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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 1: You hired a nanny for a doll? Did you find her?

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Speaker 1: How much did those boys tell you about what happened?

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Speaker 1: The Apple TV series Servant has all the suspense, supernatural

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Speaker 1: plots and twists m Night Chamalan is known for. But

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Speaker 1: there's a twist even the filmmaker didn't see coming. A

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Speaker 1: lawsuit by Francesca Gregorini claiming the TV series rips off

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Speaker 1: her movie The Truth about Emmanuel and the Ninth Circuit

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Speaker 1: served up a twist of its own by reviving her

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Speaker 1: lawsuit after a district court had dismissed it. Here to

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Speaker 1: help us figure out the plot of the lawsuit, that is,

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

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Speaker 1: So Terry in what way does Gregory any alleged that

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Speaker 1: the TV series ripped off her movie? Well, June. Both

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Speaker 1: the movie and the television series, on their face tell

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Speaker 1: the story of a grieving mother who has lost a

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Speaker 1: baby and forms an attachment to a doll, and in

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Speaker 1: both a teenage nanny goes along with the mother and

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Speaker 1: starts caring for this doll. As if it were a

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Speaker 1: real baby. So there are those superficial similarities which in

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Speaker 1: copyright law we would call simply ideas. With respect to

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Speaker 1: more specific allegations of similarity, there is in the original

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Speaker 1: complaint filed by Miss Gregorini allegations that the plot, themes,

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Speaker 1: and dialogue are all similar. The problem I think that

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Speaker 1: the District Court judge had with this lawsuit and why

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Speaker 1: he dismissed, is that there is a certain lack of

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Speaker 1: specificity in that original complaint. Gregory did specify certain things

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Speaker 1: such as both nannies form attachments with naive young women

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Speaker 1: whom they compelled to steal a bottle of wine. Similar

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Speaker 1: blocking of shots shock reveals. But the judge said the

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Speaker 1: alleged similarities pale in comparison to the differences. So here's

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Speaker 1: the core problem with the District Court judges decision. In

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Speaker 1: my opinion, it's this focus on differences between the two works.

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Speaker 1: That's not the legal standard from the Ninth Circuit and

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Speaker 1: other courts have said, we focus on what are the

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Speaker 1: similarities and not what are the differences. This is not

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Speaker 1: a balancing test where you put on one side the similarities,

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Speaker 1: on the other side the differences that there are more

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Speaker 1: differences than similarities. Therefore we're going to dismiss the lawsuit. No,

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Speaker 1: that's not the way it's done. The way it's supposed

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Speaker 1: to be done is you focus just on the similarities

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Speaker 1: and ask yourself, are there sufficient similarities that a reasonable

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Speaker 1: juror might find copyright infringement. That's not wealth spelled out

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Speaker 1: in the Ninth Circuits decision reversing the discord judge. But

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Speaker 1: it is the one thing that jumped off the page

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Speaker 1: at me in the District Court judges decision and was

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Speaker 1: probably working on the minds of the Appellate Court judges,

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Speaker 1: even though they didn't expressly articulate it that way. Tell

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Speaker 1: us more about the Ninth Circuits reasons for unanimously telling

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Speaker 1: the judge you can't dismiss this lawsuit at this stage.

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Speaker 1: So the decision on appeal largely focused on procedural elements,

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Speaker 1: and these procedural elements have been a bug a book

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Speaker 1: in the Ninth Circuit in copyright cases for over a

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Speaker 1: decade now. The way the cases involving substantial similarity, remember

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Speaker 1: we're not talking about literal copyright infringement, where you put

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Speaker 1: the book on the xerox machine and just copy the

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Speaker 1: pages or you simply run the movie without authorization. That's

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Speaker 1: literal copyright infringement not at issue here. What is that

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Speaker 1: issue with substantial similarity? And for substantial similarity we apply

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Speaker 1: a two part test known as extrinsic test and the

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Speaker 1: intrinsic test on a motion to dismiss, which, in general

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Speaker 1: civil litigation in the United States federal court system is

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Speaker 1: rare to start with, and even rarer in copyright cases.

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Speaker 1: But on a motion to dismiss, all we consider is

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Speaker 1: the extrinsic test. And the extrinsic test asks whether there

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Speaker 1: are similarities, remember, similarities, not differences. Where there are similarities

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Speaker 1: between plot, themes, dialogue, mood, fetic, characters, and sequence of

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Speaker 1: events that are considered protectable elements under copyright law. So

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Speaker 1: what should a district court judge do? Then? The just

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Speaker 1: first thing the distrect court judge has to do is

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Speaker 1: decide what's protectable and what's not protectable elements. So the

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Speaker 1: general idea of a grieving mother is not protectable under

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Speaker 1: copyright law. The idea of all being given humanistic features

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Speaker 1: being treated like human is not copyrightable. The fact that

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Speaker 1: you focused on inducing a boyfriend to go steal a

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Speaker 1: bottle that may well be copyrightable. What did not happen

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Speaker 1: here at the discord level was the judge never attempted

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Speaker 1: to separate the wheat from the chaff, to figure out

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Speaker 1: what were the copyrightable elements and what were the non

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Speaker 1: copyrightable elements, and then say, well, these copyrightable elements do

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Speaker 1: have some similarities such that reasonable juror might believe there

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Speaker 1: was copyright fringement. That's what the district court did not do,

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Speaker 1: in which the Ninth Circuit really wants to be done.

