On Monday, a Utah federal judge delivered a summary judgment victory for Universal Studios, Open Road Films and Bold Films in a four-year-old copyright case targeting Nightcrawler, the 2014 motion picture starring Jake Gyllenhaal.
Richard Dutcher brought the complaint with the allegation that Nightcrawler, which earned writer-director Dan Gilroy an Oscar nomination, ripped off his own work titled Falling. Both screenplays depict a freelance news videographer driving the streets in Los Angeles while listening to police band radio for crimes to record and sell.
This case very nearly went to trial.
Last August, Utah federal judge Dee Benson rejected the defendants’ summary judgment motion (for a second time) and expressed the opinion that a jury should decide what elements amounted to protectable original expression and what aspects were scenes-a-faire. With the prospect that Hollywood would witness a major copyright showdown over script infringement, the defendants lined up an all-star slate of witnesses that included Steven Soderbergh and Neil LaBute.
But then in March, as Benson was tasked with decided what evidence would be precluded from trial, the judge changed his mind. Deciding that no reasonable jury could find that Falling is substantially similar to Nightcrawler after the unprotected elements have been properly removed from consideration, the trial date was vacated.
The parties followed up with additional briefing, but this time, Benson is sticking to his guns. He’s now delivered a full written memorandum that explains the basis for dismissal.
“Falling is not the first work to portray stringers in action,” writes the judge.
The defendants pointed to movies such as Stringer (1999, starring Burt Reynolds), The Public Eye (1992, starring Joe Pesci), Prime Time Murder (1992) and The Ghouls (2004).
“First, the similarities between the characters in Falling and Nightcrawler are due to their profession as stringers,” states the opinion. “Both work as freelance videographers driving around Los Angeles, listening to police scanners, and rushing to crime scenes for graphic and sensational footage to sell to news stations. However, those similarities are also found in the stringer characters in the Prior Stringer Films and are consistent with the idea of the stringer profession generally. As such, they are scenes a faire properly excluded from the substantial similarity analysis.”
The same goes for plot.
“The Prior Stringer Films show characters driving the streets listening to police scanners, obtaining progressively more graphic footage, and stringers drawn into dangerous situations,” continues the opinion. “Absent those similarities, the plots of Nightcrawler and Falling are quite different. Falling maintains a moral focus, including an extensive exploration of Eric’s home life and wife. Nightcrawler focuses on an amoral character that seems to place little value on the lives of those close to him.”
The judge also adds that cliche journalism phrases are not protected, either.