RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`
`ELECTRONIC CITATION: 2004 FED App. 0314P (6th Cir.)
`File Name: 04a0314p.06
`
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`Nos. 02-2387/2388
`
`DOUGLAS ALAN STROMBACK,
`Plaintiff-Appellant/
`Cross-Appellee,
`
`
`
`v.
`
`NEW LINE CINEMA,
`Defendant-Appellee/
`Cross-Appellant,
`
`LARRY HESS, et al.,
`Defendants-Appellees.
`
`X----
`>,--------N
`
`Appeal from the United States District Court
`for the Eastern District of Michigan at Detroit.
`No. 01-73898—John Corbett O’Meara, District Judge.
`
`Argued: June 8, 2004
`
`Decided and Filed: September 14, 2004
`
`Before: MARTIN and SUTTON, Circuit Judges; QUIST,
`District Judge.*
`
`*The Honorable Gordon J. Quist, United States District Judge for the
`Western District of Michigan, sitting by designation.
`
`1
`
`2
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`_________________
`COUNSEL
`ARGUED:
` Andrew J. Kochanowski, SOMMERS,
`SCHWARTZ, SILVER & SCHWARTZ, Southfield,
`Michigan, for Appellant. Herschel P. Fink, HONIGMAN,
`MILLER, SCHWARTZ & COHN, Detroit, Michigan, for
`Appellees. ON BRIEF: Andrew J. Kochanowski,
`SOMMERS, SCHWARTZ, SILVER & SCHWARTZ,
`Southfield, Michigan, for Appellant. Herschel P. Fink,
`HONIGMAN, MILLER, SCHWARTZ & COHN, Detroit,
`Michigan, for Appellees.
`_________________
`OPINION
`_________________
`GORDON J. QUIST, District Judge. Plaintiff, Douglas
`Alan Stromback ("Stromback"), sued Defendant, New Line
`Cinema ("NLC"), and others, alleging violations of the
`Copyright Act, 17 U.S.C. § 106, and the Lanham Act,
`15 U.S.C. § 1125, and alleging various state law claims under
`Michigan and/or California law. Stromback's claims all arise
`out of his allegations that the movie "Little Nicky," which is
`owned and distributed by NLC, infringes Stromback's poem
`entitled "The Keeper" as well as his original treatment and
`outline of a screenplay based upon "The Keeper" poem
`entitled "The Keeper."1 The district court granted summary
`judgment to NLC on all of Stromback's claims and dismissed
`
`1Stromback also sued the three credited screenwriters, Adam Sandler,
`Steven Brill, and Tim Herlihy, and two other individuals. Stromback
`eventually dismissed the screenwriters without prejudice and did not serve
`summons on the other two individuals. Therefore, the case proceeded
`only against NLC.
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`3
`
`4
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`the case. Stromback filed this timely appeal. We affirm on
`all issues.
`I. FACTUAL AND PROCEDURAL BACKGROUND
`In late 1998 and early 1999, Stromback, an actor, aspiring
`screenwriter, and former professional hockey player, created
`an original poem entitled "The Keeper." Stromback then
`created an original treatment and original outline of a
`screenplay based upon "The Keeper" poem and entitled each
`one "The Keeper." Later, Stromback created several original
`screenplays of "The Keeper." Stromback registered the poem
`and a version of the screenplay with the Copyright Office.
`Stromback also registered several versions of the screenplay
`with the Writers Guild of America.
`Stromback alleges that in early 1999, he shared the poem
`and the screenplay with Larry Hess and John Apothaker to
`solicit their comments on his work. According to Stromback,
`Hess and Apothaker subsequently passed copies of "The
`Keeper" poem and screenplay to NLC. In November 2000,
`NLC released a movie it produced called "Little Nicky,"
`starring Adam Sandler. Stromback alleges that after seeing
`"Little Nicky" in the theater, he realized that it contained
`substantial similarities to his works, including similarities in
`theme, character treatment and development, idiosyncratic
`character traits, and scene selection. A description of the two
`works follows.2
`The Keeper
`The registered screenplay version of "The Keeper" is a
`story about "Ted," who brings down the corrupt Governor of
`
`2In its opinion, the district court stated that it was adopting
`Stromback's description of the two works in light of the fact that it was
`deciding substantial similarity at the summary judgment stage.