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Speaker 1: On a motion to dismiss, the Ninth Circuit said that

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Speaker 1: dismissal of the lawsuit at this early stage was improper

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Speaker 1: because quote, reasonable minds could differ on whether the stories

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Speaker 1: are substantially similar. My question is, don't reasonable minds always

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Speaker 1: differ on whether these things are similar? I mean, it

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Speaker 1: seems like it's very subjective. You're absolutely right, June. And

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Speaker 1: that's why the Ninth story that followed those comments with

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Speaker 1: a suggestion that it would be more appropriate here to

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Speaker 1: allow x birts to weigh in on this batter. And

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Speaker 1: this has become increasingly common in the Ninth Circuit. We

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Speaker 1: see experts being used more and more in copyright cases,

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Speaker 1: and I would say there's a definite trend in the

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Speaker 1: Ninth Circuit to almost requiring some sort of expert input

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Speaker 1: before some rejudgment or motions is mrs granted In particularly,

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Speaker 1: I think the court here wanted experts to weigh in

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Speaker 1: on whether the elements identified in the compliance being substantially

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Speaker 1: similar were simply where known as scenes up fair the

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Speaker 1: common settings, common ideas, common themes. Is it common to

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Speaker 1: have young teenagers try to get people to steal app

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Speaker 1: all for them, But these are questions that are appropriate

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Speaker 1: for experts in the field of film studies and film

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Speaker 1: criticism who could weigh in. And the court pretty strongly

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Speaker 1: suggested that on close calls, the court should allow experts

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Speaker 1: to express their views on which elements are copyrightable and

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Speaker 1: which are not copyrightable, and then the court can make

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Speaker 1: a decision. Don't you end up with experts on either

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Speaker 1: side of the issue. The plaintiff brings in experts that

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Speaker 1: support her claim, the defendant brings in experts that support

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Speaker 1: his claim in this case, and then the judge just

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Speaker 1: decides which expert he finds more credible or worse. The

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Speaker 1: judge decides that he or she cannot make up the

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Speaker 1: mind over which one is better, and just turns the

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Speaker 1: whole mess over to the jury. This is the core

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Speaker 1: problem in the Ninth Circuit in copyright case these days,

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Speaker 1: cutting across medium. We see it in in the music cases,

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Speaker 1: we see it in the film and television cases, and

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Speaker 1: we see it in comic book cases. In regular book

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Speaker 1: publishing cases. The Ninth Circuit seems to be making it

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Speaker 1: so difficult to get rid of a non meritorious lawsuit

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Speaker 1: allegend copyright infringement in an early stage that it seems

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Speaker 1: like every copyright case has to feel the jury. And

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Speaker 1: that's not right. That's not the way the federal Silver

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Speaker 1: procedure system is designed to operate. We have motions to

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Speaker 1: dismiss allowed. We have some reary judgment emotions allowed, specifically

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Speaker 1: to read out weak lawsuits in advance and not the

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Speaker 1: bird in the jury system. And yet the Ninth certain

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Speaker 1: seems to maybe making just so hard for a defendant

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Speaker 1: to get out of a lawsuit that they almost are

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Speaker 1: going to get to that point where they stop fighting

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Speaker 1: them and just start paying off claims from play offs. Well,

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Speaker 1: it's also really expensive, isn't it because you can't get

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Speaker 1: rid of it before discovery and you have to start

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Speaker 1: calling experts and prepping for trial. I mean it. It

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Speaker 1: makes all these cases really expensive so they may settle them.

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Speaker 1: And that's absolutely right, and often very expensive visa v.

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Speaker 1: The potential damages at stake in the cases I mean

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Speaker 1: experts charge on an hourly rate basis, and in many

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Speaker 1: cases are as expensive or more expensive than the lawyers

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Speaker 1: involved in the case. And so it adds onto the

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Speaker 1: burden that the defendant has to endure to get rid

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Speaker 1: of the lawsuit. On the other side of the equation,

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Speaker 1: the copyright planet is austen represented not always but often

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Speaker 1: represented by contingent fee lawyers, and so is not incurring

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Speaker 1: a similar burden of expense. This is the third time

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Speaker 1: in at least two years that the Ninth Circuit reverse

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Speaker 1: to federal judges decision to dismiss a copyright lawsuit. It

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Speaker 1: also happened with the first movie Pirates of the Caribbean

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Speaker 1: and The Shape of Water. And in the Shape of Water,

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Speaker 1: discovery led to the plaintiff agreeing to dismiss the case.

