WEBVTT - Apple Can't Escape Copyright Suit Over 'Servant'

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>You hired a nanny for a doll? Did you find her?

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<v Speaker 1>How much did those boys tell you about what happened?

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<v Speaker 1>The Apple TV series Servant has all the suspense, supernatural

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<v Speaker 1>plots and twists m Night Chamalan is known for. But

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

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<v Speaker 1>lawsuit by Francesca Gregorini claiming the TV series rips off

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<v Speaker 1>her movie The Truth about Emmanuel and the Ninth Circuit

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<v Speaker 1>served up a twist of its own by reviving her

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<v Speaker 1>lawsuit after a district court had dismissed it. Here to

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<v Speaker 1>help us figure out the plot of the lawsuit, that is,

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

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<v Speaker 1>So Terry in what way does Gregory any alleged that

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<v Speaker 1>the TV series ripped off her movie? Well, June. Both

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<v Speaker 1>the movie and the television series, on their face tell

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<v Speaker 1>the story of a grieving mother who has lost a

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<v Speaker 1>baby and forms an attachment to a doll, and in

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<v Speaker 1>both a teenage nanny goes along with the mother and

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<v Speaker 1>starts caring for this doll. As if it were a

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<v Speaker 1>real baby. So there are those superficial similarities which in

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<v Speaker 1>copyright law we would call simply ideas. With respect to

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<v Speaker 1>more specific allegations of similarity, there is in the original

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<v Speaker 1>complaint filed by Miss Gregorini allegations that the plot, themes,

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<v Speaker 1>and dialogue are all similar. The problem I think that

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<v Speaker 1>the District Court judge had with this lawsuit and why

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<v Speaker 1>he dismissed, is that there is a certain lack of

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<v Speaker 1>specificity in that original complaint. Gregory did specify certain things

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<v Speaker 1>such as both nannies form attachments with naive young women

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<v Speaker 1>whom they compelled to steal a bottle of wine. Similar

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<v Speaker 1>blocking of shots shock reveals. But the judge said the

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<v Speaker 1>alleged similarities pale in comparison to the differences. So here's

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<v Speaker 1>the core problem with the District Court judges decision. In

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

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<v Speaker 1>That's not the legal standard from the Ninth Circuit and

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<v Speaker 1>other courts have said, we focus on what are the

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<v Speaker 1>similarities and not what are the differences. This is not

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<v Speaker 1>a balancing test where you put on one side the similarities,

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<v Speaker 1>on the other side the differences that there are more

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

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<v Speaker 1>that's not the way it's done. The way it's supposed

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<v Speaker 1>to be done is you focus just on the similarities

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<v Speaker 1>and ask yourself, are there sufficient similarities that a reasonable

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<v Speaker 1>juror might find copyright infringement. That's not wealth spelled out

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<v Speaker 1>in the Ninth Circuits decision reversing the discord judge. But

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<v Speaker 1>it is the one thing that jumped off the page

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<v Speaker 1>at me in the District Court judges decision and was

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<v Speaker 1>probably working on the minds of the Appellate Court judges,

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<v Speaker 1>even though they didn't expressly articulate it that way. Tell

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<v Speaker 1>us more about the Ninth Circuits reasons for unanimously telling

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<v Speaker 1>the judge you can't dismiss this lawsuit at this stage.

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<v Speaker 1>So the decision on appeal largely focused on procedural elements,

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<v Speaker 1>and these procedural elements have been a bug a book

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<v Speaker 1>in the Ninth Circuit in copyright cases for over a

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<v Speaker 1>decade now. The way the cases involving substantial similarity, remember

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<v Speaker 1>we're not talking about literal copyright infringement, where you put

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<v Speaker 1>the book on the xerox machine and just copy the

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<v Speaker 1>pages or you simply run the movie without authorization. That's

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<v Speaker 1>literal copyright infringement not at issue here. What is that

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<v Speaker 1>issue with substantial similarity? And for substantial similarity we apply

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<v Speaker 1>a two part test known as extrinsic test and the

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<v Speaker 1>intrinsic test on a motion to dismiss, which, in general

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<v Speaker 1>civil litigation in the United States federal court system is

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<v Speaker 1>rare to start with, and even rarer in copyright cases.

