Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 1 of 42 Page ID #:1 ERIKSON LAW GROUP 1 Antoinette Waller (SBN 152895) David Alden Erikson (SBN 189838) 2 S. Ryan Patterson (SBN 279474) 200 North Larchmont Boulevard 3 Los Angeles, California 90004 Telephone: 323.465.3100 4 Facsimile: 323.465.3177 5 Attorneys for Plaintiff Francesca Gregorini 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 9 10 FRANCESCA GREGORINI, Case No. 11 COMPLAINT AGAINST APPLE, INC., ET AL, FOR COPYRIGHT INFRINGEMENT; REQUEST FOR PERMANENT INJUNCTION 12 Plaintiff, v. 13 APPLE, INC, a California corporation; M. NIGHT SHYAMALAN, an 14 individual, BLINDING EDGE DEMAND FOR JURY TRIAL PICTURES, INC., a Pennsylvania 15 corporation; UNCLE GEORGE PRODUCTIONS; a Pennsylvania 16 corporation; ESCAPE ARTISTS LLC, a California limited liability company; 17 DOLPHIN BLACK PRODUCTIONS, a California corporation; TONY 18 BASGALLOP, an individual; ASHWIN RAJAN, an individual; JASON 19 BLUMENTHAL, an individual; TODD BLACK, an individual; STEVE TISCH, 20 an individual; and DOES 1-10, 21 22 inclusive Defendants. 23 24 Plaintiff Francesca Gregorini brings this action against Defendants Apple, Inc. 25 (“Apple”); M. Night Shyamalan (“Shyamalan”); Blinding Edge Pictures, Inc. 26 (“Blinding Edge”); Uncle George Productions; Escape Artists LLC; Dolphin Black 27 Productions; Tony Basgallop; Ashwin Rajan; Jason Blumenthal; Todd Black; Steve 28 Tisch; and DOES 1-10, inclusive. COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 2 of 42 Page ID #:2 I. 1 2 1. INTRODUCTION Apple TV+ and M. Night Shyamalan are heavily promoting their original 3 series Servant—one of eleven shows launching the ambitious new streaming service 4 billed as a game-changing new product from the world’s most valuable company. 5 Apple claims that what distinguishes its foray into television is breathtakingly original 6 content: the world’s best stories told by the world’s best storytellers. 7 Servant is a brazen copy of Plaintiff’s 2013 feature film. 8 2. There is one big hole in Apple’s messaging: Servant is a wholesale copy 9 of Plaintiff Francesca Gregorini’s 2013 feature film The Truth About Emanuel. As 10 demonstrated by the long list of key parallels catalogued in Section III(C) of this 11 Complaint, the misappropriation is not a mere borrowed premise, idea or story. Mr. 12 Shyamalan has gone so far as to appropriate not just the plot of Emanuel—but also its 13 use of cinematic language, creating a substantially similar feeling, mood, and theme. 14 3. Emanuel is a successful 2013 psychological thriller, written directed and 15 produced by Ms. Gregorini as her second feature film. After premiering at the 16 Sundance Film Festival in the prestigious dramatic competition category in 2013, the 17 film was released theatrically in the U.S. by Tribeca Film, followed by release on 18 DVD and Blu-ray. Since 2014, Apple itself has offered Emanuel for sale or rental 19 through iTunes (as has Amazon and other platforms). 20 4. Starring Kaya Scodelario and Jessica Biel, the film tells the story of a 21 troubled and withholding 18-year old girl, newly hired by a white, sophisticated, 22 privileged yet gracious, mid-30’s, first-time mom—to help care for her new baby. 23 After fleeting images of what seems to be a healthy three-month-old infant, the 24 audience discovers that the “baby” is really an ultra-realistic “reborn” doll—shattering 25 the illusion of an uber-competent modern mom. The cause of the mother’s delusion, 26 the father later reveals, is the unspeakable grief of recently losing their real three27 month-old baby. Rather than recoil, the nanny plays along with the mother’s delusion 28 even before knowing its explanation, in part for deep-seated reasons relating to the ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 2 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 3 of 42 Page ID #:3 1 absence of her own mother. Soon enough, she too is doting over the doll as if it were 2 real, nurturing a deep emotional connection with the mother but creating danger and 3 ultimately crisis as prying eyes threaten to expose shared secrets. While the baby’s 4 apparent rebirth offers an emotional high point, progress comes from confronting 5 reality. Although the film is a tense psychological thriller, it also features strong 6 elements of magical realism, which leaves the audience with a measure of doubt about 7 what’s real. 8 5. Shockingly, this plot description of Emanuel could just as easily be 9 applied to Servant, made six years later. And that’s just the beginning of the 10 commonalities between the two works. These similarities include not just parallel plot 11 points, but also strikingly similar—and highly idiosyncratic—characters, scenes, 12 directorial choices, and modes of storytelling. Below, Plaintiff enumerates a long list 13 of striking similarities between the works, and explains why each is unusual and 14 artistically significant. This non-exhaustive list involves everything from shared grand 15 themes and character arcs, to identical granular details. While it’s impossible to 16 completely capture the deep parallels between these two works with a bullet list, 17 Plaintiff easily describes more than sufficient similarity to establish copyright 18 infringement. More important, anyone who takes the time to view and compare the 19 works will reach the inescapable conclusion that their overlap is far too striking to 20 result from coincidence, as Defendants quite preposterously claim. 21 22 23 24 25 26 27 Nanny and doll, in Emanuel (left) and Servant (right) 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 3 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 4 of 42 Page ID #:4 1 6. As in Emanuel, a central theme of Servant involves the extraordinary and 2 almost irrational reciprocal devotion between mother and nanny. In both works, the 3 mother’s adoration of the nanny stems from her grief and denial over losing a child. 4 She delusionally channels her maternal instincts towards a doll—but also more 5 genuinely directs them to the real-life vulnerable surrogate-daughter caring for her 6 “baby.” In both works, the nanny’s strong feelings for her employer stem from 7 longings for a lost mother, which she finds being fulfilled by a new mother figure in 8 dire need of a child. 9 7. As described below, these are extremely rare themes in Hollywood. But 10 what made Emanuel even more unique were a number of Ms. Gregorini’s artistic 11 choices, driven by her own very personal inspirations for the story, that are surprising 12 because they are incongruous with themes of loss and longing. For example, Emanuel 13 plays as a psychological thriller in that shared secrets are always one false move away 14 from being exposed, which threatens to destroy the cherished but tenuous equilibrium 15 the central characters have found in the obviously unsustainable status quo. To 16 reinforce this tension, Ms. Gregorini uses the cinematic vernacular of classic 17 suspense, including camera angles, lighting, music, and pace. Astonishingly, and as 18 more fully explained below, Servant appropriates all of these idiosyncratic artistic 19 choices, which define Emanuel as a film. 20 21 22 23 24 25 Dark and foreboding tones in Emanuel (left) and Servant (right) 26 27 8. In both works, the proxy mother-daughter bond between mother and 28 nanny co-exists with a jarring unspoken sexual tension—felt throughout and more ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 4 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 5 of 42 Page ID #:5 1 overtly displayed in a surprisingly intimate bathroom scene. Again, this was a startling 2 and bold artistic choice by Ms. Gregorini—and one that Defendants appropriated for 3 Servant. 4 5 6 7 8 9 10 Bathroom intimacy culminating in a kiss on the hand Emanuel (left); Servant (right) 11 12 9. In addition to these key thematic commonalities, Servant bears a number 13 of striking similarities to Emanuel even with regard to its details and imagery. The 14 two nannies look alike—and are similarly difficult and enigmatic. In both works, 15 imagery of water plays a prominent role. We learn more about each nanny when she 16 directs her shy young date to steal a bottle of red wine (to be paired with French bread 17 and cheese). Both mothers are remarkably self-possessed and positive for someone in 18 a psychosis, and have put together magazine-worthy homes and nurseries. Even the 19 dolls look remarkably alike (each having replaced babies who died at three months). 20 In each work, the nanny’s troubles are highlighted by a trip to her mother’s grave. As 21 explained below, the similarity of scenes and sequence are often uncanny. 22 23 24 25 26 27 The nanny, underwater in Emanuel (left) and Servant (right) 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 5 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 6 of 42 Page ID #:6 1 Defendants’ infringement is emblematic of gender injustice in the 2 entertainment industry. 