RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`
`ELECTRONIC CITATION: 2004 FED App. 0082P (6th Cir.)
`File Name: 04a0082p.06
`
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`Nos. 01-2668/2721
`
`MURRAY HILL PUBLICATIONS,
`INC.,
`
`Plaintiff-Appellee/
`Cross-Appellant,
`
`v.
`
`TWENTIETH CENTURY FOX
`FILM CORPORATION,
`Defendant-Appellant/
`Cross-Appellee.
`
`X----
`>,-------N
`
`Appeal from the United States District Court
`for the Eastern District of Michigan at Ann Arbor.
`No. 97-60405—Marianne O. Battani, District Judge.
`
`Argued: August 7, 2003
`
`Decided and Filed: March 19, 2004
`
`Before: BOGGS, Chief Judge; SILER, Circuit Judge; and
`RICE, District Judge.*
`
`*The Honorable Walter Herbert Rice, United States District Judge for
`the Southern District of Ohio, sitting by designation.
`
`1
`
`2
`
`Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
`
`Nos. 01-2668/2721
`
`_________________
`COUNSEL
`ARGUED: Louis P. Petrich, LEOPOLD, PETRICH &
`SMITH, Los Angeles, California, for Appellant. Mayer
`Morganroth, MORGANROTH & MORGANROTH,
`Southfield Michigan, for Appellee. ON BRIEF: Louis P.
`Petrich, LEOPOLD, PETRICH & SMITH, Los Angeles,
`California, Maria N. Bernier, Gregory B. Jordan, REED &
`SMITH, Pittsburgh, Pennsylvania, Laurie J. Michelson,
`BUTZEL LONG, Detroit, Michigan, J. Michael Huget,
`BUTZEL LONG, Ann Arbor, Michigan, for Appellant.
`Mayer Morganroth, Jeffrey B. Morganroth, Jason R. Hirsch,
`MORGANROTH & MORGANROTH, Southfield, Michigan,
`for Appellee.
`
`_________________
`OPINION
`_________________
`BOGGS, Chief Judge. Twentieth Century Fox Film
`Corporation (“Fox”) appeals following a jury verdict in favor
`of plaintiff, Murray Hill Publications, Inc. (“Murray Hill”), in
`its action for copyright infringement. During the creation of
`the movie “Jingle All The Way” (“JATW”), Fox received
`from Murray Hill a submission of the screenplay for “Could
`This Be Christmas” (“CTBC”). After the theatrical release of
`JATW, Murray Hill sued Fox, alleging that the JATW movie
`infringed upon its copyright of the CTBC screenplay. At
`trial, both Fox and Murray Hill presented expert evidence to
`establish whether the JATW movie was substantially similar
`to the CTBC screenplay. After the jury returned a verdict for
`Murray Hill, the district court disallowed damage items
`representing the bulk of the jury award and denied attorney’s
`fees to Murray Hill. On appeal, Fox argues that it was
`
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`Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
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`3
`
`entitled to summary judgment on the issue of substantial
`similarity, that the trial was tainted by improper expert
`testimony by Murray Hill’s expert witness and by misleading
`jury instructions, necessitating a new trial, and that the
`damages awarded were unsupported in law or fact. Murray
`Hill cross-appealed and argues that it was entitled to the full
`damages awarded by the jury and also to attorney’s fees. We
`reverse because Fox was entitled to judgment as a matter of
`law. We do not reach the issues of the expert evidence, the
`jury instructions, the attorney’s fees, or the damages.
`I
`The principal author of the JATW screenplay was Randy
`Kornfield, a Fox script reader and freelance writer of
`screenplays. In 1993, Kornfield tried to buy a Mighty
`Morphin’ Power Ranger action figure as a birthday present
`for his son. The difficulties he encountered in this pursuit and
`conversations with other parents similarly engaged gave
`Kornfield the idea for a screenplay. On January 11, 1994,
`Kornfield registered his “treatment,” a six-page summary of
`a proposed screenplay, then called “A Christmas Hunt,” with
`the Writer’s Guild of America. On July 17, he registered a
`fleshed-out screenplay of this treatment. Executives at the
`Fox Searchlight division liked the screenplay and bought it
`for “1492 Pictures,” a production company affiliated with
`Fox. From November 1994 through June 1995, Kornfield
`worked with Fox and 1492 Pictures to revise the screenplay.
