USDC N.D. California, April 2, 2013
- District court grants motions for summary judgment dismissing copyright and implied contract claims alleging that defendants copied plaintiff’s novel Ultimate Rush in creating motion picture Premium Rush, finding that film bears no substantial similarity to any copyrightable expression in novel and that plaintiff’s publication of his novel prevented plaintiff from satisfying bilateral expected payment element of implied contract claim.
Plaintiff Joe Quirk brought suit for copyright infringement and breach of implied contract against a number of defendants involved in the making of the motion picture Premium Rush, about a New York City bicycle messenger pursued by a rogue cop for the contents of a package he is carrying, asserting the film was an unauthorized adaptation of his 1998 novel Ultimate Rush, about a San Francisco rollerblading package delivery service messenger who becomes involved in dangerous situations with criminals as a result of packages he carries, and screenplays derived from the book (commissioned by Warner Bros., not a defendant in the case). The district court granted defendants’ motion, finding that, based on the record, a reasonable jury could not conclude that the movie and the book contain substantially similar protectable expression, and that Quirk’s Desny (implied contract) claim likewise failed because his decision to disclose the ideas in his novel to the entire world, without any conditions other than those arising under copyright law, precludes him from claiming that there was a bilateral expectation of payment for defendants’ alleged use of his ideas.
Plaintiff published his novel, Ultimate Rush, in 1998. Prior to its publication, Quirk retained an agent who distributed prerelease copies and synopses of the novel to various persons and entities throughout the movie industry, seeking a film development deal. Warner Bros. (not a party to the litigation) bought an option for the rights to adapt the novel in to a movie and commissioned two separate writers to prepare screenplays of the novel; however, it never pursued developing either of the two scripts, for which it holds the copyrights, and let its option lapse. Plaintiff brought suit for copyright infringement and breach of implied contract against a number of defendants, entities involved in the making of the motion picture Premium Rush, asserting the film was an adaptation of his novel and the Warner Bros. screenplays. Defendants moved for summary judgment on plaintiff’s copyright claims, arguing that Quirk failed to adduce sufficient evidence that defendants’ motion picture is substantially similar to the copyright-protected material contained in Quirk’s novel.
In support of their motions for summary judgment on Quirk’s copyright claims, defendants argued that Quirk failed to adduce sufficient evidence of substantial similarity of copyright-protected material between his novel and defendants’ motion picture. Quirk opposed the motion, arguing that a comparison between his novel and defendants’ film demonstrated that the film is an adaptation of the novel. The district court concluded that Quirk failed to apply the appropriate legal standard for determining when a film is a copy of an underlying novel for the purposes of copyright law. The fundamental flaw in Quirk’s analysis, stated the court, is that he objectively assumes he has a viable claim in copyright as long as he can prove the movie is an “adaption” of the novel. Even assuming Premium Rush was “adapted” from Quirk’s novel, “it simply does not automatically follow that the protectable elements of the two works are substantially similar and thus there is liability under copyright law.”
Considering only the protectable elements of and characterizations fairly supported by Premium Rush and Quirk’s novel, the court concluded that the two works were not substantially similar. As an initial matter, the court noted that because Quirk lacks standing to pursue a copyright claim based on alleged infringement of any expression found in either of the Warner Bros. scripts that is not also present in the novel, the scripts were irrelevant to the substantial similarity analysis. Noting that Quirk relied on subjective and often highly unfair characterizations of material in the book and the movie, the court found that the two works differed in many large and small details, as well as in their overall mood, style, and structure. Accordingly, the court held that Quirk had not pointed to sufficient commonalities of expression from which a reasonable fact-finder could conclude the movie and the book contained substantially similar protectable expression.
The court also granted defendants’ motion for summary judgment with respect to Quirk’s Desny claim. In Desny v. Wilder, the California Supreme Court recognized an implied contractual right to compensation when a writer submits material to a producer with the understanding that the writer will be paid if the producer uses the concept. The Ninth Circuit has affirmed that Desny claims remain viable, not preempted by the Copyright Act, and rest on “an expectation on both sides that use of an idea requires compensation.” Characterizing Quirk’s publication of Ultimate Rush in the late 1990s as an unconditional disclosure to the public at large of all the ideas contained in the novel, the court held that Quirk lacked evidence that defendants utilized any of the ideas contained in Ultimate Rush under circumstances giving rise to a “bilateral expectation” of payment.