Case Document 166 Filed 12/30/15 Page 1 of 24 Page ID #:5389 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] JS-6 Present: The Honorable STEPHEN V. WILSON, U.S. DISTRICT JUDGE Paul M. Cruz Deputy Clerk Court Reporter Recorder Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Proceedings: IN CHAMBERS ORDER GRANTING MOTION FOR SUMIVIARY JUDGMENT [1 17]. I. Introduction Plaintiffs Stephanie omits ormts?) and Shari Gold (?Gold?) (collectively ?Plaintiffs?) ?led this copyright in??ingement action against Defendants Elizabeth Meriwether and Elizabeth Meriwether Pictures (?Meriwether?); William Morris Endeavor Entertainment, LLC Peter hemin, the hemin Group, LLC, and hernin Entertainment, LLC hemin?); Twenty-First entruy Fox, Inc. and ten related entities Jacob Kasdan (?Kasdan?); Brett Baer David Finkel (?Finkel?); and American Nitwits. (Dkt. 97). Plaintiffs assert that Defendants used Plaintiffs? screenplay Square One in the television show New Girl. After several 1?01mds of motions to dismiss, Defendants moved for summary judgment against Plaintiffs? remaining copyright infringement claim. (Dkt. 117). The Court held a hearing on the motion on September 21, 2015 and deferred ruling on the motion to allow Plaintiffs to depose Kelli Ward, the head of the Story Department at Defendant WME on issues related to access. On November 23, 2015, the parties submitted the transcript of the deposition. (Dkt. 165). For the following reasons, the orut GRANTS Defendants? motion. 11. Factual Background A. The Parties Initials of Preparer PMC CV-90 (10/08) CIVIL - GENERAL Page 1 of 24 Case Document 166 Filed 12/30/15 Page 2 of 24 Page ID #:5390 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er al v. Elizabeth Meriwether et a] The facts are well-known to the parties and are recited at length in the orut?s October 15, 2014 Order. (Dkt. 84). The orut therefore only brie?y touches upon the facts as they relate to the instant motion. Plaintiffs wrote two versions of Square One in 2008 and 2009 (collectively ?Square One?). (Plaintiffs? Genuine Issues of Material Fact in Opposition to Summary Judgment 1] 85). Square One is based on Counts?s own life experiences. (Id. 1] 87). In 2008, Adam Venit (?Venit?), of Defendant WME, received a copy of Square One ??om Plaintiffs? representative, Holly Harter (?Harter?). (Id. 1] 89).1 Square One was scanned into system and Venit ordered that coverage2 be performed. (Id. 1]1] 90-91). The coverage received a favorable grade. (Id. 1] 92). Harter was later introduced to David Karp another agent who worked for Venit. (Harter Decl. 1] 11). Karp received two versions of Square One, which were also scanned into system. (Id. 1] 96). In October of 2009, Plaintiffs parted ways with Harter after feeling frustrated with the slow advancement of Square One. (Cormts Decl. 1]1] 23?24). Plaintiffs remained in periodic contact with Karp from 2009 rmtil J1me of 2010, although no progress was made on advancing Square One and they were never able to meet in-person to discuss the screenplay. (Id. 1]1] 25-27). In February of 201 1, Counts discovered an article about a comedy entitled Chicks Dicks written by Defendant Meriwether, set to premiere in September of 201 1. (Id. 1] 29). On July 25, 2011, Plaintiffs sent a cease and desist letter to Defendants Chernin and Fox. (P1. Opp., Ex. 4, at 1458). On September of 2011, Defendant Fox premiered New Girl on its Fox television network. Defendant Meriwether states that she drew inspiration for the show based on Three ?5 Company 1 Although Plaintiffs allege that WME solicited Square One, there is no evidence that WME or Venit actually solicited the screenplay; rather, even in Harter?s declaration, she only goes as far as stating, ?Venit was kind enough to consider the project I was developing at the time. . . (Harter Decl. 1] 2). 2 ?Coverage? is an industry term used when a script is in the analysis and grading phase. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 2 of 24 Case Document 166 Filed 12/30/15 Page 3 of 24 Page ID #:5391 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] and the British comedy, Green Wing. (Meriwether Decl. 11 7). Meriwether contacted Katherine Pope, President of Television at hernin Entertairnnent, several times during August and September of 2010 regarding Meriwether?s concept for the show. (Id. 1111 8-10). By September 18, 2010, Meriwether?s concept involved a reverse-Three ?5 Company where a woman moves in with three men and the show explores the characters? messy dating lives as well as comedic moments naturally arising from their housing situation. Ex. E). In January of 201 1, Meriwether completed the pilot script, entitled Chicks Dicks, which was shortly thereafter re-titled New Girl. 1] 15-16). B. Square One (2008, 2009)3 Plaintiffs? screenplay begins with Greer McIntyre, a married woman in her thirties, driving across Georgia to Atlanta. Greer stops at a gas station, where she calls and leaves a voicemail for her best friend. In her message, she tells her friend that she is leaving her husband, Spencer, and will be living with some of her brother?s ?'iends rent-free. Upon arriving at her brother?s friends? house, she meets two of her new housemates, and Keegan. is described as clean-cut and Keegan is described as a former football player who is out of shape. The home is a messy ?bachelor pad.? Greer spends some time alone in her room and Keegan, concerned for Greer, calls Greer?s brother who in turn calls Greer?s friend, Cat. Cat is married, in her thirties, and has two children. She checks in on Greer to make sm?e Greer is alright. Greer then cooks a full Southern spread for her new housemates. Greer decides to ask Ben, and Keegan?s older friend who lives in their converted garage, if he would like to join them for dinner. Upon stopping by the garage, Greer accidentally walks in on Ben?s girlfriend putting on her clothes. All of the housemates eat together and then Greer and Ben bond outside over a cigar. gets Greer a job at an Atlanta hotel where he works. Greer meets a co-worker named Jasmine and her stern boss named Eleanor. After Greer?s ?rst day, her housemates take her out to a bar where Ben works. They meet 11p with Greer?s brother, Jack, and his Wife. Greer"s husband, Spencer, shows up at the bar after tracking down Greer. He apologizes and tells Greer that he will be a better partner and will try to have a child with her. 3 As Plaintiffs? 2008 and 2009 versions are Virtually identical, the orut discusses both collectively. Initials of Preparer PMC CV-90 (10/08) CIVIL MINUTES - GENERAL Page 3 of 24 Case Document 166 Filed 12/30/15 Page 4 of 24 Page ID #:5392 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er a] v. Elizabeth Meriwerher et a] Greer leaves with Spencer to return to her home in Georgia. Upon returning home, a number of scenes occm?: Greer and Spencer Visit a Home Depot where Greer ?irts with an attractive employee; (2) Greer and Spencer visit a preacher for marriage therapy; and (3) Greer and Spencer attend a party at a cormtiy club. In one version of Plaintiffs? screenplay, Greer also Visits a high-end boutique with her sister-in-law and their mothers, and they buy dresses for her sister-in?law?s bridal shower. At the bridal shower, Greer gets drunk and loud. She stumbles home and Spencer sleeping in the living room. When Spencer?s phone rings, Greer picks it up and hears a woman on the other end who says, ?Hey Sexy,? thinking Spencer is on the line. Greer believes Spencer is cheating on her and goes out onto the front porch and creates a bon?re out of personal items ??om the house. Greer does a ?little sexual dance? around the he and the police come to arrest her. A crowd emerges including Spencer and Greer?s family, and Greer?s best friend, Cat. While leaving with the police, Greer breaks things