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<v Speaker 1>But on a motion to dismiss, all we consider is

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<v Speaker 1>the extrinsic test. And the extrinsic test asks whether there

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<v Speaker 1>are similarities, remember, similarities, not differences. Where there are similarities

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<v Speaker 1>between plot, themes, dialogue, mood, fetic, characters, and sequence of

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<v Speaker 1>events that are considered protectable elements under copyright law. So

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<v Speaker 1>what should a district court judge do? Then? The just

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<v Speaker 1>first thing the distrect court judge has to do is

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<v Speaker 1>decide what's protectable and what's not protectable elements. So the

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<v Speaker 1>general idea of a grieving mother is not protectable under

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<v Speaker 1>copyright law. The idea of all being given humanistic features

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<v Speaker 1>being treated like human is not copyrightable. The fact that

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<v Speaker 1>you focused on inducing a boyfriend to go steal a

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<v Speaker 1>bottle that may well be copyrightable. What did not happen

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<v Speaker 1>here at the discord level was the judge never attempted

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<v Speaker 1>to separate the wheat from the chaff, to figure out

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<v Speaker 1>what were the copyrightable elements and what were the non

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<v Speaker 1>copyrightable elements, and then say, well, these copyrightable elements do

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<v Speaker 1>have some similarities such that reasonable juror might believe there

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

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<v Speaker 1>in which the Ninth Circuit really wants to be done.

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<v Speaker 1>On a motion to dismiss, the Ninth Circuit said that

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<v Speaker 1>dismissal of the lawsuit at this early stage was improper

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<v Speaker 1>because quote, reasonable minds could differ on whether the stories

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

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<v Speaker 1>differ on whether these things are similar? I mean, it

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

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<v Speaker 1>that's why the Ninth story that followed those comments with

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<v Speaker 1>a suggestion that it would be more appropriate here to

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<v Speaker 1>allow x birts to weigh in on this batter. And

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<v Speaker 1>this has become increasingly common in the Ninth Circuit. We

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<v Speaker 1>see experts being used more and more in copyright cases,

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<v Speaker 1>and I would say there's a definite trend in the

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<v Speaker 1>Ninth Circuit to almost requiring some sort of expert input

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<v Speaker 1>before some rejudgment or motions is mrs granted In particularly,

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<v Speaker 1>I think the court here wanted experts to weigh in

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<v Speaker 1>on whether the elements identified in the compliance being substantially

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<v Speaker 1>similar were simply where known as scenes up fair the

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<v Speaker 1>common settings, common ideas, common themes. Is it common to

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<v Speaker 1>have young teenagers try to get people to steal app

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<v Speaker 1>all for them, But these are questions that are appropriate

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<v Speaker 1>for experts in the field of film studies and film

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<v Speaker 1>criticism who could weigh in. And the court pretty strongly

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<v Speaker 1>suggested that on close calls, the court should allow experts

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<v Speaker 1>to express their views on which elements are copyrightable and

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<v Speaker 1>which are not copyrightable, and then the court can make

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<v Speaker 1>a decision. Don't you end up with experts on either

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<v Speaker 1>side of the issue. The plaintiff brings in experts that

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<v Speaker 1>support her claim, the defendant brings in experts that support

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<v Speaker 1>his claim in this case, and then the judge just

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<v Speaker 1>decides which expert he finds more credible or worse. The

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<v Speaker 1>judge decides that he or she cannot make up the

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<v Speaker 1>mind over which one is better, and just turns the

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<v Speaker 1>whole mess over to the jury. This is the core

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<v Speaker 1>problem in the Ninth Circuit in copyright case these days,

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<v Speaker 1>cutting across medium. We see it in in the music cases,

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<v Speaker 1>we see it in the film and television cases, and

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<v Speaker 1>we see it in comic book cases. In regular book

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<v Speaker 1>publishing cases. The Ninth Circuit seems to be making it

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<v Speaker 1>so difficult to get rid of a non meritorious lawsuit

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<v Speaker 1>allegend copyright infringement in an early stage that it seems

