Unpublished Disposition, 842 F.2d 335 (9th Cir. 1988)

MEMORANDUM^** 

Dana Rowe appeals the district court's grant of summary judgment in his suit for copyright infringement. He alleges that defendants, by producing and distributing the 1981 television movie Through the Magic Pyramid, infringed his copyrighted screenplay Waiting for You. Defendants did not contest Rowe's ownership of the copyright in his screenplay, and admitted access to Rowe's work for purposes of their summary judgment motion; the only remaining issue was whether the two works were substantially similar. See, e.g., Frybarger v. International Business Machs. Corp., 812 F.2d 525, 529 (9th Cir. 1987); Berkic v. Crichton, 761 F.2d 1289, 1291-92 (9th Cir.), cert. denied, 474 U.S. 826 (1985).

For defendants to have infringed Rowe's copyright, the two works must be substantially similar in both ideas and expression. Frybarger, 812 F.2d at 529; Cooling Sys. & Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 491 (9th Cir. 1985); Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1164 (9th Cir. 1977). The district court found that they were not and granted summary judgment for defendants. We review the district court's determination de novo. Frybarger, 812 F.2d at 528.

The test for similarity of ideas focuses on the concrete elements making up the works in question, looking for "specific, articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events." Berkic, 761 F.2d at 1292; see Krofft, 562 F.2d at 1164. The test for similarity of expression, on the other hand, focuses on the response of the "ordinary reasonable person" to the works in question. Krofft, 562 F.2d at 1164. Summary judgment is appropriate if, viewing the evidence in the light most favorable to the plaintiff, the court concludes that no reasonable jury could find that there was substantial similarity. Worth v. Selchow & Righter Co., 827 F.2d 569, 571 (9th Cir. 1987); Frybarger, 812 F.2d at 528. " [S]ince Krofft, we have frequently affirmed summary judgments in favor of copyright defendants on the substantial similarity issue." Berkic, 761 F.2d at 1292.

We have reviewed Waiting for You and the final draft script and videocassette tape of Through the Magic Pyramid. Both works involve the basic concept of time travel; such a general idea, however, is not subject to copyright protection. See, e.g., Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984), cert. denied, 470 U.S. 1052 (1985); Berkic, 761 F.2d at 1293; Jason v. Fonda, 526 F. Supp. 774, 777 (C.D. Cal. 1981), incorporated by reference, 698 F.2d 966, 967 (9th Cir. 1982). Moreover, contrary to Rowe's allegation, the "structural spines" of the two works are not at all similar: The time travel in the two works is in opposite directions; the respective characters, principal settings and plot development bear no resemblance; and the ultimate theme or message of each work is quite different. " [T]here is no more [similarity] than the similarity that must unavoidably be produced by anyone who wishes to use and restate the unprotectable ideas contained in [plaintiff's] work." Landesberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.), cert. denied, 469 U.S. 1037 (1984).

While Rowe points to "similarities" between the two works, many are so contorted as to be utterly frivolous. Some reflect unprotectable stock scenes incidental to the general premise of time travel: a character's disbelief in the idea of time travel; moving through a time portal; use of modern inventions to show cultural contrasts; returning to find little time has elapsed. See Berkic, 761 F.2d at 1293 ("all situations and incidents which flow naturally from a basic plot premise" are unprotectable scenes a faire). Others involve generic elements found in countless works: a male protagonist's relationship with a female character; use of a flashlight in a dark cave. See id. at 1294. As we held in Litchfield, "lists of similarities ... are inherently subjective and unreliable. We are particularly cautious where, as here, the list emphasizes random similarities scattered throughout the works." 736 F.2d at 1356.

With respect to similarity of expression, the works are not the least bit reminiscent of each other. No reasonable viewer would recognize Through the Magic Pyramid as a "picturization" or "dramatization" of Waiting for You. Id. at 1357; Berkic, 761 F.2d at 1294. Because there was no substantial similarity either of ideas or expression, the district court was entirely justified in granting summary judgment for defendants.

AFFIRMED.