NO. 20 132
`
`In the
`Supreme Court of the United States
`
`THE MOODSTERS COMPANY,
`
`Petitioner,
`
`v.
`
`THE WALT DISNEY COMPANY, ET AL.,
`
`Respondents.
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`BRIEF OF AMICUS CURIAE
`CALIFORNIA SOCIETY OF ENTERTAINMENT LAWYERS
`IN SUPPORT OF PETITIONERS
`
`
`
`
`
`
`
`
`
`
`
`
`
`STEVEN T. LOWE
` COUNSEL OF RECORD
`LOWE & ASSOCIATES P.C.
`8383 WILSHIRE BLVD.
`SUITE 1038
`BEVERLY HILLS, CA 90211
`(310) 477 5811
`STEVEN@LOWELAW.COM
`
`
`
`SEPTEMBER 8, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`In the
`Supreme Court of the United States
`
`THE MOODSTERS COMPANY,
`
`Petitioner,
`
`v.
`
`THE WALT DISNEY COMPANY, ET AL.,
`
`Respondents.
`
`
`
`
`
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals for the Ninth Circuit
`
`BRIEF OF AMICUS CURIAE
`CALIFORNIA SOCIETY OF ENTERTAINMENT LAWYERS
`IN SUPPORT OF PETITIONERS
`
`
`
`
`
`
`
`
`
`
`
`
`
`STEVEN T. LOWE
` COUNSEL OF RECORD
`LOWE & ASSOCIATES P.C.
`8383 WILSHIRE BLVD.
`SUITE 1038
`BEVERLY HILLS, CA 90211
`(310) 477 5811
`STEVEN@LOWELAW.COM
`
`
`
`SEPTEMBER 8, 2020
`
`COUNSEL FOR AMICUS CURIAE
`
`SUPREME COURT PRESS ♦ (888) 958 5705 ♦ BOSTON, MASSACHUSETTS
`
`
`
`i
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES ....................................... ii
`
`INTEREST OF AMICUS CURIAE ............................ 1
`
`SUMMARY OF THE ARGUMENT ........................... 3
`
`ARGUMENT ............................................................... 5
`
`A. THE “ORIGINALITY” STANDARD SET FORTH IN
`FEIST GOVERNS COPYRIGHT INFRINGEMENT
`CASES AND IS THE PROPER STANDARD TO
`DETERMINE THE COPYRIGHTABILITY OF
`CHARACTERS...................................................... 5
`
`B. CIRCUIT COURTS ARE SPLIT OVER WHEN
`COPYRIGHT LAW PROTECTS CHARACTERS
`AND THIS CONFUSION LEADS TO UNPREDICT
`ABILITY, AND IN THE NINTH CIRCUIT, THE
`APPLICATION OF UNNECESSARILY HEIGHT
`ENED STANDARDS THAT PREJUDICE INDE
`PENDENT CREATORS .......................................... 7
`
`C. THE NINTH CIRCUIT’S IMPOSSIBLE TO SATISFY
`STANDARDS FRUSTRATE THE PURPOSE OF
`COPYRIGHT LAW ............................................... 11
`
`D. THE NINTH CIRCUIT’S FAILURE IN THIS CASE
`TO PROTECT ORIGINAL SELECTION AND
`ARRANGEMENT WHEN DETERMINING SUB
`STANTIAL SIMILARITY IS INCONSISTENT
`WITH SUPREME COURT AND NINTH CIRCUIT
`PRECEDENT ..................................................... 13
`
`CONCLUSION .......................................................... 16
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`Page
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Anderson v. Stallone,
`No. 87 0592 WDKGX, 1989 WL 206431
`(C.D. Cal. Apr. 25, 1989) .................................... 12
`
`Apple Computer, Inc. v. Microsoft Corp.,
`35 F.3d 1435 (9th Cir. 1994) ............................. 14
`
`Daniels v. Walt Disney Co.,
`958 F.3d 767 (9th Cir. 2020) ................. 10, 13, 14
`
`DC Comics v. Towle,
`802 F.3d 1012 (9th Cir. 2015) .................... passim
`
`Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
`499 U.S. 340 (1991) ................................... passim
`
`Fleener v. Trinity Broad.,
`203 F.Supp.2d 1142 (C.D. Cal. 2001) ............... 14
`
`Gaiman v. McFarlane,
`360 F.3d 644 (7th Cir. 2004) ...................... 7, 9, 10
`
`Golan v. Holder,
`132 U.S. 873 at 902 (2012) .................................... 4
`
`Harper House, Inc. v. Thomas Nelson, Inc.,
`889 F.2d 194 (9th Cir. 1989) ............................. 14
`
`L.A. Printex Inds., Inc. v. Aeropostale, Inc.,
`676 F.3d 841 (9th Cir. 2012) ............................. 14
`
`Lewinson v. Henry Holt & Co., LLC,
`659 F.Supp.2d 547 (S.D.N.Y. 2009). ................... 9
`
`Matthew Bender & Co. v. West Publishing Co.,
