928 F. 2d 1136 - Gregory v. Murphy W

MEMORANDUM**

Gregory appeals from the district court's entry of summary judgment in favor of the defendants in his copyright infringement action arising out of the production of the motion picture, Coming to America. Although not favored, summary judgment in such actions is appropriate if, after viewing the evidence and drawing all inferences favorable to the nonmoving party, the court concludes that no reasonable trier of fact could find substantial similarity of ideas and expression between the two works in dispute. Shaw v. Lindheim, 919 F.2d 1353, 1355 (CA9 1990) (quoting Narell v. Freeman, 872 F.2d 907, 909-10 (CA9 1989)). We review de novo the district court's conclusion that no such similarity exists, see Shaw, 919 F.2d at 1355, and we affirm.

* In order to prevail on his copyright infringement action, Gregory had to prove (1) ownership of the copyright for Toto, The African Prince, (2) that the defendants had access to the work, and (3) substantial similarity between his work and Coming to America. See Shaw, 919 F.2d at 1356. Because the defendants neither challenged Gregory's ownership of the copyright to his play nor denied having access to it, the sole issue before the district court was whether the play and the film were substantially similar. See id.

A showing of substantial similarity requires proof that the works are both objectively and subjectively similar in expression. Id. at 1357. A court must first examine the extrinsic aspects of the two works by comparing, inter alia, their respective plots, themes, dialogues, settings, characters, and events. Id. at 1356. If the court concludes that substantial similarity exists between the two works based on its review of such objective criteria, then the trier of fact must determine whether the two works are subjectively similar in expression as well. Id. (discussing Narell, 872 F.2d at 912).

After a thorough study of the text of Gregory's play, Toto, The African Prince, and listening to and viewing the videotape of the motion picture, Coming to America, we agree with the district court's conclusion that the two works are not substantially similar under the objective or "extrinsic" prong of the above two-part test. The plots, themes, dialogues, settings, characters, and events in the play bear little, if any, resemblance to their counterparts in the movie, and neither Gregory's proffered list of purported similarities nor his expert witness report cast any doubt on this conclusion. Accordingly, we hold that the district court did not err in granting the defendants' motion for summary judgment.

The appellees (defendants below) have requested sanctions against Gregory for bringing this appeal, citing 17 U.S.C. Sec. 505 and Fed.R.App.P. 38. While we agree that the appeal is meritless, it is not frivolous and we find no indication that it was brought in bad faith. See Bibbero Sys., Inc. v. Colwell Sys., Inc. 893 F.2d 1104, 1108 (CA9 1990). Therefore, we decline to impose sanctions against Gregory for taking this appeal.

The decision of the district court is AFFIRMED. The request for sanctions is DENIED.