Exploring the Substantial-Similarity Test in Suits Alleging Breach of Implied Contract

The court of appeals affirmed, in an unpublished ruling, by its own comparison of the parties' works. Reginald v. New Line Cinema Corp., B190025. (The court declined to rule on the defendants' independent-creation defense.) Citing the bellweather three-part test from Desny v. Wilder, 46 Cal.2d 715 (1956), for prevailing on a breach-of-implied contract claim, the court of appeal explained that 'the idea purveyor must show that (1) he conditioned his offer to disclose the idea to the defendant on the defendant's express promise to pay for the idea if the defendant used it, (2) the defendant, knowing the condition before the idea was disclosed to him, voluntarily accepted its disclosure and (3) the defendant found the idea valuable and used it.'

The court of appeal continued: 'Where, as in the instant case, there is no direct evidence showing that a defendant used a plaintiff's idea, the plaintiff must show that the defendant's work is substantially similar to plaintiff's idea in order to raise an inference that the defendant used plaintiff's idea, i.e., had access to and copied the idea.' (New Line conceded access just for its summary-judgment motion, though the court said there was no evidence to demonstrate that New Line had received the portion of Reginald's 'Handbook' containing the 'story ideas.')

Reginald argued in the appellant's reply brief 'that the standard of proof of 'substantial similarity' applicable in a breach of implied-in-fact idea theft cause of action context differs from and is a lower degree of 'substantial similarity' than the 'substantial similarity' required in copyright infringement/plagiarism causes of action and (2) that the standard of substantial dissimilarities, while making sense in copyright infringement where substantial copying of original protectible expression is required, has no efficacy in a implied-in-fact contract claim case. ' Unlike a breach of implied-in-fact contract case, in infringement/plagiarism cases substantial similarity requires an additional showing of novelty ('originality') and concreteness of the ideas.'

The court of appeal framed Reginald's argument as: '[T]here is 'no bright line rule' as to the degree of similarity required in order to infer use, courts have used two standards ' 'similarity' and 'substantial similarity' ' and accordingly, the result of assessing similarity 'will often hinge on the judge's instinct and 'gut' feeling about the material.”

The defendants in Reginald argued: 'There is no question that for at least fifty years, plaintiffs in the idea submission context have been required to show substantial similarity between the works at issue in order to gain the benefit of the inference that defendant used plaintiff's ideas. ' In short, all of the cases cited by Reginald involve either express or implied agreements that required payment if defendants' works were 'based upon' or 'used' plaintiffs' works. ' In each case, the courts confirmed that, however the standard is articulated, there must be actual and substantial similarities between the works at issue in order for plaintiff to proceed to trial.'

The Reginald court found: 'While there may be no precise formula established by law, the cases upon which plaintiff relies show that the degree of similarity required to meet the substantial similarity standard is high in the idea submission context.' The court of appeal cited Fink v. Goodson-Todman Enterprises Ltd., 9 Cal.App.3d 996 (1970), in adding that 'the test of whether a plaintiff has pleaded an express or implied contract in an idea submission context as being 'whether, as a matter of law, it cannot be said that defendants have based their series on a material element of plaintiff's program.”

Reginald claimed 14 points of similarity between 'Wedding Crashers' and his 'Handbook.' The defendants argued that it was difficult to fully conduct a substantial-similarity analysis because 'Reginald's Submission lacks many of the elements traditionally used to perform this analysis in the first instance. For example, there is little dialogue in the Handbook, and only a few suggested 'lines' to use while crashing parties. ' The statements that do appear in the Handbook bear no similarity whatsoever to the dialogue in the 'Wedding Crashers' script.'

The defendants continued: 'Moreover, the events that Reginald describes in his Submission are presented in no particular sequence (with, perhaps, the exception of Reginald's story in the Introduction of the Handbook about crashing the Academy Awards), but are randomly inserted as illustrations for Reginald's various instructions on party crashing. ' 'Wedding Crashers,' by contrast, contains a full narrative, the sequence of which bears no similarity, substantial or otherwise, to Reginald's Submission.'