`158 F.3d 674 (2d Cir. 1998) .................................. 7
`
`Mazur v. Stein,
`347 U.S. 201 (1954) ............................................... 4
`
`
`
`iii
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Metcalf v. Bochco,
`294 F.3d 1069 (9th Cir. 2002) ........................... 14
`
`MetroGoldwynMayer, Inc. v. Am. Honda
`Motor Co., 900 F.Supp. 1287
`(C.D. Cal. 1995) ..................................... 10, 12, 13
`
`Miller v. Miramax,
`No. CV 99 08526 DDP (AJWx),
`2001 U.S. Dist. LEXIS 25967
`(C.D. Cal. Sept. 26, 2001) ................................... 14
`
`Miller v. Universal City Studio, Inc.,
`650 F.2d 1365 (1981) ........................................... 6
`
`Nichols v. Universal Pictures Corp.,
`45 F.2d 119 (2d Cir. 1930), ................................... 8
`
`North Coast Industries v. Jason Maxwell, Inc.,
`972 F.2d 1031 (9th Cir. 1992) ................................ 7
`
`Paramount Pictures Corp. v. Axanar
`Productions, Inc., 121 U.S.P.Q.2D (BNA)
`1699 (C.D. Cal. 2017) ......................................... 14
`
`Petrella v. MetroGoldwynMayer, Inc., et al.,
`572 U.S. 663 (2014) .......................................... 1, 9
`
`Publications Int’l, Ltd. v. Meredith Corp.,
`88 F.3d 473 (7th Cir. 1996) ................................. 7
`
`Roth Greeting Cards v. United Card Co.,
`429 F.2d 1106 (9th Cir. 1970) ............................. 14
`
`Silverman v. CBS Inc.,
`870 F.2d 40 (2d Cir. 1989) ................................... 8
`
`Sony Corp. of America v. Universal City
`Studios, Inc., 464 U.S. 417 (2012) ....................... 4
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Swirsky v. Carey,
`376 F.3d 841 (9th Cir. 2004) ................................ 14
`
`Three Boys Music Corp. v. Bolton,
`212 F.3d 477 (9th Cir. 2000) ............................. 14
`
`Twentieth Century Music Corp. v. Aiken,
`422 U.S. 151 (1975) ............................................. 5
`
`Universal Pictures Co. v. Harold Lloyd Corp.,
`162 F.2d 354 (9th Cir. 1947) ............................. 14
`
`Warner Bros. Pictures Inc. v. Columbia Broad
`Sys., Inc., 216 F.2d 945 (9th Cir. 1954) .......... 11, 12
`
`Warner Bros., Inc. v. Am. Broad. Cos.,
`720 F.2d 231 (2d Cir. 1983) ....................... 7, 8, 13
`
`Worth v. Selchow & Righter Co.,
`827 F.2d 569 (9th Cir. 1987) .............................. 14
`
`Yankee Candle Co. v. Bridgewater Candle Co.,
`259 F.3d 25 (1st Cir. 2001) .................................. 7
`
`CONSTITUTIONAL PROVISIONS
`
`U.S. Const. Art I, § 8, cl. 8 ...................................... 5, 6
`
`JUDICIAL RULES
`
`Sup. Ct. R. 37 ............................................................. 1
`
`LEGISLATIVE MATERIALS
`
`HR Rep No. 1476......................................................... 6
`
`S Rep No. 473 .............................................................. 6
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`OTHER AUTHORITIES
`
`Benjamin E. Marks,
`Copyright Protection, Privacy Rights, and
`The Fair Use Doctrine The PostSalinger
`Decade Reconsidered,
`72 NYU L Rev. 1377 (1997) ................................ 5
`
`E. Fulton Brylawski,
`Protection of Characters – Sam Spade
`Revisited, 22 Bull. Copyright Soc’y U.S.A.,
`77 (1974) ...................................................... 10, 13
`
`Eva E. Subotnick,
`Originality Proxies Toward a Theory of
`Copyright and Creativity,
`76 Brook. L. Rev. (2011) ...................................... 7
`
`Jane C. Ginsburg,
`Creation and Commercial Value
`Copyright Protection of Works of
`Information, 90 Colum. L. Rev. 1865
`(1990) ................................................................... 5
`
`Michael D.,
`DC Comics v. Towle Protecting Fictional
`Characters Through Stewardship.
