U.S. Dist. LEXIS 11109, *; 11 U.S.P.Q.2D (BNA) 1161; Copy. L. Rep. (CCH) P22,665
BURTON ANDERSON, Plaintiff, v. SYLVESTER STALLONE, FREDDIE FIELDS, DEAN STOLBER,
FRANK YABLANS Individually, and MGM/UA, a Corporation, Defendants; SYLVESTER
STALLONE, Counterclaimant, v. TIMOTHY BURTON ANDERSON, Counterdefendant
No. 87-0592 WDK (Gx)
STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
U.S. Dist. LEXIS 11109; 11 U.S.P.Q.2D (BNA) 1161; Copy. L. Rep. (CCH) P22,665
25, 1989, Decided and Filed; April 26, 1989, Entered
ORDER RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
D. KELLER, UNITED STATES DISTRICT JUDGE
This matter came before the Court on the Motion for Summary Judgment of defendants Sylvester Stallone, Freddie Fields, Dean Stolber and MGM/UA Communications Co. Having reviewed the materials submitted and the arguments of counsel, the Court hereby ORDERS the Motion GRANTED IN PART and DENIED IN PART. The plaintiff's First Count, for copyright infringement, is dismissed with prejudice. The plaintiff's Sixth and Tenth Counts for unfair competition and unjust enrichment are also dismissed with prejudice as is the breach of confidence claim in Count Twelve. The Motion is DENIED as to all other counts.
movies Rocky I, II, and III were extremely successful motion pictures. Sylvester
Stallone wrote each script and played the role of Rocky Balboa, the dominant
character in each of the movies. In May of 1982, while on a promotional tour for
the movie Rocky III, Stallone informed members of the press of his ideas for
Rocky IV. Although Stallone's description of his ideas would vary slightly in
each of the press conferences, he would generally describe his ideas as
do it [Rocky IV] if Rocky himself could step out a bit. Maybe tackle world
problems. So what would happen, say, if Russia allowed her boxers to enter the
professional ranks? Say Rocky is the United States' representative and the White
House wants him to fight with the Russians before the Olympics. It's in Russia
with everything against him. It's a giant stadium in Moscow and everything is
Russian Red. It's a fight of astounding proportions with 50 monitors sent to 50
countries. It's the World Cup - a war between 2 countries.
Tribune Herald, May 28, 1982; Section D, pg. 1 (EX 168) In June of 1982, after
viewing the movie Rocky III, Timothy Anderson wrote a thirty-one page treatment
entitled "Rocky IV" that he hoped would be used by Stallone and MGM
Registered TM UA Communications Co. (hereinafter "MGM" ) as a sequel
to Rocky III. The treatment incorporated the characters created by Stallone in
his prior movies and cited Stallone as a co-author.
October of 1982, Mr. Anderson met with Art Linkletter, who was a member of MGM's
board of directors. Mr. Linkletter set up a meeting on October 11, 1982, between
Mr. Anderson and Mr. Fields, who was president of MGM
[*3] at the time. Mr.
Linkletter was also present at this October 11, 1982 meeting. During the
meeting, the parties discussed the possibility that plaintiff's treatment would
be used by defendants as the script or Rocky IV. At the suggestion of Mr.
Fields, the plaintiff, who is a lawyer and was accompanied by a lawyer at the
meeting, signed a release that purported to relieve MGM from liability stemming
from use of the treatment. Plaintiff alleges that Mr. Fields told him and his
attorney that "if they [MGM & Stallone] use his stuff [Anderson's
treatment] it will be big money, big bucks for Tim." Anderson Depo. at
89-90, 106, 108-109.
April 22, 1984, Anderson's attorney wrote MGM requesting compensation for the
alleged use of his treatment in the forthcoming Rocky IV movie. On July 12,
1984, Stallone described his plans for the Rocky IV script on the Today Show
before a national television audience. Anderson, in his deposition, states that
his parents and friends called him to tell him that Stallone was telling
"his story" on television. Anderson Depo. at pgs. 189-190. In a diary
entry of July 12, 1984, Anderson noted that Stallone "explained my
story" on national television. Deposition
[*4] of Timothy Anderson,
completed his Rocky IV script in October of 1984. Rocky IV was released in
November of 1985. The complaint in this action was filed on January 29, 1987.
This Court Cannot Rule As A Matter Of Law That Anderson's Contract Claims Are
Barred By The Statute Of Limitations
causes of action for breach of oral contract, breach of implied-in-fact
contract, and tortious breach of implied covenant of good faith and fair dealing
fall under California's two year statute of limitations for oral contracts. Cal.
Civ. Proc. Code § 339(1) (West 1988); Thompson v. California Brewing Co., 12
Cal. Rptr. 783 (1961); 3 B. WITKIN, CALIFORNIA PROCEDURE, §§ 369, 438-39, pgs.
397, 468-70 (3rd Ed. 1985). For each action, the statute of limitations begins
to run on the date that the underlying cause of action accrues. A cause of
action accrues when the defendant commits the act - in this case, when he
breaches the contract - which gives rise to his obligation or liability. 3 B.
WITKIN, CALIFORNIA PROCEDURE, § 351, pg. 389 (3rd Ed. 1985).
assert that as a matter of law, plaintiff's contract claims accrued when
Stallone [*5] completed the Rocky IV script in October of 1984. If the
defendants are correct, the contract claims that were filed in January of 1987,
would be timed barred under section 339(1). Plaintiff contends that his contract
claims did not accrue until the Rocky IV movie was released in November of 1985.
Under this version of the facts, the contract actions are not time barred. Both
sides erroneously assume that this determination can properly be made at the
summary judgment stage.
Nimmer raised and answered the exact question which is before this Court. He
wrote in his treatise:
will be no breach until such time as defendant uses the idea without plaintiff's
further question arises as to what acts by the defendant constitute a 'use' of
the plaintiff's idea such as to satisfy the condition precedent to the
defendant's obligation to pay . . . . Does the mere writing of a script which
embodies the plaintiff's idea amount to such a 'use' or does the production of a
motion picture based upon such script amount to such a 'use'? . . . . The
question is ultimately one of fact, since it is open to the parties in making a
contract to define 'use' as they will.
added) 3 M. Nimmer, NIMMER ON COPYRIGHT, 16.05[F] at 16:43-16:44 (1988).
Nimmer's analysis is very instructive when, as here, a court is being asked at
the summary judgment stage to determine when the statute begins to run.
rely on Thompson v. California Brewing Co., 12 Cal. Rptr. 783 (1961), for the
proposition that public policy dictates that the first use of an idea triggers
the statute of limitations. However, the Court in Thompson concluded that the
first use by defendants of plaintiff's marketing ideas was a breach of the
contract that triggered the statute of limitation only after finding there
"was no evidence from which it can be inferred or implied that the claimed
free test period was part of the contract". Thompson, 12 Cal. Rptr. 784-85.