3 10. As mentioned, Servant is meant to showcase Apple’s new streaming 4 service. But if Servant showcases anything, it is the gender arrogance and inequity 5 still infecting Hollywood (and apparently Cupertino). Emanuel tells a nuanced 6 emotional story about motherhood and daughterhood—real, lost, and imagined. It is 7 clearly a woman’s story, inspired by Ms. Gregorini’s very personal struggles with her 8 inability to conceive a child and growing up with an absent mother (as discussed in 9 specific detail in the ample media coverage the film received). It is about grief, 10 longing, motherhood, secrets (the ones we keep from ourselves, the ones we carry for 11 others), and the inescapable collision course with reality. It took the collective talents 12 and tremendous efforts of many strong and capable women to tell this story and put it 13 in on the screen, in a film world dominated by men. 14 11. Servant tells a substantially similar story, in a substantially similar 15 manner, using substantially similar tools of the trade. But what is equally damaging 16 and disturbing to Ms. Gregorini is a layer added to Servant by its all-male team of 17 creators and producers (including creator and writer Tony Basgallop, and executive 18 producer/director M. Night Shyamalan), in which this female-centric story is 19 sometimes seen through the eyes of two men—who watch and comment on the 20 women’s “insanity” while pounding tequila shots and pondering whether the nanny is 21 “fuckable.” 22 12. The result of this caricature of the male gaze is the utter bastardization of 23 Ms. Gregorini’s work. It’s an apt metaphor for the real-life version of what could 24 happen here: It takes only a few old guard Hollywood men, such as Mr. Shyamalan 25 and Mr. Basgallop, and their new silicon valley partner Apple TV+, to negate the 26 considerable achievements and life experiences of the women behind Emanuel, and to 27 irredeemably tarnish their work. Just as the male perspective cheapens the female 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 6 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 7 of 42 Page ID #:7 1 experience in Servant, Mr. Shyamalan and Apple TV+ diminish Ms. Gregorini and 2 her largely female team. 13. 3 A review in The Atlantic makes a similar point: that Servant squanders a 4 compelling premise by missing the female perspective on an extremely female story: 5 Servant could be a series about the otherworldliness of grief, and the ways in which it seems to fragment and distort reality… Servant, though, doesn’t seem to have the emotional curiosity to earn its premise... And this is the truly uncomfortable part of Servant: It urges you, over and over, to loathe and condemn a woman whose baby has died. Look at the spectacle of this woman’s delusion, the series seems to say, lingering on the frozen plasticity of Jericho’s features. Note her narcissism, her vanity, the ridiculousness of her newscasts. All six of the show’s executive producers are men and all 10 episodes are written by Basgallop, which perhaps makes it unsurprising that Servant, far from sketching out the contours of maternal grief, instead treats Dorothy with such casual disdain.1 6 7 8 9 10 11 14. 12 Gender injustice in Hollywood is not a formal part of Ms. Gregorini’s 13 claim, which stands on its own under the basic principles of copyright law. But it is 14 certainly part of the broader picture of Defendants’ misappropriation of Emanuel. 15 While Hollywood’s patriarchal system sometimes manifests in explicit and raw ways, 16 it can also operate more subtly, as it has here. But the injury to women deserving of 17 equality is no less grievous. Women graduating from film school know—or soon 18 learn—that they face far more daunting odds than their male peers. The perception 19 that no one is going to stop the already-powerful (usually white men) from simply 20 taking the artistic output of those outside the power structure serves to perpetuate the 21 patriarchy for another generation. This is not only unjust; it also stifles the progress of 22 good cinema and television.2 23 24 25 1 Someone should tell the reviewer that the movie she wants to see already exists and can be rented anytime on Apple’s platform: The Truth about Emanuel. 2 Over the last 13 years, females directed less than 5% of top films—even though their movies were 26 as well received as those directed by men. See Clark and Pieper, Inclusion in the Director’s Chair: Analysis of Director Gender & Race/Ethnicity Across 1,300 Top Films from 2007 to 2019 27 (Annenberg Foundation 2020). 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 7 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 8 of 42 Page ID #:8 1 Defendants have arrogantly brushed aside Ms. Gregorini’s protests. 2 15. The result of Defendants’ misappropriation and mangling of Ms. 3 Gregorini’s work is that any intention of adapting her work for premium television— 4 where she has concentrated her efforts and built a successful career over the past 5 several years—are now dashed. 16. 6 Despite this very real damage, Defendants have arrogantly dismissed Ms. 7 Gregorini’s protests by vaguely claiming that Servant was in development long before 8 Emanuel was made, and that any similarity is a coincidence. Indeed, Mr. Shyamalan 9 and Mr. Basgallop implausibly claim they have never seen Emanuel—apparently not 10 even curious enough to watch after hearing Ms. Gregorini’s objections. Worse, Apple 11 has brought stonewalling to a new level by simply referring inquiries to Mr. 12 Shyamalan’s lawyer (who in turns says he cannot speak for Apple). 17. 13 Steve Jobs acknowledged that Apple has “always been shameless about 14 stealing great ideas.” Mr. Shyamalan too has been publicly and credibly accused of 15 infringement more than once. In 2004, it was widely reported that Mr. Shyamalan’s 16 film The Village shared uncanny similarities with Margaret Peterson Haddix's well17 received book published nine years earlier.3 Mr. Shyamalan was also sued (in this 18 Court) by screenwriter Robert McIlhinney who alleged Mr.’ Shyamalan’s film Signs 19 was a misappropriation of his script. Once again, it appears that the powerful men of 20 Hollywood and Big Tech believe that appropriation of others’ intellectual property is 21 their right. The purpose of this lawsuit is to hold Apple and Mr. Shyamalan 22 accountable for their misconduct. 23 24 25 26 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 3 See Shyamalan's "Village" Villainy? E News August 10, 2004. 8 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 9 of 42 Page ID #:9 II. 1 2 18. JURISDICTION AND VENUE Plaintiff brings this action for copyright infringement (17 U.S.C. Section 3 101, et seq.). 4 19. This Court has original subject matter jurisdiction over this action and 5 the claims asserted herein, pursuant to 28 U.S.C. Section 1331 (“federal question 6 jurisdiction”) and 1338(a)-(b) (“patent, copyright, trademark and unfair competition 7 jurisdiction”) in that this action arises under the laws of the United States and, more 8 specifically, Acts of Congress relating to patents, copyrights, trademarks, and unfair 9 competition. 10 20. Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b)(1)- 11 (3) because a substantial part of the events or omissions giving rise to the claims 12 occurred in this District. 13 21. Each of the Defendants is subject to the personal jurisdiction of this 14 court. As described below, each Defendant distributed and promoted the subject 15 infringing material in California, including by expressly aiming marketing and 16 distribution efforts at consumers in this state. III. 17 18 22. THE PARTIES Plaintiff Francesca Gregorini is, and at all times relevant herein has been, 19 a resident of California. 20 23. Defendant Apple, Inc. is a California corporation doing business in 21 California, with its principal place of business located in Cupertino, California. 22 24. On information and belief, Defendant M. Night Shyamalan is a resident 23 of Pennsylvania. 24 25. Defendant Blinding Edge Pictures, Inc. is a Pennsylvania corporation 25 doing business in California, with its principal place of business located in Berwyn, 26 Pennsylvania. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 9 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 10 of 42 Page ID #:10 1 26. Defendant Uncle George Productions, LLC is a Pennsylvania limited 2 liability company doing business in California, with its principal place of business 3 located in Newtown Square, Pennsylvania. 4 27. Defendant Escape Artists LLC, a motion picture and television 5 production company, is a California limited liability company, doing business in 6 California, with its principal place of business located in Culver City, California. 7 Defendants Tisch, Black, and Blumenthal are principles of Escape Artists. 8 28. On information and belief, Defendant Steve Tisch is a resident of 9 California. 10 29. On information and belief, Defendant Todd Black is a resident of 11 California. 12 30. On information and belief, Defendant Jason Blumenthal is a resident of 13 California. 14 31. On information and belief, Defendant Ashwin Rajan is a resident of 15 California. 16 32. On information and belief, Defendant Tony Basgallop is a resident of 17 California. 18 33. Defendant Dolphin Black Productions is a California corporation, doing 19 business in California, with its principal place of business located in Beverly Hills, 20 California. Dolphin Black is Mr. Basgallop’s company. 21 34. Plaintiff is ignorant of the true names and capacities of the Defendants 22 sued herein as Does 1-10, inclusive, and therefore sues said Defendants by such 23 fictitious names. Plaintiff will amend this Complaint to allege the true names and 24 capacities when the same has been ascertained. On information and belief, each 25 fictitiously-named Defendant is responsible in some manner for the occurrences 26 herein alleged, and that Plaintiff’s damages as herein alleged were proximately caused 27 by their conduct. