Funky Films, Inc. v. Time Warner Entertainment

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FUNKY FILMS, INC., a California 
corporation; GWEN O’DONNELL,
Plaintiffs-Appellants,
v. No. 04-55578
TIME WARNER ENTERTAINMENT  D.C. No.
CV-03-00964-CJC
COMPANY, L.P., a Delaware limited
partnership; HOME BOX OFFICE, a OPINION
division of Time Warner
Entertainment Company, L.P.,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
February 13, 2006—Pasadena, California
Filed August 30, 2006
Before: Betty B. Fletcher, Warren J. Ferguson, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge B. Fletcher
10441
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10445
COUNSEL
Robert F. Helfing (argued), Los Angeles, California, and Rex
T. Reeves, Newport Beach, California, for the appellants.
Jeffrey A. Conciatori (argued), Margret Caruso, New York,
New York, and Christopher Tayback, Los Angeles, Califor-
nia, for the appellees.
OPINION
B. FLETCHER, Circuit Judge:
Gwen O’Donnell and Funky Films, Inc. (collectively, “ap-
pellants”), creators of the screenplay “The Funk Parlor,”
appeal the district court’s summary judgment to Time Warner
Entertainment Company and Home Box Office (collectively,
“HBO”), creators of the award-winning television mini-series
“Six Feet Under,” for copyright infringement. Appellants
assert that the district court erred in concluding that “The
Funk Parlor” and “Six Feet Under” are not substantially simi-
lar. They also appeal the district court’s denial of a request for
additional discovery. For the reasons set forth below, we
affirm the judgment of the district court.
10446 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
I
Between October 1997 and July 1999, Gwen O’Donnell
drafted “The Funk Parlor,” a screenplay tracing the lives of a
small, family-run funeral parlor in Connecticut. Sometime in
1998, O’Donnell was injured in an automobile accident and
sought treatment from Stacey Smith, a chiropractor. During
these appointments, the two discussed O’Donnell’s screen-
play; eventually, Smith took an interest in the script and asked
O’Donnell if she would like him to give a copy to his friend
and client Chris Albrecht, the President of Original Program-
ing at HBO. O’Donnell agreed and gave Smith a copy of “The
Funk Parlor.” Three months later, Carolyn Strauss, Albrecht’s
top lieutenant, solicited Alan Ball to develop “Six Feet
Under” for HBO.1
Appellants allege that “The Funk Parlor” and “Six Feet
Under” are substantially similar and that HBO unlawfully
infringed upon appellants’ copyrighted work. “As a determi-
nation of substantial similarity requires a detailed examination
of the works themselves,” Williams v. Crichton, 84 F.3d 581,
583 (2d Cir. 1996) (internal citation and quotation marks
omitted), we begin with a discussion of the works at issue.
A
“The Funk Parlor” takes place in a small, family-run
funeral home in Connecticut. John Funk Sr., the patriarch, has
committed suicide, and the deteriorating funeral parlor has
been handed down to his two sons, John Jr. and Tom. John,
the older brother who had moved away to start his own busi-
ness promoting nightclubs in Los Angeles, reluctantly decides
to remain in Connecticut after his father’s death to help out
1
In the district court, appellees submitted declarations in support of their
claim that they never had access to “The Funk Parlor.” That issue is not
before us, because the district court assumed access for purposes of sum-
mary judgment.
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10447
with the struggling venture. Applying his business acumen,
John revives it, all the while staving off an attempted takeover
by a larger competitor. Meanwhile, he attracts the attention of
Sophie, a neighbor and longtime acquaintance, and the two
become romantically involved. Sophie repeatedly talks of
entering a convent to become a nun, although in actuality she
is a psychopathic murderer whose killing sprees breathe new
life (as it were) into the Funk business. John and Sophie
intend to marry, but John eventually figures out that he is
Sophie’s next target and that he must kill her (which he does)
to spare his own life.
Tom, who had been running the funeral home during
John’s absence and who expresses an interest in Sophie as
well, is murdered midway through the play. After Tom’s
death, John continues operating the business to bring it out of
debt. After Sophie’s death, John sells the business, moves to
New York, and returns to the nightclub business.