`
`California, "John." Racial themes are presented throughout
`the story. Ted is white. Ted's adoptive mother is "Martina,"
`an older black lady. Ted's grandfather, "Fred," is an 87-year-
`old black man who lives in a nursing home and is apparently
`losing his mental faculties. When Ted was young, Fred
`taught Ted to speak in rhymes, as Ted often does throughout
`the story. Fred thought that being able to rhyme was the
`secret to succeeding in life because Muhammed Ali spoke in
`rhymes. Fred told Ted that he was teaching Ted how to
`rhyme so that Ted would deliver the family "from the gutter."
`Ted regularly talks to himself in his apartment, apparently
`responding in a schizophrenic manner to voices inside his
`head. Ted asks Martina to explain the voices and why he is
`troubled but she is reluctant to tell him the truth, which is that
`he was abandoned in a dumpster as a baby by his birth
`mother. Eventually, Ted's mother told him that they found
`him on church grounds and that his mother was an eighteen
`year old girl who was having an affair with a politician.
`The story opens with Ted starting a new job at the "national
`paper." Ted is hired to work in the basement of the building
`organizing old files. Ted's boss, "Dave," calls the basement
`"the cave" or "the dungeon." Ted works in the evening and
`often sleeps during work. Ted is attracted to a female writer
`named "Sue." Ted concocts and carries out a plan to
`approach Sue in the dark and reveal his feelings toward her
`through a rhyme. Sue figures out that Ted was the person who
`approached her in the dark but she won't date him because he
`is "totally weird."
`Shortly after he begins working at the national paper, Ted
`begins to obsess about Governor John.3 Governor John is
`
`3Stromback claims that the reader can infer that the politician with
`whom Ted's birth mother had the affair was Governor John's father,
`making Governor John Ted's evil brother or half-brother. However, the
`only basis for this inference is Stromback's subjective reading of the text.
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`5
`
`6
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`portrayed as a power hungry politician who does no real work
`and whose ambition is to become president and take over the
`world. Ted believes that Governor John is "cocky and
`arrogant" as well as evil, and at various times Ted refers to
`Governor John as the devil. Ted begins a campaign against
`Governor John by sending anonymous rhyming riddles to the
`national paper that the newspaper prints in its editorial page.
`Eventually it is revealed that Ted has been reading about a
`"Jokela murder case," in which a reporter ("Jokela") was
`murdered in the same basement in which Ted now works.
`Jokela discovered that the then-secretary of state (Governor
`John's father) was involved in a cult having "some thing to do
`with the devil." Governor John's father was the prime suspect
`in the murder but "got off the hook and the case never went to
`trial." He went on to have a distinguished career as Governor.
`Ted knows that Governor John's father was responsible for
`the murder and includes clues about it in his riddles.
` Governor John reads the riddles and eventually catches on
`that the author is out to get him. The Governor and his
`henchmen decide to kill "that rhyming dude." Ted reveals
`himself to the Governor and dares him to "get me if you can."
`Governor John arranges for three individuals to find and
`murder Ted at the national paper. However, Ted sets a trap in
`which he uses his "good friend," "Scott," to trick the hit-man
`into thinking that Scott is actually Ted. The hit-man ends up
`killing Scott. Having video-taped the murder, Ted tells a
`dying Scott: "I needed you, you were a good friend, but
`everybody needs a ladder to get to the top. You're my ladder
`scott [sic]."
`Ted shows the tape of the murder to the police, who
`eventually link the murder to Governor John. The story ends
`with the Governor going to jail and Ted being elected as the
`Governor of California. On election night Sue goes to Ted's
`hotel room, where he rapes her. Sue has no recourse because
`Ted now has the power. Ted calls Sue a "bitch" as she leaves.
`
`Little Nicky
`Little Nicky is a "comedy" about the Devil, "Satan," and his
`three sons: "Casius," the strong, tough son; "Adrian," the
`smart, ruthless son; and "Nicky," the weaker, sweet son, who
`also has a speech impediment caused by his brother hitting
`him in the face with a shovel. Adrian and Casius frequently
`pick on Nicky and "mind wrestle" with him, causing him to
`do or say things against his will. The grandfather, "Lucifer"
`(Rodney Dangerfield), appears occasionally but does not
`really interact with Nicky.