`In November 1995, Fox hired two more scriptwriters to
`continue editing and enhancing the screenplay. During this
`editorial process, the screenplay acquired the JATW title.
`The author of the CTBC screenplay was Brian Webster, a
`Detroit school teacher and aspiring script writer. In 1988,
`inspired by his difficulties in obtaining a Golden Batman as
`a Christmas present for his son, Webster wrote the first draft
`of a screenplay, initially entitled “Action Man: The Toy,”
`
`4
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`then “So This Is Christmas,” and finally “Could This Be
`Christmas.” Webster first registered this screenplay with the
`Copyright Office in 1989 and re-registered it in 1991. From
`1989 through 1993, Webster and his agent made repeated
`attempts to sell this screenplay to a variety of potential
`producers. While Murray Hill pleaded a number of theories
`on how the screenplay could have found its way to Fox
`during this period, the district court considered all of the
`theories too speculative and found that Fox did not have
`access to the CTBC screenplay during this period. Murray
`Hill does not raise this issue on appeal. Significantly, on
`February 4, 1994, Webster sold an option to CTBC to Murray
`Hill and eventually transferred all rights in CTBC to Murray
`Hill. On June 21, Murray Hill submitted CTBC to the Family
`Film division of Fox. On July 9, the CTBC screenplay was
`read and summarized by Rudy Romero, another Fox script
`reader and friend of Kornfield’s. Romero was also the script
`reader who a few months later performed the same task for
`the JATW screenplay. On August 1, Fox declined the CTBC
`screenplay. After Fox declined the screenplay, Murray Hill
`made no further attempts to sell it.
`At some time in February 1996, Robert Laurel, the
`principal of Murray Hill, read an article in Daily Variety
`about the JATW movie then in production. Concerned about
`the apparent similarities between JATW and CTBC, Laurel
`contacted his attorneys, who sent a series of cease-and-desist
`letters to Fox. Early settlement negotiations between Fox and
`Murray Hill failed over Murray Hill’s unwillingness to
`commit to any particular theory of how and when Fox could
`have obtained access to the CTBC screenplay and Fox’s
`refusal to share some of its information until Murray Hill
`committed to such a theory. Nevertheless, Fox proceeded
`with the JATW movie. On November 22, 1996, the movie
`was released and quickly proved to be a commercial success.
`
`

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`Murray Hill Pub., Inc. v.
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`Corp.
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`5
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`As of December 2000, the JATW movie had earned $183
`million.
`On December 3, 1997, Murray Hill filed suit against Fox in
`the United States District Court for the Eastern District of
`Michigan. While this complaint alleged a multitude of
`theories of liability, the only claim still relevant is Murray
`Hill’s allegation that the JATW movie infringed upon the
`copyright of the CTBC screenplay. The court made a finding
`that Murray Hill failed to establish directly that Fox had
`access to the CTBC screenplay at any time before Murray
`Hill submitted it to Fox. The case then proceeded to trial by
`jury. The district court instructed the jury based on the Ninth
`Circuit’s test for judging the “substantial similarity” of
`copyrighted works. As the jury was deliberating, the court
`found that the JATW treatment, created prior to the CTBC
`submission, did not infringe on the CTBC screenplay.1
`However, the jury was not informed of this ruling. Four days
`later, the jury rendered a verdict in favor of Murray Hill. The
`damages included $1 million in producer’s fees and $500,000
`in writer’s fees that Murray Hill lost because Fox did not
`contract with it for these services, $2 million in lost goodwill,
`and $500,000 in merchandising revenue Fox earned from the
`sales of a JATW sound track and toys. While the jury found
`that JATW had not yet earned any profits for Fox, it estimated
`Fox’s future profits on JATW at $15 million and also
`awarded that amount to Murray Hill. Accordingly, the
`district court entered judgment in favor of Murray Hill in the
`sum of $19 million. Fox renewed its motion for judgment as
`a matter of law and also moved for new trial. The court
`granted Fox’s motion for judgment as a matter of law with
`
`1The earlier finding did not preclude all possibility that the JATW
`treatment infringed, because Murray Hill had argued that the alleged
`“striking similarity” between the CTBC screenplay and the JATW
`treatment established access inferentially.