Like “The Funk Parlor,” “Six Feet Under” takes place in a
funeral home and begins with the death of the patriarch,
Nathaniel Fisher, and return of the “prodigal son,” Nate, who
receives an equal share of the business along with his younger
brother, David. Nate decides to stay and help David maintain
the business, which, like the Funk business, struggles against
a larger competitor. The story traces the interpersonal rela-
tionships and romantic lives of each of the Fisher sons. It also
revolves around the lives of the mother, Ruth, and sister,
Claire, as well as other characters who come into contact with
members of the Fisher family. The father, though deceased,
reemerges throughout the drama. He continues to interact
with each remaining character of the Fisher family, often
helping them piece together problems that seemed irresolv-
able during his lifetime.
At the beginning of the drama, Nate begins a relationship
with Brenda Chenowith, a massage therapist he meets on an
airplane. David, who is gay, struggles with his sexuality and
10448 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
begins a relationship with Keith, a police officer he meets at
church.
B
The district court conducted an independent analysis of the
“The Funk Parlor” and the first three episodes of “Six Feet
Under,” comparing the two works for their setting, plot, char-
acters, theme, mood, pace, dialogue, and sequence of events.
The court determined that the works’ few similarities operate
at a general, abstract level and that no jury could reasonably
find substantial similarities between the two works. Accord-
ingly, the court granted HBO’s motion for summary judgment.2
Appellants filed a timely notice of appeal.
II
We review the district court’s grant of summary judgment
de novo, see Government of Guam v. United States, 179 F.3d
630, 632 (9th Cir. 1999), viewing the evidence in the light
most favorable to the non-moving party to determine the pres-
ence of any issues of material fact. See Kouf v. Walt Disney
Pictures & Television, 16 F.3d 1042, 1044 (9th Cir. 1994).
Summary judgment is appropriate only when “there is no gen-
uine issue as to any material fact,” see Fed. R. Civ. P. 56(c),
and only if “the evidence . . . is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
A
[1] A plaintiff bringing a claim for copyright infringement
must demonstrate “(1) ownership of a valid copyright, and (2)
2
Appellants also alleged violations of statutory and common law, unfair
competition laws and the Lanham Act. The district court granted HBO’s
motion to dismiss those claims, and Funky Films does not press them on
appeal.
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10449
copying of constituent elements of the work that are original.”
Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991). Appellants’ ownership in the copyright is undisputed;
they need only demonstrate a triable issue of fact whether
HBO “cop[ied] anything that was ‘original’ to” their work. Id.Absent evidence of direct copying, “proof of infringement
involves fact-based showings that the defendant had ‘access’
to the plaintiff’s work and that the two works are ‘substan-
tially similar.’ ” See, e.g., Three Boys Music Corp. v. Bolton,
212 F.3d 477, 481 (9th Cir. 2000). Because the district court
assumed, without deciding, appellees’ access to “The Funk
Parlor,” we must decide whether the two works are substan-
tially similar.
[2] “When the issue is whether two works are substantially
similar, summary judgment is appropriate if no reasonable
juror could find substantial similarity of ideas and expres-
sion.” Kouf, 16 F.3d at 1045 (internal citations and punctua-
tion omitted). Although “summary judgment is not highly
favored on the substantial similarity issue in copyright cases,”
Berkic v. Crichton, 761 F.2d 1289, 1292 (9th Cir. 1985), sub-
stantial similarity “may often be decided as a matter of law.”
Sid & Marty Krofft Television Prods., Inc. v. McDonald’s
Corp., 562 F.2d 1157, 1164 (9th Cir. 1977). Indeed, “[w]e
have frequently affirmed summary judgment in favor of copy-
right defendants on the issue of substantial similarity.” Shaw
v. Lindheim, 919 F.2d 1353, 1355 (9th Cir. 1990). See Berkic,
761 F.2d at 1292 (“we have frequently affirmed summary
judgments in favor of copyright defendants on the substantial
similarity issue”) (citing cases); see also Kouf, 16 F.3d at
1045-1046 (finding no substantial similarity as a matter of
law).
