Before us are cross-appeals in a decade-long copyright dispute concerning two sitcoms on Puerto Rican television. On one side is TMTV, Corp., a successor in interest to the first sitcom’s production company; on the other, the second sitcom’s production company, Mass Productions, Inc., and its principals — including the star of both shows, Emmanuel “Sunshine” Logroño. The district court granted summary judgment to TMTV on its claim charging infringement; and a jury granted it substantial damages, which the district court reduced by an amount recovered by TMTV in settlement of related litigation.
*467 A summary of events and prior proceedings will suffice. In 1997, Antonio Mojena- — an established television producer in Puerto Rico — approached two veteran entertainers — Sunshine Logroño and Iris Chacón — about co-hosting a variety show on Puerto Rican television. The show would be called De Noche con Iris y Sunshine and would begin with four two-hour episodes, continuing thereafter if it proved popular. Chacón and Logroño both agreed to participate.
During Mojena’s initial рitch, he and Logroño discussed filling some of the two-hour episodes of De Noche con Iris y Sunshine with comedy segments. To that end, Logroño arranged a meeting in late September or early October 1997 with a team of comedians and scriptwriters, including scriptwriters Roberto Jiménez and Miguel Morales; Jiménez had worked with Logroño before, while Morales had not. At the meeting Jiménez suggested a sitcom centered on a condominium building and its residents. Logroño approved of the idea of setting a comedy segment in a condominium building, and the title 20 Pisos de Historia (“20 Pisos ”) was chosen.
The session produced a number of suggestions for dramatis personae, many modeled on preexisting characters taken from other projects involving the team. For example, a focus of the sitcom was to be a gossipy security guard in the lobby named “Vázquez,” who was based on a character Logroño played in a comedy segment in a previous television special, Sunshine a la BBQ. “Soto,” an older woman living alone, was drawn from a character in another prior Logroño show, La Tripletta. These and like adaptations were used when the sitcom was aired.
After this discussion of ideаs, Logroño asked Morales to write scripts for two of the first three episodes of 20 Pisos and Jiménez to write the third. Logroño’s recollection was that he framed the plots of all three, and Morales and Jiménez merely prepared dialogue to conform to Logroño’s storylines. By contrast, Morales claims that he wrote the two scripts at home, by himself, based on the general concepts aired at the meeting; similarly, Jiménez claims to have taken the general ideas from the session and fixed them in writing for the first time.
The writers delivered their scripts to Logroño, who retyped all three using special screen-writing software. On the cover pages, Logroño listed Morales as the author of episodes one and three and Jiménez as the author of episode two. Logroño claims to have made substantial changes in the scripts given to him, but the trail of drafts shows only minimal editing. And while Logroño appears to have co-written a number of later scripts for 20 Pisos, these reflected themes and characters set up in the first thrеe episodes.
The first episode of 20 Pisos aired on the inaugural broadcast of the variety show, De Noche con Iris y Sunshine, on November 7, 1997. The show was produced by Creative Relief Corp. — a business wholly owned by Mojena — and broadcast in Puerto Rico by the WKAQ television station, an affiliate of the Telemundo network. The early episodes were successful and the variety show— and the 20 Pisos sitcom within it — became a recurring weekly program for almost two years (although renamed after Chacón left).
In December 1999, Logroño decamped from WKAQ for a rival television station— WAPA, an affiliate of Televicentro — where he starred in a new sitcom produced by Mass Productions (a company controlled by Logroño and his wife), titled El Condominio. The new show, which began airing on WAPA in March 2000, featured many of the same actors as 20 Pisos. The *468 show retained the old characters and the sitcom unfolded in a virtually identical condominium setting, although new stories were developed and some new characters added.
On March 15, 2000, TMTV brought a copyright infringement action in federal district court against Logroño, his wife, and their production company, Mass Prоductions. 1 The suit sought a declaratory judgment and various other legal and equitable remedies. Logroño filed an answer and counterclaim, asserting that he was the sole owner of the copyright to the outlines, scripts, and characters used for 20 Pisos and that he was owed royalty payments for the use of these properties by TMTV.
