack that are
`similar to his script and his soundtrack.
`
`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
`MEC
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`Defendant Hurd produced T-1 and T-2. Decl. of Gale Anne Hurd ¶¶ 8, 11. Hurd declares
`that she has never received, reviewed or even seen Goldberg’s works. Id. at 3-7. Goldberg has not
`established that Hurd worked at New World Pictures in 1979, but Hurd has not denied that she did.
`Goldberg filed the instant lawsuit on August 31, 2005. On January 19, 2007, defendants
`moved to dismiss, arguing that the three-year statute of limitations had run. The court granted the
`motion to dismiss as to all copyright claims accruing before August 31, 2002. For infringement
`after that date, the court denied the motion to dismiss. Defendants then moved on November 4,
`2008 for summary judgment on all claims in the second amended complaint as barred by the statute
`of limitations. The court granted defendants' motion for summary judgment with respect to the
`claims for direct copyright infringement, but the court permitted Goldberg to amend his complaint to
`pursue a claim for contributory copyright infringement arising out of Hurd's 1998 assignment of
`rights to the Terminator Franchise and the subsequent production of T-3, T-4, and the Terminator
`television series.
`
`II. ANALYSIS
`Defendants now seek summary judgment on Goldberg's sole remaining claim for
`contributory copyright infringement, which stems from Hurd's 1998 assignment of the rights to
`develop future installments of the Terminator Franchise and the alleged subsequent direct
`infringement of Goldberg's creations by T-3, T-4, and the Terminator television series. Defendants
`argue that Goldberg cannot establish the required elements of knowledge or inducement necessary to
`support a claim for contributory copyright infringement. They further argue that no reasonable jury
`could find substantial similarity between Goldberg's story and soundtrack and the story and music of
`the Terminator Franchise, and that Goldberg therefore cannot establish that he has a valid underlying
`direct copyright infringement claim. In addition, defendants urge that Goldberg cannot establish that
`defendants had access to his creations, and that Goldberg is therefore subject to more stringent
`requirements to demonstrate similarities between Goldberg's works and the works that comprise the
`Terminator Franchise.
`A.
`Summary Judgment
`
`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
`MEC
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`Summary judgment is proper when there is "no genuine dispute as to any material fact and
`the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(f). Material facts are
`those which may affect the outcome of the case. Long v. County of Los Angeles, 442 F.3d 1178,
`1185 (9th Cir. 2006)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute
`as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict
`for the non-moving party. Id. If the moving party meets its initial burden of identifying for the
`court those portions of the material on file that it believes demonstrates the absence of any genuine
`issues of material fact, the burden of production shifts and the nonmoving party must set forth
`"specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pacific Elec.
`Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
`1.
`Contributory Copyright Infringement
`Contributory copyright infringement is a form of secondary liability with roots in concepts of
`enterprise liability and imputed intent. Perfect 10, Inc. v. Visa Intern. Services Ass'n, 494 F.3d 788,
`794-5 (9th Cir. 2007). In the Ninth Circuit, one contributorily infringes when he (1) has knowledge
`of another's infringement and (2) either (a) materially contributes to or (b) induces that infringement.
`Id. This case presents unique circumstances: the situation where the alleged material contribution or
`inducement of infringement occurred years before the allegedly infringing works were created or
`released. Defendants contend that there is no evidence that Hurd had knowledge of the copyright
`infringement alleged with respect to T-3, T-4, and the Terminator television series at the time she
`made the 1998 assignment of her rights to develop future installments of the Terminator Franchise,
`and thus cannot be liable for contributory copyright infringement. In other words, defendants argue
`that Hurd could not have known that future films, television programs, and music would be
`infringing when those projects had not even been undertaken, let alone released.
`Goldberg points to the fact that Hurd was paid $9 million for the assignment of her rights,
`and to references in the agreement to "proposed Additional Pictures." He argues that Hurd could
`have assumed that there would be additional infringing activities. Goldberg’s argument assumes
`that Hurd knew that she was assigning rights to material subject to Goldberg’s copyright. The only
`evidence that Goldberg sent his script and musical to New World Pictures is his oral testimony that
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
`MEC
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`he did so in 1979. The mail receipts he attached to his declaration do not appear to show mailing to
`New World Pictures. See Goldberg Decl. Ex. 3. Goldberg did not send the materials to Hurd but
`assumes Hurd must have seen them. Hurd was a producer of T-1 in 1984, several years after
`Goldberg allegedly sent his material to New World Pictures, and an executive producer ot T-2.
