Breach of Contract Claim for Alleged Use of Screenplay Without Permission Survives Despite Dismissal of Copyright Infringement Claim
Two brothers--Aaron and Matthew Benay--wrote and copyrighted a screenplay entitled The Last Samurai. The Benays contended that the creators of the film by the same name copied their screenplay without permission. The Benays sued, alleging copyright infringement and breach of contract under California law. The District Court for the Central District of California granted summary judgment in favor of the defendants on both claims and the Benays appealed.
The Ninth Circuit affirmed the grant of summary judgment on the copyright infringement claim, concluding that the Benays had failed to establish sufficient similarity between the screenplay and the film once stripped of the elements not protected under copyright law.
Nonetheless, the Ninth Circuit reversed summary judgment to the defendants on the breach of an implied in fact contract under California law. The court noted that "[c]ontract law, whether through express or implied-in-fact contracts, is the most significant remaining state-law protection for literary or artistic ideas" as other such protections had been preempted by federal copyright law. But contract claims for protection of ideas have not been preempted because they allege an "extra element" that changes the nature of the action, namely, "the agreement between the parties that the defendant will pay for the use of the plaintiff's ideas, independent of any protection offered by federal copyright law."
The Ninth Circuit's decision reversing summary judgment on the breach of contract claim proved the truth of its statement regarding the continued importance of state contract law to the protection of ideas. In implied-in-fact contract claims, the court applies a "substantial similarity" standard between the plaintiff's idea and defendant's production. But notwithstanding the use of the copyright term "substantial similarity," the standard is broader in implied-in-fact contract claims in that it is not limited to comparison of elements protected under copyright law: "Rather, because the claim is based on contract, unauthorized use can be shown by substantially similar elements that are not protected under copyright law." Therefore, the Ninth Circuit's conclusion that the screenplay and film were not substantially similar for purposes of copyright infringement did not preclude a finding that they were substantially similar for purposes of an implied-in-fact contract claim under California law.
Ultimately, after comparing the screenplay and film, the Ninth Circuit concluded that they shared a number of similarities that were substantial for purposes of an implied-in-fact contract claim and therefore reversed the grant of summary judgment in favor of the defendants on that claim.
The case cite is Benay v. Warner Bros. Entm't, Inc., No. 08-55719 (9th Cir. June 9, 2010).
