by Alexandra Schwartz* A pdf version of this article may be downloaded here. I.  Introduction On June 24, 2008, ABC Executive Vice President Howard Davine wrote a memo to ABC’s executive producers and show-runners which raised eyebrows in the industry when it was leaked. The memo suggested that there may be no need to license a foreign television show (“foreign format”) when all that is being taken from the show is the “underlying premise.” [FN1] He strenuously urged the executive producers and show-runners to first go to ABC’s Creative Affairs group when they had seen or were about to see a show that they were potentially interested in licensing so that ABC could decide, both creatively and legally, whether licensing was truly necessary. Mr. Davine made four main points regarding business reasons that licensing these formats are to the disadvantage of ABC and should be avoided. First, he noted that the foreign format copyright holders will want recognition and seek Executive Producer credit as well as a degree of creative control, typically to be rendered from a foreign location — adding an “unnecessary layer” to the creative process. [FN2] Second, he argued against licensing because there would likely be a decrease in profits from format rights fees and Executive Producer fees as well as the reality that a large portion of the backend [FN3]would have to be shared with the format’s right holder. [FN4] Third, the studio may be limited in its ability to exploit derivative works from the show depending on the stature of the rights holder. Fourth, if a show is licensed, the deal may be dependent upon the studio’s ability to sell the U.S. series internationally without restriction and the interest of the foreign rights holder to sell episodes of their underlying series in the U.S. market — motivations that are often not compatible or economically equivalent. [FN5] The entertainment community’s reaction to this memo has been quite mixed, with some saying that Mr. Davine was merely protecting ABC and doing his job, and others viewing the memo as an example of the studios cheating writers. [FN6] Of course, foreign producers have been particularly critical of the memo since their shows are at the heart of the matter and are perhaps less likely to be licensed after this memo. [FN7] Also, certain intellectual property watchdog organizations have raised alarm about the potential implications of the memo. [FN8] This paper addresses what appears to be a contentious and unsettled issue — at what point does copyright law force studios to compensate foreign format producers for the adoption of their shows, if ever? The paper concludes that, in fact, there is no difference in the decision between whether a U.S. company needs to license a U.S. format versus whether it needs to license a foreign format. While Mr. Davine’s memo may be provocative, it nonetheless reaches a sensible legal solution. Simply put, show-runners and executive producers need not contract and pay for every concept they produce as a result of seeing or hearing about a foreign TV show, movie, or book. II.  Copyright Law U.S. law protects works copyrighted in foreign jurisdictions from infringement within the United States. [FN9] [FN10] Under U.S. law, to state a claim for copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright and (2) copying [by the defendant] of constituent elements of the [copyrighted] work that are original.” [FN11] A.  Ownership of Valid Copyright To determine ownership of a valid copyright, a plaintiff must prove that (1) he owns the copyright, and (2) the copyright is valid. [FN12] 1.  Determining Ownership of a Copyright. In determining who owns a copyright issued in a foreign country — as is likely the case with foreign formats — U.S. courts will look to either international treaties or the jurisdiction in which the work was copyrighted. The Berne Convention, to which the United States is a party, applies to all parties to it and expressly provides that “[o]wnership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed.”[FN13] Thus, if the creators of a show reside in Brazil, and the show is initially broadcast there, Brazilian law will determine who is entitled to copyright ownership. [FN14] Regarding protection of that copyright, according to the “national treatment” principle of the Berne Convention and the Universal Copyright Convention (“U.C.C.”), to which the United States is also a party, “an author who is a national of one of the member states of either Berne or the U.C.C., or one who first publishes his work in any such member state, is entitled to the same copyright protection in each other member state as such other state accords to its own nationals.” [FN15] If the law of the country of infringement, here it would be the U.S., applies to the scope of substantive copyright protection, the court will apply that law uniformly to foreign and domestic authors. [FN16] Thus, while the law of the country of origin will determine initial ownership, once it has been assigned, the owners may sue in U.S. courts under domestic law for infringement and compensation. [FN17] However, it is worth noting that if the plaintiff is capable of bringing suit in his home country against a defendant who also has operations there (in addition to the United States), he may lose the ability to bring suit in the United States under forum non conveniens.