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<v Speaker 1>like every copyright case has to feel the jury. And

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<v Speaker 1>that's not right. That's not the way the federal Silver

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<v Speaker 1>procedure system is designed to operate. We have motions to

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<v Speaker 1>dismiss allowed. We have some reary judgment emotions allowed, specifically

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<v Speaker 1>to read out weak lawsuits in advance and not the

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<v Speaker 1>bird in the jury system. And yet the Ninth certain

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<v Speaker 1>seems to maybe making just so hard for a defendant

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<v Speaker 1>to get out of a lawsuit that they almost are

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<v Speaker 1>going to get to that point where they stop fighting

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<v Speaker 1>them and just start paying off claims from play offs. Well,

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<v Speaker 1>it's also really expensive, isn't it because you can't get

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<v Speaker 1>rid of it before discovery and you have to start

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<v Speaker 1>calling experts and prepping for trial. I mean it. It

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<v Speaker 1>makes all these cases really expensive so they may settle them.

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

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<v Speaker 1>The potential damages at stake in the cases I mean

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<v Speaker 1>experts charge on an hourly rate basis, and in many

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<v Speaker 1>cases are as expensive or more expensive than the lawyers

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<v Speaker 1>involved in the case. And so it adds onto the

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<v Speaker 1>burden that the defendant has to endure to get rid

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<v Speaker 1>of the lawsuit. On the other side of the equation,

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<v Speaker 1>the copyright planet is austen represented not always but often

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<v Speaker 1>represented by contingent fee lawyers, and so is not incurring

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<v Speaker 1>a similar burden of expense. This is the third time

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<v Speaker 1>in at least two years that the Ninth Circuit reverse

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<v Speaker 1>to federal judges decision to dismiss a copyright lawsuit. It

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<v Speaker 1>also happened with the first movie Pirates of the Caribbean

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<v Speaker 1>and The Shape of Water. And in the Shape of Water,

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<v Speaker 1>discovery led to the plaintiff agreeing to dismiss the case.

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<v Speaker 1>Do you know what happened there? Well, that situation is

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<v Speaker 1>very rare. I have seen situations where discovery proves that

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<v Speaker 1>a copyright in nitment cases so meritless that it makes

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<v Speaker 1>no sense for the plaintiff to continue it. Particularly the

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<v Speaker 1>plaintiff lawyer with no prospect of a recovery, will not

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<v Speaker 1>want to invest time and money in it. But that

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

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<v Speaker 1>a judicial system simply assume that discovery is going to

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<v Speaker 1>get to the truth or the bottom of the facts

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<v Speaker 1>and it will resolve itself. I think in the overwhelming

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<v Speaker 1>majority of cases, discovery does nothing more than tee up

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<v Speaker 1>a summary judgment motion, and under the standards that are

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<v Speaker 1>emerging in the Ninth Circuit of District court, judges are

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<v Speaker 1>reluctant to take sides in a battle of experts, and

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<v Speaker 1>so that means the case simplice goes to a jury trial.

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<v Speaker 1>Most of the lawsuits having to do with movies and TV,

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<v Speaker 1>the Hollywood type, are in the Ninth Circuit. We've often

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<v Speaker 1>talked about how the Ninth Circuit and the Second Circuit

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<v Speaker 1>are the two circuits that are well known for copyright claims.

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<v Speaker 1>Does the Second Circuit treat these cases the same as

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<v Speaker 1>the Ninth does? So the Second Circuit has a comparable

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<v Speaker 1>two part test involve in um, the court assessing the

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<v Speaker 1>extrinsic test and a jury assessing the intrinsic test. So

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<v Speaker 1>these are similar, and indeed the remote origins of that

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<v Speaker 1>test stem from cases in the Second Circuits the first

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<v Speaker 1>part of the twentieth century. What is different is there

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<v Speaker 1>seems to be a greater willingness in the Second Circuit

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<v Speaker 1>to accept a district court's judgment with respect to either

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<v Speaker 1>a motion to dismiss or summary judgment motion. We have

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<v Speaker 1>far more music cases in the Second Circuit than television

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<v Speaker 1>and film cases, um, and so it's hard to know