In due course, the district court granted summary judgment in the plaintiffs favor.
TMTV, Corp. v. Mass Prods., Inc. (TMTV I),
In December 2004, a month or so after this decision, Televicentro — the network on which El Condominio was broadcast— sought unsuccessfully to intervene and to have the partial summary judgment set aside. In August 2005, TMTV sought to consolidate its own suit with two others now pending before another district judge: an infringement suit by TMTV against Televicentro for broadcasting El Condominio and a suit against TMTV by a group of actors claiming copyright in the characters they had portrayed in 20 Pisos. This motion too was denied.
Thereafter, Logroñо made his own failed attempt to undo the liability ruling against the defendants by claiming that the scriptwriters’ work-for-hire agreements with TMTV were invalid.
TMTV, Corp. v. Mass Prods., Inc. (TMTV
II),
Prior to the trial, TMTV elected to claim only its actual damages (and not the defendants’ profits or statutory damages). See 17 U.S.C. § 504 (2006). TMTV’s expert witness, economist Michael Einhorn, estimаted damages as at least $4.9 million, based on licensing fees TMTV allegedly would have earned but for the infringement by the defendants; this was measured in part by licensing fees actually earned by another comparable sitcom on Puerto Rican television. The jury awarded TMTV $772,079.29.
Following the verdict, the district court, over TMTVs objection, reduced the award by $700,000, representing the amount that TMTV had received in settlement from Televicentro. The court awarded TMTV prejudgment interest at the local-court rate of 5 pеrcent per annum on the original jury verdict up through the date of the Televicentro settlement and, from then on, on the much smaller balance. Finally, the court denied TMTV’s request for attorneys’ fees as barred by the registration requirement of the Copyright Act, 17 U.S.C. § 412.
*469
Both parties filed timely appeals, and we begin with Logroño’s challenges to the summary judgment — most importantly, his attack on the infringement ruling against him and his co-defendants. That ruling in turn required that TMTV show both ownership of a validly copyrighted work and improper copying of the protected elements of that work.
Yankee Candle Co. v. Bridgewater Candle Co.,
Since TMTV’s claim to copyright runs through Jiménez and Morales, the first question is whether they or Logroño should be viewed as the creator of the original scripts. Jiménez and Morales say that once the condominium setting was agreed upon, they wrote the initial three scripts, framing the plots and dialogue and drawing in part on stock characters used in previous projects in which the team had participated. Logroño says that he outlined the plоts and rewrote the scripts.
Ordinarily, a credibility contest means that the case must be tried but, in this instance, Logroño’s claim to have substantially rewritten the scripts is refuted by comparing the originals and the final product. As for Logroño’s supposed outlining of the plots, he has pointed to no writing — neither any written outline by him nor any notes taken by anyone at the original meeting — that reflects anything like an outline of the scripts. At best, Logroño’s version would mean that he suggested some general ideas for plots and possible stоck characters for the initial scripts.
One of the axiomatic requirements for copyright is that the author’s work be “fixed.” 17 U.S.C. § 102(a). Copyright is a protection afforded to the definite expression of ideas but not the ideas themselves.
See, e.g., Cmty. for Creative Non-Violence v. Reid,
Logroño claims to have suggested the security guard and other characters; but nothing in the record indicates that they had the delineation needed to make them subject to copyright. Stоck characters, like stock
scenes afaire,
are not subject to copyright protection.
Nichols v. Universal Pictures Corp.,
Positing Jiménez and Morales as the authors, ownership must still be traced to TMTV. Although the copyright ordinarily vests in the initial author or authors, 17 U.S.C. § 201(a), TMTV claims that the three scripts fall within the work “made for hire” rubric,
id.
§ 201(b), meaning that the original production company would be considered the author. The district court agreed and, the original production company having assignеd its rights to TMTV, the court treated TMTV as the copyright own
*470
er.
TMTV II,
Jiménez and Morales confirmed in depositions that this was their own oral understanding with the production company; but the statute requires express agreement in a signed written instrument,
see
17 U.S.C. § 101 (definition); and the circuits are divided as to whether the language and policy require the writing before the creation or at least the completion of the work.