[FN18] B.  Valid Copyright Under U.S. Law As the Davine memo does not discuss a specific instance of a foreign format television show being used — and thus does not have a reference country for the law of ownership — this paper uses U.S. law as a baseline for discussing what constitutes a valid copyright. Normally, however, the law of the country in which the copyright originated would govern. In order to be within the subject matter of copyright law, a work must be an (1) original work of authorship and (2) fixed in a tangible medium of expression.[FN19] An original work of authorship is one that possesses an “independent origin and a minimal amount of creativity.” [FN20] Thus, if a show is the result of a creator’s individual thoughts, experiences, or creative urges and is not merely identical to something that he has previously seen, it meets the standard for an original work of authorship. Secondly, a work is considered “fixed” in a tangible medium of expression when “it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” [FN21] In order to be fixed in a tangible form, a work only need be recorded in some manner “capable of identification and having a more or less permanent endurance.” [FN22] Thus, a show that has already been recorded, or even the expression of ideas in treatment, index cards, tapes or the like embody a stable enough form to be considered fixed in a tangible medium. Under these criteria, it appears that virtually any idea for a show that came to an executive as a result of viewing, reading, or listening to a foreign television program would likely fall within the subject matter of copyright law. C.  Copyright Infringement Once a plaintiff has shown that he is the owner of a valid copyright, he must next show that the defendant undertook “copying of constituent elements of the [copyrighted] work that are original.” [FN23] This copying must have amounted to “an improper or unlawful appropriation.” [FN24] An unlawful appropriation is established by showing that the work at issue bears a “substantial similarity” to the original copyrighted expression of the earlier work. [FN25] Where a plaintiff cannot show a reasonable opportunity for the defendant to have accessed the work, proof that the protected and accused works are “strikingly similar” suffices to give rise to an inference of copying. [FN26] To show a “striking similarity” between works, a plaintiff must produce evidence that the accused work could not have been the result of independent creation.[FN27] i.  Originality In order to establish a claim for copyright infringement, the owner of a valid copyright must prove not only copying and substantial similarity, but also ”copying of constituent elements of the [copyrighted] work that are original.”[FN28] Thus, a plaintiff cannot make out a claim of infringement if the allegedly infringing work copied a non-original part of the copyrighted work. “The sine qua non of copyright is originality…[which] means only that the work was independently created by the author…and that it possesses at least some minimal degree of creativity.” [FN29] “[T]he requisite level of creativity [needed to establish originality] is extremely low,” and “[t]he vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be.” [FN30] However, where the “quantum of originality is slight and the resulting copyright is ‘thin,’ infringement will be established only by very close copying because the majority of the work is unprotectable.” [FN31] Thus, the degree of originality and the closeness of copying form a matrix that, depending on the balance from each side, determine whether a copyright has in fact been infringed. ii.  