off with Spencer for good. Greer moves back in with JC, Keegan, and Ben in Atlanta. She returns to ?nd a clean house and ?owers. Greer then pawns her wedding ring and returns to her job at the hotel. Although Plaintiffs focus their copyright claim on the ?rst half of Square One, the omt brie?y highlights the remaining major plot points as they provide context to analyze the similarity of characters, mood, and themes between Square One and New Girl: 0 Greer attends Keegan?s of?ce party as his ?wingwoman? to help him connect with a woman he is interested in. 0 While the housemates are at the bar where Ben works, JC makes dismissive comments about women in ??ont of ?s girlfriend, Becs. Greer later ?nds Becs upset in the bathroom and attempts to cheer her up. 0 At the hotel, Greer?s boss, Eleanor, tells Greer that she will be responsible for taking care of Dusty Adams, a NASCAR driver staying at the hotel that week. Greer?s housemates are all excited, especially Ben, who grew up racing and is infatuated with Dusty. Greer runs into Ben?s 25-year old girl?iend, Pam, in the bathroom and they discuss how many sexual partners they have had. Greer mentions that she has only had one partner, Spencer. Pam gives Greer a makeover and presents her to her housemates as their ?new, hotter The housemates cheer approvingly. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 4 of 24 Case Document 166 Filed 12/30/15 Page 5 of 24 Page ID #:5393 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er a] v. Elizabeth Meriwerher er a] 0 At the hotel, Greer meets Dusty Adams and the two immediately share a connection and sleep with each other. Eleanor stops by Dusty?s room and Greer hides in the bathroom. 0 Back home, Greer is contacted by Spencer, who has had her car towed as revenge for pawning her wedding ring. Greer gets drunk that night and is late for work the next day. 0 When Greer arrives at the hotel, she ?nds Dusty meditating with his shirt off in the hotel lobby, srurounded by fans. Greer distracts the crowd and Dusty takes her to a spa and to to help her with her hangover. 0 Dusty asks Greer to go on toru? with him. At that moment, Greer gets a call that her brother?s wife is about to give birth. Dusty drives Greer to the hospital with the help of a police escort. Greer then hosts a party for her friends and family at the house. At the party, Greer also gives advice on how to reconcile with his girl??iend, Becs. The next day, Greer works a black-tie event at the hotel. She tells Dusty she is not going on toru? with him. While the 2008 and 2009 versions diverge at this point, in both, Greer?s boss, Eleanor, ?res Greer after seeing her kiss Dusty. In one version, after Greer arranges for two young NASC AR drivers to have a rendezvous with Eleanor in her of?ce, Eleanor retracts the ?ring and gives Greer a promotion. 0 The screenplay ends by ?ashing forward several months. JC and Becs are getting married, Ben now owns the bar, and Greer has bought a house of her own and has started a relationship with Ben. C. New Girl Although Plaintiffs do not identify the exact scope of Defendants? alleged infringement, Plaintiffs allege that the majority of infringing activities occurs in the ?rst two episodes of New Girl. 1. New Girl (Episode 1) The pilot episode begins with Jessica (?Jess?) Day, a single woman, explaining that her story is like a bad horror movie. The show ?ashes back to Jess in a taxi wearing nothing but a trench coat, on her way to surprise her boyfriend, Spencer. She explains her plan to her best ??iend Cece, over the phone. When Jess arrives at Spencer?s house, she performs an awkward and clrunsy strip tease, but is interrupted when another woman and Spencer come out of the bedroom in their rmderwear. The show ?ashes forward to the present, where it is revealed that Jess is telling this story to three men in a loft. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 5 of 24 Case Document 166 Filed 12/30/15 Page 6 of 24 Page ID #:5394 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er a] v. Elizabeth Meriwerher er a] Jess explains that she formd their ad seeking a roommate on raigslist and is interested in moving in due to her aforementioned experience with Spencer. The housemates are: (1) Nick, a grumpy bartender who is struggling to get over a former girlfriend; (2) Schmidt, a conceited, over-the-top womanizer, and (3) Coach, a personal trainer. Schmidt says something obnoxious and the other roommates make him put money in the ?douchebag jar,? which becomes a rurming gag throughout the show. Jess describes herself as a teacher and warns the housemates that she likes to sing to herself, is emotional, and may watch Dirtv Dancing repeatedly. The housemates agree to let Jess move in. Jess spends her time grieving on the couch, crying, and watching Dirty Dancing repeatedly. The housemates become tired of seeing her upset and decide to take her out to ?nd ?rebound sex.? They go to the bar where Nick works. At the bar, two sub-plots develop. First, Jess initially fails in approaching men due to her awkward, quirky personality. However, by the end of the night, she succeeds in scheduling a date for the following evening. Second, Schmidt tries desperately to convince Nick to call his ex-girlfriend because she is a promoter for a ?Wild West? charity event taking place the following evening and can get them inside. Although Nick has not gotten over his break-11p, he eventually calls his ex-girl??iend. The next day, Jess?s best friend, Cece, meets the housemates in the loft. Cece is an attractive and con?dent model. Schmidt attempts to ?irt with and impress Cece, but she rebuffs his advances. Cece helps prepare Jess for her date by giving her a makeover and presents her to the housemates. The housemates are impressed for a moment, but Jess quickly ruins the moment by performing a quirky and goofy dance, reminding them of her personality. The housemates arrive at the Wild West charity event. Nick bonds with his ex-girlfriend. Nick then sees the man who is supposed to be on a date with Jess and learns that he stood her 11p. The housemates decide to leave the charity event to ?nd Jess. They ?nd her alone at a restaurant, about to be kicked out by the waitress, and tell the waitress that Jess?s dates have arrived. Jess is touched and begins to cry. The housemates start singing ?Time of My Life? from Dirty Dancing to make her smile. They all get kicked out of the restaru?ant and spend the evening watching Dirty Dancing together on the couch. 2. New Girl (Episode 2) The second episode begins with Jess accidentally breaking the housemates? TV because of her Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 6 of 24 Case Document 166 Filed 12/30/15 Page 7 of 24 Page ID #:5395 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er a] v. Elizabeth Meriwerher et a] clumsiness. Jess mentions she has a TV at her ex-boy??iend?s (Spencer?s) house and the housemates demand that she retrieve it. The episode then follows Jess as she tries and fails to retrieve the TV ?'om Spencer. Although Jess and Spencer meet at a park, Jess is unable to demand that he retrun her belongings and acquiesces to his request to drive his new girlfriend to the airport. Jess attempts to purchase a TV from a pawn shop to avoid confronting Spencer again, but does not have enough money. Back at the loft, the housemates inspire Jess to be stronger against Spencer and accompany her to Spencer?s house. When Jess arrives, she ahnost gives in to Spencer again, but sees that he has not been watering her plants. Jess becomes furious and runs into Spencer?s house to collect her belongings. As she stumbles back to the car, Spencer con??onts her and refuses to return some of her belongings. The housemates and Cece exit the car to support Jess. Jess ?nally stands up for herself and ends things with Spencer. The group returns to the loft. Analysis A. Legal Standard Rule 56(c) requires srunmary judgment for the moving party when the evidence, viewed in the light most favorable to the nomnoving party, shows that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See Fed. R. iv. P. 56(c); arin v. County ofLos Angeles, 123 F.3d 1259, 1263 (9th Cir. 1997). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex Corp v. Calrett, 477 US. 317, 323-24 (1986). That bru?den may be met by ??showing? that is, pointing out to the district corut that there is an absence of evidence to support the nonmoving party?s case.? Id. at 325. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify speci?c facts that show a genuine issue for trial. See id. at 323-34; Anderson v. Liberty Lobby, Inc., 477 US. 242, 248 (1968). scintilla of evidence or evidence that is merely colorable or not signi?cantly probative does not present a genuine issue of material fact.? Addisu v. Fred Meyer, 198 F.3d 1130, 1134 (9th Cir. 2000). Only genuine disputes where the evidence is such that a reasonable jury could return a verdict for the nonmoving party over facts that might affect the outcome of the suit lmder the governing law will properly preclude the entry of srunmary judgment. See Anderson, 477 US. at 248; see also Aprin v. Santa Clara Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 7 of 24 Case Document 166 Filed 12/30/15 Page 8 of 24 Page ID #:5396 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al Valley ransp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (the nomnoving party must identify speci?c evidence from which a reasonable jury could retlnn a verdict in its favor). B. Copyright Infringement To prevail on a claim for copyright infringement, a plaintiff must prove three essential elements: (1) plaintiff?s ownership of a valid copyright, (2) defendant?s access to the copyrighted work, and (3) ?substantial similarity? between plaintiffs copyrighted work and defendant?s allegedly infringing work. See unky Films, Inc. v. Time Warner Entertainment Co., LP, 462 F.3d 1072, 1076 (9th Cir. 2006); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000); Sid and Marty Kro?t Television Productions, Inc. v. McDonald?s Corp, 562 F.2d 1157, 1162 (9th Cir. 1977). As to the second element, if a plaintiff cannot demonstrate access, she may still prevail if she is able to demonstrate ?striking similarity? between the works at issue. Tllree Boys Music, 212 F.3d at 485. In the present action, Defendants do not dispute Plaintiffs? valid copyright. However, Defendants contend that they did not have access to the copyrighted work, and that the works are not substantially similar as a matter of law. 1. Access4 a. Evidence Considered Plaintiffs offer the expert opinion of Arnold (?Arnold?) on the issue of access. Defendants argue that Arnold?s declaration should be stricken because she is not quali?ed to opine on matters of access under Fed. R. Evid. 702. Arnold possesses experience in ??lm production, acquisition, distribution, international sales, and ?hn ?nancing.? (Arnold Decl. 11 4). She has ?worked in the development and production process on television shows and TV movies, served as an executive and head of production for the independent 4 . . . The requn'ement to offer proof of access cannot be excused 1n this case because, for the reasons discussed infra in the omt?s substantial similarity analysis, the two works at issue are not ?so strikingly similar as to ?preclude the possibility of independent creation. Jones v. Blige, 558 F.3d 485, 493 (6th Cir. 2009). Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 8 of 24 Case Document 166 Filed 12/30/15 Page 9 of 24 Page ID #:5397 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts er a] v. Elizabeth Meriwerher et a] production company, ineville, LLC, and was instrumental in larmching ineville?s international ?lm sales division in May 1998.? Plaintiffs submit that Arnold is quali?ed to render an expert opinion on issues related to ?access? because she has worked extensively within the entertairnnent industry and has, therefore, acquired knowledge about ?industry practices, procedrn'es, and about how things are done in Hollywood.? (P1. Opp. Mot. in Lirnine, at 2). The Court notes that Arnold may have some insight into industry practices by virtue of her interaction with agents over the last two decades. However, Arnold has never worked as an agent or at an agency herself, let alone at William Morris Endeavor or at either predecessor, William Morris or Endeavor. Arnold?s knowledge is limited to how scripts advance through agencies from the perspective of someone on the outside submitting a script. Therefore, Arnold cannot opine on how scripts are actually accessed within agencies through electronic databases, word-of-mouth, etc.), and whether or how scripts are shared within a particular agency. See Gable v. Nat ?l Broad C0., 438 Fed.Appx. 587, 589 (9th Cir. June 16, 2011), 727 F. Supp. 2d 815 (CD. Cal. 2010) (?nding the Court did not err in excluding David Nirnmer?s expert report on substantial similarity because while he was rmdoubtedly an expert in the ?eld of copyright law, he failed to establish that he had ?knowledge, skill, experience, training, or education relevant to the evidence at issue). In light of Arnold?s lack of experience working in any agency, the Court is additionally skeptical of her strong conclusion that ?Defendants most de?nitely had access to the script Square One . . . there is no question that Square One would have been widely available [sic] easily accessed by agents at WIVEE and their clients who wrote and produced New Girl.? (Arnold Decl. 1] 90). Accordingly, the Court does not Arnold quali?ed to render an expert opinion on the issue of ?access? in this case. b. Analysis To demonstrate access, Plaintiffs must show that Defendants had a ?reasonable opportunity? or ?reasonable possibility? of viewing Plaintiffs? work prior to the creation of the infringing work. Three Boys Music, 212 F.3d at 482. Reasonable access requires more than a ?bare possibility,? and ?may not be inferred through mere speculation or conjecture.? Three Boys Music, 212 F.3d at 482. ?In order to support a claim of access, a plaintiff must offer ?signi?cant, affnmative and probative evidence.?? Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003). Absent direct evidence of access, a plaintiff may provide circrunstantial evidence showing: a particular chain of events . . . between the plaintiff?s work and the defendant?s access to that work . . . or Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 9 of 24 Case Document 166 Filed 12/30/15 Page 10 of 24 Page ID #:5398 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] (2) the plaintist work has been widely disseminated.? Three Boys Music, 212 F.3d at 482. In the present case, Plaintiffs attempt to prove access by establishing a chain of events linking Plaintiffs? screenplay with Defendants? work. Plaintiffs offer several theories of access to show that Defendant Meriwether, Defendant hemin, or their agents, had a reasonable possibility of access to Plaintiffs? script, Square One. Plaintiffs argue that: (1) in 2008, Adam Venit, a top WME partner and board member, solicited a copy of Square One from Plaintiffs? former agent, Holly Halter; (2) Venit ordered that coverage of the script be performed; (3) the script received favorable coverage; (4) as a favorably covered script, Square One was widely accessible by all agents and was discussed at meetings; (5) Defendant Meriwether?s agent, Cori Wellins (?Wellins?), as well as Defendant Chemin?s agent, Rick Rosen (?Rosen?), were also agents at (6) either Wellins or Rosen (or both) accessed Square One and passed it on to Defendant Meriwether or Defendant hemin. Plaintiffs