3
But even assuming that the rights remained with the scriptwriters, before this case began they conveyed (in writing, 17 U.S.C. § 204(a)) whatever rights they had to TMTV. We may rely on this assignment even though the district court did not.
Torres v. E.I. Dupont De Nemours & Co.,
Logroño next argues that he participated heavily in writing
later
scripts and that the district court’s conclusion that these scripts were derivative works of the first three was cursory and unsupported.
See TMTV I,
The second element in the liability claim is infringement, which requires proof that actual copying occurred and that the copying was so extensive that the two works are “substantially similar.”
Segrets, Inc. v. Gillman Knitwear Co.,
So copying is not in doubt and the issue is substantial similarity, which requires comparing the
expressive
elements of the copyrighted work contributed by the author — the components alone subject to copyright protection — with those of the allegedly infringing work.
Yankee Candle,
Infringement can occur where— without copying a single line — the later author borrows wholesale the entire backdrop, characters, inter-relationships, genre, and plot design of an earlier work.
4
*471
Imagine, for example, that the first Sherlock Holmes stories had been penned and copyrighted last year by Sir Arthur Conаn Doyle, and Logroño had then written his own sequels carrying everything forward into a new plot.
See, e.g., Anderson v. Stallone,
No. 87-0592 WDKGX,
the similarities between the two programs are so striking that there is no doubt that “El Condominio” is ... an unauthorized derivative work. In effect ... both programs are the same with only a difference in name and transmitted via a different channel. Specifically, the setting, character names, costumes, character interactions, comedy line, mood, [and] camera angles are almost identical in both sitcoms.
TMTV I,
Logroño’s claimed differences between the two shows are not significant. For example, although the action in
El Condominio
unfolds largely in a condominium building lobby virtually identical to the lobby setting in
20 Pisos,
the second sitcom also added some scenes in a laundry room and the handyman’s space; so, too, some characters are given more dialogue or minor variations in character traits
{e.g.,
a new hearing problem). Such trivial modifications are not a defense.
Cf. Coquico,
Liability for coрyright violation being established, we turn to damages. The jury awarded $772,079, but the district judge reduced this figure by $700,000 for the settlement payment TMTV received from Televicentro. Logroño argues that all of the damages awarded by the jury should have been erased by the settlement; TMTV, as cross-appellant, claims that none of the damages awarded by the jury should have been reduced by the settlement payment.
The acts of infringement by the defendants and by Televicentro are not identical but they are entangled: Logroño and his produсtion company produced the infringing El Condominio programs and Televicentro broadcast them. In this case, TMTV’s theory of damages at trial was that the infringement diverted from TMTV potential licensing royalties; this was patently a claim for plaintiffs damages rather than defendants’ profits. 5
We start with the defendants’ claims. The defendants make two different arguments for their view that the prior TMTV-Televicentro settlement barred any recovery at trial. The first is that the settlement constituted a release of claims against any available party who could be charged with infringement based on the same episode; the second, that the judgment entered upon the settlement is res judicata, precluding any further claims against the defendants.
Older common law doctrine tended toward the view that a settlement with one tortfeasor extinguished claims against other joint tortfeasors responsible for the same harm — although who was a joint tortfeasor and what constituted the same *472 harm could be fraught questions; but the modern view is strongly in favor of treating a settlement with one joint tortfeasor as releasing the оthers only if the parties to the settlement so intended; otherwise, the settlement becomes an offset against later judgments if needed to avoid double recovery. 6
The TMTV-Televicentro settlement, as an agreement, is arguably interpreted under Puerto Rico law,
Great Clips, Inc. v. Hair Cuttery of Greater Bos., L.L.C.,
The defendants claim that TMTV’s acceptance of the settlement payment bespeaks an intent to relinquish claims against non-settling tortfeasors, absent an express reservation of rights. In some situations, a settlement with a joint tortfeasor might suggest such an intent, see Keeton, supra, § 49, at 335 — for example, a release discharging “any and all persons” potentially liable on the stated claims. But the opposite is often more plausible: frequently, the plaintiff gives a break to the first settling defendant, puts some money in the bank, and aims for a higher judgment against non-settling defendants. If the release were for all, a larger settlement would be demanded.