Substantial Similarity To prove a claim for copyright infringement, a plaintiff must first prove access and substantial similarity between the two works. [FN32] The specific test used in order to evaluate substantial similarities varies by court. The Second Circuit has held that a court may ask if the copying is qualitatively and quantitatively sufficient to be considered “substantially similar.” [FN33] If one of these two factors is particularly strong, it can help to balance out the relative weakness of the other – “even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity.” [FN34] In contrast, the Ninth Circuit has employed the “Ordinary Observer” test, which asks whether an ordinary observer who has read, seen, or heard both the plaintiff’s and the defendant’s work would be able to recognize that defendant’s work was based on or used plaintiff’s work. [FN35] [FN36] More recently, the Ninth Circuit appears to be employing a modified version of the Ordinary Observer test, requiring a plaintiff pass both an extrinsic and intrinsic test. The extrinsic test evaluates whether there are objective similarities of ideas and expression between the two works and, where the works are literary in nature, focuses on similarities between the plot, sequence of events, theme, characters, dialogue, mood, setting, and pace of each work.[FN37] The Ninth Circuit requires a court that is applying the extrinsic test to distinguish between the expressive elements of the two works that are protectable versus not protectable. [FN38] [FN39] Under the extrinsic component, a court should engage in “analytic dissection” and compare “the individual features of the works to find specific similarities between the plot, theme, dialogue, mood, setting, pace, characters, and sequence of events.”[FN40] The intrinsic test looks at “expression subjectively.” [FN41] iii. Expression The Copyright Act does not protect ideas, systems or discoveries; rather, it protects an author’s particular expression of an idea. [FN42] Unprotectable elements of a work include general plot ideas and “scenes a faire,” which are scenes that flow naturally from unprotectable basic plot premises and “remain forever the common property of artistic mankind.” [FN43] Nor does copyright protection extend to “‘stock’ themes commonly linked to a particular genre.”[FN44] Such customary themes, or “scenes a faire,” are not copyrightable as a matter of law. [FN45] [FN46] Expressions that are protectable, in comparison, include the specific details of an author’s rendering of ideas, or “the actual concrete elements that make up the total sequence of events and the relationships between the major characters.” [FN47] The primary objective of copyright is to promote the progress of science and art and to this end, “copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed in the work.” [FN48] However, deciding when something is just an idea versus a protected expression is not always a straightforward endeavor, and requires a stringent analysis of what a work presents. [FN49] iv.  Originality Threshold As discussed supra, to be copyrightable, a work must have a modicum of original expression. Moreover, the contribution of the second author must be made to the specific portion of the work that was copied, as merely adding wholly dissimilar scenes and not sufficiently modifying those copied is not sufficient to escape a charge of copyright infringement. [FN50] This means that, in theory, works which are derivative from other works may have a more difficult time establishing originality. However, to be considered original every feature of a work must not be new— if that were the case then it would be hard to obtain a copyright for any artistic work since plots, materials, ideas and circumstances are constantly repeated but in a different form or combination.[FN51] *** The case law suggests that copyright holders face significant hurdles in successfully pursuing a claim: not only must they first prove that they own a valid copyright, but they also must prove access and substantial similarity in order to prove copying (or if the former is lacking, then striking similarity), that what was copied was a protectable element of the work, and then finally contend with the fact that they still might not be able to recover if the purportedly infringing author has made some “non-trivial” contribution to what he copied. III.  Case Examples The question of whether a work (or portion of it that is original) has been copied improperly is one of fact to be determined by the court. [FN52] While Mr. Davine’s memo did not refer to any specific examples, previous examples in the case law are instructive to whether his memo set forth proper legal advice concerning copying foreign formats. A.  Domestic Television Shows i.  Infringement Proven In Minniear v. Tors, the Court upheld a jury’s award of damages and found that copyright infringement had occurred when the defendant’s producer attended a showing of a pilot film for a series entitled “Sea Divers” and later produced the “Sea Hunt” series. The “Sea Divers” film was made and shown to prospective purchasers, sponsors, and TV stations for the purposes of developing the first underwater series on television. [FN53] Both of the series featured ex-Navy Frogmen doing deep-sea dives and featured stories about recovering jet pilots. [FN54] The Court decided there were enough similarities in the basic plot ideas, themes, sequences, and dramatic hooks to demonstrate that plaintiff’s ideas and precise format were the inspiration for the defendant’s series. In Universal Pictures Co. v. Harold Lloyd Corp.,  the Court found that substantial similarity existed between two films because fifty-seven consecutive scenes were “lifted almost bodily from [the original production]” and it was “not just the reproduction of an isolated single incident or event.”