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 10 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 11 of 42 Page ID #:11 35. 1 Each of the Defendants acted as an agent for each of the other 2 Defendants in doing the acts alleged, and each Defendant ratified and otherwise 3 adopted the acts and statements performed, made or carried out by the other 4 Defendants so as to make them directly and vicariously liable to the Plaintiff for the 5 conduct complained of herein. Each Defendant is the alter ego of each of the other 6 Defendants. IV. 7 GENERAL ALLEGATIONS 8 Ms. Gregorini is the writer, director and producer of The Truth About 9 Emanuel. 36. 10 A graduate of Brown University, Plaintiff Francesca Gregorini co-wrote 11 and sold television pilot scripts to both HBO and Paramount before co-writing and co12 helming her directorial feature film debut Tanner Hall (starring Rooney Mara and 13 Brie Larson). Emanuel, which she wrote, produced, and directed, is Ms. Gregorini’s 14 second feature film. 37. 15 Ms. Gregorini is female and gay. While her identity informs her work, it 16 does not define her as an artist. Like all successful women in the entertainment 17 industry, Ms. Gregorini has learned to navigate the gender inequity endemic to her 18 profession. She regularly works on mainstream projects with mainstream male and 19 female producers and actors. In television, she has recently directed Emma Chan in 20 Humans (AMC), Bryan Cranston in Electric Dreams (Amazon), Uma Thurman in 21 Chambers (Netflix), Sandra Oh in Killing Eve (AMC) and Heather Graham in The 22 Hypnotist’s Love Story (ABC, as the pilot director). She is currently attached to direct 23 a $10 million feature film, and is in the process of pitching a television series. 38. 24 The idea for The Truth about Emanuel4 came to Ms. Gregorini in 2010, 25 borne from personal struggles. She created the mother character, Linda, as a means to 26 explore and heal grief related to her inability to become pregnant. Pained, Ms. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 4 The work was formerly known as Emanuel and the Truth About Fishes. 11 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 12 of 42 Page ID #:12 1 Gregorini imagined a scenario that would be even worse than hers: giving birth to a 2 child only to see it die. This is, of course, Linda’s story. 3 39. It is human nature is to avoid pain. Ms. Gregorini found her ways 4 (including writing Emanuel) and Linda found hers (parenting Chloe, the “reborn” 5 doll). 6 40. The nanny character, Emanuel, is the carrier of, and co-conspirator in, 7 Linda’s secret/delusion. Growing up in a home with alcoholism, Ms. Gregorini too 8 was the carrier of secrets for the adults in her life—and at times she bought into those 9 delusions in order to stay connected, keep the peace, and navigate unfathomable 10 situations. The character of Emanuel is borne of that deep-seated knowledge of what it 11 means to want connection with a mother figure so badly, one will live in a fiction in 12 order to maintain it. 13 41. In the film Emanuel, Ms. Gregorini took her two biggest and most 14 personal wounds—growing up with an often absent mother and her inability to 15 become a mother herself—and fashioned a psychological thriller that would explore 16 their complexities. 17 42. Emanuel was a labor of love for Ms. Gregorini. She worked for years to 18 develop it, and to raise the shoestring budget needed to produce it. She finally cobbled 19 together the $1.2 million budget from mostly small-dollar investors—and later was 20 forced to raise additional money for post-production work. 21 43. The nanny role was originally written for Rooney Mara, who was 22 replaced by Kaya Scodelario due to scheduling. Ms. Mara remained on the project as 23 a co-producer of Emanuel. Jessica Biel replaced Helena Bonham Carter as the mother. 24 44. Ms. Gregorini and her accomplished cast and crew filmed the production 25 in 2012. 26 45. Emanuel premiered in Dramatic Competition at the 2013 Sundance Film 27 Festival, and was selected to showcase at Sundance UK later that same year. The film 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 12 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 13 of 42 Page ID #:13 1 went on to screen at many other film festivals in the U.S and around the world. The 2 film was released in U.S. theaters on January 10, 2014. 3 46. Ms. Gregorini earned a nomination at the Sundance Film Festival for the 4 2013 Grand Jury Prize – Dramatic, and earned the Best Feature Director prize at the 5 2013 L.A. Femme Film Festival. The film earned awards at the 2013 Ashland 6 Independent Film Festival and 2013 Brooklyn Film Festival. Tribeca Enterprises chief 7 creative officer Geoffrey Gilmore said “Francesca Gregorini’s superb Emanuel and 8 the Truth About Fishes is a rare and remarkable work of mixed genres and 9 expectations. A taut, surprising and original thriller featuring a career best 10 performance from Jessica Biel and a breakout role by Kaya Scodelario.” 11 Defendants had access to Emanuel—years before making Servant. 12 47. There is no question that Emanuel preceded Servant, and that Defendants 13 had access to it continually since 2013. Ms. Gregorini penned the screenplay to 14 Emanuel in 2011, and registered it with the Writer’s Guild on January 19, 2012— 15 nearly eight years before Servant premiered. Copyright protection of the film 16 commenced when filming was completed in 2012. The work was widely disseminated 17 to the public beginning in 2013. Emanuel Film, LLC first applied to register the 18 copyright in 2012. Since 2014, Emanuel has been available for purchase or rental on 19 Apple’s own iTunes. 20 48. Given the striking similarities, it is inconceivable that Servant’s creators 21 developed the television series without reference to Emanuel. And indeed, Mr. 22 Basgallop has had specific access to Emanuel. In addition to the Sundance premier 23 (U.S. and U.K.) and nationwide theatrical release of Emanuel, and the film’s 24 availability on streaming platforms, Mr. Basgallop had occasion to screen the film in 25 2017, when Ms. Gregorini’s agents at CAA pitched her to direct episodes of Berlin 26 Station, a series Mr. Basgallop executive produced. On information and belief, Mr. 27 Basgallop (as well as the other executives of Berlin Station) received an email from 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 13 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 14 of 42 Page ID #:14 1 Ms. Gregorini’s agents at CAA, submitting her for the Berlin Station project, that 2 included a link to Ms. Gregorini’s most prominent work to date, Emanuel. 3 Servant is one of eleven original series that Apple chose to showcase the 4 launch of its ambitious new streaming service Apple TV+. 5 49. Apple TV+ is the ambitious new streaming service of Defendant Apple, 6 Inc.—the world’s most valuable company. 7 50. By all accounts, Apple sees Apple TV+ as its future. According to the 8 New York Times, “Apple has gone Hollywood for a reason. With iPhone sales 9 flattening, the company sought out other ways to generate revenue. In addition to 10 Apple TV Plus, it has unveiled a credit card and started a video-game subscription 11 service.” 12 51. And indeed, Apple used its considerable economic might to hire some of 13 Hollywood’s most established names. As recently reported in the New York Times: 14 “Led by the veteran Hollywood executives Zack Van Amburg and Jamie Erlicht, 15 Apple TV Plus has made deals with Oprah Winfrey, Steven Spielberg, J.J. Abrams 16 and M. Night Shyamalan, among others.” In other words, Apple touts M. Night 17 Shyamalan’s Servant as one of its marquee series. 18 52. Apple certainly has competitors in the entertainment arena. Netflix and 19 HBO are seen as the titans of original content for television. Netflix, HBO Max, 20 Disney, Amazon Prime, and Hulu offer rival streaming services, each coupling 21 original programming with a deep reservoir of existing content. 22 53. Amidst this competition, Apple’s marketing strategy is to push the 23 message that what sets it apart from its rivals is its unparalleled stories and 24 storytellers. In short, Apple has staked its claim on doing what only it can do (similar 25 to what it did with the personal computer, the iPhone, and tablets): gathering the best 26 minds on earth to come up with new and revolutionary ideas. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 14 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 15 of 42 Page ID #:15 1 54. This theme was very much on display at the announcement of Apple 2 TV+ last year. There, Apple CEO Tim Cook told a hushed and rapturous live 3 audience: 4 5 6 7 8 Apple has always tried to make the world a better place, and we believe deeply in the power of creativity… We feel we can contribute something important to our culture and to society through great storytelling, so we partnered with the most thoughtful, accomplished, and award-winning group of creative visionaries who have ever come together in one place to create a new service unlike anything that’s been done before. 