Here, the settlement itself was apparently oral and TMTV denies any such intent to release others besides Televicentro. The defendants — on whom the burden of proof falls to prove release, Fed. R.Civ.P. 8(c) — point to nothing to suggest that Televicentrо had such an intent. Indeed, the defendants do not even suggest a plausible reason why Televicentro should have wished to pay a larger settlement in order to protect the defendants in this case.
Turning then to the judgment entered pursuant to the Televicentro settlement, it says that the $700,000 payment is made “in satisfaction of all causes of action identified in the Complaint [against Televicentro] and its amendments.” The claims in that complaint identified acts by Televicentro, including the broadcast of episodes of El Condominio, as alleged violations of TMTV’s copyright based on the original scripts; but the complaint asserted no claims against the present defendants based on their production of the shows.
A judgment has the meaning (objectively determined) intended by the
*473
court that framed and entered it,
cf. Concilio de Salud Integral de Loíza, Inc. v. Perez-Perdomo,
The result is the same if the settlement aspect is ignored and formal res judicata rules are applied to the judgment. Because no issues were adjudicated in the settled case, issue preclusion is irrelevant and the concern is only with claim preclusion. Classically, claim preclusion applies only where there is (1) a prior final judgment on the merits (2) on the same or sufficiently identical claims (3) between the same parties or their privies.
Airframe Sys., Inc. v. Raytheon Co.,
Whether or not the defendants are treated as joint tortfeasors, they were not parties to the settled case and are not in privity with Televicentro.
See Taylor v. Sturgell,
Eliminating entirely the party or privy condition would require that whenever a plaintiff sued a defеndant, the plaintiff also sue in the same action all other defendants against whom the plaintiff might have related claims. No such compulsory joinder requirement appears in the Federal Rules of Civil Procedure or elsewhere. Cf. Restatement (Second) of Judgments, supra, § 49. If such a rule were ever adopted— and this itself would be a debatable choice — fairness would require advance warning to potential plaintiffs and probably major qualifications on the requirement itself.
As for TMTV’s objection to the offset, the modern view, as already stated, is that an offset is conventional where needed to prevent recovering twice for the same harm. There are other solutions apart from a dollar-for-dollar reduction of the judgment by the amount of the settlement, including a more complex proportional regime that the Supreme Court has employed in admiralty cases.
See McDermott,
Rather, TMTV’s claim is that the reduction is not warranted because (it asserts) the settlement was for a different harm, in that Logroño prepared a derivative work, 17 U.S.C. § 106(2), while Televicentro publicly transmitted it, id. § 106(4). True, some of the infringing acts differed: Logroño acted and wrote scripts; the television company broadcast the programs. But the damages were (on TMTV’s own theory) the same harm: the lost royalties that could have been earned by TMTV for the production and broadcast of the El *474 Condominio programs if TMTV’s right had been respected' instead of infringed. Production and broadcast were two necеssary, sequential steps needed to cause the same damage.
TMTV also says that the Televicentro settlement was for Televieentro’s profits rather than TMTV’s damages. Although damage liability is joint and several,
Screen Gems,
The defendants argue lastly that the district court erred in its award of prejudgment interest (5 percent on the full jury damage award up to settlement and thereafter only on the balance). The defendants say that the Copyright Act does not authorize the award of prejudgment interest and that, if the statute does permit such an award, the equities do not favor an award here or at least the award should have been made at a lower rate of interest.
The Copyright Act does not expressly authorize prejudgment interest but authority for such an award can be inferred, where appropriate, from congressional purpose and general principles.
Rodgers v. United States,
Conversely, the defendants had the use of additional funds — whatever portion of their assets corresponded to such royalties — during the period before the judgment, so an award of prejudgment interest also avoids unjust enrichment.
