Feldman v. Rhimes
Feldman v. Rhimes
Opinion of the Court
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS
In this copyright action, plaintiff author Debra Feldman alleges that the 2011 ABC television medical drama, Off the Map,
To survive a motion to dismiss, the “[fjactual allegations [of a complaint] must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To estab
To show actionable copying and therefore satisfy Feist’s second prong, a plaintiff must first prove thát the alleged infringer copied plaintiffs copyrighted work as a factual matter; to do this, he or she may either present direct evidence of factual copying or, if that is unavailable, evidence that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity).
Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995), aff'd 516 U.S. 233, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996).
To determine whether probative similarity exists between two works, “the Court should ask whether an average lay observer would recognize the alleged copy as having been appropriated from’ the copyrighted work.... In doing so, the Court should note similarities and dissimilarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting.” Blakeman v. The Walt Disney Co., 613 F.Supp.2d 288, 304-305 (E.D.N.Y. 2009) (internal quotation marks omitted).
To the extent that the copyrighted work and the allegedly infringing work exhibit probative similarities from which actual copying might be inferred, the ensuing analysis must address the question of substantial similarity (and, thus, determine whether wrongful appropriation occurred). While a finding of substantial similarity vel non derives from an examination of the juxtaposed works as a whole, that examination must focus on what aspects of the plaintiffs work are protectible under copyright laws and whether whatever copying took place appropriated those [protected] elements.
Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005) (internal quotation marks omitted).
“In the. case of literary works, it is axiomatic that copyright protection only extends to the expression of the author’s idea, not to the idea itself.” Warner Bros. Inc. v. Am. Broad. Cos., Inc., 654 F.2d 204, 208 (2d Cir. 1981); see also Johnson, 409 F.3d at 19 (“[C]opyright law protects original expressions of ideas but it does not safeguard either the ideas themselves or banal expressions of them.”).
The [ ] scenes á faire doctrine[ ] limit[s] the availability of copyright protection even for expression.... The doctrine of “scenes á faire” “denies copyright protection to elements of a work that are for all practical purposes indispensable, or at least customary, in the treatment of a given subject matter.” ... Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994) (describing scenes á faire as “stock scenes that naturally flow from a common theme,” such as “foot chases and the morale problems of policemen, not to mention the' familiar figure of the Irish cop” in police fiction).
Harney v. Sony Pictures Television, Inc., 704 F.3d 173, 181 n. 8 (1st Cir. 2013).
Weighing their “total concept and feel, theme, characters, plot, sequence, pace, and setting,” no reasonable lay observer would recognize Off the Map as derivative in any respect of The Red Tattoo. Off the Map is .a medical procedural drama set in a clinic in a jungle region of an unidentified South American country. Each episode features exotic accidents and diseases and their unorthodox treatments
Despite the fractured nature of her submitted excerpts — Feldman has offered the court 55 pages of the 229+ page Red Tattoo manuscript with numerous breaks in continuity, as well as redacted sentences and paragraphs on most pages — it is evident that The Red Tattoo is not a jungle medical melodrama. The Red Tattoo tells stories set in different times and places, see e.g., id. at 57 (Detroit — 1905), id. at 74 (Brookline -1991), and id. at 115 (Boston Memorial — 2005), involving characters who travel through time.
Feldman’s attempts to correlate the plots fare no better. She argues that episode 1 of Off the Map is derived from a motor scooter accident that takes place in The Red Tattoo. No reasonable observer, however, could agree. In The Red Tattoo, a man (Gil) and a woman (Dori) experience an accident when their motor scooter is cut off, causing it to overturn and skid several meters. As a result, Gil suffers a torn fingernail and is treated at the local medical center. In Off the Map, Dr. Keeton and Dr. Brenner ride a motor scooter to the location of Ed’s zipline accident. There the parallel ends. There is no motor scooter accident and Ed’s injuries are considerably graver than a broken nail. After the intrepid doctors reach the scene, the motor scooter disappears and is not to be seen again.
In another example of mind-bending comparison, Feldman contends that the treatment of a diabetic patient in The Red Tattoo provides the source of the story-lines in episodes 1 and 9 of Off the Map. The personage of an uncooperative diabetic who deviates from his prescribed diet is, at best, a stock scenes á faire character. The Red Tattoo does not describe David (the errant diabetic patient) or his treatment in anything but unprotectable abstractions.