`The movie opens with Satan trying to decide if he should
`retire after 10,000 years of rule. If he does, one of his sons
`would take over Hell. Casius and Adrian both want the job.
`Nicky does not want it and prefers that his father keep the job.
`Satan decides to keep the job and rule for another 10,000
`years in order to maintain the balance between good and evil
`(he does not believe that his sons are capable of doing this).
`Casius and Adrian are furious at this decision and plan to
`escape to Earth, where they will try to corrupt as many souls
`as possible (to threaten the balance between good and evil) in
`their quest to assume control. During their escape, Casius and
`Adrian travel through a wall of fire, by which damned souls
`are intended to fall into, but not leave, Hell. Adrian and
`Casius cause the wall of fire to freeze and a logjam of souls
`ensues outside the wall of fire. Without new souls entering,
`Satan begins to decompose. His only hope is to send Nicky
`to Earth to force his brothers to drink from a magic flask, in
`which they will be trapped. Once he has his brothers inside
`the flask, Nicky must pass through the wall of fire and return
`to Hell, which will save Satan.
`Nicky travels to New York City, where Satan's friend, a
`talking dog, "Beefy," serves as Nicky's guide. Nicky is also
`assisted by two cult-worshiping "groupies" named "John" and
`"Pete." Beefy, John, and Pete all want Nicky to "release his
`inner evil" in order to overpower Casius and Adrian. Nicky
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`7
`
`8
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`has a difficult time finding his brothers because they hide by
`randomly "possessing" humans. Casius possesses the Mayor
`of New York and lowers the drinking age from 21 to 10,
`causing chaos. All three of them have a difficult time
`adapting to Earth's cold weather.
`While on Earth, Nicky meets and falls in love with a
`woman named "Valerie." During a chance encounter, Adrian
`mind wrestles with Nicky and causes him to insult Valerie.
`However, Nicky wins back Valerie's affection by telling her
`the truth about his family and mission on Earth. During the
`story, Nicky is killed several times (e.g., by a train or bus) and
`is sent back to Hell, where he is re-dispatched to Earth. The
`final time, Nicky dies trying to save Valerie and goes to
`Heaven. There, he meets an angel named "Holly," who turns
`out to be his mother. Holly tells Nicky that she met Satan at
`a "Heaven and Hell Mixer." Holly tells Nicky releasing his
`inner good is the key to victory over his brothers. Holly also
`gives Nicky a magic sphere from God for Nicky to use when
`it is time.
`Nicky manages to trap Casius in the magic flask, but
`Adrian has assumed the throne of Hell and has caused Hell to
`rise through Central Park in New York. At the stroke of
`midnight, all of New York's souls will be damned and belong
`to Adrian in Hell. Nicky uses the magic sphere, releasing
`"good" versus "evil." Nicky smashes the magic sphere and
`Ozzy Osbourne (a rock star with a reputation for biting the
`heads off bats) appears and bites off Adrian's head (who
`appears in the form of a bat) and spits it into the magic flask.
`Nicky then commits one last superficially bad act to ensure
`that he will be sent to Hell. Valerie tells Nicky that she loves
`him and then smashes him on the head with a rock (out of
`love) to kill him and send him back to Hell. Satan is saved
`and the balance between good and evil is restored. Satan
`sends Nicky back to Earth to be with Valerie and they have a
`son and live happily ever after.
`
`Stromback filed his complaint on October 15, 2001, and
`filed an amended complaint in December 2001.4 Stromback's
`amended complaint alleged claims
`for copyright
`infringement; reverse passing off in violation of the Lanham
`Act; commercial misappropriation; breach of quasi contract;
`misappropriation of trade secrets; breach of the implied duty
`of good faith and fair dealing; unfair competition/unjust
`enrichment; and interference with prospective economic
`advantage. On September 13, 2002, NLC, the only remaining
`defendant, moved for summary judgment. At that time, the
`case had been pending for about a year and Stromback had
`not sought a Rule 16 conference with the district court, nor
`had he sought any discovery. In his response, Stromback
`argued that summary judgment should be denied because he
`needed to conduct discovery on whether the various
`screenplays leading up to the final product (the movie)
`infringed on "The Keeper" poem or screenplay. The district
`court found that the movie was the only relevant work
`because only the movie, and not the various versions of the
`screenplays leading up to the movie, were published to the
`public and because Stromback alleged in his amended
`complaint only that the movie was an infringing work. The
`district court concluded that NLC was entitled to summary
`judgment on the copyright infringement and Lanham Act
`claims because no reasonable jury could find that "Little
`Nicky" is substantially similar to "The Keeper" poem or
`screenplay. The district court also concluded that summary
`judgment was proper on Stromback's state law claims on the
`basis that they are preempted by § 301 of the Copyright Act.
