USDC E.D. New York, May 11, 2009

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  • Court holds that plaintiff’s treatment for a motion picture about a presidential campaign and defendants’ screenplay and motion picture Swing Vote are not substantially similar and grants defendants’ motion for summary judgment

Plaintiff, a political commentator, wrote a treatment called Go November which he described as “the Animal House of politics,” about a modern presidential campaign involving a litany of “dirty tricks.” Plaintiff submitted his treatment for Go November to defendant Kelsey Grammer and met with Grammer and the president of Grammer’s production company to discuss the development of Go November.

Defendants wrote, produced and distributed the motion picture Swing Vote about a recently laid-off single father who is raising his daughter and who gets to cast the deciding vote in a presidential election. Plaintiff sued defendants for copyright infringement.

Defendants moved to dismiss for failure to state a claim. The defendants did not contest access for purposes of their motion. The court found that nothing beyond a review of the works at issue, which were referenced in and integral to the amended complaint, would be relevant to determining substantial similarity. Nevertheless, in abundance of caution, the court converted defendants’ motion to dismiss to a motion for summary judgment, provided both sides with an opportunity to submit any additional evidence, and granted the motion for defendants. The court held that the two works are not substantially similar and that the only similar elements between the works are non-protectible scenes a faire.

According to the court, the main themes and plot of the two works are entirely different. Go November emphasizes the battle between the incumbent’s ruthless campaign staff and the opposing candidate’s young and idealistic campaign staff, and centers around a series of “dirty tricks” undertaken by both campaigns. In contrast, Swing Vote is a sentimental comedy focusing on the relationship between the main character, his daughter, and a local reporter within the context of a presidential campaign for which the main character gets to cast the deciding vote. “In short, the themes of the movies share nothing in common other than the backdrop of a Presidential election.”

In addition, other than the final scene of both movies in which a voter enters a voting booth, none of the several dozen scenes described in plaintiff’s treatment appear in Swing Vote. The court also noted that none of the characters in Go November remotely resemble the three main characters in Swing Vote, and the structure, sequence and pace of the two works are not similar.

The court also held that the characters of a Republican, Reagan-like incumbent, a liberal Democratic challenger, and campaign staffers with questionable morals were stock characters and thus not protected by copyright. In granting summary judgment for defendants, the court stated that “[a]ny similarities between the works are simply scenes a faire that are non-protectible components of works that use the framework of a hotly-contested, modern election and, in any event, no rational trier of fact could conclude that the average lay observer would consider the works as a whole to be substantially similar to one another.” Although the court rejected the plaintiff’s argument that Ninth Circuit law should apply and require a lower standard of proof for substantial similarity because there was a high degree of access, it stated that “plaintiff would still lose under the Ninth Circuit standard.”

The court also denied two defendants’ motion to dismiss for lack of personal jurisdiction, finding that allegations that these defendants “supplied the infringing work to other defendants with full knowledge that it would be distributed nationwide (including in New York)” satisfied New York’s long-arm statute and the Due Process Clause.

Finally, the court declined to exercise supplemental jurisdiction over plaintiff’s state law claims because it had dismissed the claims over which it had original jurisdiction, but granted plaintiff leave to submit a second amended complaint that provides a basis for the court’s exercise of diversity jurisdiction over the remaining state law causes of action.