You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. Do you know who you welcome to your home? M Night. Shamalan is known for making films with supernatural overtones. His series for Apple TV Plus, Servant has those paranormal elements, a psychological thriller about a mother who hires a nanny to care for her child, Jericho. But Jericho is actually a doll, taking the place of her infant son who died.
She's gone. You can put a dog down. I'm fine as I am last Jericho when he was thirteen weeks Dorothy took it hard. This is the only thing that brought her back. I should take Dejiko for to walk now. You hired a nanny for a doll. But Another filmmaker claims that Servant is shockingly similar to her film The Truth About Emmanuel, a movie about a mother who hire as a babysitter to care for her child Chloe, who was actually a doll replacing her dead infants. What happens
if the baby wakes up? You rock her back and forth, and you talked to her because she likes that. She
likes to be talked to. I am just dying me that baby, and director Francesca Gregorini sued Schamalan and Apple for copyright infringement, but a federal judge throughout her lawsuit before it could go to a jury, joining me as intellectual property litigator Terence ross A partner Captain Uten Rosenman, So Terry Gregorini claims that not only is the plot similar, but that there are strikingly similar and highly idiosyncratic artistic choices.
Tell us more about the complaint well. At the core of her complaint was the argument that the central themes of her work and m Night's work were similar to be a coincidence and therefore had to constitute copyright violation. In particular, she asserted that there was this irrational reciprocal devotion between mother and nanny that arose out of the mother's loss of her child, that occurred in both her work and in m Night's work, and that that similarity
was sufficient to constitute copyright infringement. Now, she went on to say that there were also similarities with respect to dialogue, mood, setting, pace, character, sequence of events, but the core argument really was the similarity in the themes between the two works of this relationship. Between a mother and a nanny that arose out of a loss of a child. So they're both about a grieving mother who cares for dolls if it were a real child, and the relationship with the babysitter or nanny.
Why wasn't that enough for the job? Well, the judge's view was that although they start from a similar premise, they really tell completely different stories. The court noted that in Emmanuel, it's really about normal teenager who's struggling to cope with the guilt of knowing that her mother died at childbirth, while the servant sort of focuses on a paranormal theme, guessing there's something fundamentally different and odd, bordering on paranormal with respect to the nanny. So he found
they're not substantially similar as a matter of law. How do you come to that decision as a matter of law. So, the way the copyright law has evolved with respect to these charges of similarities in creative works such as movies or television shows the courts that the analysis has to
be broken down into two parts. In the first part, the court has to determine whether or not the accused copied version was sufficiently copyrightable that a lawsuit should be allowed to go to a jury in the first place. In the second part of the test, the jury then determines whether there is in fact, actual sufficient similarity. The judge sort of serves as a date keeper in determining what gets to a jury in this type of copyright case.
And here the judge made a determination that there was such a significant disparity in the two works with respect to those elements that could be copyrighted, that the case should not go to a jury, and therefore dismissed it with prejudice. I'm sure we'll see an appeal of that decision on the procedural Graham myth to whether or not the judge would be allowed in the law to make that determination on his own as opposed to sending it to a jury. But that's the process that the judge
actually used here. Why not send it to a jury. And we've seen a lot of times where a judge could dismiss a case before trial, but decides to let it go to the jury and then afterwards you can throw out the verdict. Why not let a jury decide here? In this case, the judge clearly was unimpressed by the claims of copyright infringement. He expressly held that the mood, which was one of the elements accused of copyright infringement, is not protectable under copyright law in the first place.
He also held that home nursery setting is EANs the affair which is not copyrightable, and essentially saying that this is just too common a setting for it to be something that could be copyrighted in this particular work. They are also elements individual elements that he just didn't regard as significant, such as stolen wine that had to be paired with and cheese, the home birthday dinner celebration, the
mothered stretches in a mirror. These were things that he described as unprotectable stock scenes, and therefore it was within his purview he said, to dismiss the lawsuit without sending it to jury. Terry, were you surprised by the judge's decision to toss the case out. I am a bit surprised. I certainly thought that this lawsuit was alleging some elements
that were unprotectable and that would be dismissed out. But I also thought that there might be some elements that were sufficiently played as protectable that they might stay in
and the lawsuit would go further. I think there is definitely a reaction in that court, the Central District to California, to the public and media criticisms earlier decisions in copyright cases in which the court has allowed cases to go to the jury, resulting in verticts in favor of the plaintiff and then handicapping the judge's ability to do anything about the case after the fact, even though the judge may have doubted whether or not there was copyright infringement.
So I do think we're seeing the pendulum swing back in favor of copyright defendants in the eyes of the judges in that particular court, which, by the way, the court is fundamentally Los Angeles and which sees a large, large number of these copyright suits involving the entertainment industry. She says that she's going to appeal this is she likely to get a reversal from the Ninth Circuit. I think that's going to be very challenging for the plaintiff here.
It is not impossible, but the way that the judge at the District Court has structured the decision, it makes it very challenging for Ms Gregorini to argue that procedurally the judge overstepped his role in a copyright lawsuit. Judge was very careful to make findings a fact that the elements that are shared by the two works are not protectable in the first place, and therefore copyright infringement case will not lie. It'll be interesting, though, to see what
the Ninth Circuit Court of Appeals will do on this case. Jerry, why did the pendulum swing in favor of defendants? Now? I really think it starts with the Blurred Lines case. There you've had a copyright infringement charge with respect to some older Marvin Gay recording being copied by contemporary recording artists allegedly. And in listening to the two recordings that issue in the Blurred Lines case, most people came away not understanding how they were sim or in any respect.
And yet the jury found copyright in the furnishment, awarded significant amount of damages against the defendants Mr. Thick and Farrell, And the reaction to that lawsuit was extraordinary in both the legal community and in the media and entertainment businesses. And I do believe that judges read the newspapers or online versions of newspapers, and watch evening newscast and can't help but be impacted by the blowback from their decisions
in future cases. And so I do think that we see the pendulum swinging back in favor of copyright defendants. How long that will last, I don't know, but there is a definite change in mood with respect to these types of copyright cases. In a press release, Greggorini called the ruling disappointing but not surprising, given the balance of power in the entertainment industry towards powerful men and institutions sitting a nerve there. Yes, she's clearly recognized that the
media does play a role. Is we're of setting a tone or context within which these copyright decisions come before courts, and is attempting to play upon the justifiable backlash against the imbalance of power in Hollywood and in other institutions. Whether or not that helps her case at the Ninth Circuit,
I doubt it. But this case was as much about striking a blow for women in the entertainment industry as or recovering damages for copyright infringement, and so I guess it's an important point that she's attempting to make in that respect. Thanks Terry. That's Terence Ross, a partner at Captain Uten Rosenman. And that's it for this edition of
Boomberg Law. I'm June Brasso. Thanks so much for listening, and remember to tune in to The Bloomberg Law Show weeknights at ten pm Easter right here on Bloomberg Radio