Thus, the Court in Thompson relied on uncontroverted evidence that the terms of
the agreement in question contemplated payment upon the first use of the
marketing ideas. In contrast, the terms of the agreement which is the subject of
dispute in this action is far from uncontroverted. Mr. Anderson states in a
declaration that Mr. Fields told him "that if MGM released a Rocky IV movie
my treatment, I would receive compensation . . . ." Anderson
Declaration, pg. 1, para. 3. According to Anderson, no payment was due under the
contract terms unless the movie Rocky IV was released. On the other hand,
defendants' claim that the wording of demand letters sent by the plaintiff
before the release of the Rocky IV movie conclusively show that Anderson
expected payment regardless of whether Rocky IV was released. Therefore, there
is a genuine dispute involving a material fact, namely, the terms of the
put, the date of accrual will be determined by the terms of the contract. If
Anderson and Fields agreed that Anderson was to be paid only if Rocky IV was
released, then the contract causes of actions would accrue when Rocky IV was
released in November of 1985. If Anderson and Fields agreed that Anderson would
be compensated for any use of his script, than Anderson's cause of action would
accrue when Stallone allegedly incorporated Anderson's treatment into his script
in October of 1984. This dispute over the terms of the contract precludes the
Court from granting summary judgment on the issue of whether the contract
actions are time barred.
Breach Of Confidence Claim Is Barred By The Statute Of Limitations
Count Twelve of his complaint, Anderson claims that the defendants committed a
breach of confidence by revealing the contents of his script. In Davies v.
Krasna, 121 Cal. Rptr. 705 (1975), the California Supreme Court set forth the
requirements for a breach of confidence claim. The Court held that "an
action for breach of confidence . . . arises whenever an idea, offered and
received in confidence is later disclosed without permission" Id. at 710.
Davies also held that a breach of confidence claim is governed by the two year
statute of limitation period set forth in Cal. Civ. Proc. Code § 339. Id. at
is uncontroverted that on July 12, 1984, Stallone described ideas for a Rocky IV
script on the Today Show before a national television audience. This interview
included a description by Stallone of the East/West confrontation theme for
Rocky IV. In his deposition, Anderson claims that Stallone was revealing
"his story" on national television. Anderson Depo. at pgs. 189-190. On
July 12, 1984, Anderson also noted in his diary that Stallone had explained his
story. Stallone did not have Anderson's [*9]
permission to disclose the ideas in Anderson's treatment. If, as Anderson
alleges, Stallone did take Anderson's ideas, the breach of confidence occurred
on July 12, 1984. This action was filed in January of 1987. The breach of
confidence claim was not filed within the two year statute of limitations and is
argues that the statute should not begin to run until the release of Rocky IV
since he suffered no appreciable arm until that time. This argument was
considered and rejected in Davies. There, in an analogous fact situation, the
court held that a disclosure of ideas would destroy marketability of a story and
cause actual damage to an author and would immediately trigger the running of
the statute of limitations. Davies, 121 Cal. Rptr. 711-12 The same impact on
marketability occurred here. Anderson's ideas for an East/West boxing
confrontation were revealed to millions of people on July 12, 1984. His ideas
then entered the public domain and could be used and developed by others without
payment to him. If his allegations are true, he suffered an injury the moment
his ideas were disclosed without permission. See 3 B. WITKIN, CALIFORNIA
PROCEDURE, § [*10]
358, pg. 386-88 (3rd Ed. 1985).
also argues that even if the marketability of his ideas was impacted on July 12,
1984, the amount of damages he suffered was too uncertain to warrant the running
of the statute of limitations. The court in Davies explicitly held, contrary to
plaintiff's contentions here, "neither uncertainty as to the amount of
damages nor difficulty in proving damages tolls the period of limitations".
121 Cal. Rptr. at 713. The holding in Davies also comports with common sense, as
adoption of a certainty" requirement for the running of a statute would
create chaos as courts attempted to determine on what date a plaintiff knew or
should have known the extent of his damages. Anderson's action accrued at the
moment of disclosure on July 12, 1984, and there are no facts before this Court
that warrant tolling of the statute. Thus, Anderson's breach of confidence claim
is time barred.
Plaintiff's Unjust Enrichment And Unfair Competition Claims Are Preempted By
Federal Copyright Law
July 20, 1987, this Court denied defendants' motion to dismiss plaintiff's
unjust enrichment claim, finding that it was not preempted by federal law.
However, unbeknownst [*11]
to the parties and this Court, on June 23, 1987, the Ninth Circuit held
that the plaintiff's unjust enrichment claim was subject to preemption. Del
Madera Properties v. Rhodes & Gardner, 820 F.2d 973 (9th Cir. 1987) (The
court held that plaintiff's unjust enrichment claim based on an unauthorized use
of a copyrighted master plan map was preempted by federal copyright law.) In the
same case, the Ninth Circuit also held that the plaintiff's unfair competition
claim was preempted. Del Madera, 820 F.2d at 977.
Del Madera appears to be a case of first impression in this circuit on the issue
of preemption of unjust enrichment and unfair competition claims by federal
copyright law. However, as shown below, the opinion comports with the test for
determining whether a cause of action is preempted by federal copyright law
under 17 U.S.C. § 301(b) (West 1977).
301 of the federal copyright statute sets forth a two-part test for determining
whether a claim based on state law is preempted by federal copyright law. First,
the work on which the state claim is based must be within the subject matter of
copyright. 17 U.S.C. 301 (b)(1). Second, the state cause of action
[*12] must protect rights
that are qualitatively equivalent to copyright protection. 17 U.S.C. 301(b)(3).
Under the second prong, courts focus on whether the state claim has an
"extra element" that differentiates the state action from the rights
protected by federal copyright law. See Harper & Row Publishers, Inc. v.
Nation Enterprises 723 F.2d 195, 200 (2nd Cir. 1983), rev'd on other grounds,
471 U.S. 539 (1985).
this test, both Anderson's unjust enrichment and unfair trade practice claims
are preempted. Both actions are grounded on the defendants' alleged use of a
written script. This clearly satisfies the first prong of the test as Anderson's
written work of authorship is within the subject matter of copyright. 17 U.S.C.