also offer evidence that (1) Venit referred another agent, David Karp, to communicate with Plaintiffs regarding Square One; and (2) Meriwether met Venit at a cocktail party around the time Meriwether allegedly created New Girl. Finally, Plaintiffs contend that Defendant hernin was given material for development by WME as part of a deal between the two in exchange for WME representing hernin?s television interests. Defendants contend that Plaintiffs? evidence of access only amormts to ?bare corporate receipt,? which has been found insuf?cient to create a triable issue of fact as to access. See Berna] v. Paradigm Talent Literary Agency, 788 F. Supp. 2d 1043, 1056 (C .D. Cal. 2010). In Berna], the plaintiff argued that the defendant had access to plaintist work through plaintiff submission of her screenplay to the defendant talent agency. Id. at 1043. The plaintiff argued the following chain of access: (1) she interacted with one agent at the ?rm regarding her script, (2) the ?rm was small, and (3) the agent who received plaintist script often interacted with the agent for the creator of the allegedly infringing work, thereby creating a reasonable possibility of access. Id. at 1057-58. This Court rejected plaintiff's theory of access and held that the plaintiff had not shown that the creator of the allegedly infringing work or her agent had any direct access to plaintiff? work. Id. at 1056. In the present case, Defendants argue that Plaintiffs? alleged chain of access ends with the agents to whom they submitted their work, Venit and Karp, and neither represented any clients involved in New Girl. (See Venit Depo., 43:6-2, Karp Depo., 143 :22?144:3 (stating consistently with their declarations that they were not involved in any way with New Girl and did not discuss Square One or any coverage related to Square One with anyone)). While Plaintiffs have offered more evidence of access than the plaintiff in Berna], the Court Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 10 of 24 Case Document 166 Filed 12/30/15 Page 11 of 24 Page ID #:5399 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al ?nds that Plaintiffs have only provided additional theories of access, rather than a qualitatively stronger theory of access than that of bare corporate receipt. First, that Venit and Karp received Square One, that they ordered coverage of Square One,5 and that Square One received favorable coverage, is not probative of access without a link between their actions and either Defendant Meriwether, Defendant Chemin, or their agents, Cori Wellins and Rick Rosen. See Meta-Film Associates, Inc. v. MCA, Inc., 586 F. Supp. 1346, 1358 (C .D. Cal. 1984) (stating that at a minimum, ?the dealings between the plaintiff and the intermediary and between the intermediary and the alleged copier must involve some overlap in subject matter to permit an inference of access?). Otherwise, that Plaintiffs may have interacted with a few agents at WME is insuf?cient to show that other agents had a reasonable opportlmity to access Square One. Plaintiffs put forth four theories establishing this link: (1) Meriwether met Venit around the time Meriwether allegedly created New Girl; (2) WME and Defendant hernin have a special relationship where the former feeds promising material to the latter; (3) Meriwether?s and hemin?s agents, Wellins and Rosen, work with Venit; and (4) favorably covered scripts at WME are accessible by all agents and are discussed at meetings. First, although Meriwether admits to attending a cocktail party at Venit?s house, the party took place months after Meriwether came up with the premise for New Girl in September of 2010. (Roberts Decl. 11 6; Meriwether Decl. 111] 8-14). The party was held on December 9, 2010, for the actress Emma Stone after she had finished the motion pictru?e he Help. (Roberts Decl. 11 6). Moreover, even if the party had taken place prior to September of 2010, that Meriwether and Venit may have met brie?y at a cocktail party does not, without any additional evidence, suggest that Meriwether therefore had access to Square One. Second, Defendant WME admits that Defendant hernin has asked WME to provide him with speci?c scripts and material for possible development in the past. (Answer I 70). However, beyond this general admission, Plaintiffs offer no evidence detailing the scope of this relationship or how this relationship differs from an agency?s typical role of connecting and packaging screenwriters, directors, producers, and networks. Third, Plaintiffs attempt to establish a link with the fact that Meriwether"s agent, Wellins, works for Venit and hernin?s agent, Rosen, is a long-time partner of Venit at WME. However, there is 5 Although Plaintiffs contend that coverage is a rare occmrence, in his deposition Venit testi?ed that it is ?standard practice? and that he ?always? asks for coverage to be done. (V enit Depo., 2323-13). Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 11 of 24 Case Document 166 Filed 12/30/15 Page 12 of 24 Page ID #:5400 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] insuf?cient evidence that Venit or Karp worked with Wellins or Rosen on any projects, let alone New Girl. (See Venit Depo., 43:6?20 (stating that Wellins is one of roughly 4000 people who work for Venit and that he does not work with Wellins ?'equently because Wellins is a television agent)). Fourth, Plaintiffs have not provided suf?cient evidence that favorably covered scripts at WME were widely accessible by all agents. Plaintiffs offer a declaration by Kalli Knight, a former assistant who worked at Endeavor talent agency from 2003 to 2005. (Knight Decl. 11 3). Knight states that ?[W]hen a submitted script received favorable coverage at Endeavor, it was subsequently widely distributed within the agency. All agents would have access to both the scripts and coverage.? (Id. 1] 5). Moreover, Knight states that ?[s]cripts that received favorable coverage were discussed in staff meetings at which agents, assistants, and partners were present.? (Id. I 6). However, the Court ?nds that Knight lacks the personal knowledge necessary to support her statements. Fed. R. Evid. 601, 602. Knight?s employment occurred three years prior to any of the events in this case took place. Moreover, Knight?s employment was at Endeavor, prior to the merger between Endeavor and William Morris. Accordingly, the Court that Knight does not have personal knowledge of how coverage was handled at William Morris Endeavor during the relevant time period (beginning in 2008 when Plaintiffs ?rst sent Square One to Venit).6 What remains is rmdisputed testimony that at the time coverage of Square One was performed, any coverage, favorable or otherwise, was entered into computerized database, and only searchable by script title, artist, or date. (Ward Decl. 11 8). This level of access does not rise to the degree of dissemination Plaintiffs assert occrured; rather, the record establishes that if Defendant Meriwether?s or Defendant hernin?s agents, Wellins or Rosen, wanted to access the script, they would have had to know at least some information about the screenplay they were searching for. In other words, Wellins or Rosen could not have searched the database for a ?romantic comedy? that received a favorable rating in its coverage. Plaintiffs have not established any link between Venit and Karp?s exposure to Square One and Defendant Meriwether, Defendant Chemin, or their agents, Wellins or Rosen. Accordingly, without such a link, Plaintiffs? theory is simply one of bare corporate receipt and the record is insuf?cient to 6 Even if the ourt accepted Knight?s declaration, there would still be insuf?cient evidence to show that a favorably covered script in an agency?s motion picture department would also be widely distributed to and discussed in the agency?s television department. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 12 of 24 Case Document 166 Filed 12/30/15 Page 13 of 24 Page ID #:5401 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwetlier et al allow a reasonable jury to infer that Meriwether or hemin had access to Square One. However, even if Plaintiffs presented suf?cient evidence to create a triable issue of fact on access, Plaintiffs would still have to show that a reasonable jruy could conclude that Square One and New Girl are substantially similar. As discussed below, Plaintiffs have failed to present suf?cient evidence establishing substantial similarity between Square One and New Girl. 2. Substantial Similarity In addition to access, the issue of substantial similarity provides an independent ground for granting summary judgment. To determine whether two works are substantially similar, the Ninth Circuit applies a two-part test consisting of intrinsic and extrinsic components. Rice v. or Broadcasting C0., 330 F.3d 1170, 1174 (9th Cir. 2003). The extrinsic test involves an objective comparison of the two works. The orut must consider ?whether [the works] share a similarity of ideas and expression as measru'ed by external, objective criteria.? v. Carey, 376 F.3d 841, 845 (9th Cir. 2004). ?For surmnary judgment, only the extrinsic test is important.? Koufv. Walt Disney Pictures Television, 16 F.3d 1042, 1045 (9th Cir. 1994). plaintiff who cannot satisfy the extrinsic test necessarily loses on srunmary judgment, because a jury cannot find substantial similarity without evidence on both the extrinsic and intrinsic tests.? Id. Further, because the intrinsic test relies on the subjective judgment of the ordinary person, it must be left to the jmy. Swirskv, 376 F.3d at 845. Therefore, the orut?s analysis on summary judgment is limited to the extrinsic test. Where literary works such as ?lms, screenplays, and television series are at issue, the extrinsic test is an objective evaluation of ?the articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.? In applying the test, the Corut must distinguish between protectable and unprotectable material, because a party claiming in?'ingement may not rely on expressions from unprotected elements. Rice, 330 F.3d at 1174. For example, general plot ideas are not protectable and cannot give rise to a copyright infringement claim. Berkic v. Cln'iclzton, 761 F.2d 1289, 1293 (9th Cir. 1985) (?General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind?). Further, the doctrine of scenes a faire ?holds that expressions indispensable and naturally associated with the treatment of a given idea ?are treated like ideas and are therefore not protected by copyright.?? Rice, 330 F.3d at 1175. Accordingly, the extrinsic test examines ?not the basic plot ideas for stories, but the actual concrete elements that make up the total sequence of events and the relationships between the major characters.? Berkic, 761 F.2d at 1293. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 13 of 24 Case Document 166 Filed 12/30/15 Page 14 of 24 Page ID #:5402 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] Srunmary judgment on the issue of substantial similarity is appropriate ?if no reasonable juror could ?nd substantial similarity of ideas and expression.? Kouf, 16 F.3d at 1045. Although srunmary judgment is not highly favored on the issue of substantial similarity in copyright cases, ?substantial similarity may often be decided as a matter of law.? Funkv Films, 462 F.3d at 1077. Indeed, the Ninth Circuit ?ha[s] frequently af?rmed summary judgment on the issue of substantial similarity.? Shaw, 919 F.2d at 1355. a. Evidence Considered The orut engaged in a detailed analysis of the works at issue. The Court reviewed: (1) the Square One screenplay written by Plaintiffs in 2008; (2) the Square One screenplay written by Plaintiffs in 2009; (3) Defendant Meriwether?s Chicks Dicks script; and (4) the entire fn?st season of New Girl on DVD. As Plaintiffs allege that New Girl?s fn'st two episodes ?draw most heavily from Plaintiffs? intellectual property and infringe on their rights,? the orut focused special attention on these episodes. (Third Amended Complaint 1] 11 The orut also considered the parties? briefs and supporting papers, as well as the expert reports submitted by Plaintiffs? expert, Arnold (?Arnold?), and Defendants? expert, Mark Rose Defendants argue that the Court should reject Arnold?s report because she is not quali?ed to render an expert opinion regarding literary analysis. (Mot. in Lirnine No. l, Dkt. 155). The orut disagrees. Arnold has ?read, reviewed, and analyzed thousands of scripts.? (Arnold Decl. I 2). Arnold has routinely provided ?notes, revisions, changes, and critiques concerning character development, narrative, ideas, theme, and dialogue.? (Arnold Report, at 2). Arnold?s experience includes, but is not limited to, serving as the Head of Script Development at Monte risto from 2000 to 2009, writing and directing ?Shining Stars: The Of?cial Story of Earth, Wind Fire,? and working as Head of Production and Script Development at ineville from 1995 to 1999. (Id. at 2-3). Therefore, the Court ?nds Arnold quali?ed to opine as a literary expert. The ornt also ?nds Defendants? expert, Mark Rose, quali?ed to opine as a literary expert. Rose possesses a in English literature ??om Harvard University, and has taught a wide range of literature courses for over forty years at various universities including Yale University, University of Illinois, Urbana, and University of California, Santa Barbara. (Rose Report, at 1). Rose has published ten books on literary and historical subjects and on the history of copyright. Finally, Rose has been Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 14 of 24 Case Document 166 Filed 12/30/15 Page 15 of 24 Page ID #:5403 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwetlier et al retained as an expert in issues related to copyright infringement several times in the past. Although the orut ?nds both experts quali?ed to opine on the issue of substantial similarity, the Court notes that the existence of dueling experts does not necessarily present a triable issue of fact for the jury. Numerous cases have found in favor of defendants on the issue of substantial similarity despite the existence of expert testimony offered by plaintiffs. See, e. g. Rice, 330 F.3d at 1180; Olson v. Nat ?l Broadcasting Co., Inc., 855 F.2d 1446, 1451 (9th Cir. 1988); Berna], 788 F. Supp. 2d at 1062. Therefore, summary judgment on the issue of substantial similarity is appropriate where, even considering the experts? testimony, no reasonable jury could conclude that the objective components of the works are substantially similar. Berna], 788 F. Supp. 2d at 1062. The orut also notes that expert testimony is far less critical in a case such as this, where the works are targeted at a general audience and deal with subject matter readily understandable by any ordinary person, including the Court. Here, specialized knowledge is not required to dissect the objective components of the copyrighted works. Compare 376 F.3d at 847-48 (relying on expert testimony comparing the objective elements?pitch, melodies, baselines, tempo, chords, structru?e, and harmonic musical works) with Rice, 330 F.3d at 1179 (upholding the district corut?s decision to disregard the parties? expert reports where the corut engaged in an extensive analysis of the alleged similarities in expressive elements of the works and ?neither expert opinion [was] very relevant to the conclusions drawn by the cor Olson, 855 F.2d at 1450-51 (holding that the district corut?s decision to discount expert testimony was appropriate where the expert de-emphasized dissimilarities between the works and compared scenes a faire); Shaw, 919 