District court declines to decide substantial similarity issue at summary judgment stage, deferring to jury question of whether similarities between the parties’ telenovelas were numerous and significant enough to constitute copyright infringement.

This copyright dispute involves alleged similarities between two Venezuelan television dramas, or telenovelas: Maria Maria, produced by the plaintiff Latele Television, and El Rostro de Analia (ERA), produced by defendants (various Telemundo entities). Latele alleged that defendants hired the author of Maria Maria to develop ERA, a telenovela that Latele alleged is so similar to Maria Maria that the public and press labeled it as a remake or retelling. The parties, not surprisingly, diverged in their description of the author’s degree of involvement with the two telenovelas, and even more dramatically in their characterization of the programs. Defendants described Maria Maria as a typical romance, andERA, by contrast, as a sci-fi action thriller and police drama. Both involve a woman who is involved in a car crash and suffers amnesia. InMaria Maria, a plastic surgeon gives her another woman’s face, while inERA, the woman’s memory is erased by a mad scientist who applies cloning techniques to give her another woman’s face. 

While defendants emphasized the plot differences, Latele summarizedERA as “nothing more than a modern version of the original work, told in a hi-tech, fast-paced setting.” Plaintiff emphasized the fact that the similarities occur in the same sequence in both shows and enumerated a variety of identical features and themes. Defendants argued that virtually all of the similarities are uncopyrightable elements, such as ideas and scenes a faire, many of which are common themes in the telenovela genre (such as betrayal, amnesia, out-of-wedlock children, mistaken identities, family strife, marital conflict, the reuniting of long-lost relatives or lovers, plastic surgery, and assumed identities). 

After reviewing the parties’ competing expert reports, hearing testimony, and viewing highlight reels of the telenovelas, the district court denied defendants’ motion for summary judgment. Acknowledging that common ideas and scenes a faire are not protectable in copyright, the court followed the lead of courts that have recognized that patterns or sequences of those stock themes can be protectable. Individual plot points are not copyrightable, but copyright infringement may still be found when those ideas are composed in a common sequence and rhythm. Given the similarities between the telenovelas, the court believed there was a triable question of fact as to substantial similarity.