Will This Be the Year That Originality in Entertainment Goes on Trial?

The entertainment industry has long been accustomed to allegations of thievery. Few days go by when some studio or big-name artist isn’t being hauled into court on claims of taking someone else’s expression. Courts often play gatekeeper, though, and only rarely do copyright claims reach trial. Often, judges feel comfortable enough to look at allegations and evidence and make determinations as a matter of law. And when certain lawsuits pass the initial sniff test, they are often settled before juries get a chance to pass their own judgment.

With all that said, the forthcoming year is shaping up to be an unusual one, as several lawsuits have survived the summary judgment phase and are getting very close to trial. The subject matter couldn’t be more unique — a motion picture that earned an Oscar nomination for best original screenplay; a Tom Brady joke delivered by a comedian on late-night television; a popular musician and his Grammy-winning song. But what all of these potential trials have in common is exploration of the meaning of originality.

Take Nightcrawler, the 2014 film starring Jake Gyllenhaal that was written and directed by Dan Gilroy.

In April, the producers of the pic are scheduled to go to trial against Richard Dutcher, who claims that the tale of a videographer who listens to police radio and chases crimes he can record and sell is ripped off from his own work titled Falling.

“At its heart, Dutcher’s infringement claim is based upon the notion that he owns the idea of a freelance videographer driving around Los Angeles and the stock elements and conventions that naturally flow from that idea — listening to police scanners, rushing to accident crime scenes, ducking under crime scene tape, obtaining graphic and gruesome footage, arriving to crime scenes too late to obtain footage, catching a crime in the act, etc.,” wrote defendants’ lawyers in a summary judgment brief. “Dutcher’s copyright claim fails as a matter of law because when one strips out the unprotected elements in his unreleased film Falling, no reasonable juror could conclude that any remaining protected elements are substantially similar to Nightcrawler.”

Last August, Utah federal judge Dee Benson waived off the argument, finding “a genuine issue of material fact as to the unprotected elements of the film and application of the scenes-a-faire doctrine to this case.”

Then, there’s Conan O’Brien, who could be making an appearance one month later in May to defend at trial the allegation that he and his fellow Conan co-writers misappropriated a series of jokes from Alex Kaseberg. Among the jokes in question is about Brady handing his 2015 Super Bowl MVP trophy over to the guy who won the game for the New England Patriots — the opposing team’s coach. Kaseberg tweeted his version on Feb. 3, 2015, and later that night the host delivered a similar joke on his show.

At a time when the #FuckFuckJerry movement is gaining steam, emanating from a creative agency stealing jokes and memes on Instagram without credit, this Conan case has also survived the early rounds and is headed towards an exploration of what’s original and what’s well-trodden ground when everyone is riffing on social media.

Late last month, O’Brien’s production company signaled how it intends to fight Kaseberg’s allegations at trial.

“Kaseberg’s jokes are negligible and trivial variations on unprotectable ideas, preexisting works, or public domain works, such that they do not contain the requisite amount of creative input to qualify for copyright protection,” stated a memorandum.

That’s a similar line of thinking as what’s being presented by Ed Sheeran, who, along with affiliated record and song publishing companies, is staring at the prospect of a trial over his 2014 song “Thinking Out Loud,” alleged to be too derivative of Marvin Gaye’s “Let’s Get It On.”

In early January, New York federal judge Louis Stanton denied Sheeran’s motion for summary judgment.

This led the defendants to beg for reconsideration or, in the alternative, the opportunity to appeal issues before any trial took place. Sheeran’s lawyers began by quoting Oliver Wendell Holmes, Sr., who observed more than a century ago that “literature is full of coincidences which some love to believe plagiarisms. There are thoughts always abroad in the air which it takes more wit to avoid than to hit upon.”

Stanton wasn’t convinced.

On Wednesday, in a ruling rejecting reconsideration, Stanton wrote, “Defendants seek an order declaring the harmonic progression and the harmonic rhythm in [“Let’s Get It On”] unprotectable as commonplace and in common use prior to [“Let’s Get It On”], from ‘undisputed evidence’ of their use in about a dozen songs and mentions in guitar method books, out of ‘millions of songs.’ So abrupt and premature a ruling, on such narrow evidence, might well disfavor the defendants. Even if it had been a score of songs out of only one million, the percentage of uses would be two thousandths of one percent, which the law might consider to be not commonplace, but very rare. It is better to let the evidence on the point develop further.”

No trial date has yet been set, but expect it to be added to the calendar very soon. The judge doesn’t think an interlocutory appeal is in order, either, meaning unless the Second Circuit does the unexpected and steps in by granting a review nonetheless, this case should also be in a jury’s ears by the end of the year.

Settlements are always possible. If not, 2019 is shaping up to be quite a year for the subject of originality.