`
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`respect to all damage items except the producer’s and writer’s
`fees, thus reducing the award to $1.5 million. The court also
`declined to award attorney’s fees to Murray Hill and entered
`judgment in the reduced amount. Before this court now are
`Fox’s timely appeal and Murray Hill’s timely cross-appeal.
`II
`To determine whether the district court erred in allowing
`this case to go to the jury, we must look both at the
`developing law of copyright as it addresses the elements of
`proof for copyright infringement, and to the specific elements
`of the two works before us. We will first lay out the
`framework of law, as our circuit has pronounced it (Part III);
`then describe the dramatic elements of the two works (Part
`IV); and, finally, apply the law to an assessment of the
`relation of the protectible elements of the copyrighted work
`to the overall tenor of the allegedly infringing work (Part V).
`III
`Title 17 of the United States Code protects owners’
`copyrights in creative works. 17 U.S.C. §§ 101-1332.
`Copyright owners have the exclusive right to reproduce the
`protected work, to prepare derivative works, and to distribute
`copies to the public. 17 U.S.C. § 106(1)-(3). In the case of
`infringement, the owner of a copyrighted work may seek
`injunctive relief, impoundment and disposition of the
`infringing articles, damages, infringer’s profits, and legal
`costs, including attorney’s fees. 17 U.S.C. §§ 502-505. “To
`succeed in a copyright infringement action, a plaintiff must
`establish that he or she owns the copyrighted creation, and
`that the defendant copied it.” Kohus v. Mariol, 328 F.3d 848,
`853 (6th Cir. 2003); see also Feist v. Rural Tel. Serv. Co., 499
`U.S. 340, 361 (1991). “However, in most cases courts have
`no objective evidence of the process by which the challenged
`object was developed and thus are forced to rely on the
`
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`Murray Hill Pub., Inc. v.
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`Corp.
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`7
`
`inferences which may be drawn from two basic facts: access
`and similarity.” Glanzmann v. King, 8 U.S.P.Q.2d 1594,
`1595 (E.D. Mich. 1988) (citing Ideal Toy Corp. v. Kenner
`Prods., 443 F. Supp. 291 (S.D.N.Y. 1977)). “[W]here there
`is no direct evidence of copying, a plaintiff may establish ‘an
`inference of copying by showing (1) access to the
`allegedly-infringed work by the defendant(s) and (2) a
`substantial similarity between the two works at issue.’”
`(emphases added). Kohus, 328 F.3d at 853-54 (quoting Ellis
`v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999)). “Thus, copying
`is an essential element of infringement and substantial
`similarity between the plaintiff’s and defendants’ works is an
`essential element of copying.” Wickham v. Knoxville Int’l
`Energy Exposition, 739 F.2d 1094, 1097 (6th Cir. 1984)
`(citations omitted).
`The access element of a copyright infringement claim is
`usually the less problematic. “Access is essentially ‘hearing
`or having a reasonable opportunity to hear the plaintiff[’s]
`work and thus having the opportunity to copy.’” Ellis, 177
`F.3d at 506 (quoting Tree Publ’g Co. v. Warner Bros.
`Records, 785 F. Supp. 1272, 1274 (M.D. Tenn. 1991)).
`“Access is proven when the plaintiff shows that the defendant
`had an opportunity to view or to copy plaintiff’s work.”
`Glanzmann, 8 U.S.P.Q.2d at 1595 (citing Sid & Marty Krofft
`Television Prods. v. McDonald’s Corp., 562 F.2d 1157, 1163
`(9th Cir. 1977)). “Although ‘evidence that a third party with
`whom both the plaintiff and defendant were concurrently
`dealing had possession of plaintiff’s work is sufficient to
`establish access by the defendant,’ ‘[a]ccess may not be
`inferred through mere speculation or conjecture.’” Ellis, 177
`F.3d at 506 (quoting 4 Melville B. Nimmer & David Nimmer,
`Nimmer on Copyright § 13.02[A] (hereinafter “Nimmer”)).
