On March 3, 2022, a Ninth Circuit appellate panel upheld Judge Stanley Blumenfeld, Jr.’s granting of a motion to dismiss a copyright infringement lawsuit regarding the 2019 film What Men Want. Joe Carlini (“Carlini”), author of an unpublished screenplay entitled What the F Is He Thinking?, filed suit in August 2015 against Paramount Pictures, Black Entertainment Television, and other producers of What Men Want. In February 2021, Judge Blumenfeld ruled that Carlini could not establish that the works were “substantially similar” and as a result, did not plead a sufficient case for copyright infringement. The Ninth Circuit agreed.
The two works feature female protagonists that gain “the power to hear men’s thoughts in the same way,” according to Carlini. Carlini also alleged that the protagonist’s love interest and close friend have “substantially, or strikingly, similar counterparts” in his screenplay and in the film. However, the Ninth Circuit found that after the protagonists gain their powers, the plot lines of the two stories substantially diverge. The Ninth Circuit noted that in What the F Is He Thinking? the protagonist is a high school teacher who focuses on her relationships, while the protagonist in What Men Want is a career-focused and “high-powered” sports agent. Without going into much detail, the Ninth Circuit found that similarities between other minor characters in the works were not significant enough to warrant a finding of substantial similarity.
Carlini provided the 9th Circuit with a list of 16 similarities between the two works. However, the 9th Circuit stated that it was a list of “random similarities” and though it may be used for illustrative purposes, the “similarities in sequencing are commonplace or, given the plot premise, unremarkable.”
The Ninth Circuit also ruled that “[o]ther aspects of the work, such as themes, settings, dialogue, and mood and pace are not substantially similar either, or else are unprotectable scenes à faire of a romantic comedy.” “Scenes à faire” is a doctrine of copyright law that makes certain aspects of a given genre unprotectable because they are “customary” or indispensable to that genre.
Author’s Note: It is the opinion of this author that this case was too close to be decided on a motion to dismiss. Substantial similarity is a question best left to the jury where there exists any doubt as to whether unlawful copying exists. The similarities between the two works at issue seem to go to the hearts of the works. In the words of the Honorable Judge Learned Hand, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” The issue of substantial similarity here should have been left to the jury.
Paramount and the others are represented by Harrison J. Dossick and Jonathan D. Gershon of Reed Smith LLP.
Carlini is represented by Roger N. Behle Jr. and Robert A. Curtis of Foley Bezek Behle & Curtis LLP.
The case is Carlini v. Paramount Pictures Corp. et al., case number 21-55213, in the U.S. Court of Appeals for the Ninth Circuit.
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