B
[3] The substantial-similarity test contains an extrinsic and
intrinsic component. At summary judgment, courts apply only
the extrinsic test; the intrinsic test, which examines an ordi-
10450 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
nary person’s subjective impressions of the similarities
between two works, is exclusively the province of the jury.
See Shaw, 919 F.2d at 1360-61. A “plaintiff who cannot sat-
isfy the extrinsic test necessarily loses on summary judgment,
because a jury may not find substantial similarity without evi-
dence on both the extrinsic and intrinsic tests.” Kouf, 16 F.3d
at 1045.
[4] Extrinsic analysis is objective in nature. “[I]t depends
not on the responses of the trier of fact, but on specific criteria
which can be listed and analyzed.” Krofft, 562 F.2d at 1164.
The extrinsic test focuses on “articulable similarities between
the plot, themes, dialogue, mood, setting, pace, characters,
and sequence of events” in the two works. Kouf, 16 F.3d at
1045 (citations omitted). In applying the extrinsic test, this
court “compares, not the basic plot ideas for stories, but the
actual concrete elements that make up the total sequence of
events and the relationships between the major characters.”
Berkic, 761 F.2d at 1293.
[5] “[P]rotectable expression includes the specific details of
an author’s rendering of ideas.” Metcalf v. Bochco, 294 F.3d
1069, 1074 (9th Cir. 2002). However, scenes à faire, which
flow naturally from generic plot-lines, are not protectable. See
id. We “ ‘must take care to inquire only whether ‘the protect-
able elements, standing alone, are substantially similar.’ ”
Cavalier v. Random House, 297 F.3d 815, 822 (9th Cir. 2002)
(quoting Williams, 84 F.3d at 599 (emphasis in original)). In
so doing, we “filter out and disregard the non-protectable ele-
ments in making [our] substantial similarity determination.”
Id.C
Appellants allege a number of similarities between “The
Funk Parlor” and “Six Feet Under.” According to appellants,
both works concern “a narrative about a small funeral home,
and the lives of the family members who operate it”; plot-
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10451
lines involving “the death of the father . . . [who] has for dec-
ades run the business”; a father whose death is “unexpected
and not attributable to natural causes” (suicide in “The Funk
Parlor” and a car accident in “Six Feet Under”); and the pres-
ence of “two sons” who receive equal shares of the business,
with the “older son . . . liv[ing] in a distant city, working out-
side the funeral industry.” In both works, the older son ini-
tially “has no interest in becoming involved with the funeral
business”; moreover, “[t]he family business is financially
fragile, and in both works the funeral home is pointedly
shown to be in debt and operating out of a substandard facility
with obsolete equipment and a hearse that stalls.” Both works
also contain an attempt by a “rival funeral home,” spear-
headed by “the female principal of the rival business” to
“take[ ] advantage of their vulnerable financial condition,”
“bluntly mak[ing] a lowball offer” and “approaching one of
the brothers at the father’s funeral with a proposal to buy the
family business.” In both works, the older brother initially
“expresses his desire to sell” but “changes his mind and com-
mits himself to help his brother keep the business afloat.”
Finally, appellants point out the older brother’s creativity,
which stands in “pointed contrast to the leaden conservatism
of the younger brother”; that the funeral home in both works
is used as a “site for musical entertainment”; that the “youn-
ger brother . . . change[s] his church affiliation in order to
increase their client base” in both works; and that “the rival’s
takeover attempt does not succeed.”
D
At first blush, these apparent similarities in plot appear sig-
nificant; however, an actual reading of the two works reveals
greater, more significant differences and few real similarities
at the levels of plot, characters, themes, mood, pace, dialogue,
or sequence of events.