55. Cook then handed off the presentation to Erlicht and Van Amburg, who 9 were on-message: 10 11 12 13 14 15 16 17 At Apple, we know that great stories begin and end with the incredible artists who tell them, the artists who are thoughtful enough and brave enough to share their best story with us and the world. … We’ve partnered with the most accomplished storytellers as well as a new generation of the most exciting voices who together will define Apple TV+ as the destination with the highest quality originals. The original shows and movies will intellectually challenge and thrill, define and redefine our expectations, inspire us, make us laugh, transform our mood and brighten our day, but make us believe anything is possible, from documentaries to dramas, from kids to comedies, the highest quality of storytelling in one single place. This is Apple TV+. 56. Apple has put its money where its marketing mouth is. The company’s 18 annual content budget has come in at a staggering $6 billion, according to the 19 Financial Times. Unlike Facebook and Google, which have tentatively dipped their 20 toes in entertainment, Apple has gone all-in. Within a year, Apple TV+ could feature 21 as much original content as longtime cable networks such as Showtime. Its 22 advertising budget for September and October 2019 alone was $40 million—and 23 that’s not counting November when advertising really ramped up. 24 57. The staggering amount of money and energy Apple has put behind Apple 25 TV+ has so far resulted in the eleven original shows that comprise the launch of the 26 service. One of those shows, of course, is Servant. In other words, Servant is what all 27 the fuss and money is about. Notably, Servant was released on Thanksgiving, a day 28 known in the entertainment industry as one of the best times for an important rollout, ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 15 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 16 of 42 Page ID #:16 1 due to high viewer engagement. Ahead of the series premiere, on November 22, 2019, 2 Apple renewed the series for a second season. 58. 3 In the case of Servant, the “creative visionaries” are two men with long 4 Hollywood histories: executive producer M. Night Shyamalan, touted by Apple as the 5 creative force behind the show; and Tony Basgallop, the creator and writer.5 6 Mr. Basgallop wrote every episode and executive produces alongside Mr. Shyamalan 7 and four other men. 59. 8 Mr. Basgallop offers his own vague and implausible account of his 9 personal inspiration for the story: 10 It’s been something I’ve been writing for a very long time — since I’ve had children, really, which is 17 years ago. I wanted to write about the changes that children bring into your life and the fears they bring and how the slightest thing that goes wrong can affect you — just disaster scenarios. That was the initial idea. Over the years I’ve been developing these characters and trying to tell a story that’s very contained. I’ve thrown away a lot of the rules I’ve learned about writing in television for this one; I’ve very consciously tried to make it personal and yet keep it genre-specific — play it as a thriller.6 11 12 13 14 15 16 Servant is substantially similar to Emanuel. 17 60. Servant is substantially similar to The Truth About Emanuel, in its 18 themes, setting, characters, plot, sequence of events, mood, pace, and dialogue. Again, 19 the central subject matter of both works is the mutual dependence of a mother and a 20 nanny who serves as a surrogate daughter figure—ameliorating the unfulfilled 21 longings the mother has for a child, and the nanny for a mother. To explore this 22 subject, the works tell remarkably similar stories, using remarkably similar (and 23 unique) techniques. Any one of the many commonalities enumerated below would be 24 surprising—but the odds of them all appearing in two independent works would be 25 5 The New York Times reports that Mr. Shyamalan is “the glamour name among the executive 26 producers, and he directed two episodes, but the show was created and written by the British TV veteran Tony Basgallop. 27 6 In contrast, years ago, Ms. Gregorini very specifically described her very personal inspiration and 28 how it led to the creation of Emanuel and its characters. See ¶¶ 38-41, above. ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 16 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 17 of 42 Page ID #:17 1 astronomical. Further, the unique selection and arrangement of these elements— 2 which is common to Emanuel and Servant—make it a statistical certainty that 3 Defendants copied Emanuel in making Servant. 4 61. As mentioned above, the following list of commonalities is necessarily 5 an abbreviation. The only way to fully appreciate the extent of Servant’s overlap with 6 Emanuel is to view the entirety of both works (i.e. the film Emanuel and Episodes 1-3 7 of Season 1 of Servant), with the benefit of further explanation and facts regarding the 8 nature of the similarities, their significance in the works, the rarity/idiosyncrasy of the 9 relevant artistic choice in Emanuel, and an analysis of the point of comparison in light 10 of conventions in film and television. For this reason, the entirety of both works (the 11 film Emanuel and Episodes 1-3 of Season 1 of Servant, both approximately an hour 12 and a half of content) are incorporated by this reference—and digital copies will be 13 furnished to the court. 14 Theme 15 62. The themes of Servant are remarkably similar to those of Emanuel. For 16 example, the key themes of both works include: 17 The unspeakable grief of losing a baby. 18 Denial and self-delusion as a means of avoiding grief; and the dangerous and 19 precarious nature of this coping mechanism. 20 The incredible complexity of the mother/child bond and especially its absence 21 (including manners in which the severing of such a bond might give rise to 22 psychological pathologies). 23 The relationship between familial and maternal longing, and sexuality. 24 Shared secrets and complicity in another’s delusion—particularly in the context 25 of a mother/daughter relationship. 26 The dangers of shared delusion; and how such collusion can lead to crisis, 27 including a collision with reality. 28 The mystery/danger of a stranger coming to town, or a new person in the mix. ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 17 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 18 of 42 Page ID #:18 1 The redemptive potential of confronting reality (or equivalently, the lack of 2 redemption in failing to confront reality). 3 The safety, sanctity and comfort of home—and the obverse dangers of the 4 outside world. 5 63. Some of the themes mentioned above are extremely rare in Hollywood, 6 which renders the commonalities between Emanuel and Servant all the more striking, 7 and thus all the more probative of Defendants’ appropriation of Ms. Gregorini’s 8 protected expression. For example, while many of the industry’s most iconic films 9 explore the troubles between fathers and sons (from The Godfather, There Will Be 10 Blood, and Star Wars; to Mrs. Doubtfire and Finding Nemo), the same cannot be said 11 of the troubled mother/daughter theme explored by the proxy mother/nanny 12 relationship in Emanuel and Servant. Indeed, Emanuel was the first film to explore 13 maternal longing by examining its delusional misplacement, while also studying a 14 daughter’s misplaced longings for her mother. Servant was the second. Likewise, 15 Emanuel’s surprising depiction of sexual longing as related to misguided maternal 16 sentiments was unprecedented until Servant offered a similar take. 17 Setting 18 64. In addition, Servant unfolds in a setting that is substantially similar to 19 that in Emanuel, including as follows: 20 As in Emanuel, the main characters (especially the nanny and mother) live in 21 such close proximity that truths are often revealed by snooping, spying, 22 voyeurism, or inevitable casual observation. 23 To facilitate this idea of the characters watching each other, both works 24 showcase a dark but often dramatically lit exposed wood staircase, overlooking 25 the first floor where much of the action unfolds—perfect for listening and 26 snooping. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 18 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 19 of 42 Page ID #:19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The nanny, watching from the top of the stairs in Emanuel (previous) and Servant (above) 18 19 As in Emanuel, Servant unfolds in the mother’s beautiful, immaculate, old- 20 world, remarkably well-put-together home. Both homes are filled with 21 expensive furnishings: Just the right touches and somehow everything is in its 22 place. 23 As in Emanuel, the nanny in Servant is in awe of her employer’s house. When 24 first alone there, each nanny takes a long and introspective opportunity to soak 25 in her surroundings, taken by how different it is from what she is used to. In 26 both works, the nannies seem to imagine themselves becoming their employer’s 27 daughter and living in her fantasy house. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 19 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 20 of 42 Page ID #:20 1 As in Emanuel, the house in Servant is so important as to almost become a 2 character. In both works, the house is a safe and comfortable sanctuary—as 3 contrasted with the dangers of the outside world, including the key danger of 4 the mother’s secrets being exposed. 