On February 22, 2022, the Ninth Circuit reversed and remanded (i.e., sent the case back to the lower court for further proceedings) a lower court decision dismissing a suit between writer-director Francesca Gregorini (“Gregorini”) and Apple TV. Gregorini sued Apple for copyright infringement in January 2020, claiming that Apple stole multiple elements including important portions of her 2013 film starring Jessica Biel, The Truth About Emanuel, and used it to create Servant, an Apple TV+ series produced and directed by M. Night Shyamalan. The lower court ruled as a matter of law that the two works were not “substantially similar,” granted Apple’s motion to dismiss the suit, and ordered Gregorini to pay Apple’s attorney’s fees, totaling more than $160,000.
The Ninth Circuit disagreed, stating that “reasonable minds could differ on the issue of substantial similarity,” and that discovery and expert testimony would be particularly helpful to the lower court in making its decision on remand. Specifically, the panel stated that expert testimony would aid in “objectively evaluating similarities in cinematic techniques, distinguishing creative elements from scènes à faire, determining the extent and qualitative importance of similar elements between the works, and comparing works in the different mediums of film and television.” Judge Dana L. Christensen of the Ninth Circuit panel also stated that the case was too close to requiring Gregorini to pay Apple’s attorney’s fees.
David Erikson, the lead attorney for Gregorini, stated that his side feels “extremely confident that [they] will now be able to prove [their] case with the benefit of discovery and expert analysis.”
Ruthanne Deutsch, the appellate attorney that argued on behalf of Gregorini, told the Ninth Circuit panel that the jury could and should be instructed on the “selection and arrangement test” on remand. The selection and arrangement test is more favorable to creators than the “filtration test” because the selection and arrangement test is “meant to prevent the court from breaking works into such detailed components that you lose what the work is about.” Pointing out the differences between the two tests, Gregorini argued in his briefings that “the 2018 version of ‘A Star is Born’ would not be substantially similar to the 1976 version under Apple’s test, if overgeneralized elements were individually and systematically filtered out.”
The California Society of Entertainment Lawyers (“CSEL”), soon to be known as the National Society of Entertainment and Arts Lawyers (“NSEAL”), filed an amicus brief (a “friend of the court” brief) in support of Gregorini. CSEL emphasized that the proper test for substantial similarity is the “selection and arrangement test,” and that courts should focus on the similarities between the two works, rather than the dissimilarities when determining whether substantial similarity exists. In the famous words of Judge Learned Hand, “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” The President of CSEL was quoted in the Hollywood Reporter on February 23, 2022, stating, “Theft is rampant in the entertainment industry. It basically goes unchecked because there is so much bad precedent. . . Finally (perhaps) the pendulum is beginning to swing in the right direction.”
Author’s Note: This decision is a huge win for creative professionals. If not reversed, the decision by the lower court would have been one of the most egregious in a copyright infringement case to date.
Gregorini is represented by Ruthanne Deutsch of Deutsch Hunt PLLC and David Erikson and Antoinette Waller of Erikson Law Group.
Apple and its related parties are represented by Nicolas Jampol, Diana Palacios, and Cydney Swofford Freeman of Davis Wright Tremaine LLP.
The case is Francesca Gregorini v. Apple Inc. et al., case numbers 20-55664 and 20-55846, in the U.S. Court of Appeals for the Ninth Circuit.
* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright infringement, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.
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