Adam Sandler Movie Ripped Off Silent Film, Lawyer Argues Before Ninth Circuit in Suit Against Disney

Thursday, March 14, 2002

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Adam Sandler Movie Ripped Off Silent Film, Lawyer Argues Before Ninth Circuit in Suit Against Disney

Panel Also Hears Argument Over Whether Bochco TV Series Infringed Copyright

By KENNETH OFGANG, Staff Writer/Appellate Courts

The granddaughter of silent film star Harold Lloyd is entitled to a trial on her claim that the 1998 Adam Sandler film “The Waterboy” infringed the copyright for a 1925 film of Lloyd’s, an attorney told a Ninth U.S. Circuit Court of Appeals panel yesterday.

“You cannot find that no reasonable juror could find protected expression here,” Bertram Fields told the judges, sitting in Pasadena. Fields represents Suzanne Lloyd Hayes, as trustee of the Harold Lloyd Trust, in her suit against the Walt Disney Company.

Lloyd died in 1971.

Hayes claims the Disney film about a football team’s waterboy becoming an unlikely star, despite a lack of previous football experience, was a virtual copy—with updated plot lines and technology—of Lloyd’s “The Freshman.” U.S. District Judge Manuel Real of the Central District of California disagreed, concluding after watching both films that there was no infringement.

Real erred in granting judgment on the pleadings, Fields told the panel. The two films have more than 50 elements in common, Fields said, from which a jury could conclude that “The Waterboy” was a copy of the Lloyd film.

In particular, Fields noted, both films reach their endings with the star “winning the big game,” and being carried off the field while the female lead, who had been pushed to the back of the crowd, comes forward to profess her newfound love for the hero. The only difference, Fields said, is that in the Sandler film, she yells, “I love you,” while in the silent movie she passes him a note.

But Patricia Glaser, representing Disney, said the trial judge correctly ruled for the studio because “these movies are as similar as Harold Lloyd and Adam Sandler.”

All of the common elements cited by Fields, Glaser argued, are “generic” elements found in many creative works.

Judge Ronald Gould suggested that he agreed with Glaser that the works were not substantially similar, but questioned whether judgment on the pleadings was appropriate. Glaser insisted it was, noting that Real had watched both films and could readily conclude that the “substantial similarity test for copyright infringement was not met.”

Judge Alex Kozinski, known as an avid movie buff, expressed sympathy for the district judge.

Kozinski explained that he had “unfortunately” seen “The Waterboy.” He did not say whether he had seen “The Freshman,” which is listed on the National Film Registry and was rated by nationally known critic Leonard Maltin as one of his 100 “must-see” films.

The same panel—Gould, Kozinski, and U.S. District Judge Charles Breyer of the Northern District of California, sitting by designation—heard arguments on a similar case yesterday, this one involving a television series.

Robert F. Helfing, an attorney for screenwriting couple Jerome and Laurie Metcalf, said Senior U.S. District Judge William Keller erred in granting summary judgment to producer Steven Bochco. The Metcalfs claim Bochco took advantage of a treatment and two screenplays they gave to a longtime friend of theirs, actor—and former UCLA basketball star—Michael Warren.

Their work, the Metcalfs claim, ended up being incorporated into Bochco’s “City of Angels” without their consent and without compensation. Keller disagreed, and also awarded Bochco $83,000 in attorney fees.

But Bochco’s attorney, Edward Ruttenberg, echoed Glaser’s argument for Disney, saying the common elements between the Metcalfs’ work and the Bochco series, are purely generic elements, such as the fact that both involve young doctors working in an inner-city hospital. .

When Kozinski pointed to a more substantial identical element—that each features a doctor who struggles to decide whether to remain in the urban hospital setting or seek a more lucrative position, but opts for the former after seeing a child bleed to death on an operating room table—Ruttenberg said it was no more than “an abstract similarity.”

At the conclusion of the argument, Gould—who indicated he was troubled by the attorney fees award, even if the summary judgment is affirmed—asked whether the parties might set aside their differences on the “big issues” and settle with the assistance of the court’s mediator.

Ruttenberg slammed the door quickly. “Mr. Bochco is pretty adamant about the facts,” he explained. “It’s the first time in 35 years he’s been sued, he’s not about to settle.”