`
`4In addition to alleging that "Little Nicky" infringed "The Keeper,"
`Stromback also initially alleged that the movie "Mr. Deeds" was an
`infringing work. Stromback eventually dropped the allegation regarding
`"Mr. Deeds."
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`9
`
`10
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`II. ANALYSIS
`A. Standard of Review
`Stromback contends that the district court erred in granting
`summary judgment to NLC on his various claims. In
`reviewing a district court's grant of summary judgment, this
`Court applies a de novo standard. See E.I. Du Pont De
`Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir. 2003).
`Summary judgment is proper only if there is no genuine issue
`as to any material fact and the moving party is entitled to
`judgment as a matter of law. See Fed. R. Civ. P. 56(c). The
`proper inquiry is whether the evidence is such that a
`reasonable jury could return a verdict for the plaintiff. See
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.
`Ct. 2505, 2512 (1986).
`B. Copyright Infringement Claim
`The Copyright Act provides protection for original works
`of authorship expressed in various media. 17 U.S.C. §§ 101-
`1332. Subject to certain exceptions not applicable here, the
`owner of a copyright has the exclusive rights (1) to reproduce
`the copyrighted work; (2) to prepare derivative works; (3) to
`distribute copies; (4) to perform publicly a copyrighted work;
`and (5) to display publicly a copyrighted work. 17 U.S.C.
`§ 106. A plaintiff may bring a claim against a person who
`infringes any of the plaintiff's exclusive rights in a copyright
`under § 106 by demonstrating two elements: "(1) ownership
`of a valid copyright; and (2) copying of constituent elements
`of the work that are original." Feist Publ'ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 1296 (1991);
`accord Kohus v. Mariol, 328 F.3d 848, 853 (6th Cir. 2003).
`The parties do not dispute Stromback's ownership of a valid
`copyright in "The Keeper" poem and screenplay. Thus,
`copying is the only issue in dispute.
`
`Since direct evidence of copying is rarely available, a
`plaintiff may establish "an inference of copying by showing
`(1) access
`to
`the allegedly-infringing work by
`the
`defendant(s) and (2) a substantial similarity between the two
`works at issue." Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.
`1999); see also Arica Inst., Inc. v. Palmer, 970 F.2d 1067,
`1072 (2d Cir. 1992). "Access is essentially 'hearing or having
`a reasonable opportunity to [view] 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)). In Ellis, we observed
`that in some cases the relationship between the degree of
`proof required for similarity and access may be inversely
`proportional: where the similarity between the two works is
`strong, less compelling proof of access may suffice, and vice-
`versa. Id. at 507. See Three Boys Music Corp. v. Bolton, 212
`F.3d 477, 485 (9th Cir. 2000) (stating that under the "inverse
`ratio rule," a lower standard of proof of similarity is required
`where a high degree of access is shown); Arnstein v. Porter,
`154 F.2d 464, 469 (2d Cir. 1946) (stating that "a case could
`occur in which the similarities were so striking that we would
`reverse a finding of no access, despite weak evidence of
`access (or no evidence thereof other than the similarities)").
`For purposes of its motion for summary judgment, NLC
`conceded the issue of access, electing to focus solely on the
`issue of substantial similarity of the two works.
`In ruling on NLC's motion, the district court observed,
`correctly, that the Sixth Circuit had not formally adopted a
`specific test or approach for determining substantial similarity
`in copyright cases. Drawing on statements in Diffie as well
`as prior decisions from the Eastern District of Michigan, the
`district court applied the "ordinary observer" test, which
`allows the trier of fact to gauge his "net impression" of the
`two works by conducting a side-by-side comparison without
`the benefit of expert testimony or dissection. (Dist. Ct. Op.
