From our counsel Matt Hersh: Every copyright acolyte knows Nichols v. Universal Pictures Corp., the classic 1930 opinion by Learned Hand. Plaintiff writes a play about a Jewish man who secretly marries an Irish Catholic woman; the family objects and drama ensues. Defendant writes a play about a star-crossed love affair between an Irish man and a Jewish woman; the family objects and drama ensues. In any written literary work, Hand famously wrote, “a great number of patterns of increasing generality will fit equally well … but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his ideas.” That was the case here. “The only matter common to the two,” Hand wrote, “is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.” Not enough to constitute infringement.

Fast forward nearly 100 years later, and the same themes constantly reappear. Friday in IP Law Daily I wrote about Gilbert-Daniels v. Lions Gate Entertainment Corp., the latest to grapple with the issue. Nicole Gilbert-Daniel writes Soul Kitten’s Cabaret, a play that tells the story of Black dancers at a Detroit strip club that is facing takeover attempts by an antagonist outsider. Starz puts on P-Valley, a serial that follows the lives of Black dancers at a strip club in the Mississippi Delta that, too, is facing takeover attempts. (If you haven’t seen the show, by the way, you should. “Between the storylines about domestic abuse and a secret casino project,” NPR reported after its first season, “we see takes on colorism, closeted gay men and the struggle to survive when you’re poor, Black and outside polite society in the South.”)

Infringement? Judge Steven Wilson of the Los Angeles bench — has he been writing copyright opinions forever? — easily said “no.” The plots were similar only at a high level of generality. (Case in point: the antagonist in the play wanted to take over the club because he was homophobic and hated the gay owner. The antagonist in the TV show just wanted money.) Both featured a theme of good versus bad, but the play used religious themes to express the theme – the show did not. There was no overlapping dialogue other than short and bland phrases. And so on. No reasonable jury could find substantial similarity between the works, the court concluded.

Credit Judge Wilson for his patience here. The claim was a loser, but hardly frivolous. So he wrote 45 single space pages breaking down the two works by plot, theme characters, tone, pace, and all the other traditional comparison points before reaching his decision. At times he had to dispose of some fairly pretty far-fetched arguments. For example, at one point the playwright argued that a character in the TV show was borrowed from a character in the play because, at least in part, both were physically attractive. “If the idea of a beautiful lead could be copyrighted,” he wryly noted, “Hollywood would have shut down long ago.”

(This is one of many reasons why I would never make it in Hollywood, but I digress.)

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