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Plaintiff Peter Gallagher published a book titled The Little White Trip: A Night in the Pines in 2006, of which he sold 5,000 copies. Gallagher brought copyright infringement claims against the writers, including Joss Whedon, and the producers and distributors of “The Cabin in the Woods,” a 2012 satirical comedy-horror film. The district court granted defendants’ motion to dismiss after comparing the protectable elements of the two works and concluding they were not substantially similar.
In the Ninth Circuit, to prove substantial similarity, plaintiffs must show that the works are both extrinsically and intrinsically similar. Because the extrinsic test — which “focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events” in the works — is an objective analysis, it can be applied as a matter of law, the district court noted. And, because both extrinsic and intrinsic similarities are required to state a copyright infringement claim, the court may dismiss the case at the motion to dismiss stage if the plaintiff fails the extrinsic test.
The district court compared the protectable elements of “Cabin” withTrip, focusing on plot, character, setting, dialogue, mood, pace, sequence of events, and themes and concluded that the works were not substantially similar. The plot of “Cabin” involves an annual sacrifice of five young people who satisfy archetypes common to horror movies to the “ancient ones” in order to avoid the apocalypse. It ends in the destruction of humanity when two of the people refuse to fulfill their roles. Trip starts with an ominous preface in which a character recounts the murders of his friends at a cabin in Flagstaff, Arizona. It is eventually revealed that none of the murders actually occurred, and the two “survivors” were being filmed by a production crew.
Although both works “share the same basic plot premise of five young adults venturing off to a cabin in the wilderness and being manipulated in varying degrees by a third party,” the works in fact “tell very different stories,” the district court concluded. Moreover, the premise of “students travelling to remote locations and subsequently being murdered, real or otherwise” was an unprotectable scene-à-faire flowing indispensably from the premise of a horror film. In addition, the “controlling third parties” in “Cabin” (employees at a facility tasked with ensuring the annual ritual takes place) were not similar to those in Trip (a film production crew) because their basic purpose and function were completely different.
Next, the district court concluded that the characters in “Cabin” were not similar to any of the characters in Trip, observing that substantial similarity in characters cannot be based on “shared attributes of appearance” and “general demeanor” typical of horror characters. Similar-sounding names, standing alone, are not enough, nor is the fact that two male characters are “both strong and look like movie stars,” said the district court. If Gallagher had a copyright on strong and attractive males, “there would be few works that do not infringe upon that common casting type,” the court noted. In addition, “harbinger” characters warning of impending doom are also scenes-à-faire, unprotected by copyright law.
The district court next held that there was nothing similar about the settings of the works “[a]part from the basic fact that both groups of friends end up going to a cabin.” The settings, in fact, contrasted significantly, with “Cabin” set in a run-down, “creepy” cabin in the summertime and Trip set in a massive estate in cold and snowy Flagstaff. Moreover, approximately half of “Cabin” is set in an underground facility, with no corresponding setting in Trip. The district court also concluded that the works shared no “extended similarity of dialogue,” noting that Gallagher identified only three similar sentences.
The moods of the two works are also “radically different” because “Cabin” is a satirical comedy whereas Trip is “dark, suspenseful, and scary,” according to the district court. In terms of pacing, “Cabin” “is very fast-paced, with the entire film occurring over the span of a single day.”Trip “unfolds rather slowly” and the characters arrive at the cabin halfway through the book. Moreover, there was “an inherent substantial difference in pace” between “Cabin” and Trip due to “Cabin” being a film and Trip being a book.
The district court also rejected Gallagher’s assertion that the works were similar because both share “a core theme of horror,” are about real people unwittingly being manipulated by third parties, and are self-referential. The district court held that more is needed to render the works similar, and that unlike Trip, “Cabin’s” core of horror is “spliced with heavy amounts of comedy and parody.”
Finally, the district court concluded that, in the absence of similarities between the works, no amount of proof of the defendants’ access to Trip was enough to show copying.