Sheri Gilbert v. New Line Productions, Inc.

FILED
NOT FOR PUBLICATION JUL 23 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SHERI H. GILBERT, No. 10-56458

Plaintiff - Appellant, D.C. No. 2:09-cv-02231-RGK-RZ

v.
MEMORANDUM *
NEW LINE PRODUCTIONS, INC., a
California corporation; NEW LINE
CINEMA CORPORATION, a Delaware
corporation; BENDER-SPINK, INC., a
California corporation; CHRIS BENDER,
individually and as an agent of Bender-
Spink, Inc.; J.C. SPINK, individually and
as an agent of Bender-Spink, Inc.;
SPRING CREEK PRODUCTIONS, INC.,
a California corporation; PAULA
WEINSTEIN, individually and as an agent
of Spring Creek Productions, Inc.;
AVERY PIX, INC., a California
corporation; KUMAR
MOBILIENGESELLSCHAFT MBH &
CO. PROJEKT NR. 1 KG, a German
Company; MICHAEL FLYNN;
NUYORICAN PRODUCTIONS, INC., a
California corporation; JULIO CARO;
FIRECRACKER PRODUCTIONS, INC.,
a California corporation; ANYA
KOCHOFF, individually and as an agent

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of Firecracker Productions, Inc., AKA
Anya Kochoff Landes, AKA Anya
Kochoff Romano; WRITTEN IN STONE,
INC., a California corporation; RICHARD
LAGRAVENESE, individually and as an
agent of Written in Stone, Inc.; MIGUEL
A. NUNEZ, Jr.; VILLAGE ROADSHOW,
LTD, an Australian Corporation;
PARADISO ENTERTAINMENT, INC., a
New York corporation;
ENTERTAINMENT FILM
DISTRIBUTORS LTD, a British
corporation; METROPOLITAN
FILMEXPORT, a French corporation;
ALLIANCE FILMS, INC., FKA Alliance
Atlantis Communications Inc., DBA
Motion Picture Distribution LP;
YLEISRADIO OY, a Finnish company,
AKA YLE; FS FILM OY, a Finnish
company; THE ENDEAVOR AGENCY,
LLC, a Delaware Limited Liability
Company; ADRIANA ALBERGHETTI,
individually and as an agent of The
Endeavor Agency, LLC; FILM
INDEPENDENT, INC., a California
corporation, FKA Independent Feature
Project/West; TURNER
BROADCASTING SYSTEM, INC., a
Georgia corporation; CW MEDIA SALES
INC./CW VENTES MEDIA INC., a
Canadian corporation; CANWEST
GLOBAL COMMUNICATIONS CORP.,
a Canadian corporation; PARADISO
HOME ENTERTAINMENT, a Dutch
company; SANTA FE PRODUCTIONS
NV, a Belgian Public Limited Liability
Company, DBA Paradiso Entertainment;

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PARADISO ENTERTAINMENT
NEDERLANDS BV, a Dutch Private
Limited Company; CW MEDIA, INC., a
Canadian Corporation, formerly known as
Alliance Atlantis Communications Inc.,
doing business as Motion Picture
Distribution LP; DISTRIBUTION
COMPANY, S.A., an Argentinian
Company; JANE FONDA; JENNIFER
LOPEZ, individually, and as an agent of
Nuyorican Productions, Inc.; ROBERT
LUKETIC; NEW LINE HOME
ENTERTAINMENT, INC., a New York
Corporation; NEW LINE
INTERNATIONAL RELEASING, INC., a
California Corporation; NEW LINE
TELEVISION, INC., a California
Corporation; WANDA SYKES; TIME
WARNER INC., a Delaware Corporation;
MICHAEL VARTAN; WARNER BROS.
ENTERTAINMENT, INC., a Delaware
Corporation; WARNER BROS. HOME
ENTERTAINMENT, INC., a Delaware
Corporation, doing business as Warner
Home Video, Inc.; WARNER
COMMUNICATIONS, INC., a Delaware
Corporation; WARNER HOME VIDEO,
INC., a Delaware Corporation,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

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 Submitted July 13, 2012 **
Pasadena, California

Before: GILMAN,*** TALLMAN, and N.R. SMITH, Circuit Judges.