§ 102. Under the second prong, the defendants allegedly copied and incorporated
Anderson's work into their own script without permission. The federal copyright
laws explicitly protect Anderson's treatment from the copying that forms the
basis for these state causes of action. 17 U.S.C. §§ 106(1) & (2). There
is no "extra element" such as fraud or palming off to save the unfair
competition and unjust enrichment claims from preemption See Ronald Litoff,
[*13] Ltd. v. American
Express Corp., 621 F.Supp 981, 984-85 (D.C.N.Y. 1985).
original opposition to the defendant's motion to dismiss the unjust enrichment
claims raised two arguments that warrant discussion by the Court. First,
plaintiff argued that portions of his script taken unjustly may not rise to the
level of an infringement under copyright laws, but would still constitute unjust
enrichment. However, under the preemption test set fort in section 301(b)(1), if
the subject matter as a whole falls within federal copyright law, then a
plaintiff may not avoid preemption by claiming that the copying, while
permissible under the federal laws, would violate an equivalent state law.
can only avoid preemption of his state law claims that fall within the subject
matter of copyright if these claims involve a "qualitatively"
different right, not a "quantitatively" different right. As the Second
Circuit opined in Harper & Row in finding that state claims for both
conversion and tortious interference with contractual rights were preempted:
fact that portions of the Ford memoirs may consist of uncopyrightable material .
. . does not take the work as a whole outside [*14] the
subject matter protected by the Act. (citations omitted) Were this not so,
states would be free to expand the perimeters of copyright protection to their
own liking, on the theory that preemption would be no bar to state protection of
material not meeting federal statutory standards. That interpretation would run
directly afoul of one of the Act's central purposes, to 'avoid the development
of any vague borderline areas between State and Federal protection.' (citations
& Row, 723 F.2d 195, 200.
argument is rejected implicitly by the Ninth Circuit in Del Madera; in the
language of Section 301(b)(3); and in the thorough reasoning of the Second
Circuit in Harper & Row.
plaintiff argues that his unjust enrichment claim should not be preempted
because it is equivalent to an action for breach of confidence that is not
preempted. However, there is an "extra element" of a confidential
relationship in a breach of confidence claim that differentiates it from an
unjust enrichment claim and prevents preemption under Section 301(b)(3). As
other courts have noted, a breach of confidence claim is "nonequivalent to
the rights one can acquire [*15]
under copyright law; rather it rests on an obligation not to disclose to
third parties ideas revealed in confidence. . . ." Smith v. Weintstein, 578
F.Supp 1297, 1307 (S.D.N.Y. 1984). Plaintiff's unjust enrichment and unfair
competition claims do not incorporate any such "nonequivalent" right
and are preempted by federal copyright law.
Defendants Are Entitled To Summary Judgment On Anderson's Copyright Infringement
Court finds that the" defendants are entitled to summary judgment on
plaintiff's copyright infringement claims on two separate grounds. First,
Anderson's treatment is an infringing work that is not entitled to copyright
protection. Second, Rocky IV is not substantially similar to Anderson's
treatment, and no reasonable jury could find that Rocky IV is a picturization of
Defendants Are Entitled To Summary Judgment Because Anderson's Treatment Is An
Infringing Work That Is Not Entitled To Copyright Protection
Court finds that Anderson's treatment is not entitled to copyright protection.
This finding is based upon the following determinations that will be delineated
further below: (a) the Rocky characters developed in Rocky I,
[*16] II and III constitute
expression protected by copyright independent from the story in which they are
contained; (b) Anderson's treatment appropriated these characters and created a
derivative work based upon these characters without Stallone's permission in
violation of Section 106(2); (c) no part of Anderson's treatment is entitled to
copyright protection as his work is pervaded by the characters of the first
three Rocky movies that are afforded copyright protection.
Visually Depicted Characters Can Be Granted Copyright Protection
precise legal standard this Court should apply in determining when a character
may be afforded copyright protection is fraught with uncertainty. The Second
Circuit has followed Judge Learned Hand's opinion in Nichols v. Universal
Pictures, 45 F.2d 119 (2d. Cir. 1930), cert. denied, 282 U.S. 902 (1931). Judge
Hand set forth a test, simple in theory but elusive in application, to determine
when a character should be granted copyright protection. Essentially, under this
test, copyright protection is granted to a character if it is developed with
enough specificity so as to constitute protectable expression. Id. at 121.
circuit originally [*17]
created a more rigorous test for granting copyright protection to
characters. In Warner Bros. Pictures, Inc. v. Columbia Broadcasting System,
Inc., (hereinafter the "Sam Spade" opinion) this circuit held that the
literary character Sam Spade was not copyrightable, opining that a character
could not be granted copyright protection unless it "constituted the story
being told". 216 F.2d 945, 950 (9th Cir. 1954). The Sam Spade case has not
been explicitly overruled by this circuit and its requirement that a character
"constitute the story being told" appears to greatly circumscribe the
protection of characters in this circuit.
decisions in the Ninth Circuit cast doubt on the reasoning and implicitly limit
the holding of the Sam Spade case. In Walt Disney Productions v. Air Pirates,
this circuit held that several Disney comic characters were protected by
copyright. 581 F.2d 751, 755 (9th Cir. 1978). In doing so the Court of Appeals
reasoned that because "comic book characters . . . are distinguishable from
literary characters, the Warner Bros language does not preclude protection of
Disney's characters." Id. Air Pirates can be interpreted as either
to harmonize granting copyright protection to graphic characters with the
"story being told" test enunciated in the Sam Spade case or narrowing
the "story being told" test to characters in literary works. If Air
Pirates is construed as holding that the graphic characters in question
constituted the story being told, it does little to alter the Sam Spade opinion.
However, it is equally as plausible to interpret Air Pirates as applying a less
stringent test for protectability of graphic characters.
Nimmer has adopted the latter reading as he interprets Air Pirates as limiting
the story being told requirement to word portraits. 1 M. Nimmer, THE LAW OF
COPYRIGHT, § 2-12, pg. 2-176 (1988). Further, Professor Nimmer finds that the
reasoning of the Sam Spade case is undermined by the Air Pirates opinion, even
as it relates to word portraits. Id. This is true because the use of a less
stringent test for protection of characters in the graphic medium casts doubt on
the vitality of the more stringent story being told test for graphic characters.
As a practical matter, a graphically depicted character is much more likely than
a literary character to be fleshed out [*19]
in sufficient detail so as to warrant copyright protection. But this fact
does not warrant the creation of separate analytical paradigms for protection of
characters in the two mediums.
circuit's most recent decision on the issue of copyrightability of characters,
Olson v. National Broadcasting Corporation, 855 F.2d 1446 (9th Cir. 1988) does
little to clarify the uncertainties in this circuit as to how the Air Pirates
decision effects the continued viability of the Sam Spade test. In Olson, the
Court of Appeals cited with approval the Sam Spade "story being told
test" and declined to characterize this language as dicta. Id. at 1451-52
n. 6. The Court then cited Air Pirates along with Second Circuit precedent and
"recognize[d] that cases subsequent to Warner Bros [Sam Spade] have allowed
copyright protection for characters who are especially distinctive." Id. at
1452. Olson also stated definitively that "copyright protection may be
afforded to characters visually depicted in a television series or in a
movie." Id. But later in the opinion, the court in Olson distanced itself
from the character delineation test that these cases employed,
[*20] referring to it as
"the more lenient standards adopted elsewhere". Id.
an implicit acknowledgment of the unsettled state of the law, in considering the
characters at issue in Olson, the circuit court evaluates the characters in the
suit under both tests. Id. at 1452-53.