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Speaker 1: Do you know what happened there? Well, that situation is

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Speaker 1: very rare. I have seen situations where discovery proves that

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Speaker 1: a copyright in nitment cases so meritless that it makes

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Speaker 1: no sense for the plaintiff to continue it. Particularly the

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Speaker 1: plaintiff lawyer with no prospect of a recovery, will not

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Speaker 1: want to invest time and money in it. But that

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Speaker 1: is very rare. I don't think that we can, as

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Speaker 1: a judicial system simply assume that discovery is going to

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Speaker 1: get to the truth or the bottom of the facts

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Speaker 1: and it will resolve itself. I think in the overwhelming

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Speaker 1: majority of cases, discovery does nothing more than tee up

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Speaker 1: a summary judgment motion, and under the standards that are

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Speaker 1: emerging in the Ninth Circuit of District court, judges are

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Speaker 1: reluctant to take sides in a battle of experts, and

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Speaker 1: so that means the case simplice goes to a jury trial.

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Speaker 1: Most of the lawsuits having to do with movies and TV,

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Speaker 1: the Hollywood type, are in the Ninth Circuit. We've often

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Speaker 1: talked about how the Ninth Circuit and the Second Circuit

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Speaker 1: are the two circuits that are well known for copyright claims.

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Speaker 1: Does the Second Circuit treat these cases the same as

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Speaker 1: the Ninth does? So the Second Circuit has a comparable

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Speaker 1: two part test involve in um, the court assessing the

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Speaker 1: extrinsic test and a jury assessing the intrinsic test. So

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Speaker 1: these are similar, and indeed the remote origins of that

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Speaker 1: test stem from cases in the Second Circuits the first

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Speaker 1: part of the twentieth century. What is different is there

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Speaker 1: seems to be a greater willingness in the Second Circuit

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Speaker 1: to accept a district court's judgment with respect to either

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Speaker 1: a motion to dismiss or summary judgment motion. We have

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Speaker 1: far more music cases in the Second Circuit than television

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Speaker 1: and film cases, um, and so it's hard to know

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Speaker 1: how the Second Circuit would react in these television cases,

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Speaker 1: but they're just does seem to be a little bit

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Speaker 1: more willingness at the Second Circuit to except the district

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Speaker 1: court's decision below. The Ninth Circuit, in contrast, seems to

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Speaker 1: be trying to make it as hard as possible for

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Speaker 1: a district court judge to get rid of a dubious

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Speaker 1: copyright lawsuit without resorting to trial on the merits. Is

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Speaker 1: this a new trend in the Ninth Circuit And if so,

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Speaker 1: is there something that set them off? Can't identify any

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Speaker 1: single fact that set them off. But as you said,

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Speaker 1: this is not brand new. You mentioned the three instances

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Speaker 1: in which the Ninth Circuit has in just a couple

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Speaker 1: of years now reverse district court decision prior to a

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Speaker 1: trial being held. In my mind, this trend, if you

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Speaker 1: want to call back, goes back at least a decade,

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Speaker 1: and I'm sure if you studied earlier opinions you might

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Speaker 1: find the seeds of it. But I would not say

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Speaker 1: it's brand new. I think there's just this notion in

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Speaker 1: the Ninth Circuit jurisprudence that it is very difficult to

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Speaker 1: determine the validity of a copyright infringement claim short of

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Speaker 1: thorough discovery, and that is starting to reflect itself in

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Speaker 1: decisions that we see. That's just this case. Thanks as always, Terry.

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Speaker 1: That Terence Ross of Caton Uton Rosenman. The Supreme Court

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Speaker 1: refused to reinstate Bill Cosby's conviction for sexually assaulting a

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Speaker 1: Temple University employee. In two thousand four. The Court rejected

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Speaker 1: an appeal by Pennsylvania prosecutors in a case that became

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Speaker 1: an emblem of the me too movement without comment. The

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Speaker 1: Justice has left intact a Pennsylvania Supreme Court ruling that

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Speaker 1: the state renegged on an agreement not to prosecute Cosby.