`Berkeley Technology Law Journal,
`Vol. 32 (2017) ..................................................... 12
`
`
`
`
`
`
`
`
`1
`
`
`
`INTEREST OF AMICUS CURIAE1
`
`Pursuant to Supreme Court Rule 37, the CALI
`FORNIA SOCIETY OF ENTERTAINMENT LAWYERS (“CSEL”)
`respectfully submits this brief as Amicus Curiae in sup
`port of Petitioner The Moodsters Company (“Moodsters
`Co.”).
`
`CSEL is an association comprised of creative
`professionals and attorneys representing authors,
`screenwriters, songwriters, and other creators of intel
`lectual property in the entertainment industry. Since
`submitting its first amicus curiae brief in support of the
`Petitioner in Petrella v. MetroGoldwynMayer, Inc., et
`al.,2 CSEL has continued to identify lines of reasoning
`that lack integrity or violate long standing precedent
`before those in a position able to correct them. Ultimate
`ly, CSEL seeks to balance the influence of powerful
`international conglomerates that dominate the enter
`tainment industry with the interests of independent
`creators and artists. Such an opportunity is presented
`here.
`
`Due to their limited resources and relative ignor
`ance of the law, independent creators in the entertain
`ment industry are at a great disadvantage relative to
`
`1 In accordance with Supreme Court Rule 37.2(a), CSEL has
`sought the consent of the parties to file this brief. Both counsel
`for Petitioner and counsel for Respondents granted consent.
`Amicus Curiae states that no counsel for a party authored this brief
`in whole or in part, and no persons other than Amicus Curiae
`and its counsel made any monetary contribution intended to
`fund the preparation and submission of this brief.
`
`2 572 U.S. 663 (2014).
`
`
`
`2
`
`corporate entities when attempting to protect or enforce
`their rights relating to their intellectual property. CSEL
`has come to realize that large, corporate entities (like
`the defendants in the present case) often seek to deprive
`creative professionals of the compensation (and credit)
`to which they are entitled, possibly relying on the
`fact that many will lack the wherewithal to mount a
`legal challenge. CSEL seeks to level the playing field
`by providing informative counseling and advice as to
`best practices to such individuals, as well as advocating
`for their rights to those in a position to correct
`deficiencies in their legal protections.
`
`In its petition for writ of certiorari, The Moodsters
`Co. has detailed the confusion surrounding the copy
`rightability of characters, leading to unpredictable
`results. CSEL fears that this circuit split, vagueness in
`the law, and heightened requirements for copyrighta
`bility of characters which unfairly impact independent
`creators, will continue to allow big media companies to
`misappropriate extremely valuable intellectual prop
`erty with impunity.
`
`
`
`
`
`3
`
`
`
`SUMMARY OF THE ARGUMENT
`
`The case before this Court illustrates the confusion
`in the different circuits with respect to the copyright
`ability of fictional characters. Not only is there a circuit
`split as to what is required to protect fictional char
`acters, but the unduly stringent requirements in the
`Ninth Circuit for protection of characters directly
`conflicts with Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`Inc., 499 U.S. 340 (1991) (requiring only originality),
`and specifically favors the interests of international
`conglomerates to the detriment of independent crea
`tors. Furthermore, the Ninth Circuit failed to apply the
`“selection and arrangement” test to provide protection
`for the combination of characters appropriated by
`Disney in this case. Here, the combination of five fic
`tional characters representing the emotions of happi
`ness, sadness, anger, fear, and love, represent the core
`commercial value of the works at issue.
