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The U.S. District Court for the Southern District of New York has issued a reminder of its ' and the Second Circuit's ' restrictive view on the use of experts' reports and other exhibits for determining substantial similarity in copyright infringement cases. District Judge Laura Taylor Swain found no substantial similarity between the 2007 Steven Spielberg-produced movie Disturbia and the 1942 short story “It Had to Be Murder,” by Cornell Woolrich, on which the 1954 movie Rear Window was based. The Sheldon Abend Revocable Trust v. Spielberg, 08 Civ. 7810(LTS)(JCF). (The October 2010 issue of Entertainment Law & Finance contains a retrospective article on the U.S. Supreme Court's 1990 decision regarding continued use of the Woolrich-story's derivative elements in Rear Window. See, www.ljnonline.com/issues/ljn_entertainment/25_10/news/154279-1.html. The article discussed the Disturbia complaint but was completed just before the Southern District issued its recent ruling.) In her summary judgment ruling, Southern District Judge Swain observed that the plaintiff had “submitted thousands of pages of exhibits.” The district judge then cautioned in a footnote: “The opinions of experts or other third parties are irrelevant to a determination of substantial similarity [though they may be used to show actual copying by a copyright defendant]. ' Nor are lists or charts, in any medium, of purported similarities relevant to a determination of substantial similarity. ' Furthermore, because 'the Court considers the works as they were presented to the public' ' earlier drafts of a book, manuscript, or screenplay are irrelevant. Opinions of third parties published in secondary materials [e.g., movie reviews] are also irrelevant.” In the Second Circuit, substantial similarity is instead determined from the perspective of the “ordinary observer.”

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