Last week, the Ninth Circuit held that the movie “The Last Samurai” did not infringe the copyright of a screenplay of the same name. In Benay v. Warner Bros. Entertainment, Inc. (pdf), the court considered whether a screenplay written by Aaron and Matthew Benay was substantially similar to the Warner Bros./Bedford Falls film “The Last Samurai,” starring Tom Cruise. The Benays, who had pitched the screenplay to Richard Solomon, president of production at Bedford Falls, claimed that important parts of the screenplay were copied. The defendants claimed that the film was created independently of the screenplay. Because there was no evidence of direct copying, the court looked at whether there was a substantial similarity between the “protected elements” of the screenplay and “comparable elements” of the film.
Under the Ninth Circuit’s two-part similarity test, substantial similarity must be proven under both the “intrinsic test” and the “extrinsic test.” The extrinsic test is an “objective comparison of specific expressive elements.” It is based on specific elements such as similarities between “the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works.” The intrinsic test is a “subjective comparison that focuses on ‘whether the ordinary, reasonable audience’ would find the works substantially similar in the ‘total concept and feel of the works.’“ Because the case was brought on an appeal of a grant for summary judgment, the court only applied the extrinsic test (The intrinsic test must be left to a trier of fact, and therefore cannot be applied at the summary judgment phase; however, because a defendant who fails the extrinsic test cannot survive a motion for summary judgment, only the extrinsic test was necessary at this stage).
The court found that there were a number of similarities between the film and the screenplay:
Both have identical titles; both share the historically unfounded premise of an American war veteran going to Japan to help the Imperial Army by training it in the methods of modern Western warfare for its fight against a samurai uprising; both have protagonists who are authors of non-fiction studies on war and who have flashbacks to battles in America; both include meetings with the Emperor and numerous battle scenes; both are reverential toward Japanese culture; and both feature the leader of the samurai rebellion as an important foil to the protagonist. Finally, in both works the American protagonist is spiritually transformed by his experience in Japan.
Nevertheless, the court found that the similarities were comprised of unprotectable elements, such as stock scenes, historical facts, and characteristics that “flow naturally from the works’ shared basic plot premise.” The court found few protectable similarities between the two works. The court said that once the unprotectable elements are removed, the film and screenplay are not sufficiently similar to pass the extrinsic test (e.g., citing differences between the two works, the court found the narrative of the Benays’ screenplay to be largely a revenge story, while the film was a “captivity narrative” reminiscent of “Dances With Wolves”; the court also found that the mood and pace of the two works differed – the screenplay was “triumphant” and “fast-paced,” while the film was more “nostalgic and reflective”).
However, not all is lost for the Benays. The court reversed the lower court’s grant of summary judgment for the breach of contract claim. In their suit, the Benays asserted a claim for an implied-in-fact breach of contract. Under California law, to establish a case for breach of an implied-in-fact contract based on the submission of a screenplay, the plaintiff must show that he or she:
(1) submitted the [s]creenplay for sale to [d]efendants; (2) . . . conditioned the use of the [s]creenplay on payment; (3) [d]efendants knew or should have known of the condition; (4) [d]efendants voluntarily accepted the [s]creenplay; (5) [d]efendants actually used the [s]creenplay; and (6) the [s]creenplay had value.
The defendants contended that the Benays failed to establish the fifth element, actual use; that there was no privity of contract; and that the statute of limitations had run. The court was not convinced. An implied-in-fact breach of contract claim does not require the same showing of substantial similarity as a copyright claim. In idea-submission cases such as this one, the plaintiff is not required to prove substiantial similarity of copyright-protected elements. Rather, the plaintiff may show use by proving elements not protected by copyright law. Because the two works contain a number of similarities (some of which are not otherwise protected under copyright law), the court reversed and remanded the breach of contract claim.
The court did not reach the question of whether privity existed between the parties, and left it to the lower court to decide when the cause of action accrued for the statute of limitations defense.