`
`This Court has yet to expressly address the copy
`rightability of characters. As a result, circuit courts
`have developed and applied standards that run afoul
`of well established copyright law. For example, while
`this Court has held that “originality” governs copy
`rightability, the heightened standards developed by
`district courts have made it nearly impossible for such
`creators to protect their work. The actual test itself
`favors large companies. The lack of a consistent stan
`dard prejudices creator litigants by subverting the
`
`
`
`4
`
`fundamental goals of copyright law to incentivize crea
`tors to create.3
`
`This Court should grant the petition for writ of
`certiorari to determine the proper standard for granting
`copyright protection of a fictional character. Both
`public policy and precedent dictate that “originality,”
`as set forth by this Court in Feist, supra, is the proper
`standard. Further, this case provides an opportunity
`to create a standard for the copyrightability of char
`acters that is not so unfairly skewed in favor of large
`corporations. It only requires the application of common
`sense to appreciate how the Ninth Circuit test favors
`companies like Disney, and works to the detriment of
`the plaintiffs/appellants. Allowing the application of
`heightened standards for copyrightability of characters
`opens the door for major studios and entertainment
`conglomerates to misappropriate the creative works
`of independent creators without liability therefor, as
`occurred in the present case.
`
`
`
`3 See Golan v. Holder, 132 U.S. 873 at 902 (2012) (citing Sony Corp.
`of America v. Universal City Studios, Inc., 464 U.S. 417 (2012)
`and Mazur v. Stein, 347 U.S. 201 (1954) to highlight that copyright
`law is intended to promote the public policy of motivating the
`creativity of authors and other artists).
`
`
`
`5
`
`
`
`ARGUMENT
`
`A. THE “ORIGINALITY” STANDARD SET FORTH IN FEIST
`GOVERNS COPYRIGHT INFRINGEMENT CASES AND
`IS THE PROPER STANDARD TO DETERMINE THE
`COPYRIGHTABILITY OF CHARACTERS.
`
`In order to “Promote the Progress of Science and
`the Useful Arts,”4 Congress passed the Copyright Acts
`of 1909 and 1976 (collectively, the “Copyright Acts” or
`“Acts”) to incentivize artists to create original works
`that enrich our culture in exchange for the exclusive
`right to exploit their intellectual property.5 Providing
`artists with the ability to protect and exploit their
`creations allows copyright to fulfill its purpose and
`“promote the production of new works”6 and “stimulate
`artistic creativity for the general public good.”7 This
`can only be achieved if well established precedent is
`followed.
`
`To establish copyright infringement, “two elements
`must be proven (1) ownership of a valid copyright, and
`(2) copying of constituent elements of the work that
`
`4 U.S. Const. art I, § 8, cl. 8
`
`5 Jane C. Ginsburg, Creation and Commercial Value Copyright
`Protection of Works of Information, 90 Colum. L. Rev. 1865,
`1909 (1990).
`
`6 Benjamin E. Marks, Copyright Protection, Privacy Rights, and
`The Fair Use Doctrine The PostSalinger Decade Reconsidered,
`72 NYU L Rev. 1377 (1997).
`
`7 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156
`(1975).
`
`
`
`6
`
`are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
`Inc., 499 U.S. 340 (1991). Both elements require analy
`sis of the essential concept of originality, which is
`“the sine qua non of copyright”8 and is mandated “as
`a perquisite for copyright protection”9 in the Consti
`tution.
