United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
BENSON UNITED STATES DISTRICT JUDGE.
February 15, 2019, Defendants filed a Motion in Limine to
Preclude Testimony or Other Evidence Re: Substantial
Similarity as to Non-Protected Elements of Falling.
(Dkt. No. 295.) The court held a hearing on the motion on
March 19, 2019. (Dkt. Nos. 343, 346.) At the hearing,
Plaintiff was represented by Steven Silverman and Perry
Clegg, and Defendants were represented by Jeffrey Hunt, David
Reymann, Cheylynn Hayman, and Jeremy Brodis. Following oral
argument, the court took the Motion under advisement. (Dkt.
March 22, 2019, the court granted Defendants' Motion in
Limine to filter out the unprotected elements of
Falling, such that the “substantial
similarity” analysis is “between the allegedly
infringing work and the elements of the copyrighted work that
are legally protected.” Blehm v. Jacobs, 702
F.3d 1193, 1199 (10th Cir. 2012); Country Kids ‘N
City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1284 (10th
Cir. 1996). Having engaged in that analysis, the court
determined that no reasonable jury could find that
Falling is substantially similar to
Nightcrawler, after the unprotected elements of
Falling have been properly removed from
consideration. Accordingly, the court reconsidered its
previous ruling, granted summary judgment in favor of
Defendants, and vacated the trial date set in this matter.
court did not provide complete analysis at that time, and
instead stated that a Memorandum Decision would follow the
Order. Plaintiff then submitted a Motion to Vacate Order
Granting Summary Judgment and Request for Rule 56(f) Relief.
(Dkt. Nos. 349.) The court denied the Motion to Vacate, but
allowed the parties to submit supplemental briefing related
to the protectable elements of Falling and
substantial similarity. (Dkt. No. 353.) The court now issues
this Memorandum Decision consistent with the March 22 Order.
(Dkt. No. 347.)
is a motion picture made by Richard Dutcher in 2007. (First
Amended Complaint, Dkt. No. 87, ¶ 1.) Falling
depicts a freelance news videographer in Los Angeles,
sometimes referred to as a “stringer”.
(Id.) The main character, Eric, drives the streets
of Los Angeles listening to police band radio for fires,
accidents and crimes to record and sell. (Id.) Eric
records progressively more violent and distressing scenes
throughout the film until he eventually records a crime in
progress that results in a murder in which he continues to
record a dying man without rendering assistance.
(Id.) Mr. Dutcher screened the movie in Los Angeles
and Salt Lake City, and distributed a small number of DVDs.
(Id.) Mr. Dutcher holds a registered copyright for
the Falling motion picture. (Id. ¶ 6.)
is a motion picture produced and distributed by Defendants in
2014. (Id. ¶¶ 1, 8-10.)
Nightcrawler also depicts a stringer in Los Angeles
who uses police scanners and searches the streets for crimes
to record and sell. The main character, Lou, similarly
records progressively more violent crimes, including filming
a murder and failing to aid the victim.
films involve main characters who are engaged in the stringer
profession in Los Angeles. Both films include a male
protagonist and a female love interest. In Falling,
the love interest, Davey, is Eric's wife, an aspiring
actress. In Nightcrawler, the love interest, Nina,
is a reporter dependent on Lou's continued submission of
his sensational footage to her. At the end of
Nightcrawler, Lou ends up better off than when the
film began, with new vans and several interns. At the end of
Falling, Eric appears to have lost everything as a
result of his stringer behaviors.
prevail on a copyright claim, the owner of a valid copyright
must prove “that the defendant unlawfully appropriated
protected portions of the copyrighted work.” Gates
Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832
(10th Cir. 1993). “This question involves two separate
inquiries: 1) whether the defendant, as a factual matter,
copied portions of the plaintiff's [protected work]; and
2) whether, as a mixed issue of fact and law, those elements
of the [protected work] that have been copied are protected
expression and of such importance to the copied work that the
appropriation is actionable. Id. The second inquiry
requires the court “to determine which elements of
Plaintiff's work … are protectable.”
Country Kids 'N City Slicks, Inc. v. Sheen, 77
F.3d 1280, 1284 (10th Cir. 1996).
absence of direct evidence, a plaintiff may prove that
protectable elements of his copyrighted work have been copied
by showing that the defendant had access to the protected
work and that the allegedly copied material is substantially
similar to the protectable portion of the copyrighted
material. Id. at 832; Country Kids, 77 F.3d
at 1284. “Liability for copyright infringement will
only attach where protected elements of a
copyrighted work are copied.” Gates Rubber
Co., 9 F.3d at 833.
in the Tenth Circuit often find it useful to apply the
“abstraction-filtration-comparison” test. See
Id. at 834-42; Country Kids, 77 F.3d at
1284-1288; Autoskill Inc. v. Nat'l Educ. Support
Sys., Inc., 994 F.2d 1476, 1490-98 (10th Cir. 1993)
(overruled on other grounds). The abstraction step requires
the court to “separate the ideas…, which are not
protectable, from the particular expression of the
work.” Country Kids, 77 F.3d at 1284. The
court then “filter[s] out the nonprotectable components
of the [copyrighted work] from the original
expression.” Id. Finally, the court
“compare[s] the remaining protected elements to the
allegedly copied work to determine if the two works are
substantially similar.” Id.
court here has been presented with Defendants' Motion in
Limine to Preclude Testimony or Other Evidence Re:
Substantial Similarity as to Non-Protected Elements of
Falling. (Dkt. No. 295.) That Motion requested that
the court filter out the non-protected elements of
Falling prior to the case being presented to the
jury for comparison to Nightcrawler. The court
agreed with Defendants that the “substantial
similarity” analysis must be “between the
allegedly infringing work and the elements of the copyrighted
work that are legally protected.” Blehm v.
Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012);
Country Kids ‘N City Slicks, Inc. v. Sheen, 77
F.3d 1280, 1284 (10th Cir. 1996).