On May 28, 2020, the Central District of California dismissed with prejudice a case—Gregorini v. Apple Inc. et al.—brought by Francesca Gregorini (“Gregorini”) against Apple Inc. (“Apple”) and M. Night Shyamalan (“Shyamalan”) (among others) for copyright infringement.
On January 15, 2020, Gregorini alleged that the Episodes 1 through 3 of defendants’ show “Servant” (the “Show”)—a psychological thriller—is a ““wholesale copy and unauthorized television adaptation” of Gregorini’s film—“The Truth About Emanuel” (the “Film”)—also a psychological thriller. Defendants moved to dismiss on the grounds that the Film and Episodes 1 through 3 of the Show are not substantially similar as a matter of law.
The Truth About Emanuel
Let’s turn back time to 2013. The Film had just premiered at the 2013 Sundance Film Festival. After releasing the Film in U.S. theatres on January 10, 2014, Gregorini made the Film available to the world through Apple’s iTunes.
The Film is an “emotional story about motherhood and daughterhood,” packaged as a psychological thriller told from the point of view of Emanuel, a moody teenager. The crux of the story revolves around Emanuel’s struggle with the guilt of knowing that her mother died giving birth to her. As Emanuel is adjusting, in walks Linda—a single mother of a three-month old baby—who “bears a striking resemblance” to Emanuel’s deceased mother, as Emanuel’s next door neighbor. Soon after Emanuel offers to babysit the child, she discovers (approximately 21 minutes into the Film) that the child is an ultra-realistic doll (known as a “reborn” doll). Yet, Emanuel continues to babysit the doll. Uncomfortable at first, Emanuel soon begins to pretend that the doll is a real baby and plays along with Linda’s delusion.
As the story develops, Emanuel finds comfort in Linda’s nurturing and begins to view her as a proxy maternal figure, often attempting to even emulate Linda’s actions, for instance, how Linda applies makeup. Linda reciprocates. There are also instances that expose an unspoken sexual tension between Emanuel and Linda. After a series of events that exposes to the public Linda’s delusion, Emanuel suffers her own breakdown. Subsequently, Linda is committed to an institution, and we get to know that “the doll happened” when her real baby died. Upon learning Linda’s story, Emanuel breaks her free from the institution and takes her to Emanuel’s mother’s grave. The two bury the doll next to Emanuel’s mother, finally beginning to process each of their own grief.
On November 1, 2019, Apple launched its new streaming app, Apple TV+, featuring eleven originals TV shows, including the Show. The Show is a new psychological thriller by Shyamalan (think The Sixth Sense, Split, etc.)—a filmmaker well-known to create such content. The Show follows a couple, the Turners, mourning the loss of their baby, Jericho.
Episode 1 of the Show begins with a woman named Leanne arriving at the Turners’ home to babysit their baby, Jericho. Approximately 12 minutes into the episode, we learn that Jericho is a reborn doll, which was prescribed to the mother after the real baby died triggering Dorothy’s “full psychotic break.” While the “father” treats Jericho as a doll, Leanne surprisingly treats it as a real baby, for instance, by singing to it and changing its diaper. The father, disturbed by Leanne’s behavior, searches Leanne’s room and finds a handmade wooden cross, which is later seen hanging over Jericho’s crib. At the end of the first episode, the father hears crying on the baby monitor and walks into the nursery and is shocked to find a real baby, instead of the reborn doll. *Dun dun dun*
Episode 2 centers around the father’s attempts to discover the identity of the baby. Leanne maintains, in response to the father’s angry confrontations, that its “your baby Mr. Turner, it’s Jericho.” Sean believes that Leanne replaced the doll with a real baby, and calls his brother-in-law to investigate further. The investigation reveals that there have been no babies reported missing matching the description of the new “Jericho.” Episode 2 ends with a view of a new cross made by Leanne hanging over Jericho’s crib, despite the father having previously removed it. *Dun dun dun*
Episode 3 focuses on the father’s attempts to learn more about Leanne and her past. Upon visiting Leanne’s hometown, the father discovers, in Leanne’s childhood home (which appears to have been burned in a fire), a cross just like the one hanging over Jericho’s crib. Episode 3 ends with the father viewing a video of a cemetery, revealing gravestones for Leanne's parents and for Leanne herself. *Dun dun dun*
Some other themes that resonate through these three episodes are: the mother’s delusion of believing that the reborn doll, and then the real baby, is her deceased baby, Jericho; the mother and Leanne’s unusual relationship, at times with sexual undertones; and Leanne’s fascination with mirroring the mother’s habits, for instance, in how she applies her make-up.
To state a claim for copyright infringement, a plaintiff must plead facts plausibly showing (1) her ownership of a valid copyright; (2) that the creators of the defendant’s work had access to her work; and (3) substantial similarity in protected expression between the two works. Substantial similarity can be tested intrinsically and extrinsically. Only a jury can apply the intrinsic test as it “examines an ordinary person’s subjective impressions of the similarities between two works.” On the other hand, courts employ the extrinsic test, which is “objective in nature” and “focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events.” In so focusing, courts “must take care to inquire only whether the protectible elements, standing alone, are substantially similar. Therefore, when applying the extrinsic test, a court must filter out and disregard the non-protectible elements in making its substantial similarity determination.” In other words, “general plot ideas”; “familiar stock scenes and themes that are staples of literature”; and “scenes-a-faire, “ i.e., situations and incidents that flow necessarily or naturally from a basic plot premise” must be filtered out.
