The plaintiff in this lawsuit, author Wilhelmina “Mina” Montgomery, filed a lawsuit in a federal district court against various companies and individuals [Defendants] associated with a two-part television miniseries entitled Rosemary’s Baby. Montgomery alleged that the miniseries infringed on two of her copyrighted short stories.

The district court dismissed the Montgomery’s complaint, finding that no infringement occurred because the television miniseries was not “substantially similar” to the author’s short stories. Montgomery appealed the district court’s decision to the United States Circuit Court of Appeals, Second Circuit [New York].

The Circuit Court [Court] reviewed the district court’s granting Defendant’s motion to dismiss Montgomery’s cause of action and its granting Defendant’s motion for judgment on the pleadings de novo. In so doing, the Court said that it accepted all factual allegations in Montgomery’s complaint as true and drew “all reasonable inferences in the nonmoving party’s favor.” In addition to the complaint, the Court said it may consider “any written instrument attached to the complaint as an exhibit or … documents incorporated in it by reference.”

However, explained the Court, to survive the Defendant’s motion to dismiss Montgomery’s appeal, her complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

The Court then addressed the basis for stating a claim for copyright infringement, pointing out that the “copyright owner must demonstrate that (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s” copyrighted work.

Noting that the federal district court only considered the issue of substantial similarity, the Court pointed out that the test for substantial similarity is “whether, in the eyes of the average lay observer, [one work is] substantially similar to the protectible expression in the [other].” Further, the Court indicated that one cannot copyright ideas, scènes à faire, or stock characters and themes.

With respect to the doctrine of scènes à faire, the Second Circuit Court of Appeals has opined that examples of the doctrine include a motion picture about a certain location that may need to feature “drunks, prostitutes, vermin, and derelict cars” to be perceived as realistic. Accordingly, a later film that incorporated these features would not constitute an infringement of a copyright. Although scènes à faire are not protected by copyright, specific sequences and compositions of scènes à faire might be.

Further, in evaluating substantial similarity, courts are “principally guided by comparing the contested design’s total concept and overall feel with that of the allegedly infringed work.” In addition, courts consider commonalities in the works’ “theme, characters, plot, sequence, pace, and setting.”

Significantly, the absence of substantial similarity can be decided as a matter of law on a motion to dismiss.

Here, said the Court, the “total concept and overall feel” of the television miniseries is very different from Montgomery’s two short stories at issue in this case. One of the author’s two tales contains a “character sketch that closes with the mysterious disappearance of the narrator’s close friend after he moves in with a pair of elderly Nazis” while the other appears to be “the opening portion of a Nazi-hunting thriller.”

In contrast, the television miniseries Montgomery claims to be “substantially similar” to the author’s copyrighted works is a horror story in which, in the words of the Court, “a group of Satanists employ supernatural powers to commit gruesome murders, and rape and impregnate the protagonist.”

Reviewing the three works at issue in this case, the Court found that their plots were entirely dissimilar. Although Montgomery identified a number of common plot elements, including an interracial friendship, an investigation, a mysterious disappearance, and an incident involving a strange photograph, the Court observe that the author’s list merely “emphasizes random similarities scattered throughout the works,” and such a list “cannot support of finding of substantial similarity because it fails to [demonstrate] the underlying issue: whether a lay observer would consider the works as a whole substantially similar to one another.”

Although the author identified certain material as taken “verbatim” from her works, the Court said that these were “isolated word choices, short common phrases, and purportedly similar expressions of common ideas, such as the concept of feeling transported in time.” In contrast, copyright protections “extend only to those components of a work that are original to the author” — that is, those components that are “independently created by [the] author” and “come from the exercise of the creative powers of the author’s mind.”

That said, the Court observed that the isolated words, phrases, and concepts advanced by the author in support of her copyright claims lack the originality required for copyright protection and the settings of cafés, bridges crossing the Seine, apartments, and parties are all scènes à faire arising from the author’s depictions of Americans living in Paris, and therefore are not protectable.

With respect to other similarities alleged by the author, the Court concluded that they constituted trivial elements of the works at issue and “not an original expression protectable by copyright.”

Accordingly, the Circuit Court ruled that the district court properly concluded that no reasonable jury could find that the similarities between Montgomery’s short stories and the Defendant’s television miniseries were sufficient to prove “a substantial similarity exists between the [television miniseries] and the protectible elements of [the Author’s short stories].”

Thus the absence of substantial similarity proved fatal to Author’s copyright violation claims.

Considering Montgomery’s remaining arguments, the Circuit Court found them “to be without merit” and affirmed the judgment of the federal district court.

The full text of the Court’s decision is posted on the Internet at https://www.leagle.com/decision/infco20201112066.

Harvey Randall formerly served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University of New York system and as Director of Research, Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. Randall maintains a law blog of the same name focusing on New York Public Personnel Law.