Gregorini v. Apple, Inc., No. 2:20-cv-00406-SSS-JC, 2024 WL 5264949 (C.D. Cal. Nov. 25, 2024)
For a plaintiff to allege copyright infringement, they must prove two elements: (1) ownership of a valid copyright, and (2) the defendant wrongfully copied from the plaintiff’s valid copyright. To establish the second element, the plaintiff must show both that the alleged infringer actually copied the copyrighted work and that they copied a sufficiently significant amount of copyrighted material from the plaintiff’s work so that the parties’ works are substantially similar. Because both sub-parts must be proven, failure to establish either actual copying or substantial similarity is fatal to a copyright infringement claim.
Plaintiffs in a copyright infringement action can show actual copying through direct evidence—admissions, eyewitness testimony, or features in the defendant’s work that conclusively identify the plaintiff’s work as the source—or through indirect evidence. Because direct proof of actual copying is rare, courts allow plaintiffs to prove copying through indirect evidence, including proof of access.
Proof of access does not hinge on whether the work was actually accessed, but rather that the defendant had a reasonable possibility to view the copyrighted work. This can be done by showing that the copyrighted work was widely disseminated or widely published, or that there is a chain of events linking the defendant and the copyrighted work.[1] Courts have considered a work to be widely disseminated when it has considerable commercial success or is readily available on the market.[2] Courts have rejected the notion that mere availability online is sufficient to show “wide dissemination.”[3] Some things are considered so widely disseminated that there’s no need to offer proof of their dissemination — courts have found this with popular copyrighted materials like LEGOs, Mickey Mouse, Microsoft Office software, and Beanie Babies. Most cases are not so cut-and-dry, and thus a factual dispute usually emerges as to whether the defendants had access on a theory of wide dissemination.
Gregorini v. Apple, Inc.
In 2020, screenwriter and director Francesca Gregorini filed a lawsuit for copyright infringement in the U.S. District Court for the Central District of California against M. Night Shyamalan—an award-winning filmmaker known for his plot twist-driven films like The Sixth Sense and Signs—as well as Apple Inc. and other producers, writers, and creatives involved with the Apple TV series Servant. In her complaint, Gregorini alleged that Servant was “a wholesale copy and unauthorized television adaptation” of her 2013 film The Truth About Emanuel (“Emanuel”). Emanuel premiered at the 2013 Sundance Film Festival and was later featured at several other film festivals around the world. It later had a theatrical release, albeit limited, that grossed around $4,000 at the box office worldwide.
The District Court dismissed Gregorini’s complaint, holding as a matter of law that Emanuel and Servant were not substantially similar. On Gregorini’s appeal, the U.S. Court of Appeals for the Ninth Circuit reversed and remanded, finding that “reasonable minds could differ on the issue of substantial similarity.” Defendants filed a motion to dismiss and on November 25, 2024, the District Court denied their motion, finding genuine issues of fact as to whether Emanuel was widely disseminated such that defendants had a reasonable opportunity to view the film. Notably, however, the court found that Emanuel’s theatrical release that generated only about $4,000 in ticket sales would “likely be insufficient to establish access as a matter of law.”[4] The case then proceeded to trial.
At trial, the jury did not reach the question of whether Servant was substantially similar to Emanuel because they found that none of the defendants had access to Emanuel—and because both access and substantial similarity are needed to prove the “copying” prong of a copyright infringement claim, judgment was entered in favor of defendants. This case highlights the critical role of access in copyright infringement actions. Without proof that a defendant had a reasonable opportunity to view a work, even significant similarities are not enough to establish infringement.
Key Takeaways
Where direct evidence of actual copying cannot be proven, copyright plaintiffs must be careful to build a strong evidentiary foundation before bringing a copyright claim. Since access is a necessary prong to prove copying of the copyrighted material, careful pleading and establishment of a strong evidentiary foundation demonstrating that the copyrighted work was widely disseminated are critical to overcoming early dismissal and succeeding at trial.
[1] Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1143 (9th Cir. 2009)
[2] Webb v. Stallone, 910 F.Supp.2d 681, 686 (S.D.N.Y. 2012)
[3] See, e.g. Clanton v. UMG Recordings, Inc., 556 F.Supp.3d 322, 328-329 (S.D.N.Y. 2021) (the fact that the copyrighted material was posted on the Internet is insufficient on its own to show wide dissemination); O’Keefe v. Ogilvy & Mather Worldwide, Inc., 590 F.Supp.2d 500, 515 (S.D.N.Y. 2008) (“[T]he mere fact that [the plaintiff’s] work was posted on the internet prior to the creation of defendants’ work is insufficient by itself to demonstrate wide dissemination.”)
[4] Gregorini v. Apple Inc., No. 2:20-cv-00406-SSS-JC, 2024 WL 5264949, at *4 (C.D. Cal. Nov. 25, 2024)