The Rocky Characters Are Entitled To Copyright Protection As A Matter Of Law
evaluation of literary characters is clearly distinguishable from the visually
depicted characters of the first three Rocky movies for which the defendant
seeks protection here. Thus, the more restrictive "story being told
test" is inapplicable to the facts of this case. Air Pirates, 581 F.2d at
755, 1 M. Nimmer, § 2-12, pg 2-176. However, out of an abundance of caution
this Court will determine the protectability of the Rocky characters under both
tests. As shown below, the Rocky characters are protected from bodily
appropriation under either standard.
Rocky characters are one of the most highly delineated group of characters in
modern American cinema. The physical and emotional characteristics of Rocky
Balboa and the other characters were set forth in tremendous detail in the three
Rocky movies before [*21]
Anderson appropriated the characters for his treatment. The
interrelationships and development of Rocky, Adrian, Apollo Creed, Clubber Lang,
and Paulie are central to all three movies. Rocky Balboa is such a highly
delineated character that his name is the title of all four of the Rocky movies
and his character has become identified with specific character traits ranging
from his speaking mannerisms to his physical characteristics. This Court has no
difficulty ruling as a matter of law that the Rocky characters are delineated so
extensively that they are protected from bodily appropriation when taken as a
group and transposed into a sequel by another author. Plaintiff has not and
cannot put before this Court any evidence to rebut the defendants' showing that
Rocky characters are so highly delineated that they warrant copyright
unsupported assertions that Rocky is merely a stock character, made in the face
of voluminous evidence that the Rocky characters are copyrightable, do not bar
this Court from granting summary judgment on this issue. See Anderson v. Liberty
Lobby, 477 U.S. 242, 247-48 (1986) ("the mere existence of some alleged
factual dispute between [*22]
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.") (emphasis in original). If any group of movie characters is
protected by copyright, surely the Rocky characters are protected from bodily
appropriation into a sequel which merely builds on the relationships and
characteristics which these characters developed in the first three Rocky
movies. No reasonable jury could find otherwise.
Court need not and does not reach the issue of whether any single character
alone, apart from Rocky, is delineated with enough specificity so as to garner
copyright protection. Nor does the Court reach the issue of whether these
characters are protected from less than bodily appropriation. See I M. Nimmer,
§ 2.12, pg. 2-171 (copyrightability of characters is "more properly framed
as relating to the degree of substantial similarity required to constitute
infringement rather than in terms of copyrightability per se")
Court also finds that the Rocky characters were so highly developed and central
to the three movies made before Anderson's treatment that they "constituted
the story [*23]
being told". All three Rocky movies focused on the development and
relationships of the various characters. The movies did not revolve around
intricate plots or story lines. Instead, the focus of these movies was the
development of the Rocky characters. The same evidence which supports the
finding of delineation above is so extensive that it also warrants a finding
that the Rocky characters - Rocky, Adrian, Apollo Creed, Clubber Lang, and
Paulie- "constituted the story being told" in the first three Rocky
Anderson's Work is An Unauthorized Derivative Work
17 U.S.C. section 106(2), the holder of a copyright has he exclusive right to
prepare derivative works based upon his copyrighted work. In this circuit a work
is derivative "only if it would be considered an infringing work if the
material which it had derived from a prior work had been taken without the
consent of the copyright proprietor of the prior work." Litchfield v.
Spielberg, 736 F.2d 1352, 1354 (9th Cir. 1984) (emphasis in original), citing
United States v. Taxe, 540 F.2d 961, 965 n. 2 (9th Cir. 1976). This Court must
now examine whether Anderson's treatment is an unauthorized derivative work
[*24] under this standard.
a court would be required to undertake the extensive comparisons under the
Krofft substantial similarity test to determine whether Anderson's work is a
derivative work. See I M. Nimmer, § 3.01 at 3-3; pgs. 25-28 supra. However, in
this case, Anderson has bodily appropriated the Rocky characters in his
treatment. This Court need not determine whether the characters in Anderson's
treatment are substantially similar to Stallone's characters, as it is
uncontroverted that the characters were lifted lock, stock, and barrel from the
prior Rocky movies. Anderson retained the names, relationships and built on the
experiences of these characters from the three prior Rocky movies. 1 M. Nimmer,
§ 2.12 at 2-177 (copying names of characters is highly probative evidence of
infringement). His characters are not merely substantially similar to Stallone's,
they are Stallone's characters. As Professor Nimmer stated, "Where there is
literal similarity . . . . [i]t is not necessary to determine the level of
abstraction at which similarity ceases to consist of an 'expression of ideas'
since literal similarity by definition is always a similarity as to the
of ideas." 3 M. Nimmer, § 13.03, pg. 13-35. Anderson's bodily
appropriation of these characters infringes upon the protected expression in the
Rocky characters and renders his work an unauthorized derivative work. 1 Nimmer,
§ 2.12 at 2-171. By bodily appropriating the significant elements of protected
expression in the Rocky characters, Anderson has copied protected expression and
his treatment infringes on Stallone's copyrighted work.
Since Anderson's Work Is An Unauthorized Derivative Work, No Part Of The
Treatment Can Be Granted Copyright Protection
owns the copyrights for the first three Rocky movies. Under 17 U.S.C. section
106(2), he has the exclusive right to prepare derivative works based on these
copyrighted works. This Court has determined that Anderson's treatment is an
unauthorized derivative work. Thus, Anderson has infringed upon Stallone's
copyright. See 17 U.S.C. section 501(a).
plaintiff contends that his infringing work is entitled to copyright protection
and he can sue Stallone for infringing upon his treatment. Plaintiff relies upon
17 U.S.C. section 103(a) as support for his position that he is entitled to
copyright protection [*26]
for the non-infringing portions of his treatment. 17 U.S.C section 103(a)
subject matter of copyright as specified by section 102 includes compilations
and derivative works, but protection for a work employing preexisting material
in which copyright subsists does not extend to any part of the work in which the
material has been used unlawfully.
has not argued that section 103(a), on its face, requires that an infringer be
granted copyright protection for the non-infringing portions of his work. He has
not and cannot provide this Court with a single case that has held that an
infringer of a copyright is entitled to sue a third party for infringing the
original portions of his work. Nor can he provide a single case that stands for
the extraordinary proposition he proposes here, namely, allowing a plaintiff to
sue the party whose work he has infringed upon for infringement of his
infringing derivative work.