Sheri Gilbert appeals the district court’s orders dismissing and granting

summary judgment to Appellees (collectively the “movie makers”), and awarding

them attorney’s fees, on her claims of copyright infringement. Gilbert, the author

of the screenplay When Mom’s the Other Woman (“The Other Woman”), asserts

that Appellees, involved in the making of the 2005 movie Monster-in-Law,

unlawfully copied drafts of her screenplay in violation of the Copyright Act of

1976, 17 U.S.C. § 101, et seq. We have jurisdiction over this matter pursuant to 28

U.S.C. § 1291. The facts of this case are known to the parties. We need not repeat

them here.

The district court properly ruled that neither the Monster-in-Law film nor

any of its preliminary drafts infringes any of the second, third, or fourth drafts of

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

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The Other Woman.1 Even assuming that the movie makers had access to Gilbert’s

drafts, there is not sufficient similarity between the protectible expression in the

various works to maintain a claim.2 See Benay v. Warner Bros. Entm’t, Inc., 607

F.3d 620, 624–25 (9th Cir. 2010). Monster-in-Law and The Other Woman both tell

the story of a mother who meddles in her son’s life and tries to break up his

engagement. But basic plots are not protectible, Berkic v. Crichton, 761 F.2d

1289, 1293 (9th Cir. 1985), nor are elements that naturally flow from such

premises, so-called scènes à faire. Id. All of the decidedly few similarities

between Monster-in-Law and The Other Woman are unprotectible scènes à faire.

There was no abuse of discretion in awarding attorney’s fees and costs to the

movie makers. The district court properly considered the appropriate factors and

emphasized that the movie makers achieved complete success on the merits and

that Gilbert’s legal claims were objectively unreasonable. See Maljack Prods., Inc.

v. GoodTimes Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996).

1
Because Gilbert failed to file her first draft for registration with the
Copyright Office prior to instituting suit, she may not pursue an infringement
action on that claim. Cosmetic Ideas, Inc. v. IAC/InterActiveCorp., 606 F.3d 612,
621 (9th Cir. 2010); see also 17 U.S.C. § 411(a).
2
Gilbert also argues that substantial similarity need not be proven here where
there is direct evidence of exact copying. See Baxter v. MCA, Inc., 812 F.2d 421,
423 (9th Cir. 1987). However, Gilbert fails to provide any facts or helpful
references to the record that indicate exact copying has occurred.

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 We must vacate the fees award in part, however, for the district court to

reconsider the amount awarded for the movie makers’ North Carolina counsel, who

defended the action first filed there before the case was transferred to the Central

District of California. The district court is required to make specific findings as to

what rate and amount of time is reasonable in each case. Frank Music Corp. v.

Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1557 (9th Cir. 1989). It is error to

“accept uncritically . . . counsel’s representations concerning the time expended.”

Id.

The district court made appropriate and specific findings as to the rate and

time expended by California counsel and ruled that the movie makers were entitled

to $801,130 in attorney’s fees. But the court made no mention of North Carolina

counsel. After adding full costs of $14,571, the district court somehow entered a

final award of $894,983. This $79,282 discrepancy is likely attributable to the

services performed by North Carolina counsel. The declaration of one of the

movie makers’ attorneys requests $801,100 for the California firm’s fees, $79,282

for North Carolina counsel’s fees, and $14,571 for costs. It is not clear whether the

court’s final award is the result of an administrative error or the uncritical

acceptance of counsel’s representations. We must therefore vacate the award

amount and remand for reconsideration because we cannot tell which it is.

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 We have carefully considered all the other arguments presented by Gilbert

and have determined that they lack merit.

AFFIRMED in part; REVERSED AND REMANDED in part. Each

party shall bear its own costs on appeal.

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