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Speaker 1: Now eighty four. Cosby was released from prison last year

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Speaker 1: after serving almost three years of a three to ten

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Speaker 1: year sentence. Joining me as Greg store Bloomberg new Supreme

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Speaker 1: Court reporter. What was the basis for the appeal to

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Speaker 1: the Supreme Court? Well, the Pennsylvania's Supreme Court throughout Cosby's conviction,

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Speaker 1: and what the court said was back when the first

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Speaker 1: district attorney to look at the case decided not to prosecute,

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Speaker 1: he put out a press relief in according to the

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Speaker 1: Then in a civil suit, Cosby relied on that decision,

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Speaker 1: according to the Pennsylvania Supreme Court, and testified in that

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Speaker 1: civil suit and incriminated himself. And then a different district

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Speaker 1: So that's why the conviction was thrown out in the

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Speaker 1: first place. And Pennsylvania prosecutors went to the U. S.

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Speaker 1: Fifth Amendment and the righting and self incrimination, and that

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Speaker 1: Cosby's reliance on this alleged promise was not reasonable. And

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Speaker 1: Court as to why it should not take the case. Well,

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Speaker 1: Cosby's attorneys said, there's no reason to take up this case.

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Speaker 1: This is a very fact specific case that won't really

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Speaker 1: apply more broadly than to Bill Cosby. Causby's attorneys said,

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Speaker 1: it's not just about that press release that said that

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Speaker 1: was an agreement, a non prosecution agreement, and Bill Cosby

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Speaker 1: relied on that agreement. It doesn't matter what exactly the

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Speaker 1: press release said. There was an agreement, and therefore his

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Speaker 1: it right. That's what struck me. What's the legal question

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Speaker 1: of the Supreme Court would decide because the whole theme

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Speaker 1: seems based on the facts of this case, the odd facts. Yeah,

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Speaker 1: that assessment from the standpoint of the prosecutors. They said,

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Speaker 1: Pennsylvania Court did not require Bill Cosby to show that

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Speaker 1: his reliance on the statements of the district attorney was reasonable,

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Speaker 1: And they say that's a legal air. The courts should

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Speaker 1: have required a showing that that Cousby acted reasonably. But

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Speaker 1: to Cosby's attorneys beyond the press police. Certainly, what Cosby's

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Speaker 1: it wasn't just the press release that he was relying on.

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Speaker 1: That there was evidence that there was indeed an agreement

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Speaker 1: Cosby's head and thus keep him from being able to

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Speaker 1: testify in that civil case. This was one of the

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Speaker 1: first major milestones of the Me too movement. So this

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Speaker 1: case has gotten a lot of publicity, and you know,

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Speaker 1: prosecutors feel they have to keep pushing. Yeah, there was

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Speaker 1: certainly a lot of As more and more women came

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Speaker 1: out with allegations against Bill Cosby, there certainly was more

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Speaker 1: pressure hun prosecutors to bring a case. Uh. This was

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Speaker 1: really an emblem of the me too movement and um

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Speaker 1: the decision to overturn his conviction was very much a

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Speaker 1: blow to people on the side of trying to hold

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Speaker 1: people accountable for for sexual misconduct. And the court also

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Speaker 1: rejected a group of New York City school workers who

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Speaker 1: wanted to stop the city from firing them because they

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Speaker 1: hadn't gotten vaccinated. That was along the lines of other

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Speaker 1: decisions they've made. Yeah, this is the same group that

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Speaker 1: was turned away on February eleventh by Justice Sonia so

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Speaker 1: of Mayor. She's the justice who handles emergency matters out

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Speaker 1: of New York. And what the workers did was to

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Speaker 1: file with another Justice, Neil Gorsch, who then referred to

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Speaker 1: the full nine member court. And so today the full

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Speaker 1: Court did the same thing. So to Mayor, did it

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Speaker 1: turned away the request and said not going to intervene

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Speaker 1: on behalf of these workers who most are all of

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Speaker 1: whom have essence been fired. Is that often done? If

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Speaker 1: one justice turned you away, you go to another justice

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Speaker 1: I thought they each had certain circuits that they handle

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Speaker 1: appeals from. It's always a possibility. Usually it's not done

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Speaker 1: in part because the justice who handles the emergency requests

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Speaker 1: always has the ability to confer with his or her

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Speaker 1: colleagues to kind of take their temperature and see if

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Speaker 1: anybody else disagrees with with their assessment and whether it

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Speaker 1: might be more controversial. But in this case, the workers

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Speaker 1: decided might as well give it a shot, but it

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Speaker 1: didn't work. It used to be more common, and it's

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Speaker 1: especially common in death penalty cases. Thanks Gregg. That's Bloomberg

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Speaker 1: News Supreme Court reporter Greg Store and that's it for

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Speaker 1: this edition of the Bloomberg Law Show. Remember you can

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Speaker 1: always get the latest legal news on our Bloomberg Law Podcast.

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Speaker 1: You can find them on Apple Podcasts, Spotify, and at

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

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Speaker 1: week night at ten pm Wall Street Time. I'm June Grosso,

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Speaker 1: and you're listening to Bloomberg