Notes & Comment
Vol. 2006, No. 3
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Copyright
"Six Feet Under" Found Alive!
Screenwriter knows a guy -- who knows a guy -- who knows a guy in Hollywood. Screenplay is passed up the line. Similar show or movie miraculously appears soon thereafter. Screenwriter feels ripped off. Voila! Chances are the legal profession is about to make some money.
The "know a guy -- who knows a guy" legal issue is usually copyright infringement. Is the new show or movie "substantially similar" to the screenwriter's work? Have his or her characters and plot lines been stolen? We've previously written about this copyright principle. Fans still grieving the late HBO series "Six Feet Under" might enjoy a recent court case that considered this issue in connection with the award-winning program. Funky Films, Inc. v. Time Warner Entertainment Company, L.P. (U.S. Court of Appeals for the Ninth Circuit, No. 04-55578 (August 30, 2006)).
Summary of the Case
Gwen O'Donnell wrote a screenplay called "The Funk Parlor" which depicted a small, family-run funeral parlor in Connecticut. She was treated by a chiropractor while recovering from a car accident, and he agreed to pass her screenplay to a friend, the head of Original Programming at HBO. Three months later, HBO commissioned a producer to develop "Six Feet Under." O'Donnell cried foul and sued HBO and Time Warner Entertainment in federal district court in Los Angeles for copyright infringement.
The gist of her complaint was that creators of "Six Feet Under" had access to her screenplay and produced a show that was "substantially similar" to "The Funk Parlor". Finding insufficient objective evidence of substantial similarity, the district court granted summary judgment to HBO and Time Warner. The Ninth Circuit affirmed the district court's grant of summary judgment.
Briefly stated, a copyright infringement claim like this will succeed only if there's proof of copyright ownership (e.g., O'Donnell owns a copyright to "The Funk Parlor"), and there's literal copying of the original work, or evidence of access to the work (e.g., the chiropractor gave the screenplay to HBO's chief) plus creation of a work that's substantially similar (e.g., "Six Feet Under" is so alike "The Funk Parlor" that it's a virtual copy). O'Donnell's copyright ownership and HBO's access to her screenplay weren't in question. At issue was whether "Six Feet Under" was substantially similar to "The Funk Parlor".
The Ninth Circuit recounted a number of alleged similarities between the two works:
"Appellants allege a number of similarities between "The Funk Parlor" and "Six Feet Under." According to appellants, both works concern "a narrative about a small funeral home, and the lives of the family members who operate it"; plot-lines involving "the death of the father . . . [who] has for decades run the business"; a father whose death is "unexpected and not attributable to natural causes" (suicide in "The Funk Parlor" and a car accident in "Six Feet Under"); and the presence of "two sons" who receive equal shares of the business, with the "older son . . . liv[ing] in a distant city, working outside the funeral industry." In both works, the older son initially "has no interest in becoming involved with the funeral business"; moreover, "[t]he family business is financially fragile, and in both works the funeral home is pointedly shown to be in debt and operating out of a substandard facility with obsolete equipment and a hearse that stalls." Both works also contain an attempt by a "rival funeral home," spearheaded by "the female principal of the rival business" to "take advantage of their vulnerable financial condition," "bluntly mak[ing] a lowball offer" and "approaching one of the brothers at the father's funeral with a proposal to buy the family business." In both works, the older brother initially "expresses his desire to sell" but "changes his mind and commits himself to help his brother keep the business afloat." Finally, appellants point out the older brother's creativity, which stands in "pointed contrast to the leaden conservatism of the younger brother"; that the funeral home in both works is used as a "site for musical entertainment"; that the "younger brother...change[s] his church affiliation in order to increase their client base" in both works; and that "the rival's takeover attempt does not succeed."
"At first blush," the Court continued, "these apparent similarities in plot appear significant; however, an actual reading of the two works reveals greater, more significant differences and few real similarities at the levels of plot, characters, themes, mood, pace, dialogue, or sequence of events."
The Court engaged in a complex analysis of "objective" differences in plot, characters, themes, setting, mood, pace, dialogue and sequence of events between the Funk and Fisher family sagas, concluding there was insufficient factual basis to support a claim that "Six Feet Under" was substantially similar to "The Funk Parlor". The case is fun reading for those mourning the recent demise of the HBO series.
Summary and Conclusion
Funky Films, Inc. v. Time Warner Entertainment Company, L.P. doesn't break new ground in copyright law and reaches the same outcome that many "know a guy -- who knows a guy" Hollywood cases do. The story lines here are similar and the timing of HBO's commission of "Six Feet Under" is indeed curious, but that timing was largely unexplored in the Ninth Circuit's opinion. Because there was not enough similarity between the two works, the Court said there was no need to further explore the issue of HBO access. In short, access + similarity + close timing don't necessarily equal copyright infringement in a run-of-the-mill "they stole my screenplay [or manuscript]" case. Copyright doesn't protect great ideas; it protects only the means used to express those ideas.
© Matthew Joseph 2006. Law Offices of Matthew Joseph, San Mateo, California, practices in the areas of intellectual property licensing, commercial real estate leasing, and corporate and business transactions. No legal advice is intended by the information provided herein and recipients should independently consult counsel before taking any action related to this subject matter.