`Hurd Decl. at ¶¶ 8 and 11. Goldberg’s contributory infringement argument thus depends on this
`slim evidence of access and what he claims is the "striking similarity" of T-3, T-4 and the
`Terminator televison series.2
`2.
`Underlying Direct Copyright Infringement
`Even if Goldberg's evidence satisfies the knowledge and inducement or contribution
`requirements of contributory copyright infringement, his claim cannot exist in the absence of direct
`infringement by a third party published within the three years before he filed his lawsuit. A&M
`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 n.2 (9th Cir. 2001). To show direct
`infringement, Goldberg "must demonstrate '(1) ownership of a valid copyright, and (2) copying of
`constituent elements of the work that are original.'" Benay v. Warner Bros Entertainment, Inc., 607
`F.3d 620, 624 (9th Cir. 2010) (quoting Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072,
`1076 (9th Cir. 2006) (quoting Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)).
`Defendants do not deny that Goldberg owns a valid copyright, but they deny that T-3, T-4, or the
`Terminator television series copied Goldberg's creations. "Absent evidence of direct copying, proof
`of infringement involves fact-based showings that the defendant had access to the plaintiff's work
`and that the two works are substantially similar." Id. (quotation omitted).
`"'When the issue is whether two works are substantially similar, summary judgment is
`appropriate if no reasonable juror could find substantial similarity of ideas and expression.'" Id.
`(quoting Kouf, 16 F.3d at 1045). "Substantial similarity is a fact based inquiry, but it may often be
`decided as a matter of law." Id. (quotation omitted).
`"'The Ninth Circuit employs a two-part test for determining whether one work is
`substantially similar to another.'" Id. (quoting Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir.
`
`2 Goldberg’s papers refer to verbatim inclusions from his copyrighted work in the Terminator
`Franchise. There is, however, no evidence of any verbatim language or identical music.
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
`MEC
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`1990). To prevail on his infringement case, Goldberg must prove "'both substantial similarity . . .
`under the "extrinsic test" and substantial similarity under the "intrinsic test."" Id. (quoting Shaw,
`919 F.3d at 1356). "'The "extrinsic test" is an objective comparison of specific expressive
`elements.'" Id. (quoting Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002)). "'The
`"intrinsic test" is a subjective comparison that focuses on whether the ordinary, reasonable audience
`would find the works substantially similar in the total concept and feel of the works.'" Id. (quoting
`Cavalier, 297 F.3d at 822). "On a motion for summary judgment, we apply only the extrinsic test.
`The intrinsic test is left to the trier of fact." Id. If Goldberg fails to satisfy the extrinsic test, he
`cannot survive a motion for summary judgment. See Olson v. Nat'l Broad. Co., 855 F.2d 1446,
`1448-49 (9th Cir. 1988).
`a. Literary Analysis
`The extrinsic test, as applied to determine copyright infringement in a literary case, is
`explained in Benay:
`The "extrinsic test" is an objective comparison of specific expressive elements The
`"intrinsic test" is a subjective comparison that focuses on whether the ordinary,
`reasonable audience would find the works substantially similar in the total concept
`and feel of the works. On a motion for summary judgment, we apply only the
`extrinsic test. The intrinsic test is left to the trier of fact. If the Benays fail to satisfy
`the extrinsic test, they cannot survive a motion for summary judgment.
`The extrinsic test is an objective test based on specific expressive elements: the test
`focuses on articulable similarities between the plot, themes, dialogue, mood, setting,
`pace, characters, and sequence of events in two works. A court must take care to
`inquire only whether the protectable elements, standing alone, as substantially
`similar. Copyright law only protects expression of ideas, not the ideas themselves.
`Scenes-a-faire, or situations and incidents that flow necessarily or naturally from a
`basic plot premise, cannot sustain a finding of infringement. Familiar stock scenes
`and themes that are staples of literature are not protected. Historical facts are also
`unprotected by copyright law.
