Francesca Gregorini v. Apple Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCESCA GREGORINI,
Plaintiff-Appellant,
v.
APPLE INC.; M. NIGHT SHYAMALAN,
an individual; BLINDING EDGE
PICTURES, INC., a Pennsylvania
corporation; UNCLE GEORGE
PRODUCTIONS, a Pennsylvania
corporation; ESCAPE ARTISTS, INC.;
DOLPHIN BLACK PRODUCTIONS, a
California corporation; TONY
BASGALLOP, an individual; ASHWIN
RAJAN, an individual; JASON
BLUMENTHAL, an individual; TODD
BLACK, an individual; STEVE TISCH, an
individual,
Defendants-Appellees.
Nos. 20-55664
20-55846
D.C. No.
2:20-cv-00406-JFW-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 14, 2022
Pasadena, California
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: OWENS and MILLER, Circuit Judges, and CHRISTENSEN,** District
Judge.
Plaintiff-Appellant Francesca Gregorini, writer, director, and producer of the
film The Truth About Emanuel, brought this copyright suit alleging that the first
three episodes of Defendants’ television series, Servant, infringed her copyright.
She appeals from the district court’s dismissal of her complaint on the ground that
the works were not substantially similar as a matter of law. We have jurisdiction
under 28 U.S.C. § 1291, and we review dismissals under Federal Rule of Civil
Procedure 12(b)(6) de novo. Rentmeester v. Nike, Inc., 883 F.3d 1111, 1116 (9th
Cir. 2018), overruled on other grounds by Skidmore as Tr. for Randy Craig Wolfe
Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc). We reverse.
To state a claim for copyright infringement, a plaintiff must allege, as
relevant here, that the defendant “cop[ied] enough of the plaintiff’s expression of
those ideas or concepts to render the two works ‘substantially similar.’” Id. at
1117 (quoting Mattel, Inc. v. MGA Ent., Inc., 616 F.3d 904, 913-14 (9th Cir.
2000)). To assess substantial similarity, we use “a two-part analysis consisting of
the ‘extrinsic test’ and the ‘intrinsic test.’” Id. at 1118. The extrinsic test, which is
“the only test relevant in reviewing the district court’s ruling on a motion to
dismiss,” id., “focuses on articulable similarities between the plot, themes,
** The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.

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dialogue, mood, setting, pace, characters, and sequence of events in two works.”
Benay v. Warner Bros. Ent., 607 F.3d 620, 624 (9th Cir. 2010) (quoting Kouf v.
Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)), overruled
on other grounds by Skidmore, 952 F.3d at 1051.
While “dismissal at the pleading stage is by no means unprecedented,”
Rentmeester, 883 F.3d at 1123, even “summary judgment is not highly favored on
questions of substantial similarity in copyright cases . . . .” Shaw v. Lindheim, 919
F.2d 1353, 1355 (9th Cir. 1990) (quoting Narell v. Freeman, 872 F.2d 907, 909
(9th Cir. 1989)), overruled on other grounds by Skidmore, 952 F.3d at 1051.
Dismissal at the pleading stage is appropriate when “as a matter of law the
similarities between the two works are only in uncopyrightable material or are de
minimis.” 3 William F. Patry, Patry on Copyright § 9:86.50 (2021). It must also
be the case that “[n]othing disclosed during discovery could alter the fact that the
allegedly infringing works are as a matter of law not substantially similar to” the
original copyrighted work. Rentmeester, 883 F.3d at 1123.
Here, the district court’s dismissal of Gregorini’s suit at this early stage of
the case was “improper” because “reasonable minds could differ on the issue of
substantial similarity . . . .” Cavalier v. Random House, Inc., 297 F.3d 815, 822
(9th Cir. 2002) (quoting Shaw, 919 F.2d at 1355). Moreover, this is “a case in
which discovery could shed light on [the] issues that actually matter to the

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outcome.” Rentmeester, 883 F.3d at 1123. In particular, expert testimony would
aid the court 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.1
REVERSED AND REMANDED.
1 Because we reverse on the merits, we also necessarily reverse the district court’s
award of attorney’s fees.

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