5 As in Emanuel, Servant furthers this sanctuary theme by prominently featuring 6 a large show-piece entry hallway, which functions as a kind of portal from the 7 outside world to the inner sanctum where the family secrets reside. These 8 hallways facilitate scenes of prying eyes entering the house. As in Emanuel, the 9 importance of the doorway—as dividing worlds—is highlighted by close-up 10 shots of the nanny’s feet as she crosses the home’s threshold. 11 12 13 14 15 16 The entry hallway in Emanuel (left) and Servant (right) 17 18 Both works feature a critical trip to the nanny’s mother grave. 19 20 21 22 23 24 The nanny’s mother’s grave in Emanuel (left) and Servant (right) 25 26 The nurseries in the two works are similar, including vertically striped 27 wallpaper, old-fashioned cribs, beautiful vintage baby items, and remarkably, 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 20 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 21 of 42 Page ID #:21 1 an antique rocking horse that obviously won’t be pressed into service for a few 2 years. 3 4 5 6 7 8 The rocking horse in nursery, in Emanuel (left) and Servant (right) 9 10 In both works, the nurseries are magazine-worthy—almost to the point of being 11 hyper-real. In each work, the second-story nursery is introduced by the same 12 infrequently-used camera technique: a shot from outside the house, pushing in 13 on the second story window, to show a figure fussing over the baby. The shot 14 introduces the nursery in an voyeuristic way. 15 16 17 18 19 20 Beautiful nurseries, in Emanuel (left) and Servant (right) 21 22 23 24 25 26 First look at nursery and baby, through the window, in Emanuel (left) and Servant (right) 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 21 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 22 of 42 Page ID #:22 1 Like Emanuel, Servant includes a number of scenes of family and extended- 2 family dinners around the traditional family dinner table. In both works, these 3 scenes seem to deconstruct conventional ideas of domestic bliss. If one didn’t 4 know better, the scene looks like typical domesticity—which is of course at 5 odds with the troubles and secrets bubbling to the surface. For this reason, 6 cracks and tensions reveal themselves at these family dinners—creating a tense 7 mood. 8 Characters 9 65. Emanuel and Servant revolve around strikingly similar characters, with 10 similar backgrounds and story arcs. In one sense, plot similarities dictate similarities 11 in characters—but here the similarities go much further. The Nannies: Emanuel (Emanuel) and Leanne (Servant) 12 13 66. Emanuel and Leanne are extraordinarily similar, especially in the 14 following respects: 15 Both are pretty, white, 18-year old girls. Emanuel says that she will be “18 in a 16 month.” Leanne reports that she is 18. In both works, the nannies’ youth and 17 attendant quirks are remarked upon by other characters. 18 As shown above, Leanne looks very much like Emanuel. Not only are they the 19 same age and race, they also share a slight frame, fair skin, blue eyes, and long 20 dark hair. 21 Both are played by young English actresses—a common Hollywood tool to 22 lend an “outsider” quality to a character. 23 Like Emanuel, Leanne is moody, withholding, unpredictable, mysterious and 24 reticent. Neither speaks freely, nor smiles frequently. In both works, other 25 characters must put in considerable effort to get them to enjoy themselves and 26 must coax personal information from them because they are both so private. 27 Leanne and Emanuel have similarly troubled histories: Each exists without her 28 mother, who died many years prior—and as a result gravitates to and ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 22 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 23 of 42 Page ID #:23 1 sympathizes with the mother who has delusionally hired them. 2 Both take on a double maternal role: outwardly caring for the baby, but more 3 fundamentally, caring for the grieving mother. 4 Both also take on a daughterly role, acting as a receptacle for the mother’s 5 maternal instincts, while also sating their own longing for a mother figure. 6 Both Leanne and Emanuel “shouldn’t be here.” They each should have died 7 when their mothers did. The Mothers: Linda (Emanuel) and Dorothy (Servant) 8 9 67. Linda and Dorothy are remarkably similar, especially in the following 10 respects: 11 Both are in their mid-thirties (slightly older than the average new mom). 12 Both are white, sophisticated, and privileged. 13 Both are remarkably confident and self-possessed for women in the midst of 14 psychosis—especially in the ease and grace in which they direct their nannies. 15 Both mothers share the same positive, effervescent, “type A” personality. If 16 they are sad, they do not show it. In fact, quite the opposite: they are 17 preternaturally happy, flitting around arranging flower vases in their pristine 18 homes wearing pristine clothing. 19 Both are extremely stylish in their clothing and home décor. 20 Both suffered the tragic loss of their first and only baby—resulting in the 21 delusion that a reborn doll is that baby. In other words, both channel their 22 maternal love into a doll—so fully committed to the fantasy that they hire a 23 nanny (towards whom they feel motherly). 24 Both are affectionate and doting mothers. 25 Both mothers’ displaced maternal longing is channeled not only into a reborn 26 doll, but also into the nanny. In both works, an early indicator of this dynamic 27 is a scene in which the mother chooses clothes from her closet for the nanny to 28 wear. ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 23 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 24 of 42 Page ID #:24 1 In both mother characters, there is an unspoken, perhaps unconscious, sexual 2 longing that seems to be fulfilled only by the nanny. Neither work 3 consummates an affair, but both maintain an ambiguous attraction that has the 4 audience wondering how far it might go. The Dolls: Chloe (Emanuel) and Jericho (Servant) 5 68. 6 The doll in Servant looks almost identical to its extremely realistic 7 precursor in Emanuel. For example: 8 Both dolls are as physically realistic as possible.7 As a result, both works 9 include a number of “creepy” shots of the almost-but-not-quite lifelike “baby” 10 (especially shots of the baby’s open eyes). Once again, the physical 11 resemblance of the dolls is the result of casting. Both are ultra-lifelike “reborn” 12 baby dolls. 13 Both dolls look to be about three months old (which of course reflects another 14 remarkable similarity between the works: that both babies died at around this 15 same age). 16 Both dolls “come back to life,” as part of the nanny’s effort to resolve her own 17 and the mother’s grief. 18 Both dolls have patchy dark hair—which was not at all an obvious choice in 19 Servant given that Dorothy has red hair. 20 21 22 23 24 25 26 The dolls, in Emanuel (left) and Servant (right) 7 The basic premise—of a mother so traumatized by her baby’s death that she cares for a doll she believes to be her real baby—does not dictate the look of that doll. For example, in the acclaimed 27 2007 film Lars and the Real Girl, the main character “dates” a doll he believes to be real, but no 28 effort is made to make the doll appear lifelike. ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 24 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 25 of 42 Page ID #:25 The Fathers: Thomas (Emanuel) and Sean (Servant) 1 2 69. In both works, the fathers serve the important role of explaining to the 3 nanny and audience what has happened—birth, death, lack of certainty regarding 4 cause of death, grief, and then a doll. In each work, we find the father somewhat 5 insensitive—perhaps out of exhaustion but perhaps also because he cannot understand 6 a mother’s grief. In Emanuel, this is shown by Thomas’s principal reaction to his 7 wife’s grief-induced psychosis: to have her committed to a psychiatric facility. In 8 Servant, this is shown by the husband’s crass reference to his wife as crazy and talk of 9 whether the nanny is “hot.” 10 70. Casting of the fathers is also similar. Sean and Thomas are cut from the 11 same cloth: Both are tall, hipster-type white men who look like they’ve stepped out of 12 a beer commercial. 13 14 The Nannies’ Love Interests: Tobe (Emanuel) and Claude (Servant) 71. Both Emanuel and Leanne have romantic interludes with a boy their own 15 age. In both works, the boy is timid, shy, sexually immature, and diminutive— 16 although surprisingly intelligent and sophisticated. Both are taken aback by, and 17 unsure how to handle the nanny’s intensity. Both nannies take the romantic initiative: 18 arranging the date and taking control of it. This is depicted in both works by the nanny 19 directing the boy to steal a bottle of red wine; and by the nanny’s choreographing the 20 date. The boys in both works are thrilled that an attractive young girl has taken an 21 interest, and happy to do as they are told. The Antagonists: Arthur (Emanuel) and Julian (Servant) 22 23 72. Both works feature a nebbish, petulant, persnickety, quirky, professorial, 24 twenty-something man who poses a threat to the nanny, and acts as the nanny’s 25 primary foil and antagonist. In Emanuel, this character is Arthur, whom she works 26 with. Arthur ultimately insinuates himself into the household and questions the 27 nanny’s motives, competency, and possible criminality. In Servant, this character is 28 Julian, the mother’s brother, who also insinuates himself into the household and ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 25 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 26 of 42 Page ID #:26 1 questions the nanny’s motives, competency, and possible criminality. In both works, 2 there is a powerful scene where this character confronts the nanny and threatens to 3 expose her lies and alert the authorities. 