`“A mere assertion of access, unsupported by probative
`evidence is inadequate.” Glanzmann, 8 U.S.P.Q.2d at 1595
`(citing Scott v. Paramount Pictures Corp., 449 F. Supp. 518,
`
`8
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`Nos. 01-2668/2721
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`520 (D.D.C. 1978), aff’d, 607 F.2d 494 (D.C. Cir. 1979)).
`“Nor is a ‘bare possibility’ of access sufficient. A plaintiff
`must establish that defendant(s) had a ‘reasonable possibility’
`to view plaintiff’s work.” Glanzmann, 8 U.S.P.Q.2d at 1595
`(citing Meta-Film Assocs. v. MCA, Inc., 586 F. Supp. 1346,
`1355 (C.D. Cal. 1984)). See also Grubb v. KMS Patriots,
`L.P., 88 F.3d 1, 4 (1st Cir. 1996) (denying copyright
`infringement claim on design of football team’s logo where
`alleged infringer had largely completed his design before
`access to plaintiff’s design).
`Where the plaintiff cannot prove access, the copyright
`infringement claim can still succeed, but only by proof of a
`higher level of similarity than the merely substantial. See
`Ellis, 177 F.3d at 507 (noting that “[s]ome case law indicates
`that the stronger the similarity between the two works in
`question, the less compelling the proof of access needs to be”
`(citing Nimmer § 13.02[B])). The quantum of similarity that
`will substitute for proof of access is “striking similarity.”
`Such striking similarity “preclude[s] the possibility of
`independent creation.” Glanzmann, 8 U.S.P.Q.2d at 1595
`(citing Ferguson v. Nat’l Broad. Co., 584 F.2d 111 (5th Cir.
`1978)). Of course, even in a striking similarity case, “[a]bsent
`copying, there can be no infringement.” Mazer v. Stein, 347
`U.S. 201, 218 (1954). However, striking similarity carries the
`burdens of proof that the infringing work is sufficient similar
`as to intrude into the copyrighted work’s protection and that
`the defendant must have had access to the copyrighted work,
`even if the plaintiff can provide no extrinsic proof of that fact.
`In the usual infringement case, access can be shown and the
`more difficult proof is that of “substantial similarity.” In
`order to focus this inquiry, “[c]ourts have established various
`tests for the substantial similarity finding.” Kohus, 328 F.3d
`at 854. “The traditional approach is the ‘ordinary observer’
`or ‘audience’ test, which ‘requires the trier of fact to gauge
`the similarities of the two works solely on the basis of his ‘net
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`Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
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`9
`
`impression’ and without relying on expert analysis or
`dissection.’” Ibid. (citing Ellis, 177 F.3d at 506 n.2).
`“[C]ourts have undertaken various modifications—typically,
`by adding a prior step that does allow expert testimony and
`analytic dissection.” Kohus, 328 F.3d at 854.
`The Second Circuit has adopted a test that distinguishes
`between two essential elements in a substantial similarity
`suit–“(a) that defendant copied from plaintiff’s copyrighted
`work and (b) that the copying (assuming it to be proved) went
`so far as to constitute improper appropriation.” Arnstein v.
