11-1202-cv
Latimore v. NBC Universal Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of May, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 AMALYA L. KEARSE,
9 JOSEPH M. McLAUGHLIN,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 SONYA WHITTEN LATIMORE,
14 Plaintiff-Appellant,
15
16 -v.- 11-1202-cv
17
18 NBC UNIVERSAL TELEVISION STUDIO, 3 BALL
19 PRODUCTIONS, INC., 25/7 PRODUCTIONS,
20 LLP, A DELAWARE LIMITED LIABILITY
21 COMPANY, TWENTIETH TELEVISION, INC., A
22 DELAWARE CORPORATION, SHINE LIMITED, AN
23 ENTITY OF UNKNOWN ORIGIN, DANIEL
24 TIBBETS, AN INDIVIDUAL, ANDREW HILL, AN
25 INDIVIDUAL, BEN SILVERMAN, AN
26 INDIVIDUAL,
27 Defendants,
28
1
1 and
2
3 NBC UNIVERSAL INC., REVEILLE, LLC, A
4 DELAWARE LIMITED LIABILITY COMPANY,
5 KIM FULLER, INDIVIDUALLY AND AS
6 PARTNER OF MCCREARY & FULLER PUBLIC
7 RELATIONS CORP., DOES, 1 THROUGH 50,
8 INCLUSIVE,
9 Defendants-Appellees.
10 - - - - - - - - - - - - - - - - - - - -
11
12 FOR APPELLANT: Joseph Boswell Barrett, Barrett
13 & Winn, Amityville, NY.
14
15 FOR APPELLEES: Alan Robert Friedman (Joel
16 Robert Weiner, Katten Muchin
17 Rosenman LLP, Los Angeles CA, on
18 the brief), Katten Muchin
19 Rosenman LLP, New York, NY, for
20 appellees NBC Universal Inc. and
21 Reveille, LLC.
22
23 Appeal from a judgment of the United States District
24 Court for the Southern District of New York (Hellerstein,
25 J.).
26
27 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
28 AND DECREED that the judgment of the district court be
29 AFFIRMED.
30
31 Sonya Whitten Latimore appeals from a judgment of the
32 United States District Court for the Southern District of
33 New York (Hellerstein, J.), granting defendants’ motion for
34 summary judgment and denying her cross-motion to conduct
35 additional discovery. Latimore’s amended complaint alleges
36 that the NBC reality program called The Biggest Loser
37 infringes on her copyrighted treatment for a television show
38 entitled Phat Farm. The district court concluded that The
39 Biggest Loser was not substantially similar to Latimore’s
40 idea and that Latimore had failed to uncover any evidence
41 that the creators of the show had access to Latimore’s
42 proposal. We assume the parties’ familiarity with the
43 underlying facts, the procedural history, and the issues
44 presented for review.
2
1 After conducting a de novo review of the district
2 court’s summary judgment ruling, we affirm. In the absence
3 of direct evidence of copying, a plaintiff can
4 circumstantially prove that a defendant copied her work by
5 showing both the defendant’s “access to the copyrighted
6 work” and the “substantial similarity of protectible
7 material in the two works.” Williams v. Chrichton, 84 F.3d
8 581, 587 (2d Cir. 1996) (internal quotation marks omitted).
9 “The standard test for substantial similarity between two
10 items is whether an ordinary observer, unless he set out to
11 detect the disparities, would be disposed to overlook them,
12 and regard the aesthetic appeal as the same.” Yurman
13 Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001)
14 (internal quotation marks and alterations omitted). In a
15 case such as this, where the copyrighted work necessarily
16 has both protected and unprotected elements, a court applies
17 a more discerning analysis, in which it “must attempt to
18 extract the unprotectible elements from [] consideration and
19 ask whether the protectible elements, standing alone, are
20 substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd.,
21 71 F.3d 996, 1002 (2d Cir. 1995) (emphasis omitted). After
22 undertaking “a detailed examination of the works
23 themselves,” Williams, 84 F.3d at 583 (internal quotation
24 marks omitted), the district court properly found that The
25 Biggest Loser is not substantially similar to Latimore’s
26 idea. Although both ideas take advantage of staples of
27 reality television such as team-based competition,
28 elimination, and communal living, the way in which The
29 Biggest Loser combines and supplements these common elements
30 results in a concept and overall feel that is entirely
31 different than Latimore’s proposal.
32
33 As an independent basis for affirming, we agree with
34 the district court that, after protracted discovery,
35 Latimore utterly failed to uncover evidence that the
36 creators of The Biggest Loser ever had access to her
37 proposal, or heard of it.
38
39 Finally, the district court did not abuse its
40 discretion in denying Latimore’s cross-motion for additional
41 discovery under Federal Rule of Civil Procedure 56(d).
42 Latimore had more than enough time to conduct discovery, and
43 she did not demonstrate that further discovery would likely
44 uncover any evidence of access or assist her in showing
45 substantial similarity.
3
1 Finding no merit in Latimore’s remaining
2 arguments, we hereby AFFIRM the judgment of the district
3 court.
4
5
6 FOR THE COURT:
7 CATHERINE O’HAGAN WOLFE, CLERK
8
4