1. Plot
[6] Both “Six Feet Under” and “The Funk Parlor” com-
mence with the death of the father and return of the “prodigal
10452 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
son.” Aside from that rather uneventful similarity, the plots of
the two stories develop quite differently. The father’s suicide
in “The Funk Parlor” sets the stage for a series of additional
murders, including several of the central characters in the
play. The story revolves around the life of the older brother,
John, who rehabilitates the fledgling business, falls in love
with Sophie, proposes to her and then, upon discovering that
she is a serial murderer, kills her in an effort to spare his own
life.
[7] “Six Feet Under,” unlike “The Funk Parlor,” is not a
murder mystery, nor does it revolve around any plot-line in
particular. Rather, “Six Feet Under” explores the intimate
lives of each member of the Fisher family by examining each
character’s complex psyche and his or her interpersonal inter-
actions and emotional attachments. “Six Feet Under” devel-
ops separate plot-lines around each member of the Fisher
family, including the mother and daughter, for whom there
are no comparable characters in “The Funk Parlor.” “Six Feet
Under” is not so much a story about death as it is about the
way the characters struggle with life in the wake of the cata-
clysmic death of the father.3
2. Characters
Although appellants attempt to link up the various charac-
ters of the two works, there are very few real similarities
between any of them. John Funk, Sr., is a minor character
who vanishes at the start of “The Funk Parlor” and does not
reappear except during one quick flashback scene; his rela-
tionships with the other characters are not consciously
3
“The Funk Parlor” contains a number of scenes with no equivalent in
“Six Feet Under” — a surgical blood-transfusion procedure that John exe-
cutes at the funeral parlor; a discussion regarding the extraction of ejacula-
tory material from a corpse; and numerous scenes involving group-
drinking, a techno-rave party that generates money for the ailing funeral
home, and recurring references to the band Led Zeppelin.
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10453
explored. Nathaniel Fisher, Sr., by contrast, appears through-
out the drama and continues to interact with each character
separately. In that regard, “Six Feet Under” traces each char-
acter’s unique set of relationships with the deceased father,
exploring issues that were apparently not resolvable during
life.
[8] The “prodigal son” characters of the two works, while
similar at the abstract level, are markedly different in the two
scripts. Nate Fisher’s search for meaning originally led him
away from the family business; prior to his return home, he
remained somewhat adrift in Seattle. Although he reluctantly
agrees to remain in Los Angeles to help his brother David run
the business, he shows little interest or skill. John Funk, Jr.,
by contrast, is a talented and creative businessperson whose
efforts quickly restore the moribund business. Unlike Nate,
John graduated from mortuary school and took on an active
role in the business before decamping for Los Angeles to
become a club promoter.
[9] The characters of David Fisher and Tom Funk, both
younger brothers, are remarkably different. Tom’s role in
“The Funk Parlor” is less developed (in part because he is
killed roughly midway through the story), though he is clearly
less skilled than his brother at maintaining the family busi-
ness. Although Tom is rumored to be gay, his homosexuality
remains a matter of speculation and is never pursued through
any relationship or meaningful dialogue. David, by contrast,
is deeply enmeshed in a struggle with sexual identity, which
he hides from his family and explores privately. His coming-
out process and his relationship with Keith occupy a central
plot-line of the story. The complexity of David’s character has
no equivalent in “The Funk Parlor.”
Appellants equate Sophie Zemlaskas with Brenda Che-
nowith, both of whom are romantically involved with the
older brother in each story. However, the two have little in
common. Sophie, a devout and obsessive Catholic who plans
10454 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
to enter the convent, is a psychopathic killer. Unlike Sophie,
Brenda is not homicidal. Brenda, a massage therapist, is psy-
chologically astute and expresses no interest in religion.
While Sophie expresses deep conflict over her sexuality,
Brenda engages in an apparently conflict-free sexual life with
Nate (and others).
Appellants also try to draw connections between Jamie, a
twelve- or thirteen-year-old cousin who works at the funeral
home, and Claire Fisher, the younger sister in “Six Feet
Under.” But Jamie is a very minor character; Claire, by con-
trast, is a central character who develops relationships of her
own. Her struggle to define herself within the family, while
rejecting any place within the family business, is a recurring
theme in “Six Feet Under.”
