USCA Ninth Circuit, November 26, 2012 (unpublished opinion)

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  • Ninth Circuit affirms district court’s grant of summary judgment in favor of defendants Showtime Networks Inc. and Darlene Hunt on plaintiff’s copyright infringement claims, ruling that no reasonable jury could conclude either that defendants had access to plaintiff's screenplay or that the screenplay and defendants’ show The Big C were substantially similar.

Plaintiff Nancy Radin, author of a copyrighted screenplay titled Quality of Life, brought suit against Darlene Hunt, the writer and creator of the cable television series The Big C, and against Showtime Networks, which airs the show, alleging that the defendants, without authorization, created derivative works based on her screenplay and broadcast those works in violation of the Copyright Act. The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of defendants, in which the lower court found that that plaintiff could not establish any genuine issue of material fact as to defendants’ access to her copyrighted work during the relevant time. Specifically, the lower court concluded that plaintiff did not—and could not—legitimately assert that her screenplay was widely disseminated or that anyone associated with defendants had read her work, rejecting as “entirely speculative” and without evidence plaintiff’s chain-of-events theory of access—that her individual instructors in her screenwriting classes had compiled scenes she wrote (which she had submitted to each of them individually and which did not constitute the Quality of Life screenplay in its entirety) and they then passed these compilations, through unknown intermediaries, ultimately to defendant Hunt before she completed her pilot script. The district court also found that the two works were “far from strikingly similar,” noting that while some similarities existed between plaintiff’s screenplay and The Big C, none of the similar elements, alone, constituted a protectable, expressive element and that even the combination of these similarities was insufficient to establish a factual issue as to whether Hunt could have created The Big C only by copying Quality of Life. The Ninth Circuit agreed with the district court’s conclusions, finding that no reasonable jury could conclude either that defendants had access to plaintiff's work or that the two works are substantially similar—much less strikingly similar. The appeals court also affirmed the district court’s award of attorneys’ fees to defendants, finding that the lower court properly applied the Fogerty factors in determining that defendants were entitled to fees under the Copyright Act. Plaintiff had argued that defendants could not recover attorneys’ fees because Sony Pictures, which produces The Big C, was indemnifying defendants for their fees. The district court rejected the argument, noting that one entertainment company commonly indemnifies another in connection with a project in which each has played a role, that “it would be anomalous to deny defendants costs merely because plaintiff did not sue Sony Pictures as well as Hunt and Showtime” and that “[i]t would also give Plaintiff a windfall if she could avoid fees merely because defendants happened to be indemnified by Sony Pictures.” The Ninth Circuit affirmed, holding that no rule exists against awarding fees under the Copyright Act in cases in which a third party indemnifies a litigant’s legal expenses.