The court granted defendants' motion to dismiss with prejudice.
The overarching theme of the court’s reasoning was that, when the non-protectable elements of the Film are filtered out, the Film and Episodes 1 through 3 of the Show are not substantially similar. In coming to that conclusion, first, the court, upon the defendants’ request, took judicial notice of the Film and Episodes 1 through 3 of the Show. Then, in a very detailed opinion, it picked them apart.
(1) The Plot
The court held that the plots of the Film and Show at most shared a “basic premise” that “are not protected by copyright law” as “[n]o one can own the basic idea for a story.” In fact, Gregorini conceded that she “doesn’t claim dominion . . . over the more specific idea of a privileged mother hiring a nanny to care for the doll she believes to be her deceased baby.” While whether “using a doll to cope with grief is a widely known therapeutic technique in real life” is disputable, it didn’t change the court’s decision, as, per the court, the plots diverge significantly. For instance, the nanny in the Film is well aware that the doll is not a real baby, only pretending otherwise for the mother and, on the other hand, the nanny in the Show believes the doll to be a real baby, even willing it to life using her religious belief and paranormal powers.
(2) Sequence of Events and Theme
The court held that the Film and Show’s “roughly linear chronology” was not a substantial similarity of their sequence of events. While Gregorini had shown some discrete scenes in both the Film and the Show that were similar, those discrete scenes were unrelated to the overall sequence of events of the works.
Further, “[a] work’s theme is its overarching message,” and “there is no protection for stock themes or themes that flow necessarily from a basic premise.” So while Gregorini alleged that the Show and the Film share many common themes, including those related to “the unspeakable grief of losing a baby;” “shared secrets and complicity in another’s delusion;” “the dangers of a shared delusion;” and “the mystery/danger of a stranger coming to town;” the court was unpersuaded. In fact, the court found that “[b]eyond grief and delusion, the primary themes in” the Film and Episodes 1 through 3 of the Show are drastically different. For instance, the court held that the Film’s overarching theme is an “emotional story about motherhood and daughterhood, culminating in its main characters finding peace with their grief.” On the other hand, the Show’s theme is much darker, focusing on the paranormal aspects of the nanny who makes a doll come to life.
“In determining whether characters are similar, a court looks at the totality of the characters’ attributes and traits as well as the extent to which the defendants’ characters capture the total concept and feel of the figures in the plaintiff’s works.”
While the court analyzed a comparative set of many characters from the Film and the Show, the two most important characters, in my opinion, are the nannies and the dolls.
Regarding the former, the court held that while both Emanuel and Leanne share physical similarities, they are almost nothing alike in attributes and traits. For instance, Emanuel is not even a nanny, simply babysitting for her neighbor; on the other hand, Leanne is a full-time, live-in nanny. The court further noted that Emanuel understood that the mother is delusional and attempts to shield the doll from the real world. In contrast, Leanne, who appears to have paranormal powers, always treats the doll as real and never attempts to prevent others from seeing the doll. Regarding the latter, the court held that the dolls were “almost identical,” each “ultra-lifelike reborn baby dolls” who “have patchy dark hair” and “look to be about three months old.” However, yet again, the court held that the physical similarities are not as dispositive as the fact that, in the Show, the doll comes back to life, as opposed to the Film, in which the doll does not.
(4) Setting, Mood, Pace, and Dialogue
First, the court acknowledges that the “primary setting” of both the Show and the Film is a home, and the nursery within it. It also acknowledges that there are similarities in specific aspects of the houses, such as “both works showcase a dark but often dramatically lit exposed wood staircase, overlooking the first floor and entry hall,” and that both “nurseries are magazine worthy . . . including vertically striped wallpaper, old-fashioned cribs, beautiful vintage baby items, and remarkably, an antique rocking horse . . . .” However, such similarities are “not surprising and flow from the premise of a new mother, hiring a babysitter or nanny to care for a doll that the mother believes is her deceased child.” The court even looked to other settings, such as a graveyard, featured in the Show and the Film, and found that because they differed in “both expression and significance,” they were dissimilar.
Next, the court acknowledged that both the Film and the Show were similar in that both were “psychological thrillers” and, as such, “tense throughout,” invoking “heightened feelings of suspense, excitement, surprise, anticipation, and anxiety.” However, “general suspense is not protectable expression.” The court also found that the Film and the Show largely differ in mood because while the former focuses on “grief” and “healing,” the latter is “creepy and suspenseful and has no mood of healing or positivity."
Further, while Gregorini alleged that “[b]oth works proceed at a rapid pace,” the court found that to be untrue. Per the court, the Film had “numerous periods of calm” compared to the Show where the “pace builds and then quickens toward the chaotic end of the first season, without any trace of Emanuel’s moments of peace.
Finally, the court did not find any similarity between the Show and the Film’s dialogues. Gregorini needed to “show extended similarity of dialogue,” but failed to even allege any specific dialogue that were similar. Gregorini’s attempt at describing in general the scenes or conversations was held to be not enough.
The main takeaway from the court’s decision is the inherently detail comparative analysis involved in determining whether two works are substantially similar. That being said, this decision provides a nice blueprint for litigators doing such an analysis for similar subject matters.