The court of appeal found that most of the points of similarity that Reginald alleged 'do not play a material role in specific elements of the works at issue, such as characters, character motivation, settings, basic dramatic core and themes, storylines, plot ideas, the dramatic sequence, and dramatic gimmicks. ' On the basis of our comparison of plaintiff's concept with Wedding Crashers, we conclude the only similarity is that both include crashing a wedding and elements common to such an event. In plaintiff's concept, wedding crashing is presented as an end in itself and as only one in a series of different types of parties and events the main character crashes. In Wedding Crashers, the wedding crashing activities serve as a device to set the stage for the primary story ' a romantic comedy about the development of relationships between the main characters and the two women they meet at the wedding.'

So while the court of appeal saw no precise way to conduct a substantial-similarity analysis in a claim for breach of implied contract, the court left no doubt that it believes materiality is a key component in comparing the litigating parties' works.

Attorneys of record Richard G. Sherman, Robert E. Young and Armand Arabian represented Rex Reginald. Michael J. O'Connor, Allison S. Rohrer and Edward E. Weiman of Los Angeles' White O'Connor Curry represented New Line Cinema and Robert Shaye. Bryan J. Freedman, Bradley H. Kreshek and Matthew E. Voss of Los Angeles' Freedman & Taitelman represented United Talent Agency and Nick Stevens.

Copyright-infringement cases alleging that a defendant improperly used a plaintiff's work for a movie or TV show often hinge on whether there's substantial similarity between the litigating parties' works. But substantial similarity plays a role in breach-of-implied-contract cases alleging defendants based their film or show on a plaintiff's work. A recent ruling by the California Court of Appeal serves as an informative review of California case law in this legal area and its current application.

In California, a breach-of-implied contract essentially alleges that a plaintiff submitted an idea to a defendant who impliedly promised to credit and compensate the plaintiff for use of the idea. Celebrity-events-crasher Rex Reginald drafted 'The Party Crasher's Handbook' and a synopsis. Reginald's representative, Neil Portman, pitched a party-crasher movie concept to United Talent Agency (UTA), which passed on the project. Reginald also claimed he informed New Line Cinema-affiliated producer Robert Shaye about the movie concept, and followed-up with a call and materials submission to New Line, which also rejected the movie project.

Two years later, Reginald filed suit against New Line and UTA and its affiliated talent agent Nick Stevens, after discovering that New Line had a movie entitled 'Wedding Crashers' in production. Reginald's complaint included a claim of breach of implied contract. The Los Angeles Superior Court granted motions for summary judgment filed by New Line and UTA by deciding that the Reginald's concept and 'Wedding Crashers' weren't substantially similar.

The court of appeals affirmed, in an unpublished ruling, by its own comparison of the parties' works. Reginald v. New Line Cinema Corp., B190025. (The court declined to rule on the defendants' independent-creation defense.) Citing the bellweather three-part test from Desny v. Wilder , 46 Cal.2d 715 (1956), for prevailing on a breach-of-implied contract claim, the court of appeal explained that 'the idea purveyor must show that (1) he conditioned his offer to disclose the idea to the defendant on the defendant's express promise to pay for the idea if the defendant used it, (2) the defendant, knowing the condition before the idea was disclosed to him, voluntarily accepted its disclosure and (3) the defendant found the idea valuable and used it. '

The court of appeal continued: 'Where, as in the instant case, there is no direct evidence showing that a defendant used a plaintiff's idea, the plaintiff must show that the defendant's work is substantially similar to plaintiff's idea in order to raise an inference that the defendant used plaintiff's idea, i.e., had access to and copied the idea.' (New Line conceded access just for its summary-judgment motion, though the court said there was no evidence to demonstrate that New Line had received the portion of Reginald's 'Handbook' containing the 'story ideas.')

