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The California Court of Appeal, Second Appellate District upheld a trial judge's rejection of two of Terence Dunn's three proposed jury instructions in an implied-in-fact contract case alleging that the DreamWorks' movie Kung Fu Panda was based on Dunn's story outline, The Adventures of Zen Bear. The trial judge did instruct the jury: 'Substantial similarity [in implied contract cases] is determined by making a comparison of the two works based on the opinion of the average individual.' The jury then found no use by DreamWorks. But the lower court judge had refused to tell the jury: 'It may be found if you believe the movie is 'based upon' Plaintiff's pitch, or any material element of his pitch, or if you find that Plaintiff's pitch was the inspiration for the movie. Even if the similar material is quantitatively small '.' The trial court also declined to instruct the jurors: 'Differences between the movie and the pitch do not necessarily mean they are not substantially similar. You may find that differences between the movie and Plaintiff's pitch were deliberately contrived to disguise the fact that Plaintiff's ideas were being used.' Of the latter, the court of appeal noted in its unpublished opinion: 'No reasonable jury would interpret 'substantially similar' to mean identical. Accordingly, the jury did not need to be instructed that two works could be substantially similar despite changes, omissions or additions.' Dunn v. DreamWorks Animation SKG Inc., B236200.

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