4 73. The two actors who play these characters are very similar in appearance: 5 bowl haircuts, and rumpled suits with loose knit ties. They are both medium height 6 white guys who could be brothers or fraternal twins. 7 8 9 10 11 12 13 The antagonists, in Emanuel (left) and Servant (right) 14 15 Plot 16 74. The plot of Servant is substantially similar to that of Emanuel. As 17 explained above, and as a threshold matter, Servant’s premise is identical to 18 Emanuel’s. Out of grief, a mother replaces her dead infant with a life-like reborn doll. 19 To her husband’s concern, she cares for the doll as if it were their living baby. When 20 she hires a nanny who also treats the doll as if it were alive, conflicts of loyalty arise 21 that cause dangerous fissures. But the plot similarities between the two works go 22 much deeper than this premise. For example: 23 In both works, the nanny is the focal point—as the titles make clear. 24 As in Emanuel, Servant’s nanny is newly hired by a sophisticated and 25 privileged white new mother, to care for a roughly three-month old baby. As in 26 Emanuel, the mother in Servant appears to be confident, competent, cheerful, 27 positive and self-possessed; and gives direction with kindness. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 26 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 27 of 42 Page ID #:27 1 In both works, the nanny seemingly appears in the mother’s life through 2 happenstance. In Emanuel, she happens to live next door to the mother’s new 3 house. In Servant, the nanny is “a friend of a colleague of an acquaintance,” 4 procured with the help of a “shout on Twitter.” 5 As in Emanuel, the nanny in Servant endures an awkward yet cute “get to know 6 you” question and answer scene with her employer—in which the nanny is 7 likely cringing at some of her answers as soon as they escape her lips, but the 8 mother is forgiving. In Emanuel, the awkwardness is shown when the nanny 9 struggles to remedy a bad answer. In Servant, the awkwardness is shown when 10 Leanne cannot capitalize on an initially promising answer. 11 As in Emanuel, the nanny in Servant is quickly in awe of the mother, which is 12 partly communicated through her voyeurism: In Emanuel, she watches the 13 mother through her bedroom window. In Servant, the nanny oddly watches the 14 mother do her local news broadcasts on television. 15 In both works, the nanny quietly and contemplatively takes in each detail of the 16 mother’s beautiful home, clearly seduced by what she sees and wanting to 17 become a part of it. 18 Early on in each work, the audience might be struck by how easy the baby is to 19 care for. In each work, the audience catches a few fleeting and unremarkable 20 glimpses of the baby. 21 Relatively early in both works, the audience learns that the baby is not real, but 22 rather an ultra-realistic “reborn” doll. This reveals that the mother, far from 23 being competent and self-possessed, is in the midst of a psychosis. 24 In both works, the mother is caring for the doll, and treating it as real, as the 25 result of the trauma caused by the death of her real baby at three months. 26 As in Emanuel, the nanny in Servant very quickly realizes the mother truly 27 believes the doll to be real, and decides to play along with the delusion. 28 Notably, neither nanny has even a moment where she confronts the mother or ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 27 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 28 of 42 Page ID #:28 1 laughs at the absurdity of the situation. Rather, both nannies almost 2 immediately treat the doll as real. 3 In scenes that are uncannily similar, the nannies in both works sing and speak to 4 the doll/baby as if it were alive, even when they are alone and there would be 5 no need to keep up the ruse. 6 Both works feature a scene in which the father explains what has happened: the 7 death of the baby, the psychotic break which was ameliorated only when the 8 mother came to believe the reborn doll was her baby. In both works, the father 9 reports that the precise cause of death is unknown—although the viewer does 10 not know whether this is true. In both works, the nanny appears annoyed by the 11 father’s insensitivity to his wife’s grief and odd coping mechanism, which 12 causes the nanny to feel closer and more protective of the mother. 13 Both works contain a scene showing the mother, alone in front a mirror, 14 considering her post-baby body and stretch marks. The disconcerting effect is 15 that we see the mother as a normal mom with normal post-partum concerns. 16 17 18 19 20 21 Inspecting stretch marks, in Emanuel (left) and Servant (right) 22 23 In both works, the absence of the nanny’s mother has left a hole in her life that 24 her relationship with the mother begins to fill—in a way that complements the 25 hole in the mother’s life caused by the death of her baby. 26 In both works, the nanny and mother develop an extraordinary reciprocal 27 fondness. In both works, there are hints that the mother’s immediate fondness 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 28 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 29 of 42 Page ID #:29 1 for the nanny—which seems somewhat unwarranted—is in part motherly, and 2 may stem from a further warping of her already-displaced maternal instincts. 3 In both works, the mothers go so far as to comment that they see themselves in 4 the nanny (as one might say of a daughter).8 5 Likewise, both nannies emulate the mothers (including by sitting at the 6 mother’s vanity while applying the mother’s makeup). 7 In both works, despite the reciprocal mother-daughter bond between mother 8 and nanny, the relationship is nuanced with sexual tension. In both works, this 9 is communicated primarily through a scene in the bathroom, where one helps 10 the other with a painful condition. In Emanuel, it is the mother tending to 11 Emanuel’s cut in an unmistakably and spontaneously erotic manner, 12 culminating in a lingering kiss on the hand. In Servant, it is the nanny tending 13 to the mother’s painful mastitis with a breast massage, which turns 14 spontaneously erotic, culminating in a lingering kiss on the forearm.9 15 In both works, the odd dynamics of the maternal/erotic relationship between 16 nanny and mother is also communicated in a scene where the mother helps 17 dress and then beautify the nanny. In both scenes, the mother takes in and 18 marvels at the nanny’s beauty. 19 20 21 22 23 24 25 26 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 8 In Emanuel, the mother says “In a lot of ways I see myself in you.” In Servant, the mother says “I love this girl. She’s just like me.” 9 The clumsiness of Servant’s eroticism serves as another reminder that this is a woman’s story told by men. Who else but a man could find mastitis sexy? As one reviewer put it: “By this time, Leanne has become firmly entrenched in the house as a friend, caregiver, and oddly erotic breast masseuse. In a particularly bizarre scene, Leanne helps Dorothy massage her breast while in the bathtub to relieve her mastitis. A normal part of womanhood gets an icky sexual treatment.” Not knowing how to competently depict this nuanced relationship, Servant slavishly mimics Emanuel by including the surprisingly intimate wound-tending interlude in the master bathroom—but hits us over the head with the sexuality by giving Dorothy a faux orgasm. As another commentator puts it: “What I wasn’t expecting, though, is the odd sexuality that permeates the first three episodes. It begins with Dorothy’s mastitis as Leanne discovers her, moaning in pain in the bathtub. And after an awkward moment, Leanne kneels next to the tub, reaches over and begins massaging Dorothy’s breast. As she grinds on it, Dorothy moans and figuratively climaxes with an orgasmic moan and a squirt of milk that looks vaguely seminal.” 29 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 30 of 42 Page ID #:30 1 In both works, other characters question the mother/nanny bond and question 2 the nanny’s experience and motivations. 3 In both works, the bizarreness of the mother/nanny relationship is also 4 expressed by the nanny looking on with a measure of discomfort as the mother 5 readies herself for a date. Both works show the mother applying her makeup at 6 a vanity, with the nanny shown out of focus on a bed behind her. In both works, 7 the nanny remarks on the mother’s beauty as they discuss the impending date. 8 The similarity of these scenes goes beyond their plot points—each looks and 9 feels the same. 10 Following this scene, in each work, the nanny is shown seated at the mother’s 11 vanity. In each work, we watch the nanny in the mirror as she oddly applies the 12 mother’s makeup to herself—quite out of character and without any apparent 13 reason. The purpose of this scene, in each work, is to show the nanny’s 14 emulation of the mother. 15 As in Emanuel, the mother in Servant enters a trance-like state several times, 16 which we understand to involve a moment when the awful truth of her baby’s 17 death might be percolating toward the surface of her consciousness. In both 18 works, the mothers snap out of these states rather easily due to external 19 distractions. 