F.2d at 1355 (viewing the expert report with caution where it focused on random similarities in the works). Therefore, while the orut has considered both parties? expert reports, and the objective facts stated therein regarding the works, the Court ?nds that both reports offer little to that which the orut has observed in its own independent review of the works. Ultimately, the Court concludes that no reasonable jury could ?nd that Square One and New Girl are substantially similar. b. Plot and Sequence of Events Plaintiffs argue that the ?rst two episodes of New Girl share over 15 plot points with Square One Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 15 of 24 Case Document 166 Filed 12/30/15 Page 16 of 24 Page ID #:5404 Case No. Title UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL - GENERAL 2: Date December 30, 2015 Stephanie Counts et a] v. Elizabeth Meriwether et a] in identical sequence. In particular, Plaintiffs highlight the following similarities: The protagonists are women in their late 205, early 305; Both works begin with the protagonists leaving their ex-partners named Spencer?in Square One he was her husband and in New Girl he was her long-term boyfriend; The reason for both break-ups is that the protagonists catch Spencer cheating; Both works begin with the protagonists needing to quickly ?nd a new place to live; The breakdown of that long-term relationship with Spencer is the direct impetus for the move; The protagonists are hopelessly depressed, lie on the couch, and consmne food while watching The protagonists, in the romantic sense, are completely dependent and lost without Spencer; The protagonists? new roommates hold an intervention given her depressed state; The protagonists? best friend comes over to the bachelor pad to help her cope; The protagonists and the new roommates visit a bar where one of the roommates works; After the bar outing, the protagonists harbor hope that the relationship with Spencer can be saved, and the roommate who works at the bar attempts to convince the protagonist that Spencer needs to be forgotten; The protagonists go back to Spencer?s house, still harboring hope that things can work out; The protagonists, upon realizing that Spencer is completely unworthy and will not change, spectacularly and publicly end the relationship once and for all on Spencer?s front lawn; After the public humiliation in both works, the best ??iend character sarcastically tells Spencer off; In both works, the roommate who works at the bar has an immediate connection with the protagonist, and the connection grows over the course of both works (in the episodes of New Girl). While at fn?st blush, these similarities in plot and sequence of events appear signi?cant, after sifting through various mischaracterizations of the plot and excluding scenes afaire, the omt ?nds that few similarities remain. First, many of the similarities highlighted by Plaintiffs are scenes afaire or familiar stock scenes that ?ow naturally from the basic premise of a protagonist suffering from a break-up and ultimately moving past the break-up. Therefore, the sequence of (1) a break-up due to a partner?s in?delity; (2) the Initials of Preparer PMC cv?9o (10/08) CIVIL MINUTES - GENERAL Page 16 of 24 Case Document 166 Filed 12/30/15 Page 17 of 24 Page ID #:5405 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al protagonist leaving the cheating partner; (3) the protagonist going through a phase of depression; and (4) the protagonist receiving support from her best ?iend is not protectable. Moreover, a temporary regression by the protagonist in returning to her cheating partner is a familiar stock scene that naturally ?ows from this concept. Therefore, after sifting through these Improtected elements, what remains, at most, are the few scenes in the following sequence: (1) the protagonist goes to a bar where one of the works, (2) then goes back to the cheating partner?s house hoping the relationship will work out, and ?nally (3) ends the relationship on the cheating partner?s front lawn. However, even this sequence appears differently in the two works when considered in context. In Square One, Spencer tracks down Greer at a bar, apologizes, and convinces her to go back to their home in Georgia. Spencer and Greer then spend an extended period of time together. They go shopping, attend therapy with a preacher, and go to a party at a club. Then, Greer ?nally con?rms Spencer?s in?delity when she catches him receiving a phone call from another woman. This sparks her decision to fmally end things with Spencer. She burns his personal property on his front lawn and is taken away from the scene by the police. In New Girl, the roommates? visit to the bar is unrelated to Jess contacting Spencer; Spencer does not track down Jess or attempt to contact her in any way. Rather, Jess?s breaking of her housemates? television serves as the catalyst for her reaching out to Spencer so that she can retrieve the television she left at Spencer?s house. Moreover, while in Square One, Greer and Spencer attempted to reconcile after Greer moved back to Georgia with Spencer, there was no comparable attempt to repair the relationship between Jess and Spencer in New Girl. Rather, Jess could not stand up for herself and agreed to drive Spencer?s new girlfriend to the airport. Finally, in New Girl, although Jess also fmalizes her break-up with Spencer on his front lawn, it is not precipitated by her confnming that Spencer is cheating on her (as she had ah?eady witnessed it ?rst hand); rather, it is through seeing that Spencer had not watered her plants, as well as through the support of her new housemates, that she ?nally stands up to Spencer. The remaining purported similarities are also distinguishable. For example, although Plaintiffs claim that both plots involve a ?strip tease,? they are completely different when considered in context. In New Girl, Jess performs an awkward and clumsy strip tease in an attempt to seduce Spencer. In Square One, after Greer con?rms Spencer?s in?delity, she creates a bonfn?e on Spencer?s lawn and dances seductively arormd the ?re, ultimately ripping off her dress and throwing it in the the as well. Greer does not dance arormd the the and strip her clothing for Spencer or for anyone else; it cannot accurately be described as a strip tease. Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 17 of 24 Case Document 166 Filed 12/30/15 Page 18 of 24 Page ID #:5406 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al In Funky Films, Ina, both plots centered on the death of a family patriarch who left the family?s two sons to run the family ?meral home. 462 F.3d at 1075. Both works also involved the return of one son to his hometown to help in the business, another son changing his religion to aid the business, and a competitor bidding on the business. The Ninth Circuit noted these similarities, but concluded that ?general plot ideas are not protected by copyright law, they remain forever the common property of artistic mankind.? Id. at 1081. Similarly, in Benav v. Warner Bros. Ent., Inc., the Ninth Circuit found that no substantial similarity existed between two works that shared (1) identical titles, (2) the historically unformded premise of an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its ?ght against a samurai uprising, (3) protagonists who were authors of non-?ction studies on war and who had ?ashbacks to battles in America, (4) meetings with the Emperor and nrunerous battle scenes, (5) reverence toward Japanese whine, and (6) the feature of the leader of the samurai rebellion as an important foil to the protagonist. 