Anderson alleges that the House Report on section 103(a) indicates that Congress
intended protection for the noninfringing portions of derivative works such as
his treatment. The House Report for section 103(a) first delineates the
differences between [*27]
compilations and derivative works. H.R. No. 1476, 94th Cong., 2d Sess. at
57-58 (1976). The House Report then reads as follows:
second part of the sentence that makes up section 103(a) [subsec. (a) of this
section] deals with the status of a compilation or derivative work unlawfully
employing preexisting copyrighted material. In providing that protection does
not extend to "any part of the work in which such material has been used
unlawfully," the bill prevents an infringer from benefiting, through
copyright protection, from committing an unlawful act, but preserves protection
for those parts of the work that do not employ the preexisting work. Thus, an
unauthorized translation of a novel could not be copyrighted at all, but the
owner of copy right in an anthology of poetry could sue someone who infringed
the whole anthology, even though the infringer proves that publication of one of
the poems was unauthorized.
Court recognizes that the House Report language is muddled. It makes a general
statement that non-infringing portions of a work should be granted protection if
these portions do not employ the pre-existing work. The report then provides two
examples: one involving [*28]
a compilation where the noninfringing portion was deemed protected, and
another involving a derivative work where no part of the work could be
protected. The general statement, when taken in the context of the comparison of
compilations and derivative works in the section and the two examples given, is
best understood as applying only to compilations. Although it is not crystal
clear, it appears that the Committee assumed that in a derivative work the
underlying work is "employed" throughout.
Nimmer also interprets the House Report language as generally denying copyright
protection to any portion of an unauthorized derivative work. After setting
forth some of the language from the House Report regarding section 103(a) he
effect [of section 103(a)] generally would be to deny copyright to derivative
works, in which the preexisting work tends to pervade the entire derivative
work, but not to collective works, where the infringement arises from the
copying of the selection and arrangement of a number of preexisting works, and
not per se from the reproduction of any particular prior work.
M. Nimmer, § 3.06, pgs. 3-22.3 thru 3-22.4.
the House Report, Nimmer [*29]
also preceded his conclusion that no part of derivative work unlawfully
employing preexisting material should be copyrightable with a general statement
that "only that portion of a derivative or collective work which employs
the preexisting work would be denied copyright". 1 M. Nimmer, § 3.06, pg.
3-22.3. At first blush, both Nimmer's and the Committee's language are
internally inconsistent. Both start with a general proposition that only the
portion of a work which unlawfully employs the prior work should be denied
copyright protection. Both then appear to conclude that no part of an infringing
derivative work should be granted copyright protection. Only if a derivative
work is assumed to employ the infringing work throughout do these passages read
case law interpreting section 103(a) also supports the conclusion that generally
no part of an infringing derivative work should be granted copyright protection.
In Eden Toys, Inc. v. Florelee Undergarment Co., the circuit court dealt
primarily with the question of whether an authorized derivative work contained
sufficient originality to gain copyright protection. 697 F.2d 27, 34-35 (2d.
Cir. 1982). However, in [*30]
dicta the court opined on what result would be warranted if the
derivative work had been made without the permission of the original author. The
Court cited to the aforementioned passages from Professor Nimmer's treatise and
the House Report and assumed without discussion that the "derivative
copyrights would be invalid, since the preexisting illustration used without
permission would tend to pervade the entire work" Id. at 34 n.6. In Gracen
v. Bradford, the Seventh Circuit also dealt primarily with whether plaintiff's
derivative work had sufficient originality to comply with requirements of
section 103. 798 F.2d 300, 302-303 (7th Cir. 1983). Gracen also discussed the
issue of the copyrightability of an unauthorized derivative work. The Court
stated "if Miss Gracen had no authority to make derivative works from the
movie, she could not copyright the painting and drawings, and she infringed
MGM's copyright by displaying them publicly." Id. at 303. Once again, the
Circuit court assumed that no part of an unlawful derivative work could be
has written a treatment which is an unauthorized derivative work. This treatment
infringes upon Stallone's [*31]
copyrights and his exclusive right to prepare derivative works which are
based upon these movies. 17 U.S.C. § 106(2). Section 103(a) was not intended to
arm an infringer and limit the applicability of section 106(2) on unified
derivative works. As the House Report and Professor Nimmer's treatise explain,
103(a) was not intended to apply to derivative works and most certainly was not
an attempt to modify section 106(2). Section 103(a) allows an author whose
authorship essentially is the arrangement or ordering of several independent
works to keep the copyright for his arrangement even if one of the underlying
works he arranged is found to be used unlawfully. The infringing portion would
be easily severable and the scope of the compilation author's own work would be
easily ascertainable. Even if this Court were to interpret section 103(a) as
allowing an author of an infringing derivative work to sue third parties based
on the non-infringing portions of his work, section 106(2) most certainly
precludes the author of an unauthorized infringing derivative work from suing
the author of the work which he has already infringed. Thus, the Court HOLDS
that the defendants are entitled to summary
[*32] judgment on
plaintiff's copyright claims as the plaintiff cannot gain copyright protection
for any portion of his work under section 103(a). In addition, Anderson is
precluded by section 106(2) from bringing an action for copyright infringement
against Stallone and the other defendants.
Summary Judgment Is Appropriate On The Copyright Claims Because Rocky IV Is Not
Substantially Similar To Anderson's Treatment
prevail on his claim for copyright infringement, Mr. Anderson must prove that he
owns a copyright and his work was copied by the defendant. Sid & Marty
Krofft Television v. McDonalds Corp. 562 F.2d 1157, 1162 (9th Cir. 1977).
Because there is rarely direct evidence that an alleged infringer physically
copied a work, a plaintiff need only show that the defendant had access to his
work and that the defendant's work is substantially similar to the plaintiff's
copyrighted work. Sid & Marty Krofft, 562 F.2d at 1162-63. (As an aside, the
Court notes that an alleged infringer also rarely has direct irrefutable
evidence - such as Stallone's press conferences describing his ideas of an
East/West boxing confrontation before receiving Anderson's script
[*33] - that he had
independently developed the idea which he allegedly copied from the defendant.)
This Court has already held that Anderson's work is not entitled to copyright
protection. See pgs. 12-24 supra. This finding alone necessitates that the
defendants be granted summary judgment on the copyright infringement claims.
