USDC S.D. New York, July 14, 2011

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  • District court grants dismissal of copyright infringement claim against creators and producers of Modern Family, finding that no reasonable jury could find substantial similarity between plaintiff’s pilot Loony Ben and ABC’s Modern Family.

Pro se plaintiff Martin Alexander created and wrote a treatment and pilot script for a television sitcom entitled Loony Ben. Loony Ben, set in Los Angeles, California, tells the story of a 30-year-old handyman who suffers from various mental-physical problems and has two ex-wives—Bling, who is Asian, and Rosa, who is Latina. In 2009, Modern Family debuted on the ABC network. Modern Family is also set in Los Angeles, California, and follows the everyday lives of a large extended family with three distinct units, each episode dividing its time roughly equally between the three individual families. Plaintiff brought suit against the creators and producers of Modern Family for copyright infringement, contributory and vicarious copyright infringement, idea misappropriation, and defamation. Defendants filed a motion to dismiss, arguing that no reasonable jury could find substantial similarity between Loony Ben and Modern Family. The Magistrate judge issued a Report and Recommendation (R&R), advising that the district court grant defendants’ motion to dismiss. The district court agreed and adopted the R&R in its entirety, dismissing plaintiff’s complaint.

Initially, the court considered plaintiff copyright infringement claim. To establish a claim of copyright infringement, plaintiff must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s work. Noting that defendants conceded that plaintiff had a valid copyright for Loony Ben and that defendants had access to the plaintiff’s treatment, the court focused on the issue of substantial similarity.

In comparing the protectable elements of both television shows, the court concluded that substantial similarity did not exist between Loony Ben and Modern Family. The court considered a variable list of characteristics, including plot, characters, total concept and feel, setting, format and pace.

With respect to the plot, the court rejected plaintiff’s claim that both works involve children’s birthday parties and things going wrong. Birthday parties are scenes á faire in family-focused situation comedies, stated the court, and thus do not enjoy copyright protection. Similarly, the court found that comedic devices shared by both works – such as characters driving recklessly or drinking alcohol – are common plot elements and are not subject to copyright protection. The remaining plot similarities noted by plaintiff, such as the fact that both works depict a character singing a sexually inappropriate song at a family gathering, were alleged at an overly abstract level of generality to establish substantial similarity.

The court also compared the totality of character attributes and traits and found that they were not substantially similar. Notably, the court held that no substantial similarity could be found between two characters – Ben and Phil – who shared only their sex and hair color. Although plaintiff argued that Ben and Phil both suffered from “Peterpanism,” the tendency of adult characters to act in childish ways, the court found that a character with this trait is not copyrightable, and, in any event, the means by which the characters act childishly manifested themselves in completely different ways in the two works.

Several of plaintiff’s attempts to make other character comparisons were untenable, according to the court, because they were not sufficiently developed. For instance, the court rejected the assertion that Rosa and Gloria were substantially similar characters because each is a “stunningly beautiful, fiery, temperamental, Latina mother, with a thick accent” because the character of Rosa had only eight lines of dialogue in the pilot script. While plaintiff suggested that Rosa be played by actress Sofia Vergara, and Gloria is actually played by Sofia Vergara in Modern Family, the court found this to be a coincidence and insufficient to establish substantial similarity.

Plaintiff also failed to persuade the court that the setting, format, pace, and total concept and feel of the works were substantially similar. The court concluded that the choice of Los Angeles as a setting is not in itself copyrightable. In further rejecting plaintiff’s contention that the works are both “fast-paced situation comedies that utilize slapstick humor and feature large, ensemble casts,” the court emphasized that: (1) Modern Family is significantly faster-paced than Loony Ben; (2) Modern Family uses a mock documentary format, whereas Loony Ben does not; and (3) Loony Ben focuses on one character – Ben – while Modern Family utilizes a true ensemble format. Finally, the court found that the total concept and feel of the works were not substantially similar because the focus of Loony Ben is not on the family, but on one character, while Modern Family, spreads its attention between the various members of the featured family and presents themes that are broadly applicable to the family as a whole.

The court also granted dismissal of plaintiff’s remaining claims. Plaintiff failed to allege contributory and vicarious infringement, since there was no direct infringement. Because the idea giving rise to plaintiff’s misappropriation claim was fully expressed in the treatment, which was copyrighted in 2006, the court found that plaintiff’s idea misappropriation claim was preempted. Finally, plaintiff’s defamation claim asserted that because defendants allegedly made false and misleading statements suggesting that they were creators of Modern Family, rather than plaintiff, plaintiff was defamed. The court found that none of the statements identified plaintiff by name or implication, and accordingly dismissed plaintiff’s defamation claim.