`
`The congressional intent behind the Copyright
`Act’s passing was clarified to solidify the “originality”
`standard as the overarching “premise of copyright
`law”10
`
`“The phrase ‘original works or authorship,’
`which is purposely left undefined, is intended
`to incorporate without change the standard
`of originality established by the courts under
`the present copyright statute. This standard
`does not include requirements of novelty,
`ingenuity, or esthetic merit, and there is no
`intention to enlarge the standard of copyright
`protection to require them.”11
`
`Deviating from the fairly minimal standard cor
`rectly espoused in Feist results in the inability to
`accomplish the goals of copyright law while making it
`nearly impossible for independent creators to protect
`their works. Furthermore, “a move to withdraw protec
`
`8 Feist, 499 U.S. at 345
`
`9 U.S. Const. Art. I, § 8, cl. 8
`
`10 Miller v. Universal City Studio, Inc., 650 F.2d 1365 (5th
`Cir. 1981)
`
`11 HR Rep No. 1476 at 51 S Rep No. 473 at 50
`
`
`
`7
`
`tion from ‘low originality’ works might actually impair
`‘high creative’ output.’”12
`
`B. CIRCUIT COURTS ARE SPLIT OVER WHEN COPYRIGHT
`LAW PROTECTS CHARACTERS AND THIS CONFUSION
`LEADS TO UNPREDICTABILITY, AND IN THE NINTH
`CIRCUIT, THE APPLICATION OF UNNECESSARILY
`HEIGHTENED STANDARDS THAT PREJUDICE INDE
`PENDENT CREATORS.
`
`The Ninth Circuit and other courts have routinely
`extended protection to characters. See, e.g., Warner
`Bros., Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d
`Cir. 1983) (finding that “there has been no doubt that
`copyright protection is available for characters por
`trayed in cartoons”) See, also, DC Comics v. Towle,
`802 F.3d 1012, 1019 (9th Cir. 2015) (When addressing
`the copyrightability of comic book characters, the
`Ninth Circuit concluded that “we have long held that
`such characters are afforded copyright protection”).
`While this holds true, there is a clear split amongst the
`circuits regarding what standard determines copyright
`ability.13
`
`12 See, Eva E. Subotnick, Originality Proxies Toward a Theory of
`Copyright and Creativity, 76 Brook. L. Rev. (2011) (discussing
`the problematic aspects of deviating from the current originality
`threshold and the extent raising the originality threshold would
`rule out copyright protection for many works).
`
`13 See Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004) (citing
`Matthew Bender & Co. v. West Publishing Co., 158 F.3d 674, 681
`(2d Cir. 1998) North Coast Industries v. Jason Maxwell, Inc., 972
`F.2d 1031, 1035 (9th Cir. 1992) Yankee Candle Co. v. Bridgewater
`Candle Co., 259 F.3d 25, 34 n.5 (1st Cir. 2001) and Publications
`Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 478 (7th Cir. 1996) to
`corroborate the statement that the circuits are split).
`
`
`
`8
`
`This Court should resolve the circuit split by
`deciding what standard governs the copyrightability of
`fictional characters. The standard set forth by this
`Court in Feist provides that originality governs copy
`rightability. There is no dispute that literary, graphic,
`and animated characters are entitled to copyright
`protection however, circuit courts have been blatantly
`ignoring binding Supreme Court precedent and dev
`eloping their own standards to determine substantial
`similarity in copyright infringement cases dealing with
`characters. See Pet. For Writ of Certiorari at 19 20
`(discussing that abandonment of the low standard in
`Feist and adoption of a more rigorous standard will
`result in geography deciding the fate for artists’ original
`characters instead of creativity).
`
`The copyrightability of fictional characters was
`first addressed in Nichols v. Universal Pictures Corp.,
`45 F.2d 119 (2d Cir. 1930), where Judge Learned Hand
`provided what is now known as the “sufficient delinea
`tion” test.14 Judge Hand explained that the more highly
`developed the character, the greater protection avail
`able to said character.15 Put simply, in order to be
`considered copyrightable, a character must be suffi
`
`14 See, e.g., Silverman v. CBS Inc., 870 F.2d 40, 50 (2d Cir. 1989)
`(holding that the “Amos ’n Andy” characters from the television
`and radio show satisfied the “sufficiently delineated” standard)
`Warner Bros., supra, 720 F.2d at 240 (addressing that Nichols
`“recognized the possibility that a literary character could be
`sufficiently delineated to support a claim of infringement by a
`second comer”)
`
`15 See Nichols at 121. (noting that the “sufficient delineation”
`test can be defined as “[t]he less developed a character is, the
`less it can be copyrighted that is the penalty an author must
`bear for making them too indistinctly”)
`
`
`
`9
`
`ciently delineated from a “stock character.”16 This
`standard continues to be applied to copyright infringe
`ment cases within the Second Circuit.