[FN55] In the plaintiff’s work, “Movie Crazy,” the star of the film attends a dinner dance and mistakenly dons the coat of a magician. He then proceeds to dance with the hostess during which time various comedic incidents occur, and persist even after he changes partners. These incidents include doves fluttering, white mice crawling, and eggs rolling down the sleeves. During the resulting uproar, the magician enters and reproaches the star for stealing the coat and the star is discovered to be present without credentials and is literally thrown out. In “So’s Your Uncle,” the main character goes to a night club and while there, through the aid of a waiter in the club seeks a change of clothing in order to appear to be both himself and his uncle. The waiter gives him a magician’s coat unknowingly. He then dances with one of his companions, and the comedy incidents occur, almost exactly as they do in “Movie Crazy” with practically the same results. The star leaves with his dancing partner and the waiter is blamed by the magician for the loss of his coat. [FN56] Due to the striking similarity displayed between the two films in these scenes, the Court found infringement – “the whole picture need not be copied to constitute infringement; the mere copying of a major sequence is sufficient.” [FN57] ii.  Infringement Not Proven In Olson v. National Broadcasting Co., Inc., the Court employed the two-part extrinsic and intrinsic test and held the defendant’s television series “A-Team” did not infringe on plaintiff’s “Cargo” because the shows were not substantially similar even though some of the characters were similarly depicted and they were both shows about Vietnam veterans shown in a positive light. The Court found that while some episodes of “The A-Team” may have included some of the plot incidents presented in “Cargo,” such similarities were “insufficient to constitute the type of congruence of plot relevant to the substantial similarity inquiry” and more was needed. [FN58] Ultimately, the plots — the “Cargo” crew was coerced into breaking up a drug-smuggling ring while the A-Team was hired to find a reporter missing somewhere in Mexico — were simply too divergent to be considered substantially similar. [FN59] In Hendried v. Four Star Television, the Court held that copyright infringement had not occurred when both plaintiff’s proposed television series and defendant’s produced series featured heroes that traveled in chauffeur-driven Rolls-Royces because the shows were otherwise not substantially similar. The hero in one show was a millionaire playboy detective while the heroes in the other were a father and son duo of international troubleshooters. [FN60] As the Court noted, a “resemblance based solely on the use of a well publicized, even bromidic, symbol for wealth and luxury seems grossly inadequate to sustain a claim of substantial or material similarity.” [FN61] B.  Foreign Format Television Shows Like claims based on copyright infringement of domestic television shows, those based on foreign shows are also determined based on the facts — meaning an evaluation of the substantial similarity and/or additional original expression of the two shows’ plots, characters, sequence of events, and other relevant components. i.  Recent Foreign Format Infringement Suits In RDF Media Ltd. v. Fox Broadcasting Co., plaintiffs, the creators of “Wife Swap UK,” a British reality show about switching spouses from disparate families and watching the ensuing interactions, sued the creators of ‘Trading Spouses,” a U.S.-based reality show of the same concept for copyright infringement. [FN62] The defendants tried to get the copyright infringement claims thrown out based on procedural grounds, but the Court would not dismiss them. [FN63] The failure of the defendants to make a motion to dismiss based on the merits of the case (i.e. that “Trading Spouses” did not infringe upon the format of “Wife Swap”) as well as settlement outside of court [FN64]suggests that the plaintiffs would likely have prevailed in their copyright infringement claims or at least had a strong case. Similarly, in Tokyo Broadcasting System, Inc. v. American Broadcasting Companies, Inc., the Court rejected the defendant’s motions to dismiss on grounds other than copyright infringement were rejected by the Court. [FN65]Tokyo