`Under the "inverse ratio" rule, if a defendant had access to a copyrighted work, the
`plaintiff may show infringement based on a lesser degree of similarity between the
`copyrighted work and the allegedly infringing work. For purposes of the Benays'
`copyright claim, we assume without deciding that the inverse ratio rule applies to
`lower the burden on the Benays to show similarity. Even if the Defendants had access
`to the Screenplay, the Benays have not shown sufficient similarity between the
`Screenplay and the Film to maintain an infringement claim under federal copyright
`law.
`The Benays point to a number of similarities between the Screenplay and the Film.
`Both have identical titles; both share the historically unfounded premise of an
`American war veteran going to Japan to help the Imperial Army by training it in the
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
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`methods of modern Western warfare for its fight against a samurai uprising; both
`have protagonists who are authors of non-fiction studies on war and who have
`flashbacks to battles in America; both include meetings with the Emperor and
`numerous battle scenes; both are reverential toward Japanese culture; and both
`feature the leader of the samurai rebellion as an important foil to the protagonist.
`Finally, in both works the American protagonist is spiritually transformed by his
`experience in Japan.
`We agree with the district court that "[w]hile on cursory review, these similarities
`may appear substantial, a closer examination of the protectable elements, including
`plot, themes, dialogue, mood, setting, pace, characters, and sequence of events,
`exposes many more differences than similarities between Plaintiffs' Screenplay and
`Defendants' film." The most important similarities involve unprotectable elements.
`They are shared historical facts, familiar stock scenes, and characteristics that flow
`naturally from the works' shared basic plot premise. Stripped of these unprotected
`elements, the works are not sufficiently similar to satisfy the extrinsic test.
`607 F.3d at 624-25 (internal citations omitted).
`Goldberg points to a number of similarities between LLM and the T-3, T-4, and the
`Terminator television series. Both works are set in the future, and in both works, advanced, self-
`aware computer networks seek to destroy humanity, who must fight mass-produced, death-ray-
`shooting robot armies to survive. In both works, some of the robots or computers are underground,
`and in both works, it seems that the computers cannot be turned off. Both works end somewhat
`ambiguously, apparently allowing for sequels.
`Nonetheless, a closer examination of the protectable elements, including character, plot,
`sequence, theme, setting, mood, pace, and dialogue, demonstrates that there are many more
`differences than similarities between Goldberg's creation and the films and television series created
`from Hurd’s assignment of sequel and remake rights in 1999. The most important similarity
`between the works involves an unprotectable element: the general idea of a futuristic conflict
`between man and machines, specifically computers and robots. That theme is a commonplace in
`science fiction. Indeed, the notion of intelligent machines evolving into conscious beings at war
`with human beings was originally developed in Mary Shelley's classic Frankenstein (1818). Other
`portrayals of artificial intelligence at war with humans include Stanley Kubrick and Arthur C.
`Clarke's 2001:A Space Odyssey (1968), the move Colossus: The Forbin Project (1970), and Philip
`K. Dick's story "Second Variety" (1952), a post-nuclear apocalypse story in which the defeated
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`forces turn to a guerrilla warfare conducted by self-reproducing machines programmed to destroy
`anything that lives.
`Goldberg's story has no Terminator character, no time travel, and no cyborgs sent back from
`the future to alter events in the past. The Terminator Franchise, in turn, does not feature music as a
`weapon which defeats bad computers or restores happiness, love, music and dance to the world, and
`none of the Terminator films or the television series include god-like characters who travel from
`outer space to use music and dance to save mankind. Though the works shares a common premise
`and elements that follow naturally from that premise, the Terminator Franchise and LLM tell
`fundamentally different stories.
`b. Musical Analysis
`There is no evidence that Hurd had anything to do with the creation of the music, the score or
`the musical theme in T-1. She is not a musician or musical composer. Hurd Decl. at ¶¶ 9 and 10.
`According to Hurd, the musical theme for T-1 was composed by Brad Fiedel, and she had nothing to
`do with the creative process for the music in T-1. There is no evidence in the record that any
`musical materials relating to T-3, T-4, or the Terminator Television show were passed along by
`Hurd to the creators of the future Terminator works at the time of the assignment.
`The extrinsic and intrinsic tests are also used in comparing an allegedly infringing
`composition with the copyrighted composition. See Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir.
`2004). In Swirsky v. Carey, the Court of Appeals explained that in the context of comparing musical
`works, "[t]he extrinsic test requires 'analytical dissection of a work and expert testimony.'" Id.
