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Ninth Circuit:
Plaintiff Fails to Show Copyright Violations by Lions Gate
Opinion Says Summary Judgment Was Properly Granted as Similarities Between TV Shows, Both of Which Involve Dance Clubs Run by LGBTQ Owners, Entailed Unprotectible Plot Devices, Stock Themes
By a MetNews Staff Writer
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NICOLE GILBERT-DANIELS director/writer |
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The Ninth U.S. Circuit Court of Appeals yesterday affirmed the granting of summary judgment in favor of Lions Gate Entertainment Inc. in a copyright action alleging that a 2020 television show produced by the entertainment giant, and airing on the Starz network, infringed on the plaintiff’s 2014 movie and associated writings.
Finding that the parallels between the two productions—both involving dance clubs run by LGBTQ owners, predominantly Black casts, and homophobic antagonists—involved unprotected plot devices and scenes which “flow naturally” from the “premise of dancers…at a cabaret or exotic dancing venue,” the court declared that the plaintiff failed to adequately raise a genuine issue of material fact as to the two works being substantially similar.
Appealing the summary judgment order was playwright/producer/director/singer Nicole Gilbert-Daniels, the owner of three copyrights for works relating to the movie “Soul Kittens Cabaret” (“SKC”) consisting of two scripts of the musical stage play, dated 2006 and 2010, and the 2014 motion picture of the stage performance.
In January 2022, Gilbert-Daniels (also known as Nicci Gilbert) filed a complaint in the U.S. District Court for the Central District of California against Lions Gate, Starz Entertainment LLC, Chernin Entertainment LLC, and certain individuals associated with the companies, alleging that their television show “P-Valley” infringed on her works.
Allegations in Complaint
In the complaint, the plaintiff alleges:
“In September 2014, Plaintiff traveled to Los Angeles, California to pitch SKC as a scripted musical drama series. Plaintiff met entertainment attorney Leroy Bobbit (“Bobbit”)….[who] facilitated a meeting between Plaintiff…and Jon Feltheimer (“Feltheimer”), the Chief Executive Officer of Lionsgate….
“During the Lionsgate SKC Pitch, Feltheimer expressed enthusiasm and interest in scripting SKC as a musical drama series for Lionsgate….
“At the conclusion of the Lionsgate SKC Pitch, Plaintiff gave two copies of the SKC script along with a copy of the SKC DVD to Feltheimer. Plaintiff continued to shop her SKC series but was never contacted by Feltheimer or Lionsgate after the Lionsgate SKC Pitch…
“In 2020, Defendant Starz, a subsidiary of Defendant Lionsgate since 2016, premiered a drama television series called “P-Valley” illicitly created by Defendant [Katori Hall], and produced by [Defendants] Lionsgate,…Chernin, Liz Garcia, and Patrik Polk.”
Summary Judgment
In May 2023, the defendants filed a motion for summary judgment. Judge Stephen V. Wilson granted the motion, saying:
“Plaintiff describes the alleged plot similarities as follows: ‘Gender fluid owner of an erotic dance and performance venue inherited from loved ones. Both owners are working to save their venues from a takeover by a homophobic antagonist, who uses an ‘inside man’ to help acquire the land for Casino Developments.’….This characterization does not hold up to closer scrutiny.”
Wilson pointed out that the owner in SKC is “a gay man” while the operator of the club in “P-Valley” is “a non-binary person,” and concluded that “[w]hile both are members of the LGBTQ community, those are fundamentally different identities.”
He also noted other differences unaddressed by Gilbert-Daniels, including that the purported theme of challenging social norms was handled differently between the works—with the plaintiff’s film rooting in religious themes, an element missing in “P-Valley”—and differing motivations between the antagonists in the two productions.
Noting some “mischaracterize[ations]” by Gilbert-Daniels in framing the similarities, the judge concluded that “no reasonable jury could find substantial similarity” between the two works.
Ninth Circuit View
In a memorandum opinion signed by Circuit Judges Gabriel P. Sanchez and Holly A. Thomas amd Senior Circuit Judge Susan P. Graber, the Ninth Circuit affirmed. The judges said:
“To establish copyright infringement, Gilbert-Daniels must show that (1) Defendants had access to her works, and (2) SKC and P-Valley are substantially similar in protected expression….Because ‘no reasonable juror could find substantial similarity of ideas and expression’ between SKC and P-Valley, the district court did not err in granting summary judgment to Defendants.”
Graber, Sanchez, and Thomas continued:
“In determining whether two works are substantially similar, ‘we employ a two-part analysis: an objective extrinsic test and a subjective intrinsic test.’….For purposes of summary judgment, ‘only the extrinsic test is important.’….Under the extrinsic test, we filter out unprotectable elements and then compare remaining ‘articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.’ ”
Unprotectable Elements
Applying the standard, the judges wrote:
“Many of the purported similarities between the works are based on unprotectable elements such as generic plot devices,…familiar stock scenes and themes,…or scènes à faire that ‘flow naturally’ from the basic premise of dancers or performers at a cabaret or exotic dancing venue….”
They concluded:
“As the district court aptly noted, there are abundant dissimilarities in the respective works’ plots, themes, dialogue, moods, paces, characters, and settings. What remains after filtering out the unprotectable elements consists of ‘random similarities scattered throughout the works,’ about which we are ‘particularly cautious.’ ”
The jurists added:
“Caution is especially warranted here, as several of Gilbert-Daniels’ proffered comparisons reference materials that are not copyrighted, mischaracterize the works, or fail to cite directly to the materials at issue. Accordingly, we conclude that no reasonable jury could find substantial similarity between the protected aspects of SKC and P-Valley.”
The case is Gilbert-Daniels v. Lions Gate Entertainment Inc., 24-153.
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