[10] Completely missing from “The Funk Parlor” is any
character similar to Ruth Fisher, the mother and one of the
central characters of “Six Feet Under.” Ruth is presented as
a strong-willed woman who struggles to overcome her linger-
ing maternal instincts over her now-grown children. Her own
romantic attachments and relationships form an important part
of the plot-line as well.
[11] Additional characters within “Six Feet Under” that
have no counterpart in “The Funk Parlor” are Fredrico Diaz,
an employee of the Fisher business who eventually becomes
a partner, and Keith Charles, David’s boyfriend who struggles
to remain in the relationship despite David’s conflicts in com-
ing to terms with his sexuality.
3. Themes
[12] Although both works explore themes of death, rela-
tionships, and sex, they do so in very different ways. “The
Funk Parlor,” a murder mystery, is driven by a series of mur-
ders, which catalyze the salvation of the business. The use of
death in “Six Feet Under” is quite different: there, death pro-
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10455
vides the focal point for exploring relationships and existen-
tial meaning. As noted by the district court, the general theme
of “Six Feet Under” “is that sex and death provide focal
points for relationships,” while the predominant theme of
“The Funk Parlor” is that “sex and religion don’t mix.”
In addition to the numerous murders that take place, “The
Funk Parlor” traces a number of religious themes (tension
between members of the Protestant and Catholic communi-
ties, religious conversion, and a general fear of God). Much
of the story takes place at the Polish deli owned by Sophie’s
family, and several of the deaths take place at “Overlook
Point.” Characters continually brush up against law-
enforcement officials investigating the series of murders.
Meanwhile, the religious themes serve as a conscious moral
structure against the backdrop of the mass killings that take
place. The characters must come to grips with religious
expectations, agonizing that they will “burn in Hell” and that
“God is punishing us.” John Funk considers religious conver-
sion and seeks confession as a source of absolution. Sophie,
meanwhile, is obsessed with religion and, for much of the
story, appears ready to enter the convent to become a nun.
“Six Feet Under,” by contrast, is a neo-realistic, postmod-
ern account of family and romantic relationships, without any
overarching religious themes or overtones. Themes of love,
romance, death, and sexuality are explored entirely through
the characters’ complex interactions. The story focuses on the
characters’ longing for connection, their insecurities, and their
complaints. Unlike “The Funk Parlor,” none of the main char-
acters are murderers or murder victims.
4. Setting, Mood, and Pace
[13] Although both works take place in a contemporary,
family-run funeral home, the similarities in setting end there.
“Six Feet Under” takes place in a well-maintained funeral
home in Los Angeles. Although the business struggles against
10456 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
a competitor and is, at times, somewhat sluggish, “The Funk
Parlor, located in Connecticut, is in shambles. The moods of
the two works are drastically different as well. “The Funk
Parlor” is a farcical mystery, while “Six Feet Under” is seri-
ous, dramatic, and introspective. “The Funk Parlor” moves at
a rapid clip, while “Six Feet Under” evolves slowly and often
in repetitive fashion. Beyond the basic premise of a family-
run funeral home, there are no similarities in the setting, mood
or pace of the two works.
5. Dialogue
[14] The encounters explored in “The Funk Parlor” are at
times pedestrian, and the dialogue, at times, rather trite. The
characters play beer-drinking games like “I never” and
express concern about “burning in hell” and that “God is pun-
ishing us.” “Six Feet Under,” by contrast, is full of complex
and subtle dialogue, including ironic turns of phrases that
heighten the already-fraught interactions among the charac-
ters.
6. Sequence of Events
[15] The sequence of events in the two works are different
as well. “The Funk Parlor” opens with a younger John Funk
attempting to seduce Jennifer Angeli at “Overlook Point.”
Their automobile crashes; John is blamed for the death; he
leaves home; and returns only later at the death of his father.