However, even if this Court were to hold that Anderson's work was entitled to
copyright protection, defendants are entitled to summary judgment on the grounds
that the defendants did not copy Anderson's work.
this circuit, there is a two part test for determining whether an allegedly
infringing work is substantially similar to the copyright holder's work. The
first prong is referred to as the extrinsic test. Under the extrinsic test,
analytic dissection and expert testimony are employed to determine whether there
is substantial similarity of ideas between the two works in question. Olson, 855
F.2d at 1449. Application of the extrinsic test to analyze whether a movie is
substantially similar to a script requires a court to compare the plot, theme,
dialogue, mood, setting, pace, sequence of events, and characters of the two
works. Berkic v. Crichton, [*34]
761 F.2d 1289, 1293 (9th Cir. 1985),; Litchfield v. Spielberg, 736 F.2d
1352, 1356-57 (9th Cir. 1984). Since the extrinsic test relies on objective
analytical criterion, "this question may often be decided as a matter of
law." Krofft, 562 F.2d at 1164.
extrinsic prong of the Krofft test has been expanded by this circuit so that the
test actually goes beyond a determination of substantial similarity of ideas. It
is true hat a theme or mood is merely an idea. However, specific plot sequences,
highly delineated characters, and dialogue in a work an often constitute
protectable expression. Thus, the Krofft test as applied in Berkic and
Litchfield no longer fits neatly into separate analyses of ideas and expression
in two works as the Courts analyzed expression under the extrinsic prong of the
test. Berkic, 761 F.2d at 1293-94, Litchfield, 736 F.2d at 1357. In any event,
it is the test that this Court applies in determining whether Rocky IV is
substantially similar to Anderson's treatment.
second prong of the Krofft test for substantial similarity is referred to as the
intrinsic test. Under the intrinsic test, the plaintiff must show that there
[*35] is substantial similarity of expression between the two works
in question. The intrinsic test is subjective and is based on the response of
the audience to the look and feel of the two works. In this case, the intrinsic
test requires a determination of whether the ordinary reasonable audience could
recognize the movie Rocky IV as a dramatization or picturization of Mr.
Anderson's work. Berkic, 761 F.2d at 1292; Litchfield, 736 F.2d at 1357.
the summary judgment stage, Anderson must establish that a triable issue of fact
remains as to whether there is substantial similarity of both ideas and
expression. Berkic, 761 F.2d at 1292. This Court is cognizant that summary
judgment is not favored where there are disputable factual issues that are best
left to a jury. This problem is greatest when the Court puts itself in the place
of the the reasonable audience and evaluates the total look and feel of a work
under the intrinsic test. However, to grant summary judgment, this Court need
only find, after analyzing the two works under the objective factors which
comprise the extrinsic test, that there is no substantial similarity under the
extrinsic prong of the substantial similarity
[*36] test of this circuit.
Plaintiff can only prevail on his infringement claim if he shows that there is
substantial similarity of both ideas and expression. Berkic, 761 F.2d at 1292,
Litchfield, 736 F.2d at 1356, Krofft, 562 F.2d at 1164.
circuit has upheld grants of summary judgment on the issue of substantial
similarity when the plaintiff's claims were much stronger than those before this
Court. Berkic, 761 F.2d 1289 (Ninth Circuit affirmed grant of summary judgment
in favor of defendant on issue of substantial similarity of the movie Coma and
plaintiff's treatment although the court recognized that similarities existed
between the works); Litchfield, 736 F.2d 1352 (Ninth Circuit affirmed grant of
summary judgment in favor of defendant on issue of substantial similarity
between the movie E.T. and plaintiff's play in spite of character and plot
similarities); See v. Durang, 711 F.2d 141 (9th Cir. 1983) (Ninth Circuit
affirmed grant of summary judgment for defendant on copyright infringement
claim, even thought it did find that the two plays shared common ideas).
circuit has also eliminated certain portions of works from evaluation under the
similarity test. For example, "all situations which flow naturally
from a basic plot premise, so called 'scenes a faire'" are not protected
against copying. Berkic, 761 F.2d at 1293. For example, any boxing movie,
regardless of the source, will contain fight scenes. It is also natural for any
boxing movie, regardless of the source, to depict the fighters training and
preparing for fights.
do general plot themes or ideas receive any copyright protection. Id.
Nationalistic themes and themes extolling the virtues of the underdog are not
protectable expression. Likewise, a basic idea such as a symbolic struggle
between a Russian and an American are not protectable by copyright and are part
of the general domain of ideas.
unusual circumstances of this case also distinguish it from other infringement
cases and make a finding of non-infringement appropriate. The first three Rocky
movies were made before Anderson wrote his treatment. Plaintiff concedes that he
wrote his sequel after viewing the movies. Thus, Anderson is precluded from
basing any inference of copying by Stallone in Rocky IV from similarities that
flow naturally from the fact that both works are sequels to the
[*38] first three movies.
Second, it is uncontroverted that Stallone had already developed the idea that
Rocky IV would center around a symbolic boxing confrontation between the United
States and Russia before he knew that plaintiff's treatment existed. Thus, any
similarity in the two works based on this symbolic confrontation cannot give
rise to an inference that Stallone appropriated this idea from Anderson. Third,
it is uncontroverted that it was the defendant, not the plaintiff, who developed
the majority of characters in plaintiff's work. These include: Rocky, Adrian (Rocky's
wife), Rocky, Jr. (Rocky's son), Paulie (Rocky's brother-in-law), Apollo Creed,
Duke (Creed's manager), and Clubber Lang. Even if a court were to find that
these characters were not copyrightable, the fact that they originated with the
defendant precludes any finding of similarity based on this common element of
the two works.
Application Of The Krofft Test
extrinsic test requires a comparison of plot, theme, dialogue, mood, setting,
pace, sequence, and characters.
Plot- Rocky IV
Rocky IV, Ivan Drago, a Russian fighter, arrives in the United States. Drago and
his wife hold [*39]
a press conference where she announces that Drago wants to fight
professionally in the United States and would like to fight Rocky Balboa, the
retired world boxing champion. Rocky is a wealthy ex-boxer and he declines to
fight the dangerous Drago. However, Rocky's friend, Apollo Creed, wants to come
out of retirement to fight Drago. Rocky, fearing for Apollo's health,
unsuccessfully tries to talk Apollo out of fighting Drago. Apollo fights Drago
in Las Vegas in a circus-like setting. Rocky is in Apollo's corner during the
fight. Apollo refuses to stop fighting, even though Drago is injuring him during
the early rounds of the fight. Drago strikes Apollo after the bell with a
vicious blow and kills him. Rocky gives the eulogy at Apollo's funeral.
fight between Rocky and Drago is announced. The fight is a non-sanctioned fight
and Rocky will be forced to give up his title to fight Drago. Rocky will not
take any prize money for the fight. Drago will not fight in the United States as
he fears for his safety after killing Apollo. The fight will be held in Russia
on Christmas day. Soviet officials describe the fight as a test of the systems
of the two countries. Rocky's wife disapproves [*40] of the
fight and is extremely upset over the news of the fight.
