Gable v. National Broadcasting Co.
438 F. App'x 587
9th Cir.2011Background
- Gable appeals district court's grant of summary judgment for NBC and others in his copyright infringement action over Karma! vs My Name is Earl.
- Court reviews summary judgment de novo and affirms denial of access issue as no genuine material fact on substantial similarity.
- Extrinsic test governs substantial similarity: focus on plot, themes, dialogue, mood, setting, pace, characters, sequence of events.
- Court holds similarities from unprotectable elements or common ideas not protected; scènes à faire applies.
- District court excluded expert testimony of Nimmer and Sherman as lacking relevant expertise and containing inadmissible conclusions.
- District court awarded attorneys’ fees to defendants under 17 U.S.C. § 505, affirmed on abuse-of-discretion review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Karma! and Earl are substantially similar | Gable asserts substantial similarity of protected expression. | Defendants contend no substantial similarity under extrinsic test. | No genuine issue of material fact; no substantial similarity. |
| Whether access is required given lack of substantial similarity | Gable must show access for infringement. | Access not necessary where no substantial similarity. | Access not addressed given lack of substantial similarity. |
| Whether expert testimony was properly excluded | Nimmer and Sherman offered relevant expertise. | District court properly excluded due to lack of qualified expertise and inadmissible conclusions. | District court did not abuse discretion in excluding the experts. |
| Whether attorneys’ fees under § 505 were properly awarded | Fees should not be awarded to prevailing party. | Fees appropriate to encourage protection of works and deter meritless actions. | District court's award of attorneys’ fees affirmed. |
Key Cases Cited
- Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072 (9th Cir. 2006) (extrinsic test; no substantial similarity from ideas alone)
- Rice v. Fox Broad. Co., 330 F.3d 1170 (9th Cir. 2003) (no protection for similarities arising from unprotectable elements)
- Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir. 1994) (no significance to shared kid protagonists facing dangers)
- Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (selection and arrangement of unprotectable elements not infringing)
- United States v. Scholl, 166 F.3d 964 (9th Cir. 1999) (expert testimony admissibility and Daubert-era concerns)
- United States v. Chang, 207 F.3d 1169 (9th Cir. 2000) (discretion in evaluating expert qualifications)