`Porter, 154 F.2d 464, 468 (2d Cir. 1946). Expert testimony
`is appropriate under the first part, but not under the second
`because “the determination of improper copying is to be made
`from the viewpoint of the ordinary observer.” Kohus, 328
`F.3d at 854 (citing Arnstein). The Ninth Circuit, the court of
`appeals with the largest case load and experience in the area
`of movie industry copyright infringement, has adopted an
`alternative two-part test. This test consists of an “‘extrinsic
`test,’ in which expert testimony and analytic dissection may
`be employed to help the jury ‘determine whether there has
`been copying of the expression of an idea rather than just the
`idea itself’ . . . and the ‘intrinsic test,’ in which expert
`testimony is not appropriate because the trier of fact must
`determine substantial similarity from the viewpoint of the
`ordinary reasonable person.” Kohus, 328 F.3d at 854
`(summarizing Krofft, 562 F.2d at 1163-64). While these
`names for the parts have remained, “[b]ecause the criteria
`incorporated into the extrinsic test encompass all objective
`manifestations of creativity, the two tests are more sensibly
`described as objective and subjective analyses of expression,
`having strayed from Krofft’s division between expression and
`ideas.” Shaw v. Lindheim, 919 F.2d 1353, 1357 (9th Cir.
`1990) (citations omitted). The extrinsic test focuses on
`articulable similarities between plot, themes, dialogue, mood,
`setting, pace, characters, and sequence of events in the two
`
`10 Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
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`Nos. 01-2668/2721
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`works. Kouf v. Walt Disney Pictures & Television, 16 F.3d
`1042, 1046 (9th Cir. 1994). “[S]atisfaction of the extrinsic
`test creates a triable issue of fact in a copyright action
`involving a literary work.” Shaw, 919 F.2d at 1359.
`This court, however, had until recently not adopted any of
`the refined versions of the substantial similarity test. Ellis,
`177 F.3d at 506 n.2. Lacking guidance, the district court in
`the present case adopted the Ninth Circuit test. However,
`while this appeal was pending, we, in Kohus, adopted the
`District of Columbia Circuit’s test. In this test “the first step
`‘requires identifying which aspects of the artist’s work, if any,
`are protectible by copyright,’
`the second ‘involves
`determining whether the allegedly infringing work is
`‘substantially similar’ to protectible elements of the artist’s
`work.’” Kohus, 328 F.3d at 855 (quoting Sturdza v. United
`Arab Emirates, 281 F.3d 1287, 1295, 1296 (D.C. Cir. 2002)).
`This test is more similar to the Ninth Circuit test than it is to
`the Second Circuit test. See Kohus, 328 F.3d at 855 n.1
`(tracing history of the Sturdza test). The second part of our
`test, and the Ninth Circuit’s intrinsic test, both address the
`question of whether the two works are, taken as a whole,
`substantially similar in look and feel to a jury. The first part
`of our test, and the Ninth Circuit’s extrinsic test, both require
`a determination of what elements of the copyrighted work are
`protected by the law and an exclusion of consideration of all
`elements that are not.
`However, significant differences remain in both parts. In
`particular, we apply a more stringent standard regarding when
`to allow expert testimony on the first part of the test. Also,
`not having adopted the eight Kouf factors, the first part of our
`test remains more free in form than the Ninth Circuit’s
`extrinsic test. “The essence of the first step is to filter out the
`unoriginal, unprotectible elements . . . through a variety of
`analyses.” Kohus, 328 F.3d at 855 (citing Feist, 499 U.S. at
`345).
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`Murray Hill Pub., Inc. v.
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`11
`
`This brings us to the most complex part of the substantial
`similarity inquiry: the determination of which parts of the
`original work are protectible and which are not. It is
`“impossible to articulate a definitive demarcation that
`measures when the similarity between works involves
`copying of protected expression; decisions must inevitably be
`ad hoc.” Shaw, 919 F.2d at 1356 (citing Krofft, 562 F.2d at
`1164). Nevertheless, certain categorical judgments and
`guideposts have been established. Unoriginal work enjoys no
`copyright protection. “The sine qua non of copyright is
`originality. To qualify for copyright protection, a work must
`be original to the author.” Feist, 499 U.S. at 345. “[I]t is a
`constitutional requirement that a plaintiff bringing an
`infringement claim must prove ‘copying of constituent
`elements of the work that are original.’” Kohus, 328 F.3d at
`853 (emphasis added in Kohus) (quoting Feist, 499 U.S. at
`361). However, “the requisite level of creativity is extremely
`low; even a slight amount will suffice. The vast majority of
`works make the grade quite easily, as they possess some
`creative spark, ‘no matter how crude, humble or obvious’ it
`might be.” Feist, 499 U.S. at 345 (quoting 1 Nimmer,
`§ 1.08[C][1]).