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<v Speaker 1>how the Second Circuit would react in these television cases,

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<v Speaker 1>but they're just does seem to be a little bit

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<v Speaker 1>more willingness at the Second Circuit to except the district

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

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<v Speaker 1>be trying to make it as hard as possible for

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<v Speaker 1>a district court judge to get rid of a dubious

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<v Speaker 1>copyright lawsuit without resorting to trial on the merits. Is

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<v Speaker 1>this a new trend in the Ninth Circuit And if so,

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<v Speaker 1>is there something that set them off? Can't identify any

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<v Speaker 1>single fact that set them off. But as you said,

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<v Speaker 1>this is not brand new. You mentioned the three instances

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<v Speaker 1>in which the Ninth Circuit has in just a couple

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<v Speaker 1>of years now reverse district court decision prior to a

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<v Speaker 1>trial being held. In my mind, this trend, if you

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<v Speaker 1>want to call back, goes back at least a decade,

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<v Speaker 1>and I'm sure if you studied earlier opinions you might

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<v Speaker 1>find the seeds of it. But I would not say

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<v Speaker 1>it's brand new. I think there's just this notion in

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<v Speaker 1>the Ninth Circuit jurisprudence that it is very difficult to

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<v Speaker 1>determine the validity of a copyright infringement claim short of

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<v Speaker 1>thorough discovery, and that is starting to reflect itself in

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

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<v Speaker 1>That Terence Ross of Caton Uton Rosenman. The Supreme Court

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<v Speaker 1>refused to reinstate Bill Cosby's conviction for sexually assaulting a

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<v Speaker 1>Temple University employee. In two thousand four. The Court rejected

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<v Speaker 1>an appeal by Pennsylvania prosecutors in a case that became

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<v Speaker 1>an emblem of the me too movement without comment. The

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<v Speaker 1>Justice has left intact a Pennsylvania Supreme Court ruling that

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<v Speaker 1>the state renegged on an agreement not to prosecute Cosby.

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<v Speaker 1>Now eighty four. Cosby was released from prison last year

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<v Speaker 1>after serving almost three years of a three to ten

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<v Speaker 1>year sentence. Joining me as Greg store Bloomberg new Supreme

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<v Speaker 1>Court reporter. What was the basis for the appeal to

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<v Speaker 1>the Supreme Court? Well, the Pennsylvania's Supreme Court throughout Cosby's conviction,

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<v Speaker 1>and what the court said was back when the first

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<v Speaker 1>district attorney to look at the case decided not to prosecute,

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<v Speaker 1>he put out a press relief in according to the

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<v Speaker 1>Pennsylvania Supreme Court, made a promise that Cosby wouldn't be prosecuted.

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<v Speaker 1>Then in a civil suit, Cosby relied on that decision,

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<v Speaker 1>according to the Pennsylvania Supreme Court, and testified in that

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<v Speaker 1>civil suit and incriminated himself. And then a different district

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<v Speaker 1>attorney came along and said, I AM going to prosecute

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<v Speaker 1>and I'm going to use that civil testimony in the prosecution.

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<v Speaker 1>So that's why the conviction was thrown out in the

0:14:28.480 --> 0:14:31.360
<v Speaker 1>first place. And Pennsylvania prosecutors went to the U. S.

0:14:31.360 --> 0:14:37.080
<v Speaker 1>Supreme Court saying that the Pennsylvania Court had misunderstood the

0:14:37.160 --> 0:14:40.320
<v Speaker 1>Fifth Amendment and the righting and self incrimination, and that

0:14:40.480 --> 0:14:45.600
<v Speaker 1>Cosby's reliance on this alleged promise was not reasonable. And

0:14:45.640 --> 0:14:49.280
<v Speaker 1>what was the argument of Cosby's attorneys to the Supreme

0:14:49.320 --> 0:14:53.280
<v Speaker 1>Court as to why it should not take the case. Well,

0:14:53.320 --> 0:14:57.080
<v Speaker 1>Cosby's attorneys said, there's no reason to take up this case.

