LA Copyright Society

Upcoming Event:

April 9, 2025 at 6:15 pm

at Del Frisco's

Substantial Similarity

Navigating Uncertainty in the Ninth Circuit

“You copied my work.” Substantial-similarity copyright claims are a staple of the entertainment industry – even more so today, with so many ways to disseminate content. For decades, district courts across the Ninth Circuit have granted Rule 12(b)(6) motions to dismiss these types of claims about literary works. Judges review the complaint and the works at issue, along with any additional judicially noticeable facts. They then apply the extrinsic test (and their general common sense) to the works by comparing their plots, sequences of events, themes, characters, settings, moods, tones, paces, and dialogue. When the works ultimately aren’t substantially similar, judges dismiss the case without requiring the defendants to face expensive and burdensome discovery.

For decades, the Ninth Circuit affirmed these opinions. But now, some of these dismissals have been reversed, and some judges appear more hesitant to grant 12(b)(6) motions—or even summary judgement motions—for lack of substantial similarity. And some of these cases are going further than they have in decades, including all the way through trial, including the recent cases involving M. Night Shyamalan’s series Servant and Disney’s animated feature Moana. Why? What can we learn from that? And what does the future hold?

Nicolas Jampol is a go-to litigator and counselor for his entertainment and technology clients, who create, use, or distribute all forms of content, from film and television to mobile apps and digital content. Chambers has noted that Nicolas “draws praise for his representation of companies involved in high-stakes copyright and trademark infringement disputes.” He routinely litigates complex copyright, trademark, right of publicity, unfair competition, and breach-of-contract disputes.

Cydney Swofford Freeman counsels and defends traditional, new, and disruptive content creators. She handles both litigation and pre-broadcast counseling for clients ranging from large streaming platforms and studios to individual documentarians, producers, and journalists. She takes cases from complaint through trial, focusing on copyright, trademark, idea-submission, defamation, right-of-publicity, First Amendment, and related matters. In tandem with litigating, she regularly provides pre-broadcast fair use, defamation, privacy, and production counseling for a wide range of documentary, scripted, and unscripted productions.