USCA Second Circuit, June 24, 2011 (not precedential)

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  • Circuit court affirms summary judgment in favor of defendants, motion picture producers, in copyright infringement case, finding that no plausible basis exists for a reasonable jury to find substantial similarity to plaintiff’s works, and also affirms dismissal of state law unfair competition claim as preempted by the Copyright Act.

The Second Circuit affirmed the district court's grant of summary judgment for the defendants, motion picture producers and others, on pro se plaintiff’s copyright infringement and New York unfair competition claims.

Plaintiff alleged that the images and storyline of the film You Don’t Mess with the Zohan were substantially similar to his works about a gay ex-Navy Seal who becomes a hairdresser. After de novo review of the relevant images in plaintiff’s work, Jayms Blonde, and Don’t Mess with the Zohan, the circuit court affirmed the judgment for “substantially the reasons stated by the district court in its thorough and well-reasoned opinion.” Specifically, the court found that, aside from the unprotectable ideas of brandishing a blow dryer as a weapon and the fighting poses of the characters, no plausible basis existed for a reasonable jury to find that the parties' respective expressions of the concept of a crime-fighting hairdresser were substantially similar. In a footnote, the appellate court also noted that while plaintiff had originally claimed infringement based on the plotline of the film, which claim the district court also rejected, plaintiff had abandoned that claim on appeal by arguing that only that the alleged infringement was based solely on the visual images used to promote Don’t Mess with the Zohan.

The circuit also affirmed as correct the district court’s dismissal of the New York unfair competition claim as preempted by the Copyright Act and concluded by summarily rejecting as “without merit” plaintiff’s arguments in support of his appeal.