0:14:57.200 --> 0:15:00.840
<v Speaker 1>This is a very fact specific case that won't really

0:15:00.840 --> 0:15:05.160
<v Speaker 1>apply more broadly than to Bill Cosby. Causby's attorneys said,

0:15:05.480 --> 0:15:08.280
<v Speaker 1>it's not just about that press release that said that

0:15:08.320 --> 0:15:11.720
<v Speaker 1>the distct Attorney had decided not to prosecute. There actually

0:15:11.840 --> 0:15:17.200
<v Speaker 1>was an agreement, a non prosecution agreement, and Bill Cosby

0:15:17.440 --> 0:15:20.840
<v Speaker 1>relied on that agreement. It doesn't matter what exactly the

0:15:20.880 --> 0:15:24.440
<v Speaker 1>press release said. There was an agreement, and therefore his

0:15:24.520 --> 0:15:27.600
<v Speaker 1>sithemen that rights were violated and the lower court got

0:15:27.600 --> 0:15:31.480
<v Speaker 1>it right. That's what struck me. What's the legal question

0:15:31.520 --> 0:15:34.080
<v Speaker 1>of the Supreme Court would decide because the whole theme

0:15:34.440 --> 0:15:39.440
<v Speaker 1>seems based on the facts of this case, the odd facts. Yeah,

0:15:39.520 --> 0:15:42.160
<v Speaker 1>and that maybe why the Supreme Court decided not to

0:15:42.200 --> 0:15:44.400
<v Speaker 1>take up the case. They may well have agreed with

0:15:44.440 --> 0:15:48.200
<v Speaker 1>that assessment from the standpoint of the prosecutors. They said,

0:15:48.200 --> 0:15:51.920
<v Speaker 1>the legal question here was that they didn't require The

0:15:51.960 --> 0:15:55.160
<v Speaker 1>Pennsylvania Court did not require Bill Cosby to show that

0:15:55.280 --> 0:15:59.760
<v Speaker 1>his reliance on the statements of the district attorney was reasonable,

0:16:00.160 --> 0:16:03.040
<v Speaker 1>And they say that's a legal air. The courts should

0:16:03.040 --> 0:16:07.400
<v Speaker 1>have required a showing that that Cousby acted reasonably. But

0:16:07.520 --> 0:16:10.680
<v Speaker 1>we don't know what was said by the district attorney

0:16:10.880 --> 0:16:16.359
<v Speaker 1>to Cosby's attorneys beyond the press police. Certainly, what Cosby's

0:16:16.400 --> 0:16:20.160
<v Speaker 1>lawyers argue, what the Pennsylvania Supreme Court found was that

0:16:20.480 --> 0:16:23.240
<v Speaker 1>it wasn't just the press release that he was relying on.

0:16:23.400 --> 0:16:26.960
<v Speaker 1>That there was evidence that there was indeed an agreement

0:16:27.320 --> 0:16:31.360
<v Speaker 1>that he wouldn't be prosecuted. And the motivation, they say

0:16:31.400 --> 0:16:34.600
<v Speaker 1>for that agreement was that the district attorney has decided

0:16:34.920 --> 0:16:36.840
<v Speaker 1>that it would be better to let the civil case

0:16:36.880 --> 0:16:41.280
<v Speaker 1>go forward rather than hold the possibility of prosecution over

0:16:41.360 --> 0:16:44.160
<v Speaker 1>Cosby's head and thus keep him from being able to

0:16:44.200 --> 0:16:48.320
<v Speaker 1>testify in that civil case. This was one of the

0:16:48.360 --> 0:16:51.680
<v Speaker 1>first major milestones of the Me too movement. So this

0:16:51.720 --> 0:16:56.280
<v Speaker 1>case has gotten a lot of publicity, and you know,

0:16:56.360 --> 0:16:59.240
<v Speaker 1>prosecutors feel they have to keep pushing. Yeah, there was

0:16:59.320 --> 0:17:01.680
<v Speaker 1>certainly a lot of As more and more women came

0:17:01.720 --> 0:17:05.720
<v Speaker 1>out with allegations against Bill Cosby, there certainly was more

0:17:05.840 --> 0:17:10.320
<v Speaker 1>pressure hun prosecutors to bring a case. Uh. This was

