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Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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Speaker 1: Do you know who you welcome to your home? M Night.

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Speaker 1: Shamalan is known for making films with supernatural overtones. His

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Speaker 1: series for Apple TV Plus, Servant has those paranormal elements,

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Speaker 1: a psychological thriller about a mother who hires a nanny

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Speaker 1: to care for her child, Jericho. But Jericho is actually

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Speaker 1: a doll, taking the place of her infant son who died.

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Speaker 1: She's gone. You can put a dog down. I'm fine

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Speaker 1: as I am last Jericho when he was thirteen weeks

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Speaker 1: Dorothy took it hard. This is the only thing that

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Speaker 1: brought her back. I should take Dejiko for to walk now.

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Speaker 1: You hired a nanny for a doll. But Another filmmaker

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Speaker 1: claims that Servant is shockingly similar to her film The

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Speaker 1: Truth About Emmanuel, a movie about a mother who hire

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Speaker 1: as a babysitter to care for her child Chloe, who

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Speaker 1: was actually a doll replacing her dead infants. What happens

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Speaker 1: if the baby wakes up? You rock her back and forth,

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Speaker 1: and you talked to her because she likes that. She

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Speaker 1: likes to be talked to. I am just dying me

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Speaker 1: that baby, and director Francesca Gregorini sued Schamalan and Apple

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Speaker 1: for copyright infringement, but a federal judge throughout her lawsuit

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Speaker 1: before it could go to a jury, joining me as

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Speaker 1: intellectual property litigator Terence ross A partner Captain Uten Rosenman,

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Speaker 1: So Terry Gregorini claims that not only is the plot similar,

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Speaker 1: but that there are strikingly similar and highly idiosyncratic artistic choices.

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Speaker 1: Tell us more about the complaint well. At the core

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Speaker 1: of her complaint was the argument that the central themes

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Speaker 1: of her work and m Night's work were similar to

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Speaker 1: be a coincidence and therefore had to constitute copyright violation.

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Speaker 1: In particular, she asserted that there was this irrational reciprocal

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Speaker 1: devotion between mother and nanny that arose out of the

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Speaker 1: mother's loss of her child, that occurred in both her

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Speaker 1: work and in m Night's work, and that that similarity

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Speaker 1: was sufficient to constitute copyright infringement. Now, she went on

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Speaker 1: to say that there were also similarities with respect to dialogue, mood, setting, pace, character,

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Speaker 1: sequence of events, but the core argument really was the

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Speaker 1: similarity in the themes between the two works of this relationship.

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Speaker 1: Between a mother and a nanny that arose out of

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Speaker 1: a loss of a child. So they're both about a

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Speaker 1: grieving mother who cares for dolls if it were a

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Speaker 1: real child, and the relationship with the babysitter or nanny.

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Speaker 1: Why wasn't that enough for the job? Well, the judge's

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Speaker 1: view was that although they start from a similar premise,

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Speaker 1: they really tell completely different stories. The court noted that

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Speaker 1: in Emmanuel, it's really about normal teenager who's struggling to

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Speaker 1: cope with the guilt of knowing that her mother died

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Speaker 1: at childbirth, while the servant sort of focuses on a

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Speaker 1: paranormal theme, guessing there's something fundamentally different and odd, bordering

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Speaker 1: on paranormal with respect to the nanny. So he found

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Speaker 1: they're not substantially similar as a matter of law. How

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Speaker 1: do you come to that decision as a matter of law. So,

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Speaker 1: the way the copyright law has evolved with respect to

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Speaker 1: these charges of similarities in creative works such as movies

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Speaker 1: or television shows the courts that the analysis has to

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Speaker 1: be broken down into two parts. In the first part,

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Speaker 1: the court has to determine whether or not the accused

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Speaker 1: copied version was sufficiently copyrightable that a lawsuit should be

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Speaker 1: allowed to go to a jury in the first place.

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Speaker 1: In the second part of the test, the jury then

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Speaker 1: determines whether there is in fact, actual sufficient similarity. The

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Speaker 1: judge sort of serves as a date keeper in determining

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Speaker 1: what gets to a jury in this type of copyright case.

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Speaker 1: And here the judge made a determination that there was

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Speaker 1: such a significant disparity in the two works with respect

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Speaker 1: to those elements that could be copyrighted, that the case

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Speaker 1: should not go to a jury, and therefore dismissed it

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Speaker 1: with prejudice. I'm sure we'll see an appeal of that

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Speaker 1: decision on the procedural Graham myth to whether or not

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Speaker 1: the judge would be allowed in the law to make

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Speaker 1: that determination on his own as opposed to sending it

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Speaker 1: to a jury. But that's the process that the judge

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Speaker 1: actually used here. Why not send it to a jury.

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Speaker 1: And we've seen a lot of times where a judge

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Speaker 1: could dismiss a case before trial, but decides to let

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Speaker 1: it go to the jury and then afterwards you can

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Speaker 1: throw out the verdict. Why not let a jury decide here?

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Speaker 1: In this case, the judge clearly was unimpressed by the

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Speaker 1: claims of copyright infringement. He expressly held that the mood,

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Speaker 1: which was one of the elements accused of copyright infringement,

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Speaker 1: is not protectable under copyright law in the first place.