`In the general run of cases, where minimal creativity can be
`shown, the vital distinction is between ideas and their
`expressions. Copyright does not protect ideas, but only the
`expression of ideas. Kohus, 328 F.3d at 855.2 “The real task
`in a copyright infringement action, then, is to determine
`
`2Of the two principles, that ideas are not protectible and that
`expressions are protectible, it is the former that is the stronger. Where an
`idea by necessity, or near-necessity, or custom, leads to a particular
`expression, it is the expression which becomes unprotected, rather than
`the idea that becomes protected. To reach the opposite conclusion would,
`through the backdoor, create a forbidden copyright in ideas. Shaw, 919
`F.2d at 1360.
`
`12 Murray Hill Pub., Inc. v.
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`Nos. 01-2668/2721
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`whether there has been copying of the expression of an idea
`rather than just the idea itself.” Krofft, 562 F.2d at 1163.
`“[N]o one infringes, unless he descends so far into what is
`concrete [in a work] as to invade . . . [its] expression.” Nat’l
`Comics Publ’ns v. Fawcett Publ’ns, 191 F.2d 594, 600 (2d
`Cir. 1951). To draw the distinction between ideas and their
`expressions, courts use the abstraction test first described by
`Judge Learned Hand with respect to a theatrical play. Kohus,
`328 F.3d at 855.
`Upon any work, and especially upon a play, a great
`number of patterns of increasing generality will fit
`equally well, as more and more of the incident is left out.
`The last may perhaps be no more than the most general
`statement of what the play is about, and at times might
`consist only of its title; but there is a point in this series
`of abstractions where they are no longer protected, since
`otherwise the playwright could prevent the use of his
`‘ideas,’ to which, apart from their expression, his
`property is never extended.
`Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d
`Cir. 1930). This test will only place a work’s elements on a
`spectrum from more expression-like to more idea-like. It
`does not pick the point on the spectrum at which elements
`cease to be unprotected ideas and become protectible
`expressions. Nevertheless, it serves as a useful, if not
`dispositive, analytical tool in drawing these distinctions. See
`Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d 487, 489
`(2d Cir. 1960) (noting that “no principle can be stated as to
`when an imitator has gone beyond copying the ‘idea,’ and has
`borrowed its ‘expression’” and that such decisions hence must
`“inevitably be ad hoc”).
`Within the realm of works of fiction, literary or
`cinematographic, expressions not protectible because they
`follow directly from unprotectible ideas are known as scènes
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`à faire, “those elements that follow naturally from the work’s
`theme, rather than from the author’s creativity.” Kohus, 328
`F.3d at 856 (quoting Nimmer § 13.03[F][3]). Scènes à faire
`are those “incidents, characters or settings which are as a
`practical matter indispensable, or at least standard, in the
`treatment of a given topic.” Sturdza, 281 F.3d at 1295. A
`few examples provide concreteness to this definition:
`If Twelfth Night were copyrighted, it is quite possible
`that a second comer might so closely imitate Sir Toby
`Belch or Malvolio as to infringe, but it would not be
`enough that for one of his characters he cast a riotous
`knight who kept wassail to the discomfort of the
`household, or a vain and foppish steward who became
`amorous of his mistress. These would be no more than
`Shakespeare’s ‘ideas’ in the play, as little capable of
`monopoly as Einstein’s Doctrine of Relativity, or
`Darwin’s theory of the Origin of Species. It follows that
`the less developed the characters, the less they can be
`copyrighted; that is the penalty an author must bear for
`marking them too indistinctly.
`Nichols, 45 F.2d at 121. Other genres provide additional
`examples of scènes à faire. “Elements such as drunks,
`prostitutes, vermin and derelict cars would appear in any
`realistic work about . . . policemen in the South Bronx” and
`are therefore not protectible. Walker v. Time Life Films, 784
`F.2d 44, 50 (2d Cir. 1986). Similarly, “[f]oot chases and the
`morale problems of policemen, not to mention the familiar
`figure of the Irish cop, are venerable and often-recurring
`themes of police fiction,” and hence not protectable. Ibid.
