FILED
NOT FOR PUBLICATION JUN 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARK GABLE, an individual, Nos. 10-55420 and 10-56395
Plaintiff - Appellant, D.C. No. 2:08-CV-04013-SVW-
FFM
v.
NATIONAL BROADCASTING MEMORANDUM *
COMPANY, INC., a California
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted June 7, 2011 **
Pasadena, California
Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
Mark Gable (“Gable” or “appellant”) appeals the district court’s grant of
summary judgment in favor of National Broadcasting Company (“NBC”), Gregory
Garcia (“Garcia”), Twentieth Century Fox Film Corporation, and Twentieth
Century Fox Home Entertainment LLC (collectively, “defendants” or “appellees”)
in this copyright infringement action. We review a district court order granting
summary judgment de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Gable claims that defendants infringed his copyright in the screenplay
Karma! when they created the television program called My Name is Earl (“Earl”).
To establish copyright infringement, Gable must show that (1) defendants had
access to his work and (2) Karma! and Earl are substantially similar in protected
expression. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003).
Because Gable failed to raise a genuine issue of material fact regarding substantial
similarity, we need not address the issue of access.
To determine whether two works are substantially similar for the purposes of
summary judgment, courts in the Ninth Circuit use the “extrinsic test,” which
measures the “articulable similarities between the plot, themes, dialogue, mood,
setting, pace, characters, and sequence of events.” Id. (quotation omitted). A party
claiming infringement may place “no reliance upon any similarity in expression
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resulting from unprotectable elements.” Id. (quotation omitted). “Similarities
derived from the use of common ideas,” for example, cannot be protected. Id. at
1175 (quotation omitted). Relatedly, the doctrine of scènes à faire holds that
“expressions indispensable and naturally associated with the treatment of a given
idea are treated like ideas and are therefore not protected by copyright.” Id.
(citation and internal quotation marks omitted).
Because “no reasonable juror could find substantial similarity of ideas and
expression” between Karma! and Earl, the district court did not err in granting
summary judgment for the defendants. Funky Films, Inc. v. Time Warner Entm’t
Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (citation and internal quotations marks
omitted). The mere fact that Karma! and Earl both deal with the ideas of karma
and redemption does not constitute infringement. Rice, 330 F.3d at 1175; see also
Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)
(attaching “no significance” to the fact that two works involved kids fighting
insurmountable dangers). Likewise, there is no infringement stemming from the
copying of a “selection and arrangement” of otherwise unprotectable elements, as
in Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002), because Karma! and
Earl do not involve the “same totality of similarities and the same degree of
access.” Rice, 330 F.3d at 1179; see also Funky Films, 462 F.3d at 1081 n.4. The
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superficial points of comparison between Karma! and Earl, gleaned haphazardly
from three seasons of the television series, do not rise to the level of substantial
similarity.
The district court also did not err in excluding expert testimony from David
Nimmer and Eric Sherman.1 Some of Nimmer’s testimony contained inadmissible
legal conclusions. See United States v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999).
According to the district court, although each were recognized to have a separate
area of expertise, both Nimmer and Sherman also failed to establish that they had
“knowledge, skill, experience, training, or education” relevant to the evidence at
issue. Fed. R. Evid. 702. Determinations of whether a particular witness has such
expertise is “peculiarly within the sound discretion of the trial judge” and
reviewing courts afford “a high degree of deference to the district court’s
findings.” United States v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000) (citations
and internal quotation marks omitted). The district judge in this case did not abuse
his discretion in excluding Nimmer’s and Sherman’s testimony.
Finally, the district court did not err in awarding attorneys’ fees to the
defendants. Section 505 of the Copyright Act provides that the district court may
1
We review a district court’s exclusion of expert testimony for abuse of
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997).
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“award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17
U.S.C. § 505. A district court’s order awarding attorneys’ fees under the
Copyright Act is reviewed for abuse of discretion. Columbia Pictures Television,
Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1197 (9th Cir. 2001).
Here, the district court considered, among other things, that its award of attorneys’
fees “encourages valid copyright owners, such as Garcia, to fight for the protection
of their works where it would otherwise be uneconomical to do so.” The award
also “helps to prevent the filing of similarly meritless copyright actions” in the
future. Under these circumstances, the district court did not abuse its discretion.
See Fogerty v. Fantasy, Inc., 510 U.S. 531, 534 & n.19 (1994).
AFFIRMED.
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