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Dutcher v. Bold Films LP

United States District Court, D. Utah

August 19, 2019

RICHARD DUTCHER, Plaintiff,
v.
BOLD FILMS LP, BOLD FILM PRODUCTIONS, LLC, OPEN ROAD FILMS, LLC, NBCUNIVERSAL MEDIA, LLC, and UNIVERSAL STUDIOS HOME ENTERTAINMENT LLC, Defendants.

          MEMORANDUM DECISION AND ORDER

          DEE BENSON UNITED STATES DISTRICT JUDGE.

         On 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. No. 343.)

         On 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.

         The 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.)

         Background

         Falling 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.)

         Nightcrawler 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.

         Both 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.

         Discussion

         To 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).

         In the 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.

         Courts 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.

         The 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).

         Abstraction ...


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