“Six Feet Under” begins with a montage of different scenes
depicting each character’s reaction to the death of Nathaniel
Sr., who is killed in an automobile accident on the way to pick
up Nate Jr. at the airport. Minutes before finding out, Nate
engages in a sexual encounter with Brenda in an airport
broom closet; Claire smokes crystal methamphetamine with a
group of friends; and Ruth broods over dinner and Nate’s
favorite breakfast cereal. Shortly after these scenes, the Fisher
children are reunited with their mother at the hospital to iden-
tify their father’s body, thus beginning the exploration of their
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10457
complex relationships. While “The Funk Parlor” unfolds in a
straight, linear trajectory, “Six Feet Under” employs repeti-
tion, dreams, and flashbacks to intensify certain scenes and
conflate the real with the unreal.
E
[16] At a very high level of generality, both works share
certain plot similarities: the family-run funeral home, the
father’s death, and the return of the “prodigal son,” who
assists his brother in maintaining the family business. But
“[g]eneral plot ideas are not protected by copyright law; they
remain forever the common property of artistic mankind.” See
Berkic, 761 F.2d at 1293. See also Cavalier, 297 F.3d at 824(“basic plot ideas, such as this one, are not protected by copy-
right law”); Shaw, 919 F.2d at 1356 (“Copyright law protects
an author’s expression; facts and ideas within a work are not
protected.”). Beyond that, “[t]he stories do not share any
detailed sequence of events.” Cavalier, 297 F.3d at 824. See
Berkic, 761 F.2d at 1293 (“Both deal with criminal organiza-
tions that murder healthy young people, then remove and sell
their vital organs to wealthy people in need of organ trans-
plants. To some extent, both works take their general story
from the adventures of a young professional who coura-
geously investigates, and finally exposes, the criminal organi-
zation. But this degree of similarity between the basic plots of
two works cannot sustain a plaintiff’s claim that the works are
‘substantially similar.’ ”). The similarities recounted through-
out appellants’ brief rely heavily on scenes à faire — not con-
crete renderings specific to “The Funk Parlor” — and are, at
best, coincidental. Consequently, the two works are not sub-
stantially similar.
F
The district court disposed of the motion for summary
judgment exclusively on the issue of substantial similarity
and, in so doing, assumed for the sake of argument appellees’
10458 FUNKY FILMS v. TIME WARNER ENTERTAINMENT
access to the script. Although appellants wanted to take addi-
tional discovery on the issue of access, the court found it
unnecessary because appellants could not meet the lower bur-
den required by the substantial-similarity test. Appellants con-
tend, however, that they should be given an opportunity to
satisfy an even lower burden of proof under the “inverse-ratio
rule,” which applies to those cases in which a party demon-
strates the alleged copier’s “high degree of access” to the pur-
portedly copied material. See Three Boys Music, 212 F.3d at
485 (“we require a lower standard of proof of substantial sim-
ilarity when a high degree of access is shown”) (internal cita-
tion omitted). Appellants contend that further discovery
would allow them to demonstrate such access; that they
would prevail under the lower burden of proof required in
cases where such a degree of access is shown; and that the
district court erred in failing to conduct that inquiry.
[17] We do not agree that appellants’ invocation of the
inverse-ratio rule requires reversal of the district court’s deci-
sion. “No amount of proof of access will suffice to show
copying if there are no similarities,” Krofft, 562 F.2d at 1172,
and, in this case, additional discovery would not change the
fact that the two works lack any concrete or articulable similari-
ties.4 Thus, appellants would not be able to demonstrate
unlawful copying even under a relaxed version of the
substantial-similarity test. Consequently, we affirm the district
court’s summary judgment in appellees’ favor as well as its
ruling on additional discovery. See Anderson, 477 at 248
(“Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the
entry of summary judgment.”).
4
Moreover, this is not a circumstance in which the defendant has con-
ceded access to the purportedly copied material. See Metcalf, 294 F.3d at
1075 (noting that a plaintiff’s claim was “strengthened considerably by
[the defendant’s] concession of access to their works”); Shaw, 919 F.2d
at 1361-62 (applying a lower standard of proof under substantial similarity
in light of defendants’ admission of access to the work in question).
FUNKY FILMS v. TIME WARNER ENTERTAINMENT 10459
III
For the reasons stated above, the district court’s summary
judgment in appellees’ favor is AFFIRMED.