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No. 20-132 in the Supreme Court of the United States V. BRIEF of SOUTHWESTERN LA

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No. 20-132 in the Supreme Court of the United States V. BRIEF of SOUTHWESTERN LA No. 20-132 In The Supreme Court of the United States _______________ THE MOODSTERS COMPANY, PETITIONER, v. THE WALT DISNEY COMPANY; DISNEY ENTERPRISES, INC.; DISNEY CONSUMER PRODUCTS AND INTERACTIVE MEDIA INC.; DISNEY INTERACTIVE STUDIOS, INC.; DISNEY SHOPPING, INC.; PIXAR, RESPONDENTS. _______________ ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________ BRIEF OF SOUTHWESTERN LAW STUDENT SUNA IZGI, AND PROFESSORS ORLY RAVID, ROBERT C. LIND AND MICHAEL M. EPSTEIN, IN ASSOCIATION WITH THE AMICUS PROJECT AT SOUTHWESTERN LAW SCHOOL, AS AMICI CURIAE IN SUPPORT OF THE PETITIONER _______________ ORLY RAVID MICHAEL M. EPSTEIN Counsel of Record AMICUS PROJECT AT SOUTHWESTERN LAW SCHOOL 3050 WILSHIRE BLVD., LOS ANGELES, CA 90010 (213) 738-6774 [email protected] i QUESTION PRESENTED Can characters be denied copyright protection under the U.S. Circuit Courts of Appeals’ tests that require more than a modicum of creativity in order for a character to be copyrightable, in violation of the plain language of the Copyright Act of 1976 and the Court’s decision in Feist? ii TABLE OF CONTENTS QUESTION PRESENTED ........................................... i TABLE OF AUTHORITIES ....................................... iv INTEREST OF THE AMICI CURIAE ........................ 1 SUMMARY OF THE ARGUMENT ............................ 2 ARGUMENT ............................................................... 4 I. THIS COURT SET THE APPROPRIATE STANDARD FOR EVALUATING CHARACTER COPYRIGHTABILITY IN FEIST ......................................................................... 4 II. THE TESTS USED BY THE CIRCUIT COURTS VIOLATE FEIST .......................................................... 6 A. THE NINTH CIRCUIT’S “STORY BEING TOLD” AND TOWLE TESTS ................................................. 6 1. THE “STORY BEING TOLD” TEST .................. 6 2. THE TOWLE TEST ..................................... 10 B. THE SECOND CIRCUIT’S “SUFFICIENT DELINEATION” TEST ............................................ 12 iii C. THE SEVENTH CIRCUIT’S “DISTINCTIVENESS” TEST .................................................................... 14 D. OTHER CIRCUITS .......................................... 16 III. THE INCONSISTENCIES ACROSS THE CIRCUIT COURTS DIVEST INDEPENDENT CREATORS OF THEIR CONSTITUTIONALLY GRANTED MONOPOLY AND THEIR STATUTORILY CREATED COPYRIGHT IN GROSS ..................................................................... 17 CONCLUSION .......................................................... 22 iv TABLE OF AUTHORITIES CASES Blehm v. Jacobs, 702 F.3d 1193, 1205 (10th Cir. 2012) ................................................................. 16, 19 Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 (1903) ................................................ 12 Burroughs v. Metro-Goldwyn-Mayer, Inc. 519 F. Supp. 388 (S.D.N.Y. 1981), aff'd, 683 F.2d 610 (2d Cir. 1982) ...........6, 13, 19-20 Daniels v. Walt Disney Co. 958 F.3d 767 (9th Cir. 2020) ...................... 2, 6, 8, 20 Daniels v. Walt Disney Co. No. 17-CV-4527 PSG (SKX), 2018 WL 3533363 (C.D. Cal. May 9, 2018), aff'd, 952 F.3d 1149 (9th Cir. 2020), opinion amended and superseded on denial of reh'g, 958 F.3d 767 (9th Cir. 2020), and aff'd, 958 F.3d 767 (9th Cir. 2020) ................. 20 DC Comics v. Towle 802 F.3d 1012 (9th Cir. 2015) ... 3, 5-6, 10-11, 17, 20 Detective Comics, Inc. v. Bruns Publications, Inc. 111 F.2d 432 (2d Cir. 1940) ......................... 5, 12, 19 Eldred v. Ashcroft 537 U.S. 186 (2003) .................................................. 5 Ets-Hokin v. Skyy Spirits, Inc. 225 F.3d 1068 (9th Cir. 2000) .................................. 5 v Feist Publications, Inc. v. Rural Tel. Serv. Co. 499 U.S. 340 (1991) ............................ 2, 4-5, 13, 15, 21 Gaiman v. McFarlane 360 F.3d 644 (7th Cir. 2004) .................... 3, 5, 9, 14-15 Goodis v. United Artists Television, Inc. 425 F.2d 397 (2d Cir. 1970) ..................................... 9 Halicki Films, LLC v. Sanderson Sales & Mktg. 547 F.3d 1213 (9th Cir. 2008) ......................... 10, 19 Keeling v. Hars 809 F.3d 43 (2d Cir. 2015) ....................................... 5 Kelley v. Chicago Park Dist. 635 F.3d 290 (7th Cir. 2011) .................................... 5 Klinger v. Conan Doyle Estate, Ltd. 755 F.3d 496 (7th Cir. 2014) .................................. 14 Lone Wolf McQuade Associates v. CBS, Inc. 961 F. Supp. 587 (S.D.N.Y. 1997) ......................... 18 Mattel, Inc. v. MGA Entm't, Inc. 616 F.3d 904 (9th Cir. 2010) .................................. 