0:17:10.720 --> 0:17:14.600
<v Speaker 1>really an emblem of the me too movement and um

0:17:14.760 --> 0:17:18.240
<v Speaker 1>the decision to overturn his conviction was very much a

0:17:18.320 --> 0:17:21.600
<v Speaker 1>blow to people on the side of trying to hold

0:17:21.600 --> 0:17:25.359
<v Speaker 1>people accountable for for sexual misconduct. And the court also

0:17:25.520 --> 0:17:29.400
<v Speaker 1>rejected a group of New York City school workers who

0:17:29.560 --> 0:17:32.040
<v Speaker 1>wanted to stop the city from firing them because they

0:17:32.119 --> 0:17:35.440
<v Speaker 1>hadn't gotten vaccinated. That was along the lines of other

0:17:35.480 --> 0:17:38.600
<v Speaker 1>decisions they've made. Yeah, this is the same group that

0:17:38.680 --> 0:17:41.480
<v Speaker 1>was turned away on February eleventh by Justice Sonia so

0:17:41.640 --> 0:17:44.520
<v Speaker 1>of Mayor. She's the justice who handles emergency matters out

0:17:44.520 --> 0:17:48.000
<v Speaker 1>of New York. And what the workers did was to

0:17:48.240 --> 0:17:51.760
<v Speaker 1>file with another Justice, Neil Gorsch, who then referred to

0:17:51.800 --> 0:17:54.960
<v Speaker 1>the full nine member court. And so today the full

0:17:55.000 --> 0:17:57.800
<v Speaker 1>Court did the same thing. So to Mayor, did it

0:17:57.960 --> 0:18:01.040
<v Speaker 1>turned away the request and said not going to intervene

0:18:01.560 --> 0:18:05.040
<v Speaker 1>on behalf of these workers who most are all of

0:18:05.080 --> 0:18:08.600
<v Speaker 1>whom have essence been fired. Is that often done? If

0:18:08.600 --> 0:18:11.200
<v Speaker 1>one justice turned you away, you go to another justice

0:18:11.240 --> 0:18:14.840
<v Speaker 1>I thought they each had certain circuits that they handle

0:18:14.880 --> 0:18:20.600
<v Speaker 1>appeals from. It's always a possibility. Usually it's not done

0:18:20.840 --> 0:18:25.240
<v Speaker 1>in part because the justice who handles the emergency requests

0:18:26.080 --> 0:18:28.920
<v Speaker 1>always has the ability to confer with his or her

0:18:29.000 --> 0:18:32.040
<v Speaker 1>colleagues to kind of take their temperature and see if

0:18:32.080 --> 0:18:35.840
<v Speaker 1>anybody else disagrees with with their assessment and whether it

0:18:35.920 --> 0:18:39.600
<v Speaker 1>might be more controversial. But in this case, the workers

0:18:39.640 --> 0:18:42.199
<v Speaker 1>decided might as well give it a shot, but it

0:18:42.200 --> 0:18:44.960
<v Speaker 1>didn't work. It used to be more common, and it's

0:18:45.040 --> 0:18:50.000
<v Speaker 1>especially common in death penalty cases. Thanks Gregg. That's Bloomberg

0:18:50.040 --> 0:18:53.480
<v Speaker 1>News Supreme Court reporter Greg Store and that's it for

0:18:53.520 --> 0:18:56.160
<v Speaker 1>this edition of the Bloomberg Law Show. Remember you can

0:18:56.160 --> 0:18:59.399
<v Speaker 1>always get the latest legal news on our Bloomberg Law Podcast.

0:18:59.680 --> 0:19:02.680
<v Speaker 1>You can find them on Apple Podcasts, Spotify, and at

0:19:02.880 --> 0:19:07.919
<v Speaker 1>www dot Bloomberg dot com, slash podcast slash Law, and

0:19:07.960 --> 0:19:10.439
<v Speaker 1>remember to tune in to The Bloomberg Law Show every

0:19:10.480 --> 0:19:14.360
<v Speaker 1>week night at ten pm Wall Street Time. I'm June Grosso,

0:19:14.520 --> 0:19:16.080
<v Speaker 1>and you're listening to Bloomberg