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Speaker 1: He also held that home nursery setting is EANs the

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Speaker 1: affair which is not copyrightable, and essentially saying that this

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Speaker 1: is just too common a setting for it to be

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Speaker 1: something that could be copyrighted in this particular work. They

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Speaker 1: are also elements individual elements that he just didn't regard

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Speaker 1: as significant, such as stolen wine that had to be

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Speaker 1: paired with and cheese, the home birthday dinner celebration, the

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Speaker 1: mothered stretches in a mirror. These were things that he

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Speaker 1: described as unprotectable stock scenes, and therefore it was within

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Speaker 1: his purview he said, to dismiss the lawsuit without sending

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Speaker 1: it to jury. Terry, were you surprised by the judge's

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Speaker 1: decision to toss the case out. I am a bit surprised.

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Speaker 1: I certainly thought that this lawsuit was alleging some elements

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Speaker 1: that were unprotectable and that would be dismissed out. But

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Speaker 1: I also thought that there might be some elements that

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Speaker 1: were sufficiently played as protectable that they might stay in

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Speaker 1: and the lawsuit would go further. I think there is

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Speaker 1: definitely a reaction in that court, the Central District to California,

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Speaker 1: to the public and media criticisms earlier decisions in copyright

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Speaker 1: cases in which the court has allowed cases to go

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Speaker 1: to the jury, resulting in verticts in favor of the

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Speaker 1: plaintiff and then handicapping the judge's ability to do anything

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Speaker 1: about the case after the fact, even though the judge

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Speaker 1: may have doubted whether or not there was copyright infringement.

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Speaker 1: So I do think we're seeing the pendulum swing back

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Speaker 1: in favor of copyright defendants in the eyes of the

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Speaker 1: judges in that particular court, which, by the way, the

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Speaker 1: court is fundamentally Los Angeles and which sees a large,

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Speaker 1: large number of these copyright suits involving the entertainment industry.

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Speaker 1: She says that she's going to appeal this is she

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Speaker 1: likely to get a reversal from the Ninth Circuit. I

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Speaker 1: think that's going to be very challenging for the plaintiff here.

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Speaker 1: It is not impossible, but the way that the judge

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Speaker 1: at the District Court has structured the decision, it makes

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Speaker 1: it very challenging for Ms Gregorini to argue that procedurally

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Speaker 1: the judge overstepped his role in a copyright lawsuit. Judge

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Speaker 1: was very careful to make findings a fact that the

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Speaker 1: elements that are shared by the two works are not

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Speaker 1: protectable in the first place, and therefore copyright infringement case

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Speaker 1: will not lie. It'll be interesting, though, to see what

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Speaker 1: the Ninth Circuit Court of Appeals will do on this case. Jerry,

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Speaker 1: why did the pendulum swing in favor of defendants? Now?

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Speaker 1: I really think it starts with the Blurred Lines case.

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Speaker 1: There you've had a copyright infringement charge with respect to

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Speaker 1: some older Marvin Gay recording being copied by contemporary recording

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Speaker 1: artists allegedly. And in listening to the two recordings that

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Speaker 1: issue in the Blurred Lines case, most people came away

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Speaker 1: not understanding how they were sim or in any respect.

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Speaker 1: And yet the jury found copyright in the furnishment, awarded

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Speaker 1: significant amount of damages against the defendants Mr. Thick and Farrell,

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Speaker 1: And the reaction to that lawsuit was extraordinary in both

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Speaker 1: the legal community and in the media and entertainment businesses.

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Speaker 1: And I do believe that judges read the newspapers or

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Speaker 1: online versions of newspapers, and watch evening newscast and can't

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Speaker 1: help but be impacted by the blowback from their decisions

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Speaker 1: in future cases. And so I do think that we

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Speaker 1: see the pendulum swinging back in favor of copyright defendants.

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Speaker 1: How long that will last, I don't know, but there

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Speaker 1: is a definite change in mood with respect to these

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Speaker 1: types of copyright cases. In a press release, Greggorini called

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Speaker 1: the ruling disappointing but not surprising, given the balance of

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Speaker 1: power in the entertainment industry towards powerful men and institutions

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Speaker 1: sitting a nerve there. Yes, she's clearly recognized that the

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Speaker 1: media does play a role. Is we're of setting a

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Speaker 1: tone or context within which these copyright decisions come before courts,

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Speaker 1: and is attempting to play upon the justifiable backlash against

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Speaker 1: the imbalance of power in Hollywood and in other institutions.

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Speaker 1: Whether or not that helps her case at the Ninth Circuit,

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Speaker 1: I doubt it. But this case was as much about

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Speaker 1: striking a blow for women in the entertainment industry as

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Speaker 1: or recovering damages for copyright infringement, and so I guess

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Speaker 1: it's an important point that she's attempting to make in

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Speaker 1: that respect. Thanks Terry. That's Terence Ross, a partner at

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Speaker 1: Captain Uten Rosenman. And that's it for this edition of

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Speaker 1: Boomberg Law. I'm June Brasso. Thanks so much for listening,

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Speaker 1: and remember to tune in to The Bloomberg Law Show

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Speaker 1: weeknights at ten pm Easter right here on Bloomberg Radio