WEBVTT - M. Night Shyamalan Beats Copyright Suit

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Do you know who you welcome to your home? M Night.

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<v Speaker 1>Shamalan is known for making films with supernatural overtones. His

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<v Speaker 1>series for Apple TV Plus, Servant has those paranormal elements,

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<v Speaker 1>a psychological thriller about a mother who hires a nanny

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<v Speaker 1>to care for her child, Jericho. But Jericho is actually

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<v Speaker 1>a doll, taking the place of her infant son who died.

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

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<v Speaker 1>as I am last Jericho when he was thirteen weeks

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<v Speaker 1>Dorothy took it hard. This is the only thing that

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<v Speaker 1>brought her back. I should take Dejiko for to walk now.

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<v Speaker 1>You hired a nanny for a doll. But Another filmmaker

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<v Speaker 1>claims that Servant is shockingly similar to her film The

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<v Speaker 1>Truth About Emmanuel, a movie about a mother who hire

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<v Speaker 1>as a babysitter to care for her child Chloe, who

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<v Speaker 1>was actually a doll replacing her dead infants. What happens

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<v Speaker 1>if the baby wakes up? You rock her back and forth,

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<v Speaker 1>and you talked to her because she likes that. She

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<v Speaker 1>likes to be talked to. I am just dying me

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<v Speaker 1>that baby, and director Francesca Gregorini sued Schamalan and Apple

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<v Speaker 1>for copyright infringement, but a federal judge throughout her lawsuit

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<v Speaker 1>before it could go to a jury, joining me as

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<v Speaker 1>intellectual property litigator Terence ross A partner Captain Uten Rosenman,

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<v Speaker 1>So Terry Gregorini claims that not only is the plot similar,

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<v Speaker 1>but that there are strikingly similar and highly idiosyncratic artistic choices.

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<v Speaker 1>Tell us more about the complaint well. At the core

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<v Speaker 1>of her complaint was the argument that the central themes

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<v Speaker 1>of her work and m Night's work were similar to

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<v Speaker 1>be a coincidence and therefore had to constitute copyright violation.

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<v Speaker 1>In particular, she asserted that there was this irrational reciprocal

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<v Speaker 1>devotion between mother and nanny that arose out of the

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<v Speaker 1>mother's loss of her child, that occurred in both her

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<v Speaker 1>work and in m Night's work, and that that similarity

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<v Speaker 1>was sufficient to constitute copyright infringement. Now, she went on

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

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<v Speaker 1>sequence of events, but the core argument really was the

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<v Speaker 1>similarity in the themes between the two works of this relationship.

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<v Speaker 1>Between a mother and a nanny that arose out of

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<v Speaker 1>a loss of a child. So they're both about a

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<v Speaker 1>grieving mother who cares for dolls if it were a

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<v Speaker 1>real child, and the relationship with the babysitter or nanny.

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

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<v Speaker 1>view was that although they start from a similar premise,

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<v Speaker 1>they really tell completely different stories. The court noted that

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<v Speaker 1>in Emmanuel, it's really about normal teenager who's struggling to

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<v Speaker 1>cope with the guilt of knowing that her mother died

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<v Speaker 1>at childbirth, while the servant sort of focuses on a

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<v Speaker 1>paranormal theme, guessing there's something fundamentally different and odd, bordering

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<v Speaker 1>on paranormal with respect to the nanny. So he found

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<v Speaker 1>they're not substantially similar as a matter of law. How

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

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<v Speaker 1>the way the copyright law has evolved with respect to

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<v Speaker 1>these charges of similarities in creative works such as movies

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<v Speaker 1>or television shows the courts that the analysis has to

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<v Speaker 1>be broken down into two parts. In the first part,

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<v Speaker 1>the court has to determine whether or not the accused

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<v Speaker 1>copied version was sufficiently copyrightable that a lawsuit should be

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<v Speaker 1>allowed to go to a jury in the first place.

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<v Speaker 1>In the second part of the test, the jury then

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<v Speaker 1>determines whether there is in fact, actual sufficient similarity. The

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<v Speaker 1>judge sort of serves as a date keeper in determining

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<v Speaker 1>what gets to a jury in this type of copyright case.

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<v Speaker 1>And here the judge made a determination that there was

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<v Speaker 1>such a significant disparity in the two works with respect

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<v Speaker 1>to those elements that could be copyrighted, that the case

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<v Speaker 1>should not go to a jury, and therefore dismissed it

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

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<v Speaker 1>decision on the procedural Graham myth to whether or not

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<v Speaker 1>the judge would be allowed in the law to make

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<v Speaker 1>that determination on his own as opposed to sending it

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<v Speaker 1>to a jury. But that's the process that the judge

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<v Speaker 1>actually used here. Why not send it to a jury.

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<v Speaker 1>And we've seen a lot of times where a judge

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<v Speaker 1>could dismiss a case before trial, but decides to let

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<v Speaker 1>it go to the jury and then afterwards you can

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<v Speaker 1>throw out the verdict. Why not let a jury decide here?

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<v Speaker 1>In this case, the judge clearly was unimpressed by the

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<v Speaker 1>claims of copyright infringement. He expressly held that the mood,

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<v Speaker 1>which was one of the elements accused of copyright infringement,

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<v Speaker 1>is not protectable under copyright law in the first place.