Cf. Frank Music Corp. v. Metro-Goldwyn-Mayer Inc.,
Our own case law treats an award of prejudgment interest in such eases as a matter for the informed discretion of the district court.
See John G. Danielson, Inc. v. Winchester-Conant Props., Inc.,
For post-judgment interest on federal judgments, a uniform federal rate applies by statute, 28 U.S.C. § 1961 (2006) (weekly average yield of one-year constant maturity treasury bills), but no default federal rate exists for prejudgment interest; here, the district judge applied the prevаiling rate of 5 percent used in Puerto Rico courts for both pre- and post-judgment interest. P.R. Laws Ann. tit. 32, App. Ill, R. 44.3 (2000). The federal post-judgment section 1961 interest rate would have been approximately 0.5 percent when judgment was entered in January 2009.
The defendants claim that it was obligatory or at least more equitable to use the lower federal rate even though it is designed for post-judgment interest. The considerations are somewhat different where, absent a stay or bond, the successful plaintiff can effectively require prompt payment,
see
Fed.R.Civ.P. 64(b), and the present federal rate is depressed by current monetary policy designed to combat recession. The choice of the local rate, like the award itself, was within the sound discretion of the district judge.
E.g., Colon Velez v. P.R. Marine Mgmt., Inc.,
The last issue is attorneys’ fees. Ordinarily, the prevailing party in a copyright case can be awarded fees “[e]xcept as otherwise provided by” the statute. 17 U.S.C. § 505. Here, such an award was barred by statute bеcause the copyright for the scripts was not registered in a timely fashion.
Id.
§ 412;
see, e.g., Knit-waves, Inc. v. Lollytogs Ltd.,
Instead, TMTV argues that it was
also
the prevailing party as to Logroño’s counterclaim, and so entitled to recover its attorneys’ fees attributable to defending against this claim. The argument — unpromising in any event — is forfeit,
Dillon v. Select Portfolio Servicing,
The district court’s judgment is affirmed. Each side is to bear its own costs on these cross-appeals.
It is so ordered.
Notes
. TMTV is wholly owned by Mojena, who formed it from a predecessor entity in January 1999. In February 1999, Creative Relief — the initial production company for De Noche con Iris y Sunshine — assigned its putative copyrights to TMTV.
. Nimmer raises the possibility of joint authorship in a case where one party supplies the plot ideas and another writes them down, 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 6.07[A][3][a], at 6-21 (rev. ed. 2009); but it is not certain that this suggestion is consistent with authorities like Reid and anyway Logroño is not arguing that the parties aimed at joint authorship.
.
Compare Schiller & Schmidt, Inc. v. Nordisco co Corp.,
. Such an ensemble may be protected by copyright, when reduced to expression in a book or script, even though it may itself contain non-copyrightable elements, such as stock characters borrowed from prior works.
See, e.g., Barris/Fraser Enters, v. Goodson-Todman Enters., Ltd.,
No. 86 Civ. 5037(EW),
. The Copyright Act of 1976 allows a party who recovers its actual damages to recover any profits made by the infringers, at least to the extent that the infringers' profits are not already "taken into account in computing the actual damages.” 17 U.S.C. § 504(b); see also 4 Nimmer & Nimmer, supra, § 14.01[A], at 14-7. TMTV agreed before trial to drop any claim it may have had to recover the defendants’ profits.
.
See Zenith Radio Corp. v. Hazeltine Research, Inc.,
.
Compare BUC Int’l Corp. v. Int'l Yacht Council Ltd.,
.
See FleetBoston Fin. Corp. v. Alt,
. While sеparate profits of two infringers might well be recovered without duplication, a copyright plaintiff may recover actual damages and the infringers' profits only to the extent that profits are not subsumed in actual damages. 17 U.S.C. § 504(b).
. The case law in other circuits is too various to summarize, but broadly speaking a number of circuits support prejudgment interest awards for copyright infringement; and circuit cases where such awards have been disallowed do not in general apply a categorical ban.
Compare, e.g., McRoberts Software, Inc.
v.
Media 100, Inc.,