Screenplay for "The Funk Parlor" Was Not Substantially Similar To "Six Feet Under"

Case: Funky Films v. Time Warner Entertainment, Case No. CV-03-00964-CJC (9th Cir. 8/30/06)

The One Sentence Summary: Although there were certain plot similarities between a copyrighted screenplay and the show "Six Feet Under," an actual reading of the two works revealed greater, more significant differences in their plots, characters, themes, moods, pacing, dialogue and sequences of events.


What They Were Fighting About: Creators of a screenplay appealed district court's summary judgment that the series "Six Feet Under" did not infringe their copyright.

Ninth Circuit Holdings:

• Affirms summary judgment, holding that no jury could reasonably find the works substantially similar.
• As plaintiffs' ownership in the copyright was undisputed, plaintiffs only had to demonstrate a triable issue of fact whether the defendants copied anything "original" to their work. Absent evidence of direct copying, proving infringement involves showing that defendant had access to plaintiffs' work and that the works are substantially similar.
• The substantial similarity test contains objective extrinsic and subjective intrinsic components. At summary judgment, courts apply only the extrinsic test, which depends on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events in the two works.
• Courts must consider only whether the protectable elements of a work, standing alone, are substantially similar. Protectable expression includes specific details of an author's rendering, not scenes a faire which flow naturally from generic plot-lines.
• The works at issue appear to contain similarities in plot because they both involve a small family-run funeral home, the death of the father, two sons who share the business, and a rival funeral home run by a woman.
• However, the differences between the works are greater and more significant. Specifically, the screenplay was more of a murder mystery while "Six Feet Under" did not revolve around any plot-line in particular. The complexity and number of characters in the latter were greater; the themes of death, relationships and sex were explored differently; there were no similarities in the setting, mood or pace; the dialogue of the former was pedestrian while that in the latter was complex and subtle; and while the sequence of events in the former was straight, linear trajectory, the latter used repetition, dreams and flashbacks.
• Because the works were not substantially similar, no amount of proof of defendants' access to plaintiffs' work could prove illegal copying.