`
`Although the originality standard from Feist is not
`followed to the letter to determine the copyrightability
`of characters within the Seventh Circuit, the standard
`recognized in Gaiman v. McFarlane, 360 F.3d 644 (7th
`Cir. 2004), most closely resembles what is required
`by that binding precedent.17 Under Gaiman, Judge
`Posner ruled that “[n]o more is required for a character
`copyright” than a fictional character that has both a
`specific name, as well as a specific appearance.18 If this
`test had been applied to the case at bar, Petitioners
`would have clearly been entitled to protection however,
`the Ninth Circuit, which has been described as “the
`most hostile to copyright owners of all the circuits,”19
`applied two stringent analyses in the present case that
`assured protection was not available to the plaintiff.
`The Ninth Circuit applies and applied the following
`test for copyrightability in this case
`
`A character is entitled to copyright protection
`if (1) the character has “physical as well as
`conceptual qualities,” (2) the character is
`“sufficiently delineated to be recognizable as
`
`16 Lewinson v. Henry Holt & Co., LLC, 659 F.Supp.2d 547 at
`567 (S.D.N.Y. 2009).
`
`17 See, Feist at 346 (discussing various cases that have construed
`the constitutional requirement of “originality” to mean
`“independent creation plus a modicum of creativity”).
`
`18 Id. at 660
`
`19 Petrella v. MetroGoldwynMayer, Inc., et al., 695 F.3d 946,
`958 (9th Cir. 2012) rev’d 572 U.S. 663 (2014).
`
`
`
`10
`
`the same character whenever it appears” and
`“display[s] consistent, identifiable character
`traits and attributes,” and (3) the character is
`“especially distinctive” and “contain[s] some
`unique elements of expression.20
`
`Based upon the foregoing test, the plaintiff failed
`to make the grade. The Ninth Circuit decided to further
`analyze The Moodsters characters under the “story
`being told test,” which the plaintiff failed to satisfy
`as well since “The Moodsters” is apparently not a
`“character study.” Id. at 774. To say that the foregoing
`tests cause further confusion and unpredictability
`within the world of copyright law is an understate
`ment.21 Also, the foregoing Ninth Circuit test places
`judges in the role of a literary critic in determining
`the intrinsic worth of a character, which is not some
`thing courts are intended, nor suitable, for.
`
`Thus, this Court should grant the petition for writ
`of certiorari and resolve this circuit split to decide the
`proper standard to be applied in copyright cases. The
`various tests being used in the different circuits
`evidences the confusion surrounding the copyright
`ability of characters. Without clear and consistent
`
`20 Daniels v. Walt Disney Co., 958 F.3d 767, 771 (9th Cir. 2020)
`(quoting DC Comics v. Towle, 802 F.3d 1012, 1020 21 (9th Cir.
`2015).
`
`21 See, e.g., MetroGoldwynMayer, Inc. v. Am. Honda Motor Co.,
`900 F.Supp. 1287, 1295 (C.D. Cal. 1995) (“The law in the Ninth
`Circuit is unclear as to when visually depicted characters such
`as James Bond can be afforded copyright protection.”) See also,
`E. Fulton Brylawski, Protection of Characters – Sam Spade
`Revisited, 22 Bull. Copyright Soc’y U.S.A., 77, 87 (1974) (noting
`that “the legal doctrines of literary and cartoon characters are
`rather inconsistent, unclear and quixotic”).
`
`
`
`11
`
`precedent, neither creators nor large companies will
`have proper notice of when infringement occurs. The
`differing tests being created and applied by each circuit
`must be resolved in order to ensure that copyright
`law remains consistent among all jurisdictions.
`
`C. THE NINTH CIRCUIT’S IMPOSSIBLE TO SATISFY
`STANDARDS FRUSTRATE THE PURPOSE OF COPYRIGHT
`LAW.