`“While both the Dinosaur World books and the Jurassic Park
`works share a setting of a dinosaur zoo or adventure park,
`with electrified fences, automated tours, dinosaur nurseries,
`and uniformed workers, these settings are classic scenes a
`faire that flow from the uncopyrightable concept of a dinosaur
`zoo. Thus, though perhaps substantially similar, the settings
`
`14 Murray Hill Pub., Inc. v.
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`are not protectible.” Williams v. Crichton, 84 F.3d 581, 589
`(2d Cir. 1996). “The common use of such stock . . . merely
`reminds us that in Hollywood, as in the life of men generally,
`there is only rarely anything new under the sun.” Id. at 588
`(quoting Berkic v. Crichton, 761 F.2d 1289, 1294 (9th Cir.
`1985)).
`Another question of degree in the evaluation of substantial
`similarity is the amount of copying necessary to establish
`infringement. At the extremes, the rules of law are again
`clear. “Duplication or near identity is not necessary to
`establish infringement. ” Krofft, 562 F.2d at 1167 (citing
`Runge v. Lee, 441 F.2d 579, 582 (9th Cir. 1971), and
`Williams v. Kaag Mfrs., 338 F.2d 949, 951 (9th Cir. 1964)).
`“A story has a linear dimension: it begins, continues, and
`ends. If a defendant copies substantial portions of a plaintiff’s
`sequence of events, he does not escape infringement by
`adding original episodes somewhere along the line.” Warner
`Bros. v. ABC, 720 F.2d 231, 241 (2d Cir. 1983). “The
`misappropriation of even a small portion of a copyrighted
`work . . . may constitute an infringement under certain
`circumstances.” Murray Hill Publ’ns v. ABC Comm., 264
`F.3d 622, 633 (6th Cir. 2001) (citing Universal Pictures Co.
`v. Harold Lloyd Corp., 162 F.2d 354, 361 (9th Cir. 1947)).
`“Even if a copied portion be relatively small in proportion to
`the entire work, if qualitatively important, the finder of fact
`may properly find substantial similarity.” Baxter v. MCA,
`Inc., 812 F.2d 421, 425 (9th Cir. 1987). “No plagiarist can
`excuse the wrong by showing how much of his work he did
`not pirate.” Shaw, 919 F.2d at 1362 (quoting Nimmer,
`§ 13.03[B][1][a]). However, “individual lines of dialogue [in
`a movie] are not automatically entitled to copyright
`protection.” ABC, 264 F.3d at 632. “[W]hen a single line of
`a larger copyrighted work is appropriated by an alleged
`infringer, the test is whether ‘the work is recognizable by an
`ordinary observer as having been taken from the copyrighted
`
`

`
`Nos. 01-2668/2721
`
`Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
`
`15
`
`source.’” Id. at 633 (quoting Harold Lloyd, 162 F.2d at 361).
`“[I]t is the combination of many different elements which
`may command copyright protection because of its particular
`subjective quality.” Krofft, 562 F.2d at 1169 (citing Reyher
`v. Children’s Television Workshop, 533 F.2d 87, 91-92 (2d
`Cir. 1976), and Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d
`623, 624 (2d Cir. 1962)). “While any one similarity taken by
`itself seems trivial, . . . it would [not] be improper for a jury
`to find that the over-all impact and effect indicate substantial
`appropriation.” Krofft, 562 F.2d at 1169 (quoting Malkin v.
`Dubinsky, 146 F. Supp. 111, 114 (S.D.N.Y. 1956)).
`However, “random similarities scattered throughout the
`works” can be discounted. Litchfield v. Spielberg, 736 F.2d
`1352, 1356 (9th Cir. 1984). “Such a scattershot approach
`cannot support a finding of substantial similarity because it
`fails to address the underlying issue: whether a lay observer
`would consider the works as a whole substantially similar to
`one another.” Williams, 84 F.3d at 590 (citing Walker, 784
`F.2d at 50, and Burroughs v. Metro-Goldwyn-Mayer, 683
`F.2d 610, 624 (2d Cir. 1982)).