20 In both works, the plot advances by way of a long and key scene involving an 21 intimate home birthday dinner celebration at a formal dining room table. In 22 both, the birthday setting facilitates an added measure of intimacy (in part 23 forced and in part real) between the characters. At each dinner, conflicts send 24 certain of the characters into other rooms for private conversations, leaving 25 awkward moments for those remaining at the table. 26 In both works, the absurdity of the situation (which the viewer could easily 27 forget given how committed the nanny and mother are to the delusion) is 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 30 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 31 of 42 Page ID #:31 1 sometimes depicted through unnerving or “creepy” shots of the doll—still (of 2 course), with wide open eyes. 3 4 5 6 7 8 The dolls, in Emanuel (left) and Servant (right) 9 10 Taking the idea a step further, Servant, like Emanuel, features a slightly 11 comical scene in which the doll is dropped in the entrance hall, only to be 12 picked up just before the mother sees. These scenes make the viewer slightly 13 uncomfortable because we have come to think of the doll as real. 14 15 16 17 18 19 The doll, dropped in entrance hall, in Emanuel (left) and Servant (right) 20 21 Both works include a scene of the nanny taking the initiative to arrange a date 22 with a boy. In each, the nanny is shown to be more of a “bad girl” than we 23 might have thought, by directing her timid date to steal a bottle of red wine. In 24 Emanuel, the wine is to be paired with French bread and cheese, but we never 25 see the meal to fruition because Emanuel takes the date in a different direction. 26 In Servant, the nanny’s date suggests French bread and cheese, which is not in 27 fact consumed because the nanny has other ideas. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 31 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 32 of 42 Page ID #:32 1 Both works feature a re-birth of the dead child as an emotional high point. The 2 rebirth in each work is ambiguous in the sense that the reality and/or identity of 3 the baby is open to debate. In each work, the nanny is the key to bringing the 4 dead child back to life, partly in service of moving the mother beyond delusion, 5 and partly as a result of her fascination with the mother. 6 7 8 9 10 11 The dolls, come back to life, in Emanuel (left) and Servant (right) 12 13 Both works feature key imagery involving rain, puddles, and water. For 14 example, in Emanuel, the notable and extended scene where the doll comes 15 back to life takes place entirely underwater (as shown in beautiful sequences of 16 Emanuel underwater, but with a natural face). Likewise, the nanny in Servant is 17 shown underwater, but with a natural face. Also, in both works, water (in the 18 form of rain and puddles) helps delineate the boundary between the safe interior 19 of the home and the perilous outside world. 20 Sequence of Events 21 75. Because the plots of Emanuel and Servant are so similar, and because 22 each unfolds in roughly linear chronology, the sequence of events in the two works 23 are extremely similar. But even beyond these stark similarities, there are several 24 examples where the similarity of sequencing is shocking. For example: 25 As mentioned above, both works include an awkward job interview scene 26 (which obviously occurs early on). The scenes following the “interviews” are 27 uncannily similar as well. In Emanuel, it’s now night, and we cut back and forth 28 between Emanuel looking out her bedroom window (at the mother) as she falls ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 32 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 33 of 42 Page ID #:33 1 asleep; and the mother as she rocks her baby to sleep. In Servant, it’s also now 2 night, and we cut back and forth between the nanny and the mother in their 3 respective bathtubs. In each scene, the mother and nanny are shown 4 alternatively in solitary moments—but with a strong sense that they are 5 connected during those moments. 6 As also mentioned, each work includes a scene of the nanny looking on as the 7 mother applies makeup at her vanity in preparation for a date; followed by a 8 scene of the nanny sitting at the same vanity, applying the mother’s makeup in 9 the same manner as was the mother (which we observe in vanity mirror). 10 11 12 13 14 15 The mother, readying for date, in Emanuel (left) and Servant (right) 16 17 18 19 20 21 The nanny, emulating the mother, in Emanuel (left) and Servant (right) 22 23 In both works, the nanny faints under stress—followed by the nanny’s point-of- 24 view shot as she regains consciousness to the sight of concerned faces. 25 Mood and Pace 26 76. The mood of the two works is substantially similar. Both are played as 27 ominous “psychological thrillers,” with elements of magical realism—a rare 28 combination. Indeed, Ms. Gregorini’s choice to tell her nuanced emotional tale of ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 33 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 34 of 42 Page ID #:34 1 motherhood as a thriller was a bold and surprising one—and one parroted by 2 Defendants in Servant. In particular: 3 Both works are tense throughout. In both works, the risk of secrets being 4 exposed, and the urgent and emotional need to protect those secrets, is meant to 5 feel like a ticking time bomb. One false move, or one prying eye, and the house 6 of cards would come tumbling down. As a result, the audience experiences 7 heightened feelings of suspense, excitement, surprise, anticipation and anxiety. 8 Both works have an ominous mood, created by the use of camera angles, 9 lighting, and the choice of music (which is heavily featured to signify danger). 10 Both works use opera, for example, to achieve this result. 11 As in Emanuel, Servant employs a technique where actors’ eyelines are so close 12 to being directly into the lens that the audience is invited directly into the center 13 of the uncomfortable tension. This technique of breaking the fourth wall is 14 extremely unusual, and uncomfortably amplifies the urgency and intimacy of 15 the mood. 16 17 18 19 20 21 The nanny looking into the camera in Emanuel (left) and Servant (right) 22 23 Indeed, both works go so far as to show characters purposefully looking 24 directly into the camera—as a way of depicting the nanny’s point of view 25 when, after fainting from stress, she awakens to the gaze of concerned faces. 26 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 34 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 35 of 42 Page ID #:35 1 2 3 4 5 6 7 Concerned faces gazing into camera, in Emanuel (left) and Servant (right) 8 9 As in Emanuel, Servant employs unusually tight shots of characters’ faces, 10 sometimes to the point where chins and hairline are cut off. The effect of this 11 camera and cinematographic technique is to create a feeling of uncomfortable 12 intimacy. 13 14 15 16 17 18 Cropped faces, in Emanuel (left) and Servant (right) 19 20 Both works use magical realism to create an otherworldly mood. In Emanuel, 21 this takes the form of water imagery. At first water escapes from under the 22 nursery door, then it rises up from nowhere in a subway car, culminating in an 23 underwater “rebirth” scene where the entire nursery is submerged. In Servant, 24 it’s not water but rather wood—that keeps finding a way into the father’s body. 25 At first, he gets a splinter in his finger, then in his rear end, then in his mouth, 26 and so on. In both works, the otherworldly magical realism is foreboding and 27 escalating. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 35 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 36 of 42 Page ID #:36 1 As in Emanuel, Servant uses the unusual cinematographic technique of 2 featuring characters in conversation in dark shadowy rooms—but with the sun 3 in their eyes (through horizontal blinds). In both works, the technique is mixed 4 with quick editing between tightly framed shots of the characters. The overall 5 effect again reflects the mood of both works: uncomfortable and dark. 6 Both works proceed at a rapid pace. In each, the characters can barely keep up 7 with events as they unfold. 8 As mentioned above, scenes of extended-family dinners are often used to 9 juxtapose intimacy and tension. This mood is furthered by the theme, in both 10 works, of cooking and food. In Emanuel, dinners are not simply prepared—they 11 are narrated. The menu is reported in detail, in the manner of a fine restaurant 12 (“herb roasted chicken with porcini mushroom stuffing”). Emanuel’s birthday 13 cake is painstakingly decorated by hand. So too in Servant, where elaborate and 14 exotic food, and its preparation, are keys to each episode. 15 Dialogue 16 77. 17 Both works feature scenes where the mother expresses that she sees herself in 18 the nanny—followed by surprisingly strong exclamations of affection. 19 Both works feature scenes where the mother gives baby-care direction in 20 extremely realistic terms, demonstrating the depth of her commitment to the 21 delusion that the doll is real. 22 Both works feature awkward question-and-answer scenes, where the mother 23 attempts to better know the nanny. 24 Both works feature scenes where the father explains that the cause of the baby’s 25 death is unknown. 