Feldman’s attempts to draw comparisons to her other works are equally implausible. Feldman cites Days of Grace as the source for episode 4 {On the Mean Streets of San Miguel) of Off the Map. In three pages of Days of Grace, the main character (Grace) travels back in time to a Nazi concentration camp where she attempts to win the trust of a woman prisoner. The woman, fearing that Grace is a Gestapo spy, offers Grace the clothes off her back. Grace learns that the prisoner had given up her infant son to another couple to ensure his safety. In Off the Map, Dr. Minard treats Abuelito, an elderly and much beloved teacher of local children, for advanced mouth cancer. While delirious, Abuelito confesses that he served as an SS guard in his youth and stole jewelry and other valuables from inmates in his charge. Dr. Minard stabilizes his condition and turns him over to the authorities. Other than allusions to Nazis, there is no resemblance between the two stories.
The allegations of the Amended Complaint also reveal a lack of comparable original elements between Off the Map and Feldman’s An Ordinary Hero and The Comfort of Strangers. For example, Feld-man compares the zipline accident in episode 1 of Off the Map to falling down a flight of stairs, Am. Compl. ¶ 112, a lake that lights up with florescent microorganisms to fireworks, id, a green anaconda to a spear, id, a ring to a bullet, id, and a selfless and giving couple who are in love to a pair of selfish and petty adolescents who detest one another. Id. ¶ 113.
Because Feldman has utterly failed to meet her entry-level burden of showing some plausible probative similarity between her works and Off the Map, the Amended Complaint will be dismissed for “failure to state a [copyright] claim upon which relief can be granted.” Fed. R.Civ.P. 12(b)(6).,
ORDER
For the foregoing reasons, defendants’ motions to dismiss are ALLOWED with prejudice.
SO ORDERED.
. Off the Map aired for thirteen episodes in early 2011 to generally unappreciative reviews. The series was canceled in May of 2011.
. Although the inquiry at this stage is usually limited to the (assumed true) allegations of a complaint, the court may consider "documents central to plaintiffs' claim; or [ ] documents sufficiently referred to in the complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). Here, both the asserted and allegedly infringing works are integral to the claims and the Amended Complaint.
. In the Days of Grace excerpt, it is made clear that Reweavers travel in time — or Overlap, hence the title of Feldman’s opus — in order to “touch the past so that the future might be repaired.” Id. at 3. Reweavers suffer from vivid nightmares of the past.
. The entirety of the paragraph that concerns the medical center reads:
The local who hoisted the scooter rushed the injured man into a medic’s building next to the market. Against vigorous protests and not understanding who the girl was the locals made her wait outside frustrated and fretting. The medic center was merely a way-station and the injured man needed a hospital where his injured hand properly could be treated. Rinsing the nail in sterile solution was the extent of the center’s available aid, which was insufficient to remove the dirt now embedded in the delicate tissue that once was under his nail, ripped-up quick to cuticle in the fall. The injured man finally emerged from be*365 hind closed doors, his hand in a gauze bandage.
Id. at 104.
. The entirety of the passage concerning David, the diabetic, reads as follows.
Suddenly, David collapsed. Dori checked for vitals while Gede ran to the bathroom and rummaged through David’s medicine cabinet. ■ He’s an insulin diabetic, Gede called out. And, an uncooperative patient. David lived on the edge eating things he knew he should not. That night was no exception and his diabetic shock could have degenerated into a coma from which David might never emerge. Why being there and Gede's help and Jeep saved David’s life. Why and Gede spent several less exciting nights but always, at some point, checked in on David.
Id. at 113.
. The most ridiculous (and offensive) example is Feldman's attempt to equate a boy who accidentally shoots a squirrel in the chest with a BB gun, killing it, to Dr. Tommy Fuller’s off-color remarks to Drs. Brenner and Minard that they should apply sunscreen before plying the local nude beaches to avoid prematurely shriveled chests. Feldman char
. Because the court finds that Feldman has not alleged a viable copyright claim, it is unnecessary to reach the alternative grounds of dismissal (such as the lack of plausible
Reference
- Full Case Name
- Debra FELDMAN v. Shonda RHIMES
- Status
- Published