Broadcasting Systems (“TBS”), a Tokyo-based company, brought suit under the allegations that several of its shows formats had been copied by the American show Wipeout. TBS specifically argued that Wipeout “incorporates not only the total concept and feel of the Shows but also the most significant, original and expressive elements of the Shows including the use of silly but difficult physical challenges on huge obstacle courses, the comical portrayal of contestants’ failed attempts, the methods of highlighting such failed attempts, the use of two commentators who make humorous comments, similar camera angles, instant replay and slow-motion devices, and the use of the same challenges and obstacle courses.” [FN66] ABC attempted to get the case throw out, but did not refute the copyright infringement charges. Once again, the lack of challenge on the merits of the copyright infringement claim suggests that the defendants, here notably ABC, the company that Mr. Davine represents, is tacitly admitting culpability for copying. IV.  Conclusion Copyright infringement is not an automatic result when a television producer or show-runner creates a show based on what he has seen or read.  It is not the inspiring idea itself, but rather its specific original expression that cannot be copied without modification. As the cases discussed above illustrate, whether a show infringes a validly held copyright on a different show requires a close analysis of the facts — exactly how similar were the plots, characters, and scenes? A studio may wish to protect itself against potential litigation by licensing foreign works when it would like to create a production that adheres very closely to that work. This is because if it is found to have infringed it may end up losing far more in damages or in settlement (not to mention legal fees) than it would have cost to pay for an initial license. However, acting as though a license is always needed without thorough scrutiny of the existing and proposed productions is just bad business. Mr. Davine’s proposal was a sensible one: defer to the experts in determining whether a contract is needed in order to avoid potentially unnecessary costs and production hurdles that come along with any licensing arrangement — domestic or foreign. This is likely an unwelcome conclusion for some creators of original content and it may indeed seem unfair.  However, as Justice Brennan correctly observed it is not “some unforeseen byproduct of a statutory scheme.” [FN67]Strong policy reasons exist to allow for this apparent “looseness” in copyright law. Some protection is indeed essential – content creators need to be able to protect and profit from their work – lest they lose the motivation and ability to make a livelihood from this creation. However, there needs to be flexibility within the system to allow for the continuation of thought in order “[t]o promote the Progress of Science and useful Arts.” [FN68] If the outrage sparked by Mr. Davine’s memo is indicative of a strong underlying feeling that the balance is off, those individuals should not shoot the messenger, but rather speak to their lawmakers. *** * B.A. 2005, Cornell University; J.D. 2010, NYU School of Law. [FN1] Howard Davine, Davine Memo, June 24, 2008, http://www.deadline.com/hollywood/bombshell-abc-studios-memo-a-blueprint-to-rip-off-foreign-tv-series. [FN2] Id. [FN3] Meaning royalties or payments that are made after a television show is aired. [FN4] Id. [FN5] Id. [FN6] See Nikki Finke, Bombshell ABC Studios Memo Is Blatant Blueprint to Rip Off Foreign TV Series, July 10, 2008, http://www.deadline.com/hollywood/bombshell-abc-studios-memo-a-blueprint-to-rip-off-foreign-tv-series (anonymous comments on Ms. Finke’s blog range from “Would someone please tell me what’s so exceptional about this? doesn’t it simply explain the legal need to differentiate between an inspirational source and a direct influence?” to “This leaves the company wide open to possibly gazillions in litigation from any foreign network with a show that even remotely resembles an ABC production. All they have to do is wave around this memo because it’s practically a confession.  And no doubt anyone with an unsold pilot with a passing resemblance to running ABC shows can probably also jump on the litigation bandwagon.  