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June 2010

The Last Samurai Does Not Infringe a Copyrighted Screenplay With The Same Name and a Similar Premise

Benay v. Warner Bros. Entertainment Inc., No. 08-55719 (9th Cir. June 9, 2010)

The Warner Bros. movie The Last Samurai has fought off another attacker.

On June 9, 2010, the Ninth Circuit issued an opinion delineating the application of the so-called "extrinsic test" for determining whether two artistic works are "substantially similar" in the context of copyright law.

In Benay v. Warner Bros. Entertainment Inc., No. 08-55719 (9th Cir. June 9, 2010), the Ninth Circuit held that Warner Bros. Entertainment, Inc. and other defendants who together wrote, produced, marketed and distributed the film The Last Samurai, did not infringe plaintiffs' copyrighted screen play, despite sharing identical titles, the same (historically unfounded) premise of an American war veteran going to Japan to help the Imperial Army by training it in the method of modern Western warfare for its fight against a samurai uprising, numerous battle scenes, a reverential mood toward Japanese culture, and the spiritual transformation of the protagonist.

The plaintiffs, two brothers, wrote and copyrighted a screenplay, The Last Samurai, and "pitched" it and provided a copy of the screenplay to defendants. Defendants informed plaintiffs they declined to use the screenplay because defendants already had a similar project in development. Several years later, defendants publicly released the film The Last Samurai.

Plaintiffs brought suit in the Central District of California asserting claims for copyright infringement under federal law and breach of contract. The district court granted summary judgment to defendants. Plaintiffs appealed.

To prevail on a copyright claim, plaintiffs must demonstrate: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original. 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 substantially similar.

The test for substantial similarity between two works is two-pronged – the extrinsic test and the intrinsic test, both of which must be met. The intrinsic test is a subjective comparison that focuses on "whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works."

The extrinsic test is an objective comparison of specific expressive elements of the two works; it focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in two works. However, familiar stock scenes, themes that are staples of literature, and situations and incidents that flow necessarily or naturally from a basic plot premise are not protected.

Because the intrinsic test is reserved to the trier of fact, the Ninth Circuit limited its focus of inquiry to the extrinsic test. The Court held that although the plaintiffs' screenplay and the actual Warner Bros. film shared the same basic plot premise - American protagonists, similar themes of an embittered war veteran, and a clash between modernization and traditions - they told very different stories. Such elements are not protected, because general plot ideas are not protected by copyright law; "they remain forever the common property of mankind." The actual protectable elements, including plot, themes, dialogue, mood, setting, pace, characters and sequence of events contained many more differences than similarities. The Court emphasized that the purpose of copyright law is to protect works of original authorship, not artistic elements that are freely available to the public.

"They stole my idea" is a complaint frequently heard from would-be authors and writers, particularly in the movie and television industries. It bears repeating that intellectual property law, including copyright, does not protect ideas; it protects the particularized expression of ideas.

Intellectual Property

Richard P. Sybert

Intellectual Property