607 F.3d 620, 625 (9th Cir. 2010). Similar to the works in Fun/(v Films and Benay, Square One and New Girl are not substantially similar in their plot and sequence of events when looking only at the protectable elements of the works. Plaintiffs also argue that even if the Court that the general ideas in the copyrighted work are not protectable, the Ninth Circuit has held that the ?presence of so many generic similarities and the common patterns in which they arise? can satisfy the substantial similarity test. Metcalfv. Boclzco, 294 .3d 1069, 1073-74 (9th Cir. 2002). In Metcalf, the Ninth Circuit formd that the works had the same setting in the same location and city, dealt with identical issues, had similar looking characters in identical professions, facing identical challenges, and had an identical sequence of events. Identity Arts v. Best Buy Enterprise Servs., 2007 WL 1149155, at *27 (N .D. Cal. Apr. 18, 2007) (srumnarizing the facts in Metcalf). Since Metcalf, however, coruts within this circuit have been reluctant to expand the concept of ?nding copyright protection for a pattern of Improtected elements in literary works beyond the clear-cut case in Metcalf See, e. Gable v. Nat ?l Broad C0., 727 F. Supp. 2d 815, 843-44 (C .D. Cal. 2010); Shame on You Productions, Inc. v. Elizabeth Banks, 2015 WL 4885221, at *31-32 (C .D. Cal. Aug. 14, 2015); Zella v. Scripps Co., 529 F. Supp. 2d 1124, 1138 (CD. Cal. 2007); Identity Arts, 2007 WL 1149155, at *28; v. Surnow, 2003 WL 23411877, at *9 (CD. Cal. Dec. 9, 2003). The orut ?nds the present case distinguishable from Metcalf for the same reasons?the generic similarities here hardly rise to the degree of striking similarity found in Metcalf. For the foregoing reasons, the Court that Square One and New Girl are not substantially Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 18 of 24 Case Document 166 Filed 12/30/15 Page 19 of 24 Page ID #:5407 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al similar in their plot and sequence of events. c. Characters Generalized character types are not protected by copyright law. Rice, 330 F.3d at 1175; Kouf, 16 .3d at 1046. However, the Ninth Circuit has ?allowed copyright protection for characters who are especially distinctive.? Olson, 855 F.2d at 1452. Plaintiffs argue that the following pairs of characters are similar: (1) Greer and Jess; (2) Spencer and Spencer; (3) Cat and Cece; (4) Ben and Nick; (5) Keegan and Schmidt; and (6) JC and Coach. The Court ?nds that none of the characters in Square One are suf?ciently distinctive to be afforded copyright protection and, even if they were, they are not substantially similar to the characters in New Girl. Both Square One and New Girl have leading female characters in their 203/305. Plaintiffs argue that both protagonists are optimists, sexually inexperienced, feminine, have a hard time ?tting in, attempt to cook and be domestic for their roommates, and use outdated phrases. As the orut stated above, most of these similarities are ordinary and cannot be afforded protection. Moreover, while Jess is overtly quirky, awkward and goofy in her personality, Greer does not possess similarly distinctive qualities. Greer certainly is not portrayed in Square One as quirky, awkward, or goofy. Both works also contain the protagonists? lmfaithful partner named Spencer. However, although the similarity in name may be relevant to whether the two characters are similar, the name ?Spencer? itself is not protectable. See .F.R. 202.1 (?Material Not Subject to Copyright?). Beyond the same name and role as an unfaithful partner, the characters do not share any similarities. In Square One, Spencer is from an af?uent family and is portrayed as preppy and wealthy. He spends time at the local club, and makes disrespectful comments to Greer. In response to Greer pawning her wedding ring, Spencer has Greer?s car towed. In New Girl, Spencer is portrayed as a relatively mellow and oblivious character. Spencer is certainly disrespectful toward Jess in that he cheated on her, but he does not act vindictiver toward Jess. Fruther, he does not command any wealth, and is not preppy or well-refmed in any respect he did not even own a car to be able to drive his new girlfriend to the airport). While Cat and Cece play the roles of Greer?s and Jess?s best friends, respectively, they are not substantially similar. While both characters are con?dent and assist the protagonists out of their Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 19 of 24 Case Document 166 Filed 12/30/15 Page 20 of 24 Page ID #:5408 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwetlier et al depression following their break-up, that role ?ows natru?ally from the basic plot premise and cannot be afforded protection. Similarly, that both Cat and Cece not like Spencer and let him know it? is not a protectable characteristic. (Pl. Opp. at 21). Beyond that, the characters are not substantially similar as Cat is a married mother of two children, while Cece is a single, fashion model. In both Square One and New Girl, Ben and Nick share similarities in that they work at a local bar7 and ultimately become the love interest for the protagonist. However, beyond these general similarities, the characters are not suf?ciently distinctive to be afforded protection. In Square One, Ben is ?rst portrayed as the older, laid-back roommate, who is dating a younger, sexy girlfriend. Ben lives in the converted garage to the house. He appears to lack motivation, but ultimately owns the bar where he works at the end of the screenplay. In New Girl, Nick is portrayed as grinnpy and crnmudgeonly. Nick was roommates with Schmidt in college and is not portrayed as an older housemate in the group. Moreover, while Ben cahnly handles his break-up with his girlfriend, Nick has extreme dif?culty moving past his break-11p and has a severe breakdown in the ?rst few episodes of New Girl. Plaintiffs also compare Keegan and Schmidt.8 Plaintiffs compare both characters as the ?loveable narcissist who has a lack of self-con?dence masked by being overly masculine,? who ?constantly draws attention to himself,? and who has the closest relationship with the protagonist. However, the two characters are not substantially similar. First, in Square One, Keegan is described as a former football player who is out of shape. In New Girl, Schmidt is in the best shape of the housemates and takes off his shirt multiple times in the ?rst few episodes to show off his body. Second, while Schmidt is portrayed as the young professional of the housemates who makes the most income, Keegan does not have a similar role in Square One. In fact, Plaintiffs? expert describes Keegan as ?a former football player who doesn?t have new direction in his life.? (Arnold Report, at 12). Third, while 7 The orut also notes Defendants? argrunent that while Ben works at a local bar, it is not clear that he is a bartender like Nick. Square One only indicates that Ben works at a local bar and is involved with the musical dimension of the enterprise. 8 To illustrate the Improtectable traits of these characters, the Court notes that Plaintiffs initially drew a comparison between I and Schmidt, and Keegan and Coach, in their cease and desist letter to Defendants. (Pl. Opp., Ex. 4, at 1459) (comparing JC and Schmidt as ?both socially conscious, young professional types who fancy themselves as playboys? and Keegan and Coach as ?both out of shape, ex-athlete types who have a dif?cult time relating to women?). Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 20 of 24 Case Document 166 Filed 12/30/15 Page 21 of 24 Page ID #:5409 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al Keegan is portrayed as a sloppy character spilling a glass and not bothering to pick it up, scratching his balls in the morning, etc.), Schmidt is very concerned with presenting himself as neat and clean-cut, often obsessing over high-quality beauty products and cleaning the apartment. Finally, although Plaintiffs describe both characters as having dif?culty relating to women, this trait only appears at a surface level and applies to ahnost all of the characters in the works. Plaintiffs compare JC and oach/Winston. Plaintiffs argue that of the three roommates, he has a tertiary role, and that Greer helps to better connect with his girlfriend, similar to how Jess helps Coach talk to women. These apparent similarities are too general to be afforded protection. Moreover, to the extent these traits would be protectable, the Court finds that oach/Winston actually share more similarities to Keegan, than to JC . Finally, the orut notes that several key characters in Square One have no analog in New Girl?most notably, the NASC AR driver Dusty Adams. Therefore, for the foregoing reasons, the Court ?nds that the characters between the two works are not substantially similar. (1. Mood and Pace The mood of the works is similar in that both have comedic elements. However, Square One can be more accurately described as a romantic comedy, while New Girl is a comedic, ensemble sitcom. the pace of the works differs as Square One is paced as a full-length feature frhn, and New Girl is paced as a television show. While Square One follows a clear arc throughout the screenplay, each New Girl episode relays a brief interlude in the lives of the main characters and does not follow a clear overarching plot. Therefore, although both works contain comedic elements, the mood and pace of the works are not substantially similar. e. Setting Square One takes place in Georgia, which has some in?uence on the work. Much of the dialogue, characters, and scenes relate to the South terms of speech such as ?y?all,? ?Southern Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 21 of 24 Case Document 166 Filed 12/30/15 Page 22 of 24 Page ID #:5410 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwether et al matriarch,? and ?Southern gentleman;? character names such as ?Laura Lynn? and ?Mary Elizabeth;? activities such as mechanical bull riding). In contrast, New Girl is set in Los Angeles, and the setting does not appear relevant or important to the plot. Although both works have scenes in a living room with an L-shaped couch and television, as well as in a bar, these are stock settings that are not protectable. As Defendants point out, many sitcoms feature a living room as the primary setting along with a secondary setting at a restaurant or bar Seinfeld, Friends, How I Met Your Mother). Moreover, despite some similarities in setting, the context in which these settings appear is different and of minimal signi?cance to the work itself. For example, in Square One, Greer visits a pawn shop to sell her wedding ring once she fmalizes her separation from Spencer, while in New Girl, Jess visits a pawn shop to purchase a replacement television for her roommates. In addition, as the 01111 stated in its plot analysis above, the contexts in which the protagonists break-up with Spencer on his front lawn are signi?cantly different and the lawn itself is simply a commonplace setting?it is by no means unique or 11111181131. Finally, many scenes in Square One also take place at Greer?s place of work, the hotel; however, no such analog appears in New Girl. Therefore, while the works share some similar settings, the vast majority of settings are Improtectable, stock settings, and the most important aspect a Southem setting) in Square One does not appear in New Girl. f. Themes Plaintiffs contend the two works share similar themes: (1) a group of friends relying on each other; (2) a rite of passage/break with the past; (3) the protagonist overcoming awkwardness; (4) the protagonist getting past sexual inexperience; and (5) the protagonist slowly developing a relationship with the pessimist roommate. However, most of these themes only appear in one work or do not exist at all. For example, a break with the past is the primary theme in Square One, which is ultimately a story about becoming independent in the wake of a dif?cult break-up and starting over starting from ?square one?). Greer leaves her cheating husband and old life to move to a new city, to make new friends, and to begin a new job. This theme is further strengthened by Greer?s regression halfway through the screenplay when she attempts to reconcile with Spencer, but ultimately reaf?rms that she should not stay with him. Ultimately, the screenplay ends with Greer having a fumer grasp on her identity and creating a new direction in life. In New Girl, however, while a portion of the plot necessarily involves Jess?s separation from Spencer, it serves primarily as a plot device to thrust Jess Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 22 of 24 Case Document 166 Filed 12/30/15 Page 23 of 24 Page ID #:5411 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et al v. Elizabeth Meriwetlier et al into her new roommate situation. Jess does not undergo any transformation or liberation as a result of the break?up. In addition, overcoming awkwardness and getting past sexual inexperience are not themes in either work. Although Greer undergoes a transformation throughout Square One into a more con?dent woman, at the beginning of the screenplay she could not be described as awkward. On the other hand, awkwardness is a de?ning characteristic of Jess in New Girl, but she does not overcome it in any way throughout the ?rst season of the show. And while both characters are sexually inexperienced, getting past that inexperience is not a focus of either work. The orut does ?nd that both works utilize the theme of friendship. However, while this is a secondary theme in Square One, ??iendship is the primary and perhaps only theme in New Girl. In New Girl, the theme of ??iendship is emphasized when Jess?s housemates leave the Wild West charity event to rescue Jess at the restaurant where she was stood 11p, and when they support Jess as she ?nally stands 11p to Spencer. Therefore, as the lmderlying theme of Square One is that of liberation, independence, and breaking from the past, while the lmderlying theme of New Girl is that of friendship, the orut does not ?nd that the two works share substantially similar themes. g. Dialogue To support a claim of substantial similarity based on dialogue, the plaintiff must demonstrate ?extended similarity of dialogue.? Olson, 855 F.2d at 1450. Ordinary words and phrases are not entitled to copyright protection, nor are ?phrases or expressions conveying an idea typically expressed in a limited number of stereotyped fashions.? Narell v. Freeman, 872 F.2d 907, 911-12 (9th Cir. 1989). Plaintiffs argue that in both works, the roommates react in a similar way when the protagonist presents herself dressed 11p. In particular, Plaintiffs point out that in Square One the roommates respond with, ?Wow! Look at you? and in New Girl, the respond with ?Wow, you look great!? These ordinary phrases are not a protectable similarity of dialogue. IV. Conclusion Plaintiffs have not introduced evidence demonstrating a triable issue of fact regarding Defendants? access to Square One. Moreover, even assuming arguendo that a triable issue of access Initials of Preparer PMC CV -90 (10/08) CIVIL MINUTES - GENERAL Page 23 of 24 Case Document 166 Filed 12/30/15 Page 24 of 24 Page ID #:5412 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 2: Date December 30, 2015 Title Stephanie Counts et a] v. Elizabeth Meriwether et a] exists, no reasonable jmy could conclude that there are substantial similarities in the plot, sequence of events, characters, mood, pace, setting, theme, or dialogue between Square One and New Girl. For these reasons, the omt GRANTS Defendants? motion for summary judgment. Defendants shall submit a proposed judgment consistent with this order. 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