In a case involving scènes à faire and preemption issues, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s grant of summary judgment in favor of the makers of the motion picture You Don’t Mess with the Zohan.  Cabell v. Sony Pictures Entm’t, Inc. et al., Case No. 10 -2690 (2d Cir. June 24, 2011) (per curiam).

Robert Cabell, a comic book artist, filed suit in 2009 against actor Adam Sandler, Sony Pictures Entertainment and others for alleged federal copyright infringement and state unfair competition claims.  Cabell claimed that the defendants’ film You Don’t Mess with the Zohan infringed his comic books, based upon alleged similarities between the main characters in the plaintiff’s comics and the defendants’ film.  Cabell’s comic book character is Jayms Blonde, an openly gay ex-U.S. Navy SEAL turned hairdresser by day and crime-fighting secret agent by night.  In several book cover renditions, the Jayms Blonde character is in a fighting pose and wielding a “mini-Uzi blow dryer” weapon.  Defendants’ Zohan character is a heterosexual ex-Israeli Mossad agent (played by Adam Sandler) with a dream of being a hairdresser.  In several marketing posters for Defendants’ movie, Adam Sandler (as the character Zohan) was shown in various poses holding an actual blow dryer with the heating element clearly shown, but in a manner as if it were a gun.

In 2010, the district court granted the defendants’ motion for summary judgment on all claims and dismissed the action.  The district court first separated the protectable expression material (namely the actual poses and positioning taken by the characters, the likeness of the characters and the backgrounds of the materials) from the non-protectable material (namely the ideas of wielding a blow dryer as a weapon and fighting poses, as well as the scenes a faire of the secret agent and crime-fighting genres).  Since the protectable expression of the plaintiff’s Jayms Blonde comic character was different from the defendants’ movie character in almost every respect—different poses, hair, clothing, wardrobes and image backgrounds—the court ruled that the defendants had not infringed Cabell’s copyrights.

The district court also ruled that the plaintiff’s state law claim had been preempted by federal copyright law.  Aside from the fact that the New York statute asserted by Cabell had been repealed more than a decade ago, the court applied the preemption test and found that both the “subject matter” and “general scope” prongs were satisfied because the claim was nothing more than a reiteration of the copyright claim without any qualitatively different element introduced by the state statute.

On appeal, the 2d Circuit explained that it was affirming the judgment “for substantially the reasons stated by the district court in its thorough and well-reasoned opinion.  Aside from the unprotectable ideas of (1) brandishing a blow dryer as a weapon, and (2) the characters’ fighting poses, there is no plausible basis for a reasonable jury to find that the parties’ respective expressions of the concept of a crime-fighting hairdresser are substantially similar.”  The court likewise affirmed the district court’s preemption ruling.