`at 8.) The district court rejected Stromback's argument that it
`should apply the two-part test employed by the Ninth Circuit,
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`11
`
`12
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`which consists of an extrinsic test and an intrinsic test, see Sid
`& Marty Krofft Television Prods., Inc. v. McDonald's Corp.,
`562 F.2d 1157, 1164 (9th Cir. 1977), although the district
`court did state that summary judgment would be improper at
`that stage if the Sixth Circuit employed the "extrinsic" test
`because expert discovery had not occurred. Subsequent to the
`district court's opinion and order granting summary judgment
`and dismissing the case, this court adopted a two-part test in
`Kohus v. Mariol, 328 F.3d 848 (6th Cir. 2003), which follows
`the test employed by the D.C. Circuit in Sturdza v. United
`Arab Emirates, 281 F.3d 1287 (D.C. Cir. 2002). We stated
`that "the first step 'requires identifying which aspects of the
`artist's work, if any, are protectible by copyright,' [and] 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).
`This test is really just a refinement of the ordinary observer
`test that, as its initial step, parses from the work the elements
`neither afforded copyright protection nor properly considered
`in the ordinary observer test. "The essence of the first step is
`to filter out the unoriginal, unprotectible elements–elements
`that were not independently created by the inventor, and that
`possess no minimal degree of creativity, through a variety of
`analyses." Id. (citation omitted). Our test is similar to the
`Ninth Circuit's test, because the first part, like the Ninth
`Circuit's extrinsic test, requires a determination of only the
`expressive elements of a work, while the second part, like the
`Ninth Circuit's intrinsic test, asks whether the ordinary,
`reasonable observer would find the works, taken as a whole,
`to be substantially similar. Murray Hill Publ'ns, Inc. v.
`Twentieth Century Fox Film Corp., 361 F.3d 312, 318 (6th
`Cir. 2004).
`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 [Kouf v. Walt Disney Pictures & Television, 16
`
`F.3d 1042 (9th Cir. 1994)], the first part of our test
`remains more free in form than the Ninth Circuit's
`extrinsic test.
`Id. In addition, for purposes of summary judgment, the Ninth
`Circuit considers only the extrinsic test, while the intrinsic
`test is reserved for the jury. See Kouf, 16 F.3d at 1045 ("A
`plaintiff avoids summary judgment by satisfying the extrinsic
`test which makes similarity of the works a triable issue of
`fact."). In contrast, a court considers both parts of our test in
`determining substantial similarity on a motion for summary
`judgment. See Kohus, 328 F.3d at 857-58 (discussing the
`district court's analysis on remand under both prongs of the
`test). This remains consistent with our prior observation that
`while summary judgment in favor of a defendant in a
`copyright case is a practice that should be used sparingly, in
`an appropriate case, "a court may compare the two works and
`render summary judgment for the defendant on the ground
`that as a matter of law a trier of fact would not be permitted
`to find substantial similarity." Wickham v. Knoxville Int'l
`Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1984)
`(citations omitted); accord Kohus, 328 F.3d at 853.
`Our decision in Kohus answers one of Stromback's central
`arguments on appeal, namely, that the district court erred by
`conducting a side-by-side comparison of the two works rather
`than applying the extrinsic/intrinsic test or some other test
`that allows for analytic dissection of what Stromback
`characterizes as "complex copyright subject matter." Though
`the district court failed to apply the proper two-part test, we
`need not remand the case because the issue presented is one
`of law. See, e.g., Chase Manhattan Bank, N.A. v. Am. Nat'l
`Bank & Trust Co., 93 F.3d 1064, 1072 (2d Cir. 1996) ("An
`appellate court has the power to decide cases on appeal if the
`facts in the record adequately support the proper result or if
`the record as a whole presents no genuine issue as to any
`material fact. . . . Thus, if we find that a party must prevail as
`a matter of law, a remand is unnecessary.") (internal quotation
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`13
`
`14
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`marks and citations omitted); Trierweiler v. Croxton &
`Trench Holding Corp., 90 F.3d 1523, 1539 (10th Cir. 1996)
`("In the present case, the debate is purely legal, and remand
`on this issue is unnecessary"). That is, the district court
`applied the ordinary observer test – the second part of the
`Kohus test – without first filtering out the unoriginal,
`unprotectible elements of "The Keeper" poem and screenplay.
