No Justice For Filmmaker in Copyright Clash with Apple

In yet another casualty for creative professionals in 2020, on May 28, 2020, United States District Court Judge John F. Walter of the Central District of California dismissed a filmmaker’s copyright infringement lawsuit against Apple and M. Night Shyamalan in connection with the Apple TV+ series, “Servant.” Notwithstanding overwhelming similarities between the two works at issue, Judge Walter found that they were not “substantially similar.”

In her amended complaint filed on March 10, 2020, Plaintiff Francesca Gregorini (“Gregorini”) alleged that her feature film released in 2013 entitled “The Truth About Emanuel” (“Emanuel”), starring Jessica Biel, was infringed by “Servant,” the television series released on Apple’s streaming service in 2019 (the “Series”). Gregorini alleged that episodes one through three of the Series are a “wholesale copy” of “Emanuel.”

In Emanuel, a moody teenager who struggles with guilt about the fact that her mother died during childbirth befriends and babysits for her new neighbor, Linda, a stylish and wealthy woman in her mid-thirties. Soon, Emanuel discovers that the “child” she volunteered to care for is actually an ultra-realistic doll. Similarly, Shyamalan’s drama is about a couple from a privileged background who hire a full-time nanny to watch over their “child”—which, too, is actually an ultra-realistic doll.

Despite these and other obvious similarities, the court inexplicably granted Apple’s March 2020 motion to dismiss, finding that while both narratives share a “basic plot premise, they tell completely different stories” with distinguishable “plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” However, the more the court sought to explain away the significant parallels between “Emanuel” and “Servant,” the more obvious it is that both works are, in fact, strikingly similar.

For starters, the main characters in both works are attractive, blue-eyed and dark-haired 18-year old girls who not only work as babysitters, but also develop a fascination—riddled with sexual undertones—with the proxy-mother figures whom they babysit for. This is a significant similarity in and of itself, but there is so much more.

The works contain multiple other similar characters. The mother figures bear uncanny resemblances to one another. Both mothers are in their mid-thirties, white, sophisticated, and channel their maternal longing into the babysitters they hired. Both mothers also lost their only child, suffer from a similar delusion, and are so committed to their delusion or obsession with babies that they actually hire a babysitter to babysit a life-like doll.

Judge Walter, however, wrote all this off, saying that “many of these similarities flow necessarily and naturally from the unprotectable concept of a mother using a doll as a tool to cope with the grief of losing a child.” However, it is defendants that have the burden to show that similar elements are “scènes à faire,” i.e. unprotectable parts of a film that are customary to a particular genre; however, the unique storylines shared between “Emanuel” and “Servant” are as far from “scènes à faire” as one can imagine. “Scènes à faire” are typically elements that are so common in the genre that they are disregarded; but there is literally nothing in “Emanuel” that could be considered “scènes à faire” without reducing this to a meaningless concept.

Similarities between the works plots and sequence of events don’t end there; in both stories, the fathers are the ones who explain to the babysitter the relationship between the death of their child and the wife’s reliance on the doll. Even the dolls themselves are practically identical in that they are ultra-lifelike, look the same age, and have the same patchy dark hair.

The setting, too, where “Emanuel” takes place, is copied in Shyamalan’s series. “Emanuel” and “Servant” are both predominately based in the parents’ well-appointed home and feature a dramatically lit wooden staircase that overlooks the first-floor entrance hall. In the homes, both works also showcase a “magazine-worthy” nursery outfitted with vintage touches—including an antique rocking horse.

Furthermore, there are many scenes and images in “Servant” which appear to be plainly taken from “Emanuel.” For example, both works include a small birthday gathering, magical realism, and water imagery. Both babysitters suffer a fainting spell, instruct their love interest to “steal” a bottle of wine, and apply makeup at the mother’s vanity. Both mothers examine their post-baby bodies and stretch marks in a mirror. Plus, both dolls seem to “come back to life” and momentarily appear on screen as real babies.

In tying the Series together, “Servant” even echoed the same overarching theme as “Emanuel— namely “denial and self-delusion as a means of avoiding the unspeakable grief of losing a baby.”

This would appear to be more than enough to satisfy the “selection and arrangement test” for substantial similarity: even if certain cinematic elements of “Emanuel”—alone—are ineligible for copyright protection, a combination of unprotectable elements can still be copyrightable if the selection and arrangement of elements are original enough to constitute a work of authorship. The court, nevertheless, concluded that the alleged overlaps between “Emanuel” and “Servant” were insufficient to establish copyright infringement based on this “selection and arrangement theory” without any explanation of said conclusion; however, it is hard to imagine that any two works, where one is supposedly independently created, can be more alike.

Gregorini’s attorney, David A. Erikson, told us that “One big problem with Judge Walter’s ruling is that he acted as his own expert in film theory—going far beyond even what Apple argued. For example, Plaintiff argued that the two works featured similar catalysts or ‘inciting incidents.’ Despite the obvious need for expert opinion or at least a factual record, Judge Walter determined on his own that Servant’s catalyst was something entirely different. Similarly, Judge Walter decided that a key scene in Emanuel was not, in fact, magical realism—as Plaintiff, experts, and critics assert, and which Apple does not dispute–but rather, a garden variety dream. Also, without expert opinions or facts, and in contradiction to my client’s allegations, Judge Walter decided what production design and cinematic elements were common to films of a specific genre.”

This case is an obvious miscarriage of justice and yet another setback for creators.

Gregorini is represented by David A. Erikson of Erikson Law Group.

Apple and Shyamalan are represented by Nicolas A. Jampol of Davis Wright Tremaine LLP.

The case is Gregorini v. Apple Inc. et al., case number 2:20-cv-00406, in the U.S. District Court for the Central District of California.

* Lowe & Associates (the “Firm”) is an entertainment litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law and intellectual property, having provided top quality legal services to its clients since 1991.

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