This behaviour is not only unethical, but writing it down as a memo passed all over town is damn stupid”). [FN7] See Leigh Holmwood, TV Execs Slam ABC Man’s Memo About Foreign Formats, The Guardian, Aug. 11, 2008. [FN8] See FRAPA Response to ABC Leaked Memo, The Format Recognition and Protection Association, Aug. 12, 2008, http://www.frapa.org/press/press-releases/28-frapa-response-to-leaked-abc-memo-.html (“Mr. Davine’s skillfully written memo does not use words like steal, theft or rip-off, but it certainly could be seen as encouraging his Producers and Show-runners not to license formats honestly…If ABC and Disney refuse to repudiate the content of the Davine memo, then Producers in the US and around the world might note their silence and help themselves to the ‘underlying premise’ of Miley Cyrus and Hannah Montana…Producers might even be persuaded by Mr. Davine’s memo to be inspired by the ‘general underlying premise’ of a well known Disney cartoon character. In the spirit of the memo, the rip-off rodent might be called Tricky Mouse”). [FN9] See generally Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998). [FN10] When a work is not copyrighted in the United States but rather in a foreign country, as is likely the case with many foreign format shows that are the issue of this paper, there is an additional jurisdictional hurdle and choice of law question. “If the issue is the relatively straightforward one of which of two contending parties owns a copyright, the issue is unquestionably an ownership issue, and the law of the country with the closest relationship to the work will apply to settle the ownership dispute. But in some cases…the issue is not simply who owns the copyright but also what is the nature of the ownership interest. Yet as a court considers the nature of an ownership interest, there is some risk that it will too readily shift the inquiry over to the issue of whether an alleged copy has infringed the asserted copyright. Whether a copy infringes depends in part on the scope of the interest of the copyright owner. Nevertheless, though the issues are related, the nature of a copyright interest is an issue distinct from the issue of whether the copyright has been infringed.” Itar-Tass Russian News Agency, 153 F.3d at 91. [FN11] Feist Pubs. Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). [FN12] Id. [FN13] Berne Convention, Art. 14 bis (2)(a); see also Restatement (Second) of Conflict of Laws, § 222, The General Principle (2009) (the interests of the parties in property are determined by the law of the state with “the most significant relationship” to the property and the parties). [FN14] There is, however, one procedural qualification. Under United States law, an owner (including one determined according to foreign law) may sue for infringement in a United States court only if it meets the standing test of 17 U.S.C. § 501(b), which accords standing only to the legal or beneficial owner of an “exclusive right.” Id. [FN15] Id. at 89 (citing Nimmer on Copyright § 17.05 (1998)); see also S.M. Stewart, International Copyright and Neighboring Rights § 3.17 (2d ed. 1989) (“Both the question of whether the right exists and the question of the scope of the right are to be answered in accordance with the law of the country where the protection is claimed”). [FN16] Id. [FN17] It is important to note that a foreign plaintiff cannot recover statutory damages under § 441(c) of the Copyright Act for “(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” The Football Ass’n Premier League Ltd. v. YouTube, Inc., 633 F.Supp.2d 159, 162 (S.D.N.Y. 2009). This means that while “actual damages” are allowed, statutory damages will be prohibited unless the foreign format was registered in the U.S. within the above prescriptions. See also Itar-Tass Russian News Agency, 153 F.3d at 88. Although plaintiffs have argued this is in contravention to the Berne Convention, courts have insisted that “Section 412 [of the Copyright Act] has no exception excusing foreign works from its mandate it requires registration to obtain statutory damages for both domestic and foreign works.” The Football Ass’n Premier League Ltd., 633 F.Supp.2d at 162 (citations omitted). However, an exception exists for live broadcasts, such as of “sporting events, concerts, theatrical presentations and news and public affairs programs.” Id. at 165 (citing Works Consisting of Sounds, Images, or Both, 46 Fed.Reg. 28,846, at 28,849 (May 29, 1981)). [FN18] See Murray v. British Broadcasting Corp., 81 F.3d 287 (2d. Cir. 1996). [FN19] Uranita Foundation v. Maaherra, 114 F.3d 955, 958 (9th Cir. 1997); Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 2.02 2-18 (1999). [FN20] Baltimore Orioles v. Major League Baseball Palyers, 805 F.2d 663, 675 (7th Cir. 1986). [FN21] 17 U.S.C. § 101. [FN22] Nimmer § 1.08[C][2] 1-66.30. [FN23] Feist, 499 U.S. at 361. [FN24] Castle Rock Entertainment, Inc. v. Carol Pubs. Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). [FN25] Id. [FN26] Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir. 1987); Arnstein v. Porter, 154 F.2d 464 (2d Cir.1946), cert. denied, 330 U.S. 851 (1947). [FN27] See Walker v. Univ. Books, Inc., 602 F.2d 859, 864 (9th Cir. 1979). [FN28] Feist, 499 U.S. at 345. [FN29] Id. [FN30] Id. [FN31] Beaudin v. Ben and Jerry’s Homemade, Inc., 95 F.3d 1, 2 (2d Cir. 1996); see also I William F. Patry, Copyright Law and Practice 607, n. 639 (1994). [FN32] Palmer v. Braun, 287 F.3d 1325, 1330 (11th Cir. 2002); see alsoWarner Bros. Inc. v. American Broadcasting Cos., 654 F.2d 204, 207 (2d Cir. 1981) (“It is well settled that copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that the two works are substantially similar”). [FN33] Castle Rock Entertainment, Inc., 150 F.3d at 138. [FN34] Baxter v. MCA Inc., 812 F.2d 421, 425 (9th Cir. 1987). [FN35] Harold Llyod Corp. v. Witwer, 65 F.2d 1 (9th Cir. 1933); Kustoff v. Chaplin, 120 F.2d 551 (9th Cir. 1941); Twentieth Century-Fox Film Corp. v. Stonesifer, 140 F.2d 579 (9th Cir. 1944) (holding that the test of infringement is the observations and impressions of “the average reasonable reader and spectator”). [FN36] This standard has endured some criticism. The court in Golding v. RKO Radio Pictures, 193 P.2d 153 (Cal. Ap. 1948) said the test of the reaction of the ordinary person is “deceptive and unrealistic,” as it is obvious that the ordinary observer cannot differentiate between original and unoriginal material and could not say whether a substantial similarity between two works was with respect to original material or to matters in the public domain. In defense of the test, however, it can be said that if it takes an expert to find similarities or infringement in a particular case, the infringement, if any, may be too trivial or too doubtful to be actionable. [FN37] Metcalf v. Bocho, 294 F.3d 1069, 1073 (9th Cir. 2002). [FN38] Meaning, original versus non-original. [FN39] Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1446 (9th Cir. 1994). [FN40] Narell v. Freedman, 872 F.2d 907, 912 (9th Cir. 1989). [FN41] Apple Computer, 35 F.3d at 1442. [FN42] See Feist, 499 U.S. at 355 (“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery”) (citations omitted); see also Metcalf, 294 F.3d at 1074 (compilation of unprotectable facts may gain protection through selection and arrangement). [FN43] Id. [FN44] Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d. Cir.), cert. denied, 476 U.S. 1159 (1986). [FN45] Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.),cert. denied, 449 U.S. 841 (1980). [FN46] Examples of scenes a faire include disgruntled police officers, superheros lifting cars to show strength and the setting of a POW camp in Hitler’s Germany. Walker, 784 F.2d at 50 (urban police milieu); Warner Bros. Inc. v. ABC, Inc., 654 F.2d 204, 210 (superheros and cars); Bevan v. CBS, Inc., 329 F.Supp. 601, 606 (S.D.N.Y.1971) (German POW camp). [FN47] Feist, 499 U.S. at 362. [FN48] Id. at 349-50. [FN49] See Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930) (“[T]he line between mere ‘ideas’ and protected ‘expression’ is famously difficult to fix precisely”). [FN50] Malkin v. Dubinsky, 146 F. Supp. 111 (S.D.N.Y 1956). [FN51] Stanley v. Columbia Broadcasting System, 192 P.2d 495, 504 (Cal. App. 1948); Alfred Bell & Co. v. Catalda Fine Arts, Inc., 90 U.S. Pat. Q. 153 (N.Y. 1951) (“All that is needed to satisfy both the constitution and the statute is that the ‘author’ contributed something more than a ‘merely trivial’ variation, something recognizably ‘his own.’ Originality in this context ‘means little more than the prohibition of actually copying.’ No matter how poor artistically the author’s addition, it is enough to be his own.”); Ecclesiastes 1:9 (“[T]here is nothing new under the sun”). [FN52] Dezendorf v. Twentieth Century-Fox Film Corp., 99 F.2d 850 (CA2d 1938); Stanley v. Columbia Broadcasting System, 221 P.2d 73 (Cal. 1950); Yadkoe v. Fields, 151 P.2d 906 (Cal. 1944). [FN53] Minniear v. Tors, 266 Cal. App. 2d 495, 497 (2d Dist. 1968). [FN54] Id. at 504. [FN55] Universal Pictures Co. v. Harold Lloyd Corp., 162 F.2d 354, 361 (9th Cir. 1947). [FN56] Id. at 358. [FN57] Id. at 361. [FN58] Olson v. National Broadcasting Co., Inc., 855 F. 2d 1446, 1450 (9th Cir. 1988). [FN59] Id. at 1450-51. [FN60] Hendried v. Four Star Television, 266 Cal. App. 2d 435, 436-37 (2d. Dist. 1968). [FN61] Id. at 437. [FN62] See generally RDF Media Ltd. v. Fox Broadcasting Co., 372 F.Supp.2d 556 (C.D. Cal. 2005). [FN63] The court found the issue of copyright registration for the purposes of statutory recovery moot since, by the time it reviewed the dismissal motion, all of the episodes had been properly registered. Id. at 562. [FN64] Mindy Farabee, Can Reality Be Copyrighted?, June 24, 2009, http://www.linerlaw.com/data/1250106471.pdf. [FN65] See generally Tokyo Broadcasting System, Inc. v. American Broadcasting Companies, Inc., CV08-06550 SJO (C.D. Cal. 2008). [FN66] Id. [FN67] Feist, 499 U.S. at 349-50. [FN68] Id. (citing Art. I, § 8, cl. 8. Accord; Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156, 95 S.Ct. 2040, 2044, 45 L.Ed.2d 84 (1975)).