`(quoting Three Boys, 212 F.3d at 485). In analyzing musical compositions under the extrinsic test,
`there is no uniform set of factors to be used; music is composed of a large array of elements,
`including idea, lyrics, rhythm, pitch, tempo, melody, harmony, structure, chord progressions,
`dissonance, and new technological sounds, and some combination of those elements is protectable
`by copyright. Id. at 849. To avoid summary judgment, the non-moving party must provide "'indicia
`of a sufficient disagreement concerning the substantial similarity of [the] two works.'" Id. at 848
`(quoting Brown Bag, 960 F.2d at 1472). "So long as the plaintiff can demonstrate, through expert
`testimony that addresses some or all of these elements and supports its employment of them, that the
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
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`similarity was 'substantial' and to 'protected elements' of the copyrighted work, the extrinsic test is
`satisfied." Id. at 849.
`Defendants' expert has explained and analyzed the components of the musical works,
`including their structure or form, harmony, rhythm, melody, and lyrics, and he reports that in their
`entirety, there are no remotely relevant similarities between Goldberg and defendants' musical
`compositions. He further reports that there are no relevant similarities in any of the elements of the
`compositions.
`Goldberg’s memorandum of points and authorities is essentially void of any discussion of the
`musical compositions. Goldberg’s expert reports, however, are attached to his opposition.
`Defendants argue that the Sonnenschein Report should not be considered because it is not a rebuttal
`report to defendants' expert but an untimely new report regarding purported musical similarities
`between Energy and T-3, T-4, and the Terminator television series. The court agrees. Because
`Goldberg failed to comply with the Federal Rules of Civil Procedure and the court's scheduling
`order, the Sonnenschein Report will not be considered.
`The expert report submitted by Randolph Masters in support of Goldberg's opposition–but
`never cited in the opposition–points to the similar "spacey sound" and to the effects the works of
`music have on the listener. Masters also points, without explanation, to similar "rhythmic booms,"
`"metallic background accents," "distinctive blending of chaotic sound," and similar timber in certain
`musical segments. The court finds that these interpretations fail to provide any musicological
`support for Goldberg's claim of copyright infringement.3 While the Ninth Circuit has recognized
`that "[m]usic is an art form that produces sounds and expresses moods," and that the extrinsic test
`provides an awkward framework to apply to works of music because they lack distinct elements of
`idea and expression, "the test is our law and we must apply it." Id. at 848. Goldberg has not
`provided a proper musicological comparison of the protectable elements of the musical works, and
`elements such as the mood of a musical composition are not protectable. The identified similarities
`
`3 The specific excerpts discussed by Goldberg's expert use music from T-1. Claims based on T-1
`are, as this court has previously found, barred the statute of limitations. Among the many problems
`with Goldberg's musicological analysis is that it does not compare the only works of music that
`remain in this case–music from T-3, T-4, or the Terminator Television Show.
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
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`amount to musical ideas, such as tremolo effects, or to the mood, effect, and feeling of the
`compositions. At best, Goldberg and Masters have provided conclusions that compare T-1's music
`with Goldberg's music. They, however, do not provide an audio or visual comparison or analysis of
`the works at issue.
`c. Access
`"Under the 'inverse ratio' rule, if a defendant had access to a copyrighted work, the plaintiff
`may show infringement based on a lesser degree of similarity between the copyrighted work and the
`allegedly infringing work." Benay, 607 F.3d at 625 (quoting Shaw, 919 F.2d at 1361). While
`Goldberg's claim that he mailed LLM and the Energy album to New World is based solely on his
`recollection and not on documents, considering the evidence in the light most favorable to Goldberg,
`we must conclude that defendants had access to Goldberg's creations. However, even under the
`lesser "substantial similarity" test, Goldberg has not shown sufficient similarity between LLM and
`Energy on the one hand and the Terminator Franchise on the other to maintain an infringement claim
`under federal copyright law.
`
`III. ORDER
`For the reasons stated above, defendants' motion for summary judgment is granted.
`
`DATED:
`
`4/4/2011
`
`RONALD M. WHYTE
`United States District Judge
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`ORDER GRANTING DEFENDANTS GALE ANNE HURD AND PACIFIC WESTERN PRODUCTIONS, INC.'S MOTION FOR
`SUMMARY JUDGMENT —No. C-05-03534 RMW
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