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<v Speaker 1>He also held that home nursery setting is EANs the

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<v Speaker 1>affair which is not copyrightable, and essentially saying that this

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<v Speaker 1>is just too common a setting for it to be

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<v Speaker 1>something that could be copyrighted in this particular work. They

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<v Speaker 1>are also elements individual elements that he just didn't regard

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<v Speaker 1>as significant, such as stolen wine that had to be

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<v Speaker 1>paired with and cheese, the home birthday dinner celebration, the

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<v Speaker 1>mothered stretches in a mirror. These were things that he

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<v Speaker 1>described as unprotectable stock scenes, and therefore it was within

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<v Speaker 1>his purview he said, to dismiss the lawsuit without sending

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

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<v Speaker 1>decision to toss the case out. I am a bit surprised.

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<v Speaker 1>I certainly thought that this lawsuit was alleging some elements

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<v Speaker 1>that were unprotectable and that would be dismissed out. But

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<v Speaker 1>I also thought that there might be some elements that

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<v Speaker 1>were sufficiently played as protectable that they might stay in

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<v Speaker 1>and the lawsuit would go further. I think there is

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<v Speaker 1>definitely a reaction in that court, the Central District to California,

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<v Speaker 1>to the public and media criticisms earlier decisions in copyright

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<v Speaker 1>cases in which the court has allowed cases to go

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<v Speaker 1>to the jury, resulting in verticts in favor of the

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<v Speaker 1>plaintiff and then handicapping the judge's ability to do anything

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<v Speaker 1>about the case after the fact, even though the judge

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<v Speaker 1>may have doubted whether or not there was copyright infringement.

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<v Speaker 1>So I do think we're seeing the pendulum swing back

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<v Speaker 1>in favor of copyright defendants in the eyes of the

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<v Speaker 1>judges in that particular court, which, by the way, the

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<v Speaker 1>court is fundamentally Los Angeles and which sees a large,

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<v Speaker 1>large number of these copyright suits involving the entertainment industry.

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<v Speaker 1>She says that she's going to appeal this is she

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<v Speaker 1>likely to get a reversal from the Ninth Circuit. I

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

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<v Speaker 1>It is not impossible, but the way that the judge

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<v Speaker 1>at the District Court has structured the decision, it makes

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<v Speaker 1>it very challenging for Ms Gregorini to argue that procedurally

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<v Speaker 1>the judge overstepped his role in a copyright lawsuit. Judge

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<v Speaker 1>was very careful to make findings a fact that the

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<v Speaker 1>elements that are shared by the two works are not

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<v Speaker 1>protectable in the first place, and therefore copyright infringement case

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

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

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<v Speaker 1>why did the pendulum swing in favor of defendants? Now?

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<v Speaker 1>I really think it starts with the Blurred Lines case.

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<v Speaker 1>There you've had a copyright infringement charge with respect to

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<v Speaker 1>some older Marvin Gay recording being copied by contemporary recording

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<v Speaker 1>artists allegedly. And in listening to the two recordings that

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<v Speaker 1>issue in the Blurred Lines case, most people came away

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<v Speaker 1>not understanding how they were sim or in any respect.

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<v Speaker 1>And yet the jury found copyright in the furnishment, awarded

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<v Speaker 1>significant amount of damages against the defendants Mr. Thick and Farrell,

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<v Speaker 1>And the reaction to that lawsuit was extraordinary in both

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<v Speaker 1>the legal community and in the media and entertainment businesses.

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<v Speaker 1>And I do believe that judges read the newspapers or

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<v Speaker 1>online versions of newspapers, and watch evening newscast and can't

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<v Speaker 1>help but be impacted by the blowback from their decisions

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<v Speaker 1>in future cases. And so I do think that we

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<v Speaker 1>see the pendulum swinging back in favor of copyright defendants.

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<v Speaker 1>How long that will last, I don't know, but there

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<v Speaker 1>is a definite change in mood with respect to these

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<v Speaker 1>types of copyright cases. In a press release, Greggorini called

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<v Speaker 1>the ruling disappointing but not surprising, given the balance of

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<v Speaker 1>power in the entertainment industry towards powerful men and institutions

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

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<v Speaker 1>media does play a role. Is we're of setting a

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<v Speaker 1>tone or context within which these copyright decisions come before courts,

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<v Speaker 1>and is attempting to play upon the justifiable backlash against

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<v Speaker 1>the imbalance of power in Hollywood and in other institutions.

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<v Speaker 1>Whether or not that helps her case at the Ninth Circuit,

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<v Speaker 1>I doubt it. But this case was as much about

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<v Speaker 1>striking a blow for women in the entertainment industry as

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<v Speaker 1>or recovering damages for copyright infringement, and so I guess

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<v Speaker 1>it's an important point that she's attempting to make in

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

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<v Speaker 1>Captain Uten Rosenman. And that's it for this edition of

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

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<v Speaker 1>and remember to tune in to The Bloomberg Law Show

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<v Speaker 1>weeknights at ten pm Easter right here on Bloomberg Radio