`
`Copyright law does not and should not discrimin
`ate between large and small companies, yet the current
`test in the Ninth Circuit definitely does. The Ninth
`Circuit, which perhaps deals with the most copyright
`disputes of any circuit, has devised and adopted the
`most difficult standard amongst any circuit court for
`creators to meet, essentially applying either the anal
`ysis set forth in DC Comics v. Towle, 802 F.3d 1012,
`1020 21 (9th Cir. 2015), or the “story being told” test of
`Warner Bros. Pictures Inc. v. Columbia Broad Sys.,
`Inc., 216 F.2d 945, 950 (9th Cir. 1954). Both tests are
`unduly difficult for independent creators to satisfy, as
`exemplified in the instant case.
`
`Under Towle, “[n]ot every comic book, television, or
`motion picture character is entitled to copyright pro
`tection.” Towle, 802 F.3d at 1019. In analyzing the
`Batmobile, the court applied a three prong test and
`held that a graphical character must (1) have “physical
`as well as conceptual qualities,” (2) “be ‘sufficiently
`delineated’ to be recognizable as the same character
`whenever it appears,” and (3) be “‘especially distinctive’
`and ‘contain some unique elements of expression’” Id.
`
`The first prong of the Towle analysis (i.e. “having
`physical as well as conceptual qualities”) pays homage
`to the copyright requirement of originality however,
`
`
`
`12
`
`the second and third prongs are vague. Furthermore,
`the last two prongs appear to require some level of fame
`and economic significance the Towle test “grant[s]
`copyright owners greater ability to control fictional
`characters with high economic and cultural worth.”22
`If the Ninth Circuit continues to rely on the analysis
`set forth in Towle, creators that have yet to achieve
`success in the entertainment industry will continue
`to be pushed aside and stripped of constitutionally
`guaranteed rights to their original works.
`
`In the case of Warner Bros. Pictures v. Columbia
`Broad. Sys., 216 F.2d 945, 950 (9th Cir. 1954), the
`Ninth Circuit applied an alternative test, known as
`“the story being told,” which may set an even higher bar
`than the Towle test. In Warner Bros., the court ruled
`that a character is not copyrightable and is available
`for use by third parties so long as said character is ruled
`to be a “chessman in the game of the story” rather
`than so integral as to “so dominate the story such
`that it becomes essentially a character study.” Id. at
`950. This test has been utilized to extend copyright
`protection to iconic and beloved Hollywood characters,
`such as the Batmobile in Towle, supra, Rocky Balboa
`in Anderson v. Stallone, No. 87 0592 WDKGX, 1989
`WL 206431 (C.D. Cal. Apr. 25, 1989), and James Bond
`in MetroGoldwynMayer, Inc. v. Am. Honda Motor
`Corp., 990 F.Supp. 1287, 1296 (C.D. Cal. 1995) how
`ever this standard has been recognized as causing
`“massive confusion” within the world of character
`jurisprudence as it has created “such a complicated
`maze that the outcome is neither predictable nor
`
`22 Michael D., DC Comics v. Towle Protecting Fictional Char
`acters Through Stewardship. Berkeley Technology Law Journal,
`Vol. 32, 437 486 (2017).
`
`
`
`13
`
`fair.”23 As pointed out, the court in the instant case
`declined to find that plaintiff had satisfied this test
`because The Moodsters was not a “character study.”
`Daniels, 958 F.3d at 774.
`
`This confusion can be seen in the current test
`for protectability in the Ninth Circuit. Independent
`creators are vulnerable to infringement because the
`“story being told” test and the Towle test make it nearly
`impossible for lesser known creators to enjoy copyright
`protection. The application of both tests is highly
`skewed to protecting characters
`in established
`franchises, such as James Bond and Mickey Mouse,
`and unfairly penalizes characters created by
`independent creative professionals. In MetroGoldwyn
`Mayer, the fictional character of James Bond was
`given copyright protection as a result of the unique
`and recognizable personality traits that remain the
`same with every adaptation of the character, despite
`the change in physical appearance.24
`
`D. THE NINTH CIRCUIT’S FAILURE IN THIS CASE TO
`PROTECT ORIGINAL SELECTION AND ARRANGEMENT
`WHEN DETERMINING SUBSTANTIAL SIMILARITY IS
`INCONSISTENT WITH SUPREME COURT AND NINTH
`CIRCUIT PRECEDENT.