travels to Siberia to train in isolated surroundings. He is accompanied by
Paulie, Duke, and two Soviet observers. Adrian also comes to Siberia where they
reconcile their differences. Rocky trains by chopping wood, pulling sleds,
running up mountains, shadow boxing, and performing other basic exercises. These
scenes are juxtaposed with Drago's training. Drago trains in a technologically
advanced environment with specialized machines. He trains surrounded by
scientific advisors, and it is suggested that he is taking performance enhancing
drugs. Drago looks invincible as he appears much larger and stronger than Rocky.
fight takes place in Moscow. It is a brutal fifteen round fight. Rocky takes a
severe beating but refuses to go down. In the fourteenth and fifteenth rounds,
the Soviet crowd begins cheering Rocky's heroism. Rocky wins the fight in the
fifteenth round and is hoisted up by the crowd. Rocky then gives an impassioned
speech that emphasizes that the United States and the Soviet Union are capable
of changing and getting along.
Court also notes that Rocky IV is replete with scenes in which Rocky has
[*41] flashbacks to the
first three Rocky movies.
scenes at the beginning of the treatment chronicle the development from
childhood of an East German boxer Adolph Heinemann. He begins boxing in
international competition by the age of sixteen. He goes on to capture the gold
medal at the 1984 Olympics. Heinemann then fights the heavyweight champion,
Clubber Lang, at Madison Square Garden. Heinemann defeats Lang in the first
round. Rocky and Apollo Creed watch the fight from ringside. They are partners
in the fight promotion business.
makes several successful defenses of his title in Eastern Europe cities of
Leningrad, Moscow, Leipzig, and East Berlin. Due to dominance of professional
boxing by eastern block fighters, all major fights take place in eastern block
countries. Rocky and Apollo continue their fight promotion business. Rocky and
Apollo use their own money to finance three days of boxing at Madison Square
Garden. They place their fortunes on the line to buy television coverage. The
main event pits Clubber Lang against an Irish fighter. There is little interest
in the event. Rocky and Apollo go broke. Rocky sells all of his possessions
[*42] to pay his creditors.
returns to the "row house apartment of Rocky I". (This setting is
appropriated from Stallone's first movie by Anderson) He goes to work in a meat
packing plant in Philadelphia. (This portion of the story also borrows heavily
from Rocky I.) A Soviet leader gives a speech to the United Nations in New York.
He states that the Communist world is prevailing over the West as exemplified by
their boxing champion. He refers to Rocky as an old and weak ex-fighter. Upon
hearing the speech, Rocky and Apollo become very distraught.
Rocky and Apollo, unbeknownst to the other, regroup and begin training in
seclusion. Rocky is in Philadelphia and Apollo is in Los Angeles. Thereafter,
Rocky and Apollo simultaneously take planes to visit the other and break the
news of their respective comebacks. Coincidentally, both are on planes which are
stopping over in Chicago. While in one of the terminals at the airport they bump
into each other. They decide to begin training together.
and Apollo return to the "old gym of original movie" (setting and
training scenes based upon Rocky I) and devise a secret strategy for Rocky to
beat Heinemann. An East German representative
[*43] to the United Nations
informs Rocky that Heinemann will not fight him because he is too old. Rocky and
Apollo then go to New York to East Germany's United Nations ambassador. They
barge in the office and intimidate the ambassador into calling Heinemann to ask
him to fight Rocky. Rocky insults Heinemann and convinces him to agree to a
raise money for his training, Rocky fights in exhibitions in Europe and South
America. He fights in France, England, and Spain. He also trains in a Parisian
bordello and a London nunnery. In London, Rocky is approached by CIA agents and
followed by KGB officers. The CIA offers to pay Rocky's training expenses and he
refuses. Rocky runs through a number of European capitals and ends up at St.
Peters Square in Rome on the day the Pope is to appear.
fights Heinemann at an outdoor stadium one hundred yards east of the Berlin
wall. Heinemann originally dominates the fight. However, Rocky makes a heroic
comeback and wins the fight when Heinemann refuses to answer the bell in the
sixth round. The East German crowd cheers Rocky's victory.
comparison of the two plots shows that they are dissimilar apart from the
East/West boxing confrontation [*44]
that Stallone, himself, developed. Plaintiff argues that the list of
similarities compiled by his expert Michael Roger precludes this Court from
granting summary judgment, no matter how dissimilar the plots appear to this
Court. However, this circuit has previously held that such lists of random
similarities are inherently subjective and unreliable and do not in and of
themselves create a material issue of fact. Litchfield, 736 F.2d at 1357. In his
declaration, Mr. Rogers states that the plots are similar because in both works
a Communist fighter defeats an American and subsequently Rocky defeats the
Communist fighter and wins over a Communist crowd. (Rogers Declaration, para. 4)
However, Rogers' declaration is deficient. As noted previously, Anderson cannot
claim that Stallone copied the idea of an East/West boxing confrontation because
there is uncontroverted evidence that Stallone developed the idea independently.
In addition, the general similarities cited by Rogers between the plots and the
themes of the two movies do not create any material fact issue for this Court,
as general themes and basic plots are not protected by copyright. Litchfield,
736 F.2d at 1351-52; [*45]
Jason v. Fonda, 526 F. Supp 774, 777 (C.D. Cal. 1981).
settings of the two movies are also quite different. In Anderson's treatment
Rocky is a promoter in New York. After losing his savings he returns to where he
lived in Philadelphia and Apollo returns to a gym in Los Angeles. (These
settings in Philadelphia and Los Angeles are used in the first Rocky movies and
are evidence that Anderson is copying Stallone's settings from the earlier Rocky
movies, not that Stallone is copying the setting from Anderson's treatment.) In
Anderson's treatment, Heinemann grows up in East Germany. Rocky trains in
France, England, Spain, Germany, and Denmark. Rocky runs through major cities in
each of these countries. The settings for his training include a bordello in
Paris, a London nunnery, the Eiffel tower, and St. Peters Square. The final
fight between Rocky and Heinemann takes place next to the Berlin wall in East
Rocky IV, Apollo fights Drago in Las Vegas. Rocky rains in Siberia. The final
fight is set in Moscow.
treatment contains very little dialogue as the treatment is a brief thirty-one
page storyline. In his papers before this Court, [*46] Anderson
did not claim that Rocky IV contained any dialogue similar to that in his
treatment. However, in a "surreply", submitted without authorization
by this Court, plaintiff's expert asserted that both works contained a short
propaganda speech by a Soviet official which were very similar. This Court did
not find a substantial similarity between these two speeches or any any portions
of the dialogue of the two works.
symbolic struggle between the United States and the eastern block is the
overriding theme of both movies. Once again, the Court notes that there is
uncontroverted evidence that Stallone developed this theme independently.