26 Both works feature scenes in which the nanny tells the mother “you look 27 beautiful” as they discuss an impending date. Emanuel and Servant share similar dialogue, including as follows: 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 36 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 37 of 42 Page ID #:37 1 Both works feature scenes where characters speculate that the nanny’s youth is 2 the explanation for her quirks and reticence. 3 Differences in the works 4 78. Defendants will point to differences between Emanuel and Servant. But 5 what they call differences are really just content that was tacked on to Ms. Gregorini’s 6 story—usually in ways required when adapting a motion picture for use as an episodic 7 television series. Indeed, Defendants misappropriated the ninety-minute film Emanuel 8 for use as their first three half-hour episodes of Servant, which were released as a unit 9 on Thanksgiving 2019, and can be thought of as the series “pilot.” That each of the 10 subsequent thirty-minute weekly episodes introduces new self-contained vignettes or 11 sub-plots does not detract from the substantial similarity of Emanuel and Episodes 1-3 12 of Servant.10 13 First Claim For Relief For Copyright Infringement 14 (Against All Defendants) 79. 15 Plaintiff incorporates by this reference all other paragraphs in this 16 pleading, as if fully set forth in full in this claim. 80. 17 In 2012, Emanuel Film LLC authored the motion picture The Truth 18 About Emanuel, then entitled Emanuel and the Truth About Fishes (the “Work”). The 19 20 21 22 23 24 25 26 27 10 Indeed, in television, it is quite common for a series to offer a movie-like pilot—which establishes characters within a self-contained story—and then build on those elements in subsequent weekly episodes that use the story of the pilot as backstory to the series. The episodes can continue for many years, of course—which is Mr. Shyamalan’s publicly-expressed ambition for Servant. Imagine, for example, that Romeo and Juliet was still protected by copyright, and was improperly adapted as a television pilot. That years of subsequent episodes—which might focus on the hilarious continued misadventures of the Montagues and Capulets—did not continue to directly derive from the original play would not somehow cure the original infringement. As Judge Learned Hand famously remarked, “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.” The original infringement remains, of course, even if later episodes alter the meaning of the pilot. If it were revealed at the end of Season 5 that Romeo was an alien, for example, that would have no bearing on the substantial similarity of play and pilot. 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 37 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 38 of 42 Page ID #:38 1 Work is creative and original, constituting copyrightable subject matter under United 2 States law. 81. 3 In 2017, Emanuel Film LLC was dissolved and cancelled, and the 4 copyright in the Work was assigned to Plaintiff, who is the screenwriter, director, and 5 producer. Since that assignment, Plaintiff has been and still is the sole proprietor of all 6 rights, title, and interest in and to the copyright in the Work. Plaintiff has complied in 7 all respects with the Copyright Act and all other laws governing copyright. Plaintiff 8 has complied with 17 U.S.C. § 411 in that the deposit, application, and fee required 9 for registration have been delivered to the Copyright Office in proper form, and the 10 work has registered—U.S. Copyright Office Reg. No. PA0002213169. 82. 11 Defendants had access to Plaintiff’s work, as described above (including 12 its premier at Sundance and nationwide release). 83. 13 Defendants, with full knowledge of Plaintiff’s rights, infringed Plaintiff’s 14 copyrights by preparing an unauthorized derivative work; and by producing, 15 distributing, streaming, and transmitting Episodes 1 through 3, of Season 1, of the 16 television show entitled Servant.11 17 84. As explained above, Servant is substantially similar to Emanuel. 18 85. All such acts were performed by Defendants without the permission, 19 license, or consent of Plaintiff. Plaintiff has notified Defendants in writing of the 20 infringements. As described above, all Defendants have continued to stream and 21 otherwise distribute the infringing material even after receiving Plaintiff’s protests and 22 demands that such infringement cease. 86. 23 By reason of Defendants’ acts of copyright infringement, Plaintiff has 24 suffered, and will continue to suffer substantial damages to her business in the form of 25 diversion of trade, loss of profits, and a dilution in the value of Plaintiff’s rights and 26 reputation, all in amounts that are not yet ascertainable, but not less than the 27 11 For the purposes of this Complaint, “Servant” refers to Season One, Episodes 1-3, of the Apple 28 TV+’s original series Servant, which were first available for streaming on November 28, 2019. ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 38 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 39 of 42 Page ID #:39 1 jurisdictional minimum of this Court. In particular, the value of Ms. Gregorini’s 2 intellectual property related to the Work has been greatly diminished. For example, 3 were it not for the Defendants’ infringement, Emanuel would be a valuable asset, 4 including as a television property. As it is, the market likely does not have room for 5 another television series about a nanny caring for a doll. 6 87. By reason of Defendants’ infringement of Plaintiff’s copyright, 7 Defendants are liable to Plaintiff for the actual damages incurred by Plaintiff as a 8 result of the infringement, and for any profits of Defendants directly or indirectly 9 attributable to such infringement. 10 88. In addition to compensating Ms. Gregorini for rendering Emanuel un- 11 adaptable for television, the Defendants must turn over their ill-gotten gains. In the 12 case of Apple, that is likely to be a staggering sum—given the unabashed manner in 13 which it has leveraged what it considers to be one of the best stories ever told to 14 aggrandize and promote its multi-billion-dollar foray into television. 15 Second Claim For Relief For 16 Contributory And Vicarious Copyright Infringement 17 (Against All Defendants) 18 89. Plaintiff incorporates by this reference all other paragraphs in this 19 pleading, as if fully set forth in full in this claim. 20 90. Each Defendant is contributorily liable for the infringement alleged 21 herein because each Defendant knowingly induced, participated in, aided and abetted, 22 and profited from the production of and/or subsequent sales of the infringing work. 23 91. Each Defendant is vicariously liable for the infringement alleged herein 24 because each Defendant had the right and ability to supervise the infringing conduct, 25 including the practical ability to do so, and because each Defendant had a direct 26 financial interest in the infringing conduct. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 39 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 40 of 42 Page ID #:40 PRAYER 1 2 WHEREFORE, Plaintiff prays judgment against Defendants as follows: 3 1. That Plaintiff is awarded all damages, including future damages, that 4 Plaintiff has sustained, or will sustain, as a result of the acts complained of herein, 5 subject to proof at trial; 6 2. That Plaintiff is awarded her costs, attorneys’ fees and expenses in this 7 action; 8 3. That Plaintiff is awarded pre-judgment interest; 9 4. For an order permanently enjoining Defendants and their employees, 10 agents, servants, attorneys, representatives, successors, and assigns; and any and all 11 persons in active concert or participation with any of them, from engaging in the 12 misconduct referenced herein; 13 5. That Defendants be ordered to immediately recall and sequester 14 inventories of the infringing material, and to supply accountings to Plaintiff’s counsel; 15 6. That Defendants be ordered to deliver their entire inventories of 16 infringing materials to a mutually selected third party for supervised destruction; 17 7. That Defendants be ordered to file with this Court and serve upon 18 Plaintiff’s counsel within thirty (30) days after service of the judgment demanded 19 herein, a written report submitted under oath setting forth in detail the manner in 20 which they have complied with the judgment; 21 8. For disgorgement of all proceeds, and restitution of all monies received 22 by Defendants as the result of their wrongful conduct; 23 9. For punitive damages in an amount sufficient to deter Defendants from 24 their wrongful conduct; and 25 10. Such other damages and further relief as the Court may deem 26 appropriate. 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 40 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 41 of 42 Page ID #:41 1 2 3 4 DATED: January 15, 2020 ERIKSON LAW GROUP By: ___________________________ DAVID ERIKSON Attorneys for Plaintiff Francesca Gregorini 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 41 COMPLAINT Case 2:20-cv-00406 Document 1 Filed 01/15/20 Page 42 of 42 Page ID #:42 1 DEMAND FOR JURY TRIAL 2 Plaintiff hereby demands a jury trial on her claims on all issues triable by a 3 jury. 4 5 6 7 8 DATED: January 15, 2020 ERIKSON LAW GROUP By: ___________________________ DAVID ERIKSON Attorneys for Plaintiff Francesca Gregorini 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERIKSON LAW GROUP ATTORNEYS LOS ANGELES CA 42 COMPLAINT