Reginald argued in the appellant's reply brief 'that the standard of proof of 'substantial similarity' applicable in a breach of implied-in-fact idea theft cause of action context differs from and is a lower degree of 'substantial similarity' than the 'substantial similarity' required in copyright infringement/plagiarism causes of action and (2) that the standard of substantial dissimilarities, while making sense in copyright infringement where substantial copying of original protectible expression is required, has no efficacy in a implied-in-fact contract claim case. ' Unlike a breach of implied-in-fact contract case, in infringement/plagiarism cases substantial similarity requires an additional showing of novelty ('originality') and concreteness of the ideas.'

The court of appeal framed Reginald's argument as: '[T]here is 'no bright line rule' as to the degree of similarity required in order to infer use, courts have used two standards ' 'similarity' and 'substantial similarity' ' and accordingly, the result of assessing similarity 'will often hinge on the judge's instinct and 'gut' feeling about the material.”

The defendants in Reginald argued: 'There is no question that for at least fifty years, plaintiffs in the idea submission context have been required to show substantial similarity between the works at issue in order to gain the benefit of the inference that defendant used plaintiff's ideas. ' In short, all of the cases cited by Reginald involve either express or implied agreements that required payment if defendants' works were 'based upon' or 'used' plaintiffs' works. ' In each case, the courts confirmed that, however the standard is articulated, there must be actual and substantial similarities between the works at issue in order for plaintiff to proceed to trial.'

The Reginald court found: 'While there may be no precise formula established by law, the cases upon which plaintiff relies show that the degree of similarity required to meet the substantial similarity standard is high in the idea submission context.' The court of appeal cited Fink v. Goodson-Todman Enterprises Ltd. , 9 Cal.App.3d 996 (1970), in adding that 'the test of whether a plaintiff has pleaded an express or implied contract in an idea submission context as being 'whether, as a matter of law, it cannot be said that defendants have based their series on a material element of plaintiff's program.”

Reginald claimed 14 points of similarity between 'Wedding Crashers' and his 'Handbook.' The defendants argued that it was difficult to fully conduct a substantial-similarity analysis because 'Reginald's Submission lacks many of the elements traditionally used to perform this analysis in the first instance. For example, there is little dialogue in the Handbook, and only a few suggested 'lines' to use while crashing parties. ' The statements that do appear in the Handbook bear no similarity whatsoever to the dialogue in the 'Wedding Crashers' script.'

The defendants continued: 'Moreover, the events that Reginald describes in his Submission are presented in no particular sequence (with, perhaps, the exception of Reginald's story in the Introduction of the Handbook about crashing the Academy Awards), but are randomly inserted as illustrations for Reginald's various instructions on party crashing. ' 'Wedding Crashers,' by contrast, contains a full narrative, the sequence of which bears no similarity, substantial or otherwise, to Reginald's Submission.'

The court of appeal found that most of the points of similarity that Reginald alleged 'do not play a material role in specific elements of the works at issue, such as characters, character motivation, settings, basic dramatic core and themes, storylines, plot ideas, the dramatic sequence, and dramatic gimmicks. ' On the basis of our comparison of plaintiff's concept with Wedding Crashers, we conclude the only similarity is that both include crashing a wedding and elements common to such an event. In plaintiff's concept, wedding crashing is presented as an end in itself and as only one in a series of different types of parties and events the main character crashes. In Wedding Crashers, the wedding crashing activities serve as a device to set the stage for the primary story ' a romantic comedy about the development of relationships between the main characters and the two women they meet at the wedding.'

So while the court of appeal saw no precise way to conduct a substantial-similarity analysis in a claim for breach of implied contract, the court left no doubt that it believes materiality is a key component in comparing the litigating parties' works.

Attorneys of record Richard G. Sherman, Robert E. Young and Armand Arabian represented Rex Reginald. Michael J. O'Connor, Allison S. Rohrer and Edward E. Weiman of Los Angeles' White O'Connor Curry represented New Line Cinema and Robert Shaye. Bryan J. Freedman, Bradley H. Kreshek and Matthew E. Voss of Los Angeles' Freedman & Taitelman represented United Talent Agency and Nick Stevens.