OPINION
We delve once again into the turbid waters of the “extrinsic test” for substantial similarity under the Copyright Act.
Facts
In November 1989, Jerome Metcalf read two newspaper articles about the Army’s practice of training surgeons at inner-city hospitals to expose them to combat-like conditions. Based on these articles, Jerome and his wife Laurie (“the Metcalfs”) conceived a story about a county hospital in inner-city Los Angeles and the struggles of its predominantly black staff. Along with third party Joan Ray, the Met-calfs formed a corporation (“CCA”) to develop the idea into a full-length motion picture. Jerome then discussed the idea with defendant Michael Warren, a friend and actor who had starred in television shows produced by defendant Steven Bo-chco, including “Hill Street Blues.” Warren liked the idea and encouraged Jerome to write a project summary or “treat
CCA commissioned a writer to prepare a treatment based on the Metcalfs’ idea. Unhappy with the result, the Metcalfs wrote their own treatment, titled it “Give Something Back,” and gave it to Warren. Warren said he liked it and relayed it to Bochco. Warren later told Jerome that Bochco also liked the treatment, but declined to use it because he was busy with other projects.
CCA then hired another author to write a screenplay based on the treatment. Warren also reviewed this work, titled “As Long As They Kill Themselves,” and submitted it to Bochco. Near the end of 1991, Warren again told Jerome that Bochco lacked the time to develop the Metcalfs’ idea.
Undaunted, the Metcalfs revised the screenplay and retitled it “About Face.” In 1992, they pitched the work to Bochco (again via Warren) and defendant CBS, but neither avenue proved fruitful. CBS explained that it had another hospital series in development at the time.
Much to the Metcalfs’ surprise, on January 16, 2000, the television series “City of Angels” premiered on CBS. The pilot and first episode were produced and written by Bochco, starred Warren, and featured a county-run, inner-city hospital in Los An-geles with a predominantly black staff.
The Metcalfs filed suit in state court against Bochco, Bochco Steven Enterprises, CBS Entertainment, CBS Productions, Michael Warren, Nicholas Wootton and Paris Barclay
The district court held that the Metcalfs owned valid copyrights in “Give Something Back,” “As Long As They Kill Themselves,” and “About Face,” and that the evidence was sufficient to establish that Bochco had access to these works. However, the court granted Bochco’s summary judgment motion on the ground that the Metcalf and Bochco works were not substantially similar. The district court also awarded Bochco $83,316.81 in attorneys’ fees. The Metcalfs appeal.
Discussion
To prevail on their infringement claim, the Metcalfs must show that they own the works in question and that Bochco copied them. Shaw v. Lindheim,
1. The Metcalfs, and not CCA, own the treatment “Give Something Back” and those portions of the screenplay “About Face” that the Metcalfs wrote. These are not “work[s] made , for hire” for CCA. 17 U.S.C. § 201(b). In the absence of a written agreement, to determine whether the writer of a work is an employee who does not own the work, or instead
The Metcalfs, however, do not own the screenplay “As Long As They Kill Themselves” or those portions of “About Face” that they did not write. These are “work[s] made for hire,” 17 U.S.C. § 201(b), and are thus owned by CCA. According to the written contract between CCA and the writer of “As Long As They Kill Themselves,” the screenplay is a “work made for hire” for CCA, which “is and shall be considered the author of said Material for all purposes and the sole and exclusive owner of all of the rights comprised in the copyright.”
[1] 2. We employ a two-part analysis — an extrinsic test and an intrinsic test — to determine whether two works are substantially similar. Shaw,
The extrinsic test is an objective one that focuses on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” Kouf v. Walt Disney Pictures & Television,
The similarities between the relevant works are striking: Both the Metcalf and Bochco works are set in overburdened county hospitals in inner-city Los Angeles with mostly black staffs. Both deal with issues of poverty, race relations and urban blight. The works’ main characters are both young, good-looking, muscular black surgeons who grew up in the neighborhood where the hospital is located. Both surgeons struggle to choose between the financial benefits of private practice and the emotional rewards of working in the inner city. Both are romantically involved with young professional women when they arrive at the hospital, but develop strong attractions to hospital administrators. Both new relationships flourish and culminate in a kiss, but are later strained when the administrator observes a display of physical intimacy between the main character and his original love interest. Both administrators are in their thirties, were once married but are now single, without children and devoted to their careers and
Bochco correctly argues that copyright law protects a writer’s expression of ideas, but not the ideas themselves. Kouf,
[4] However, the presence of so many generic similarities and the common patterns in which they arise do help the Metcalfs satisfy the extrinsic test. The particular sequence in which an author strings a significant number of unprotecta-ble elements can itself be a protectable element. Each note in a scale, for example, is not protectable, but a pattern of notes in a tune may earn copyright protection. A common “pattern [that] is sufficiently concrete ... warrants] a finding of substantial similarity.” Shaw, 919 F.2d at 1363; see id. (“Even if none of these [common] plot elements is remarkably unusual in and of itself, the fact that both [works] contain all of these similar events gives rise to a triable question of substantial similarity of protected expression.”); id. (where main characters are both well dressed, wealthy, self-assured and have expensive tastes, “the totality of the[se] similarities ... goes beyond the necessities of [defendants’ work’s] theme and belies any claim of literary accident”). '
Neither Apple Computer, Inc. v. Microsoft Corp.,
In Cavalier, we did not address the pro-tectability of the selection and sequence of generic elements. Plaintiffs argued unsuccessfully that the many “random similarities scattered throughout the works” satisfied the extrinsic test, No. 00-56192, slip
The Metcalfs’ case is strengthened considerably by Bochco’s concession of access to their works. Shaw,
Because we reverse the district court’s ruling on the merits, we, of course, also reverse the award of attorneys’ fees to Bochco.
REVERSED.
Notes
. Because we review a summary judgment against plaintiffs, we recite the facts as alleged by them. San Francisco Baykeeper v. Whitman,
. Bochco, Wootton and Barclay were jointly credited with having created and written the "City of Angels” television series.
. We note that the Metcalfs may be able to amend their complaint to include CCA as a plaintiff, see Fed.R.Civ.P. 15, or file a new claim on CCA's behalf. Although CCA is now defunct, it may still pursue ''claim[s] that arose after its dissolution, ... just as an estate is permitted to prosecute a cause of action arising after the decedent's death.” Peñasquitos, Inc. v. Superior Court,
. We imply no conclusion as to what the result might have been had this argument been made. Because the record in Cavalier is not before us, we cannot judge how that case would have been decided had the plaintiff there raised an argument it did not raise.