`To the extent that the district court considered both
`protectible and unprotectible elements of Stromback's works,
`the inquiry for purposes of this appeal remains the same –
`whether the district court's conclusion of no substantial
`similarity was correct.5
`Nor is remand required for consideration of expert
`testimony, as the district court believed might be the case
`under the extrinsic/intrinsic test. Even in the Ninth Circuit
`expert testimony is not a requisite for a copyright
`infringement case. See Apple Computer, Inc. v. Microsoft
`Corp., 35 F.3d 1435, 1443 (9th Cir. 1994) (stating that a court
`may use expert testimony, "if necessary," to determine
`whether any of the allegedly similar features are subject to
`copyright protection). Our test "appl[ies] a more stringent
`standard regarding when to allow expert testimony on the first
`part of the test." Murray Hill Publ'ns, Inc., 361 F.3d at 318.
`We remanded in Kohus in part because the copyright involved
`a latch for a portable children's play yard, and we thought that
`expert testimony would be necessary to determine whether
`certain elements of such a latch should be excluded from the
`substantial similarity analysis. See Kohus, 328 F.3d at 856.
`Whether expert testimony should be allowed in a particular
`case remains a matter committed to the discretion of the trial
`court under Federal Rule of Evidence 702 if such testimony
`
`5Although the district court did not purport to apply the two-part test,
`it in fact did so as part of its analysis when it observed that many of the
`alleged similarities, such as the concepts of Hell and the devil, are too
`commonplace and not protected.
`
`"will assist the trier of fact to understand the evidence or to
`determine a fact in issue." However, where, as here, the
`subject matter is not complex or technical, such as a computer
`program or a functional object, see, e.g., Gates Rubber Co. v.
`Bando Chem. Indus., Ltd., 9 F.3d 823, 834-35 (10th Cir.
`1993) (noting that in most cases involving computer programs
`expert testimony will be helpful to the court in applying an
`abstractions test), but instead involves a literary work aimed
`at a general audience, expert testimony will seldom be
`necessary to determine substantial similarity. See Nichols v.
`Universal Pictures Corp., 45 F.2d 119, 123 (1930) (Hand,
`Learned) ("[Expert testimony] ought not to be allowed at all;
`and while its admission is not a ground for reversal, it
`cumbers the case and tends to confusion, for the more the
`court is led into the intricacies of dramatic craftsmanship, the
`less likely it is to stand upon the firmer, if more naive, ground
`of its considered impressions upon its own perusal.");
`Kindergartners Count, Inc. v. Demoulin, 249 F. Supp. 2d
`1214, 1232 (D. Kan. 2003) ("Unlike technical computer
`programs, the trier of fact does not need an expert to compare
`two literary works that are expressed in simple English.");
`Costello v. Loew's Inc., 159 F. Supp. 782, 789 (D.D.C. 1958)
`("No amount of expert or lay testimony as to fancied
`similarities could change the obvious content of the exhibits
`before the court . . . . Nor could expert testimony affect the
`spontaneous and immediate impression of the plaintiff's and
`defendant's literary works upon the mind of the ordinary
`observer."). Therefore, we reject Stromback's suggestion that
`expert testimony is necessary in this case.
`1. Filtering of Unprotected Elements
`Although there is no clear line separating protected from
`nonprotected work, two principles help to guide that
`determination in this case. See Kohus, 328 F.3d at 855-56.
`First, copyright protection extends only to expression of ideas
`and not to ideas themselves. 17 U.S.C. § 102(b); Mazer v.
`Stein, 347 U.S. 201, 217, 74 S. Ct. 460, 470 (1954) ("Unlike
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`15
`
`16
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`a patent, a copyright gives no exclusive right to the art
`disclosed; protection is given only to the expression of the
`idea – not the idea itself."). "Ideas are free to the world, and
`one person's idea can be appropriated by another with
`impunity." Taylor v. Metro-Goldwyn-Mayer Studios, 115 F.