`
`Copyright protection extends to the original selec
`tion and arrangement of even unprotected elements.
`
`23 See, e.g. Brylawski, supra note 17, at 87.
`
`24 See, e.g. Warner Bros. v. ABS, 720 F.2d 231, 243 (2d Cir. 1983)
`(finding that Superman was protectable after taking into
`consideration both the physical build of Superman, as well as
`the suit worn by the character, to determine the level of
`copyright extended to the character)
`
`
`
`14
`
`See Feist, 499 U.S. at 345 (finding that the originality
`standard embodies the idea that “original selection
`and arrangements can be protected because the bar
`for originality is low.”). The court emphasized that “if
`the selection and arrangement are original, these
`elements of the work are eligible for copyright protec
`tion.” Id. at 349. The panel’s decision to not extend full
`copyright protection to the characters in the instant
`case is erroneous because it neglected to analyze the
`selection and arrangement of said characters in com
`bination when determining substantial similarity.
`
`The panel’s ruling that “The Moodsters as an
`ensemble are no more copyrightable than the individual
`characters”25 violates both Supreme Court and Ninth
`Circuit precedent.26 Rather than treating the five char
`acters separately, selection and arrangement demands
`that the court analyze these characters in the aggre
`
`25 Daniels v. The Walt Disney Company, et al., 958 F.3d 767
`(9th Cir. 2020).
`
`26 See, Paramount Pictures Corp. v. Axanar Productions, Inc.,
`121 U.S.P.Q.2D (BNA) 1699 (C.D. Cal. 2017) (film) L.A. Printex
`Inds., Inc. v. Aeropostale, Inc., 676 F.3d 841, 848 52 (9th Cir. 2012)
`(textile designs) Swirsky v. Carey, 376 F. 3d 841, 847 (9th Cir.
`2004) (music) Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir.
`2002) (TV show) Fleener v. Trinity Broad., 203 F.Supp.2d 1142,
`1148 51 (C.D. Cal. 2001) (book) Miller v. Miramax, No. CV 99
`08526 DDP (AJWx), 2001 U.S. Dist. LEXIS 25967 (C.D. Cal. Sept.
`26, 2001) (film) Three Boys Music Corp. v. Bolton, 212 F.3d 477,
`485 (9th Cir. 2000) (music) Apple Computer, Inc. v. Microsoft
`Corp., 35 F.3d 1435, 1441 48 (9th Cir. 1994) (computer programs)
`Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 194, 197
`(9th Cir. 1989) (organizer) Worth v. Selchow & Righter Co., 827
`F.2d 569, 572 74 (9th Cir. 1987) (trivia fact books) Roth Greeting
`Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970) (greeting
`cards) Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d
`354, 361 (9th Cir. 1947) (film).
`
`
`
`15
`
`gate. The Court refused to do this. It does not take an
`expert to see that Disney, after negotiating with the
`plaintiff, simply appropriated plaintiff’s “high concept”
`creative work in which each of the five major emotions
`is portrayed as a separate animated character. Id.
`
`
`
`
`
`16
`
`
`
`CONCLUSION
`
`If this Court does not grant Moodsters Co.’s peti
`tion for a writ of certiorari, the significant departure
`from binding Supreme Court precedent will continue to
`dominate the landscape. Exclusive rights to their own
`intellectual property are considered a constitutional
`right for creators, and the Ninth Circuit’s impossible
`to satisfy standards subvert the intent and purpose
`of copyright law. Granting review will enable this Court
`to set a precedent that will not discriminate against
`less established creators and will provide consis
`tency and predictability.
`
`For the reasons set forth above, Amicus Curiae
`joins Petitioners in respectfully requesting that this
`Court grant the petition for the writ of certiorari.
`
`
`
`
`
`
`
`Respectfully submitted,
`
`STEVEN T. LOWE
` COUNSEL OF RECORD
`LOWE & ASSOCIATES P.C.
`8383 WILSHIRE BLVD.
`SUITE 1038
`BEVERLY HILLS, CA 90211
`(310) 477 5811
`STEVEN@LOWELAW.COM
`
`COUNSEL FOR AMICUS CURIAE
`
`SEPTEMBER 8, 2020
`
`
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