Summary
The Ninth Circuit affirmed the dismissal of Anna Biani’s copyright-infringement action against Showtime Networks and related defendants. The court held that Biani failed to plausibly allege factual copying because the asserted similarities were not sufficiently striking to preclude independent creation, coincidence, or a common source. The court also held that the claim independently failed because the alleged similarities involved unprotectable ideas, concepts, and stock features rather than substantially similar protectable expression.
Topics
Practice areas
Questions Presented
- Whether Biani plausibly alleged factual copying despite not challenging the district court's determination that she failed to allege access, based on alleged striking similarity between her characters and characters in Penny Dreadful.
- Whether Biani plausibly alleged unlawful appropriation by showing substantial similarity between protectable expression in her characters and the show's characters.
Holdings
- When a plaintiff lacks evidence of access, a copyright-infringement claim survives the pleading stage on a factual-copying theory only if the works are so strikingly similar that independent creation, coincidence, or a prior common source is precluded. Similarities that are probative of actual copying may include both protectable and unprotectable elements.
- A plaintiff must plausibly allege that the defendant copied enough of the plaintiff's protected expression of ideas or concepts to render the works substantially similar. On a motion to dismiss, the extrinsic test applies and requires filtering out unprotectable ideas, public-domain material, and scènes à faire.
Key quotations
“The second prong contains two separate components: “copying” (or “factual copying”) and illicit copying (or “unlawful appropriation”).” (8)
“If the plaintiff lacks evidence of access, then her claim survives only if the two works are so “strikingly similar” as to preclude “the possibility of independent creation.”” (9)
“The extrinsic test “assesses the objective similarities of the two works, focusing only on the protectable elements of the plaintiff’s expression,” by “‘filter[ing] out’ . . . unprotectable elements.”” (10)
Factual background
Anna Biani created three original characters as a member of an online Victorian-era role-playing forum and copyrighted the characters and her forum posts. Showtime later aired Penny Dreadful, a series set in Victorian London featuring Vanessa and Sir Malcolm, among other characters. Biani alleged that the show's characters incorporated aspects of her characters, including traits involving witchcraft, seizures, clairvoyance, exploration, Victorian social norms, and the use of Eva Green's likeness.
Procedural history
Biani sued Showtime and related defendants, alleging that the television series Penny Dreadful infringed her original characters. The district court dismissed the complaint for failure to plausibly allege that defendants had a reasonable opportunity to copy her work, granted leave to amend, and later dismissed the action with prejudice after Biani elected not to amend. The Ninth Circuit affirmed.