Quaglia v. Bravo Networks ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 06-1864
FRANK QUAGLIA,
Plaintiff, Appellant,
v.
BRAVO NETWORKS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Selya and Howard,
Circuit Judges.
Frank Quaglia on brief pro se.
Daniel M. Kummer, Barry I. Slotnick, Loeb & Loeb LLP,
Jonathan M. Albano and Bingham McCutchen on brief for appellees.
December 15, 2006
Per Curiam. Frank Quaglia, creator of the film "The
Ultimate Audition," brought an action against defendants Rainbow
Media Holdings LLC, National Broadcasting Company, and Bravo
Company (collectively, "Bravo"), creators of the television series
"The It Factor," for copyright infringement. Quaglia also asserted
claims under state law for breach of confidentiality and breach of
implied contract. The district court granted summary judgment to
Bravo, concluding that with respect to the copyright claim, Quaglia
had failed to present any genuine issue of material fact on the
issues of access or substantial similarity. The court also denied
Quaglia's state law claims. Quaglia now appeals that ruling.
Essentially for the reasons set forth in the district court's March
21, 2006, ruling, we affirm.
To prevail on a claim of copyright infringement, a
plaintiff must demonstrate "(1) ownership of a valid copyright, and
(2) copying of constituent elements of the work that are original."
Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991); see Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d
25, 32 (1st Cir. 2001). Bravo does not dispute that Quaglia has a
valid copyright in "The Ultimate Audition." Accordingly, we focus
on the second element in the infringement analysis.
Since there is usually no evidence of actual copying, a
plaintiff may prove that wrongful copying occurred by showing that
defendants had access to the copyrighted work and that the
-2-
allegedly infringing work has "probative similarity" to the
copyrighted work. Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir.
2005); see Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807,
813 (1st Cir. 1995) ("Probative similarity" exists where two works
are "so similar that the court may infer that there was factual
copying."). Once copying has been proven, "'the plaintiff must
prove that the copying of the copyrighted material was so extensive
that it rendered the infringing and copyrighted works
'substantially similar.'" Yankee Candle Co., 259 F.3d at 33(quoting Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60
(1st Cir. 2000)).
Quaglia argues that there was evidence in the record
sufficient to support an inference that Debbie DeMontreux, the
Bravo employee who developed "The It Factor," had access to "The
Ultimate Audition." Even assuming arguendo that the record was
sufficient to establish access, Quaglia's claim fails on the issue
of probative and substantial similarity.1 After viewing both
1
Although the concepts of probative similarity and substantial
similarity are distinct, the analysis merges somewhat because
"[t]he requirement of originality cuts across both . . . criteria,"
and "[t]he resemblances relied upon as a basis for finding
probative similarity must refer to 'constituent elements of the
copyrighted work that are original.'" Johnson, 409 F.3d at 18-19(quoting Feist, 499 U.S. at 361 (alterations omitted)); see T-Peg,
Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 112 (1st Cir.
2006). "The substantial similarity inquiry . . . . focuses not on
every aspect of the copyrighted work, but on those aspects of the
plaintiff's work that are protectable under copyright laws and
whether whatever copying took place appropriated those protected
elements." T-Peg, Inc., 499 U.S. at 361 (quotation marks,
-3-
works, we conclude that, essentially for the reasons stated by the
district court in its March 21, 2006, opinion, no reasonable juror
could find substantial similarity of expression, even taking the
evidence in the light most favorable to plaintiff. To the extent
that there are similarities, many of them relate to stock
characters and scènes à faire, which are not subject to copyright
protection. See Swirsky v. Carey, 376 F.3d 841, 848 (9th Cir.
2004) ("Under the [scènes à] faire doctrine, when certain
commonplace expressions are indispensable and naturally associated
with the treatment of a given idea, those expressions are treated
like ideas and therefore not protected by copyright." (alteration
omitted)); MyWebGrocer, LLC v. Hometown Info, Inc., 375 F.3d 190,
194 (2d Cir. 2004) ("Scènes à faire are unprotectible elements that
follow naturally from a work's theme rather than from an author's
creativity."). The remaining similarities, for example, the
similarities in music or editing style, are not substantial, and
the differences between the works are fundamental and extensive.
Accordingly, entry of summary judgment with regard to the copyright
infringement claim was proper.
citations and alterations omitted); see Johnson, 409 F.3d at 19("in examining whether actual copying has occurred, a court must
engage in dissection of the copyrighted work by separating its
original, protected expressive elements from those aspects that are
not copyrightable because they represent unprotected ideas or
unoriginal expressions.").
-4-
To the extent that Quaglia also seeks to challenge the
district court's denial of his state law claims for breach of
implied contract and breach of confidentiality, his claims are
based on the theory that DeMontreux directed the third-party
producers of "The It Factor" to copy "The Ultimate Audition."
However, Quaglia's argument is based only upon a series of
inferences that are directly contradicted by the affirmative
evidence of record. Accordingly, the district court correctly
concluded that Quaglia failed to carry his burden of demonstrating
the existence of a genuine issue of material fact with regard to
the state law claims. See Carroll v. Xerox Corp., 294 F.3d 231,
236-37 (1st Cir. 2002) (improbable inferences insufficient to
defeat summary judgment); Perez v. Volvo Car Corp., 247 F.3d 303,
310 (1st Cir. 2001) (absence of evidence on a material issue weighs
against the party who would bear the burden of proof at trial on
that issue); Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988)
("A motion for summary judgment cannot be defeated merely by an
opposing party's incantation of lack of credibility over a movant's
supporting affidavit.").
The judgment of the district court is affirmed. See 1st
Cir. Loc. R. 27.0(c).
-5-