`Supp. 156, 157 (S.D. Cal. 1953). "[N]o author may copyright
`facts or ideas. The copyright is limited to those aspects of the
`work – termed "expression" – that display the stamp of the
`author's originality." Feist Publ'ns, 499 U.S. at 350, 111 S.
`Ct. at 1290 (quoting Harper & Row, Publishers, Inc. v.
`Nation Enters., 471 U.S. 539, 547, 105 S. Ct. 2218, 2224
`(1985)) (internal quotation marks omitted). The abstraction
`test articulated by Judge Learned Hand in Nichols v.
`Universal Pictures Corp., 45 F.2d 119 (1930), provides some
`guidance in divining protected expression:
`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.
`Id. at 121. The test itself does not identify protectible
`elements of a work, but instead is a tool for accomplishing
`that task. Kohus, 328 F.3d at 855.
`Second, the principle of scenes a faire excludes copyright
`protection for "incidents, characters or settings which are as
`a practical matter indispensable, or at least standard, in the
`treatment of a given topic." Atari, Inc. v. N. Am. Philips
`Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir. 1982);
`see also 4 Melville B. Nimmer & David Nimmer, Nimmer on
`Copyright ("Nimmer") § 13.03[F][3] (2004). For example,
`
`parties, alcohol, co-eds, and wild behavior are natural
`elements in a story about a college fraternity. Similarly,
`"[e]lements such as drunks, prostitutes, vermin and derelict
`cars would appear in any realistic work about . . . policemen
`in the South Bronx," and therefore are not afforded copyright
`protection. Walker v. Time Life Films, 784 F.2d 44, 50 (2d
`Cir. 1986); see also Murray Hill Publ'ns, Inc, 361 F.3d at
`319-20 (citing examples).
`Stromback relies upon numerous examples to support his
`claim of substantial similarity between the works. As
`Stromback concedes, however, many of these elements are
`superficial, e.g., the Hell/dungeon setting, the sequence of
`certain events (main characters leaving Hell, battling their
`brother, the attempted killing of the main character), racial
`allusions and a love interest. These are common themes and
`ideas throughout literature and are beyond any level of
`abstraction at which copyright protection might begin to
`attach. See Cavalier v. Random House, Inc., 297 F.3d 815,
`823 (9th Cir. 2002) ("Familiar stock scenes and themes that
`are staples of literature are not protected."). The same is true
`for character traits or descriptions such as "whacked," "odd,"
`"misfit," "evil," or "conflicted"; themes, such as saving the
`world, the battle between good and evil, sibling rivalry or
`familial secrets and issues, and racial issues; scenes, such as
`parties; concepts, such as a dam or barrier between Earth and
`Hell; and plots, such as foiling the antagonist's attempt to rule
`the world. See generally Nichols, 45 F.2d at 122 ("A comedy
`based upon conflicts between Irish and Jews, into which the
`marriage of their children enters, is no more susceptible of
`copyright than the outline of Romeo and Juliet."); Whitehead
`v. Paramount Pictures Corp., 53 F. Supp. 2d 38, 49 (D.D.C.
`1999) ("The general concept of an interracial relationship . . .
`is not copyrightable.") (citing Matthews v. Freedman, 157
`F.3d 25, 27 (1st Cir. 1998)). These elements are too general
`to qualify for copyright protection.
`
`

`
`Nos. 02-2387/2388
`
`Stromback v. New
`Line Cinema, et al.
`
`17
`
`18
`
`Stromback v. New
`Line Cinema, et al.
`
`Nos. 02-2387/2388
`
`2. Comparing the Works
`After filtering out the unprotectible elements such as ideas
`and scenes a faire, the final step is to determine whether the
`allegedly infringing work is "substantially similar" by
`comparing the two works. Wickham, 739 F.2d at 1097.
`Substantial similarity exists where "the accused work is so
`similar to the plaintiff's work that an ordinary reasonable
`person would conclude that the defendant unlawfully
`appropriated the plaintiff's protectible expression by taking
`material of substance and value." Country Kids 'N City
`Slicks, Inc. v. Sheen, 77 F.3d 1280, 1288 (10th Cir. 1996)
`(internal quotation marks and citation omitted). In Murray
`Hill we wrote:
`"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." "The misappropriation of even a small
`portion of a copyrighted work may constitute an
`infringement under certain circumstances." "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." "No plagiarist
`c