FILED
NOT FOR PUBLICATION
APR 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOLD GLOVE PRODUCTIONS, LLC, a No. 14-55797
California Limited Liability Company and
RYAN A. BROOKS, an individual, D.C. No. 2:13-cv-07247-DSF-RZ
Plaintiffs - Appellants,
MEMORANDUM*
v.
DON HANDFIELD, an individual; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted April 7, 2016
Pasadena, California
Before: TASHIMA, SILVERMAN, and GRABER, Circuit Judges.
Ryan A. Brooks and his company, Gold Glove Productions, LLC, appeal the
district court’s grant of summary judgment to defendants in their action under the
Copyright Act against Warner Brothers Pictures, Inc., and other defendants.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Brooks and Gold Glove allege that the motion picture Trouble with the Curve,
which depicts a father-daughter baseball story, infringed their registered copyright
in the screenplay Omaha. We have jurisdiction under 28 U.S.C. § 1291, and we
review the district court’s ruling on summary judgment de novo. Benay v. Warner
Bros. Entm’t, Inc., 607 F.3d 620, 624 (9th Cir. 2010). We affirm.
To prevail on a copyright claim, a plaintiff must show “‘(1) ownership of a
valid copyright, and (2) copying of constituent elements of the work that are
original.’” Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076
(9th Cir. 2006) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
361 (1991)). Copying may be established by a showing that the defendant had
access to the plaintiff’s work and that the two works are substantially similar.
Benay, 607 F.3d at 624. To establish substantial similarity, the plaintiff must
satisfy both the extrinsic test and the intrinsic test. Id. The extrinsic test is an
objective comparison of specific expressive elements, and the intrinsic test is a
subjective comparison that focuses on whether an ordinary, reasonable audience
would find the works substantially similar in total concept and feel. Id. A plaintiff
who fails the extrinsic test cannot survive summary judgment. Id.
The district court correctly applied the extrinsic test, focusing on
“‘articulable similarities between the plot, themes, dialogue, mood, setting, pace,
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characters, and sequence of events in the two works.’” Id. (quoting Kouf v. Walt
Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)). First, the plots
and sequences of events of the two works are quite different. The general plot idea
of a father-daughter baseball story is not protectable as a matter of copyright law.
See Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002). Just as importantly,
the two stories are different in numerous and essential respects.
In analyzing plot and sequence of events, the district court did not abuse its
discretion in discounting the expert opinions. See Rice v. Fox Broad. Co., 330 F.3d
1170, 1180 (9th Cir. 2003). A lay person can easily see that the two stories,
although dealing with the same general subject matter, are quite different.
The shared themes of Omaha and Trouble with the Curve—father-daughter
reconciliation, the breaking down of emotional barriers, the importance of family,
and pitting old school ways against new ones—are commonplace in father-
daughter stories and in sports movies. See Benay, 607 F.3d at 627. The themes are
not original, protectable elements of the two works. They are scènes-à-faire. See
Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002).
Finally, the setting, mood, and pace of Omaha and Trouble with the Curve
are obviously different, as is the dialogue. See Benay, 607 F.3d at 628; Kouf, 16
F.3d at 1046.
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We affirm the district court’s conclusion that, under the extrinsic test, the
works were not substantially similar. See Benay, 607 F.3d at 624.
AFFIRMED.
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