`Finally, the issue arises of the proper standard for appellate
`review of a grant or denial of a motion for judgment as a
`matter of law in a copyright infringement case. The
`cornerstone of such review in copyright infringement cases,
`just as in other cases, is whether, given the law and evidence
`presented, a reasonable jury could have found for the non-
`moving party. Nevertheless, the issue of whether substantial
`similarity exists has certain features with special significance
`in the application of this standard. A jury deciding the issue
`of substantial similarity not only makes findings of historical
`fact, but usually also serves as a proxy for the works’
`intended audience. In this role as proxy, jurors decide not
`only what happened, but also can be properly influenced by
`whether their exposure to the alleged infringing work would
`diminish their appetite for the copyrighted work. See Kohus,
`
`16 Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
`
`Nos. 01-2668/2721
`
`328 F.3d at 856-57. As the diminished market for
`copyrighted work is the harm that the copyright law seeks to
`avoid, this issue is crucial and contains an element of
`subjectivity not found in most other jury determinations.
`Therefore, courts have recognized “that granting summary
`judgment, particularly in favor of a defendant, is a practice to
`be used sparingly
`in copyright
`infringement cases.”
`Wickham, 739 F.2d at 1097; accord Kohus, 328 F.3d at 853.
`However, even taking into account this factor, summary
`judgment is still permissible and may even be required.
`Wickham, 739 F.2d at 1097; Kohus, 328 F.3d at 853. Courts
`“have frequently affirmed summary judgment in favor of
`copyright defendants on the issue of substantial similarity.”
`Shaw, 919 F.2d at 1355. One reason to do so is that the
`question of substantial similarity can usually be decided on
`the basis of the works themselves and rarely, if ever, involves
`questions of credibility, the peculiar province of the jury.
`Also, while judges “may not be qualified literary critics,
`[they] are fitted by training and experience to compare literary
`works and determine whether they evidence substantial
`similarity.” O’Neill v. Dell Publ’g Co., 630 F.2d 685, 690
`(1st Cir. 1980).
`
`IV
`With this background on some relevant aspects of the law
`of copyright infringement, we turn to the facts of this case.
`The crucial issue is the degree of similarity between CTBC
`and JATW. While both of these works went through
`numerous revisions, Murray Hill’s core claim is that the
`JATW movie infringes on its copyright to the CTBC
`screenplay. A detailed summary of both is in order:
`CTBC tells the story of Bess Parker, a poor white divorced
`cleaning woman with a six-year-old son, Tommy. Lacking a
`father figure, Tommy focuses obsessively on “Action Man,”
`a super-hero action figure. Twelve days before Christmas,
`
`

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`Nos. 01-2668/2721
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`Murray Hill Pub., Inc. v.
`Twentieth Century Fox Film
`Corp.
`
`17
`
`Bess goes to the local toy store to buy the toy she has
`previously reserved. But when she finds herself short of cash
`to pay for it and the store clerks refuse to hold it for her any
`longer, Bess hides the toy in the store. The next day Bess
`returns to buy the toy she stashed away, but it is snatched out
`of her hands by Clare, a wealthy black woman who owns and
`operates a real estate business. Bess attempts to recover the
`toy by threatening Clare with an authentic-looking toy gun,
`but Clare gets away. Dejected, Bess returns to the subsidized
`apartment that she shares with her mother. Bess and Tommy
`buy a cheap Christmas tree and decorate it.
`The next day, while cleaning the home of Carol, an
`employee of Clare’s, Bess meets Steve, Carol’s brother and
`owner of a toy store. Later that day, Bess takes Tommy to see
`a toy store Santa Claus without realizing that it is Steve in
`disguise. When Bess becomes angry at the Santa Claus for
`promising Tommy an Action Man figure, Steve reveals his
`identity and Steve and Bess agree to go on a date. That
`evening, Carol calls Bess to tell her that Clare’s company is
`going to tear down Bess’s apartment building. The next day,
`Bess goes to a bank branch to obtain a loan to pa