18 Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc. 900 F. Supp. 1287 (C. D. Cal. 1995) ... 8,10-11,19-20 New Line Cinema Corp. v. Russ Berrie & Co. 161 F. Supp. 2d 293 (S.D.N.Y. 2001) .................... 18 vi Nichols v. Universal Pictures Corp. 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931) ................ 3, 12, 17 Olson v. National Broadcasting Co. 855 F.2d 1446 (9th Cir. 1988) ........................... 9, 20 Rice v. Fox Broadcasting Co. 330 F.3d 1170 (9th Cir. 2003) ........... 6, 10-11, 19-20 Salinger v. Colting 607 F.3d 68 (2d Cir. 2010) ............................... 12, 18 Savant Homes, Inc. v. Collins 809 F.3d 1133 (10th Cir. 2016) ................................ 5 Schrock v. Learning Curve Int'l, Inc. 586 F.3d 513 (7th Cir. 2009) .................................... 5 Silverman v. CBS, Inc. 870 F.2d 40 (2d Cir. 1989) (1984) .................... 13, 19 Skidmore v. Zeppelin 952 F.3d 1051, 1068 (9th Cir. 2020) ...................... 21 Smith v. Weinstein, 578 F.Supp. 1297 (S.D.N.Y. 1984), aff'd mem., 738 F.2d 419 (2d Cir. 1984) ................ 13 Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) ....................................... 21 TMTV, Corp. v. Mass Prods., Inc. 645 F.3d 464 (1st Cir. 2011) .................................. 16 vii Toho v. William Morrow & Co., 33 F. Supp. 2d 1206 (C. D. Cal. 1998) ............. 10, 20 Walt Disney Prods., v. Air Pirates 581 F.2d 751 (9th Cir. 1978) ........... 5, 7-8, 10-11, 20 Warner Bros. Entm't, Inc. v. X One X Prods. 644 F.3d 584 (8th Cir. 2011) ............................ 16, 18 Warner Bros. Inc. v. ABC (Warner Bros. I) 654 F.2d 204 (2d Cir. 1981) ............................. 13, 18 Warner Bros. Inc. v. ABC (Warner Bros. III) 720 F.2d 231 (2d Cir. 1983) ............................... 5, 18 Warner Bros. Pictures v. CBS 216 F.2d 945 (9th Cir. 1954) ...................... 3, 5-7, 17 Warner Bros., Inc. v. ABC (Warner Bros. II) 530 F. Supp. 1187 (S.D.N.Y. 1982), aff’d, 720 F.2d 231 (2d Cir. 1983) ............................ 9 Williams v. Crichton 84 F.3d 581 (2d Cir. 1996) ............................... 12, 14 CONSTITUTIONAL PROVISIONS U.S. Const. art. I, § 8, cl. 8 .................................... 2, 16 STATUTES The Lanham Act 15 U.S.C.A. § 1052 (West) ..................................... 15 viii The Copyright Act 17 U.S.C.A. §102 (West). ......................... 2, 4, 11, 21 OTHER AUTHORITIES BLACK'S LAW DICTIONARY (11th ed. 2019). ............... 15 Bosley Crowther, ‘The Maltese Falcon,’ a Fast Mystery-Thriller With Quality and Charm, at the Strand, THE NEW YORK TIMES (Oct. 4, 1941). ......... 7 Connor Letendre, A Case for the Classics: The Maltese Falcon, THE GEORGETOWN VOICE (Aug. 28, 2014) https://georgetownvoice.com/2014/08/28/a- case-for-the-classics-the-maltese-falcon/ (last visited Aug 22, 2020) ............................................... 7 Merriam-Webster, https://www.merriam- webster.com/dictionary/distinctive (last visited Aug. 22, 2020). ....................................................... 15 J. Thomas McCarthy McCarthy on Trademarks and Unfair Competition (5th ed. 2020) .............................. 15, 16 Melville B. Nimmer Nimmer on Copyright (1973) .................................. 9 1 INTEREST OF THE AMICI CURIAE1 Amici curiae respectfully submit this brief pursuant to Supreme Court Rule 37 in support of Petitioner. Orly Ravid is an associate professor at Southwestern Law School and the Director of the Biederman Entertainment and Media Law Institute. Robert C. Lind is a professor emeritus at Southwestern Law School and the author of numerous treatises on copyright and entertainment law. Michael M. Epstein is a professor of law and the Director of the pro bono Amicus Project at Southwestern Law School. He is the Supervising Editor of the Journal of International Media & Entertainment Law, published by the Biederman Institute in cooperation with the American Bar Association. Amicus Suna Izgi is an upper-division J.D. candidate at Southwestern Law School with an extensive academic and professional interest in entertainment and copyright law. Amici have no interest in any party to this litigation, nor do they have a stake in the outcome of this case other than their interest in the correct and consistent 1 All parties have received timely notice and have consented in writing to the filing of this brief. No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. Southwestern Law School provides financial support for activities related to faculty members’ research and scholarship, which helped defray the cost of preparing this brief. (The school is not a signatory to the brief, and the views expressed here are those of the amici curiae.) Otherwise, no person or entity other than the amici curiae or its counsel
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