However, unlike Anderson's treatment, Rocky IV ends with a speech in which he
emphasizes the theme that the United States and the Soviet Union should attempt
to change their adversarial relationship. No such theme of potential resolution
of the East/West conflict appears in Anderson's script.
IV also contains a number of other underlying themes that are not found in
Anderson's treatment. In Rocky IV, Rocky fights Drago to exact revenge for
Drago's killing of his friend. Also, Stallone emphasizes that Rocky's old
fashioned training [*47]
can succeed against highly sophisticated Soviet athletic training.
movies also share a nationalistic theme. However, this nationalistic theme is
also emphasized in Rocky I, II, and III and this would be a necessary component
of any sequel to the prior Rocky movies.
only similarity in the sequencing of the two works is that both end with Rocky
fighting a Communist fighter. However, Stallone had originally emphasized that
the climax of his movie would be a fight between Rocky and a Russian fighter.
did not claim that the tone and mood of the two movies were similar until this
deficiency was pointed out by the defendants and he filed an unauthorized
surreply. This Court finds it difficult to determine the tone and mood of
Anderson's work due to its brevity and the lack of dialogue. This Court finds
the tone and mood of Rocks IV to be very similar to that of the prior Rocky
movies developed by Stallone. All of the Rocky movies are nationalistic, upbeat
movies laced with occasional bits of humor, and involving Rocky Balboa in some
new challenge. Whether these qualities could be extrapolated from Anderson's
treatment is of little consequence, [*48]
as the sequel Rocky IV shares the same tone and mood as the prior Rocky
movies that were created by Stallone.
IV features the following characters: Rocky, Adrian (Rocky's wife), Rocky, Jr. (Rocky's
son), Paulie (Rocky's brother-in-law), Apollo Creed, Duke (Creed's manager),
Clubber Lang, Ivan Drago (Soviet boxer), Ludmilla (Drago's wife/spokeswoman),and
Nicolai Koloff (Drago's manager).
treatment features the following characters: Rocky, Adrian, Rocky, Jr., Paulie,
Apollo Creed, Duke, Clubber Lang, Adolph Heinemann (East German boxer), and an
unnamed Soviet propaganda expert.
can be seen from above, the majority of characters used in Anderson's treatment
were created by Stallone. As noted throughout this opinion, these characters
cannot be the basis for any finding of substantial similarity between Anderson
and Stallone's work for purposes of establishing infringement. However, Anderson
created two characters in his treatment that serve the same function as two of
the characters from Rocky IV. Anderson's Adolph Heinemann and Stallone's Ivan
Drago play similar roles as do Anderson's unnamed Soviet propaganda expert and
and Drago are large powerful boxers from the eastern bloc being used as
propaganda tools in the boxing arena. Both are bigger than Rocky and favored to
win their fights with him. However, this similarity is not a basis for inferring
that Stallone copied Anderson's treatment, because in all of Rocky's previous
fights he was the underdog to a physically superior opponent. In addition,
Stallone's original plot ideas necessitated that he create a Soviet boxer.
Heinemann is not described in great detail in Anderson's script although he is
referred to as an "aryan German". In Rocky IV, Drago is blond and has
Anderson's unnamed propaganda official is not well developed. In fact, he
appears in only two scenes in the treatment. Apparently, this official is the
mastermind of the plan to create a Communist world boxing champion. On the other
hand, Stallone's Nicolai Koloff is Drago's manager who appears at all the press
conferences and is partially responsible for Drago's training. Koloff plays a
different and more prominent role that the unnamed propaganda official. In
addition, neither Heinemann nor the propaganda official are delineated with
great specificity in Anderson's [*50]
delineated above, Anderson cannot base a finding of substantial similarity on
the characters and themes that Stallone had developed previously. Nor can a
finding of substantial similarity be based on the fact that the two works both
culminate in a symbolic boxing confrontation between the United States and the
Soviet Union. This symbolic confrontation was developed independently by
Stallone. When the two works are compared without considering Stallone's own
characters and themes, it is abundantly clear that the plot, setting and
sequence of events are very dissimilar. Most of the characters in Anderson's
work were appropriated from Stallone. The two characters that Anderson created
independently, Heinemann and the Soviet propaganda expert, are not highly
delineated. Nor are they substantially similar to Drago or Koloff, the two
parallel characters in Stallone's treatment. These character similarities cannot
be the basis for a finding of substantial similarity. See Olson, 855 F.2d at
1451-53 (Substantial similarity cannot be based on loose similarity between
plaintiff's thinly sketched character and defendant' allegedly infringing
characters.) Nor can the common [*51]
ideas and themes that plaintiff alleges to exist between the two works be
a basis for a finding of substantial similarity, as these general themes are not
protectable expression. Berkic, 761 F.2d at 1293. Based upon an analysis of the
objective criteria above, the Court holds that under the extrinsic test the two
works are dissimilar.
Court need not reach the question of whether there is substantial similarity
between the two works under the intrinsic test because it has ruled as a matter
of law that the two works are dissimilar under the extrinsic prong of this
circuit's test for substantial similarity. Berkic, 761 F.2d at 1292; Litchfield,
736 F.2d at 1356; Krofft, 562 F.2d at 1164. This conclusion follows logically as
it would be incongruous for a court to find as a matter of law that the two
works are based on dissimilar ideas and then find that a material issue of fact
remains as to whether the higher threshold of substantial similarity of
expression exists between the two works.
any event, the Court finds that no reasonable audience would recognize the movie
Rocky IV as a dramatization or picturization of Anderson's work. Under the
[*52] intrinsic test as well
as under the extrinsic test, a finding of substantial similarity cannot be based
on unprotectable scenes-a-faire or characters, themes, and plots which Stallone
originally created himself. Aliotti v. R. Dakin & Co., 831 F.2d 898, 901
(9th Cir. 1987), Berkic, 761 F.2d at 1293. Taking away these portions of
Anderson's work, no reasonable jury could find that Rocky IV is a picturization
of Anderson's treatment. This necessitates a holding that the two works are
dissimilar as a matter of law under the intrinsic test. Berkic, 761 F.2d at
1292, Litchfield, 736 F.2d at 1357.
Court finds that Rocky IV is not substantially similar to Anderson's work. Nor
is any portion of Anderson's work entitled to copyright protection under 17
U.S.C. sections 103(a) & 106(2). The Court GRANTS defendants summary
judgment on Anderson's claim that they infringed Anderson's copyright.
IS SO ORDERED:
APRIL 25, 1989