Sonya Whitten LATIMORE, Plaintiff-Appellant, v. NBC UNIVERSAL TELEVISION STUDIO, 3 Ball Productions, Inc., 25/7 Productions, LLP, A Delaware Limited Liability Company, Twentieth Television, Inc., A Delaware Corporation, Shine Limited, An Entity of Unknown Origin, Daniel Tibbets, An Individual, Andrew Hill, An individual, Ben Silverman, An individual, Defendants, and NBC Universal Inc., Reveille, LLC, A Delaware Limited Liability Company, Kim Fuller, Individually and as Partner of McCreary & Fuller Public Relations Corp., Does, 1 through 50, Inclusive, Defendants-Appellees.
No. 11-1202-cv.
United States Court of Appeals, Second Circuit.
May 23, 2012.
480 Fed. Appx. 649
PRESENT: DENNIS JACOBS, Chief Judge, AMALYA L. KEARSE, JOSEPH M. McLAUGHLIN, Circuit Judges.
SUMMARY ORDER
Sonya Whitten Latimore appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), granting defendants’ motion for summary judgment and denying her cross-motion to conduct additional discovery. Latimore‘s amended complaint alleges that the NBC reality program called The Biggest Loser infringes on her copyrighted treatment for a television show entitled Phat Farm. The district court concluded that The Biggest Loser was not substantially similar to Latimore‘s idea and that Latimore had failed to uncover any evidence that the creators of the show had access to Latimore‘s proposal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
After conducting a de novo review of the district court‘s summary judgment ruling, we affirm. In the absence of direct evidence of copying, a plaintiff can circumstantially prove that a defendant copied her work by showing both the defendant‘s “access to the copyrighted work” and the “substantial similarity of protectible material in the two works.” Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996) (internal quotation marks omitted). “The standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (internal quotation marks and alterations omitted). In a case such as this, where the copyrighted work necessarily has both protected and unprotected elements, a court applies a more discerning analysis, in which it “must attempt to extract the unprotectible elements from [] consideration and ask whether the protectible ele-
As an independent basis for affirming, we agree with the district court that, after protracted discovery, Latimore utterly failed to uncover evidence that the creators of The Biggest Loser ever had access to her proposal, or heard of it.
Finally, the district court did not abuse its discretion in denying Latimore‘s cross-motion for additional discovery under
Finding no merit in Latimore‘s remaining arguments, we hereby AFFIRM the judgment of the district court.