No. 12-1315

In The Supreme Court of the United States

_______________

Paula Petrella, Petitioner

v.

Metro-Goldwyn-Mayer, Inc., et al., Respondents

_______________

on writ of certiorari
to the united states court of appeals

for the ninth circuit

_______________

BRIEF OF AMICUS CURIAE THE

CALIFORNIA SOCIETY OF ENTERTAINMENT LAWYERS
IN SUPPORT OF PETITIONER

_______________

Steven T. Lowe Daniel B. Lifschitz Lowe & Associates 11400 Olympic Blvd. Suite 640 Los Angeles, CA  90064 (310) 477-5811 Counsel for amicus curiae

Steven W. Smyrski   Counsel of Record Smyrski Law Group, A P.C. 3310 Airport Ave., SW Santa Monica, CA 90405 (310) 397-9118 steve@smyrski.com

 

 

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

 

CONCLUSION

TABLE OF AUTHORITIES

Cases

 

Statutes

Other Authorities

INTERESTS OF AMICUS CURIAE[1]

Amicus curiae the California Society of Entertainment Lawyers (CSEL) is a recently formed non-profit, non-partisan, professional organization of attorneys representing authors, screenwriters, songwriters, and other creators of intellectual property in the entertainment industry.  CSEL seeks to balance the influence of the international conglomerates within the television, film, and music industries through education, public-policy advocacy, legislation, and litigation.

 

Summary of Argument

 

As demonstrated by Petitioner’s Brief, nothing in the text of the Copyright Act’s three-year statute of limitations suggests that the Act authorizes the atextual existence of a laches defense. Speaking more specifically, nothing in the full text of the Copyright Act, nor its legislative history, suggests that the Act provides for any equitable doctrine to supersede an explicitly provided statutory one. Thus the only reason to add the laches defenseto copyright law would be to promote an overriding policy requirement. No such compelling policy exists.

In an attempt to retain a defense arsenal of both the statute of limitations and the laches defense as bars to a plaintiff’s copyright claim, defendants might suggest that the defense of laches is necessary to prevent a proverbial ‘‘opening of the floodgates’’ – a tidal wave of opportunistic plaintiffs who have been ‘‘sleeping on their rights’’ and will, if allowed, flood the judicial system with stale claims. This view presumes that copyright suits are easy to litigate and win – a view that is belied by every facet of copyright litigation in both doctrine and practice.

Further, the suggestion has been made that plaintiffs may be emboldened to wait to file claims if the laches defense is available. In practice, no copyright plaintiff gains any advantage by delaying a claim, rendering the suggestion nonsensical. Finally, even in in those circuits  that bar or restrict laches, no empirical evidence exists to support the position that the absence of laches leads to any increase in copyright infringement lawsuits.

In short, any argument that copyright plaintiffs will adversely affect the judicial system if the application of laches is restricted is simply incorrect.

 

Argument

1. Copyright Law Is Already Designed to Deter Weak Cases

Copyright infringement lawsuits in the entertainment industry are virtually always vigorously defended.[2] For illustrative purposes, it is helpful to focus on the jurisdiction that represents the experience of CSEL’s membership, namely the jurisdiction from which the instant case (and indeed, a significant amount of copyright litigation within the entertainment industry) arises: the Ninth Circuit. To successfully litigate a copyright infringement claim in the Ninth Circuit, a plaintiff must do all of the following:

First, the plaintiff must demonstrate that he or she owns a valid copyright in the work that the defendant is alleged to have copied from.[3] This requires that the work be original,[4] with its subject matter eligible for copyright protection.[5] The work must also possess a “national point of attachment”[6] and the copyright registration must comply with any and all applicable statutory formalities.[7] Additionally, if the plaintiff is not the actual creator of the work, the plaintiff must prove a transfer of rights or other relationship between the author and the plaintiff in order to make the plaintiff the valid copyright claimant.[8]

Second, the plaintiff must show that the defendant actually copied from her work,[9] requiring evidence of the defendant’s access to the work.[10] When the work has not been widely disseminated, a plaintiff must establish a likelihood of access through “a particular chain of events.”[11] Due to its circumstantial nature, this chain will be closely scrutinized and must go beyond “mere speculation or conjecture.”[12] However, since direct evidence of copying is almost never available,[13] most chains necessarily involve some level of speculation and are frequently rejected for this very reason.[14]

Third, the plaintiff must show “substantial similarity”[15] between the works; that is to say, even if it is proven that a defendant copied original elements of plaintiff’s work, there must be “articulable similarities”[16] between the works sufficient to convince a trier of fact that the copying was actionable, rather than merely random happenstance.[17] Additionally, a trier of fact must determine not only that the works are objectively similar in their articulable similarities, but also that they are subjectively similar to a reasonable ordinary observer in their “total concept and feel.”[18]

Finally, even if a plaintiff can demonstrate all of the above in court, she must overcome a myriad of defenses available to alleged infringers. These can include that the plaintiff never registered his copyright,[19] or that the copyright has expired,[20] been forfeited,[21] or was abandoned[22] at time of suit. The three-year statute of limitations for an infringement suit to be filed may have run.[23] The court may find that the plaintiff granted permission for his work to be used, either outright or through an implied license.[24] It may be determined that the similarities arise from a common factual premise,[25] a licensed[26] or public domain[27] source, or were a product of independent creation.[28] A judge may decide that the similarities may only exist at the level of ideas,[29] or may be deemed such common expressions of an idea as to be stock “scenes a faire”[30] or merged with the idea itself (i.e. the “merger doctrine”).[31] The similarities may be held as “random” instead of patterned.[32] And even if the ideas are original, expressive, protectable, and attributable to copying from the plaintiff’s work, the copying may be considered fair use,[33] de minimis,[34] or otherwise non-actionable.[35]

Thus, copyright claims are rigorously analyzed, and routinely lost by plaintiffs.[36] Diminishing or curtailing the laches defense would not materially change the viability of copyright claims. To assert that the absence of laches from a defendant’s arsenal will unfairly decrease the burden upon plaintiffs simply cannot be squared with the reality of modern copyright litigation, one where not a single film or television studio in the Ninth Circuit has been held liable for copyright infringement in over 20 years.[37] So successful are defendants with all of the other defenses available that they don’t even need laches to prevail.[38]

1. Plaintiffs Often Gain Little and Lose Much by Delay

               As noted in Petitioner’s Brief, the plaintiff in a copyright suit bears the burden of proof by preponderance of the evidence,[39] and her obligation is to build a prima facie case in the manner discussed above.  Any loss of evidence due to the passage of time generally works to the disadvantage of the party with the burden of proof. 

For example, proving that a defendant had circumstantial access to a plaintiff’s work often requires witnesses who can attest to either delivery or receipt of the work. As time passes, witnesses to the foregoing may pass away or become difficult to locate, and memories naturally fade over time. These evidentiary problems will generally benefit the defendants, who refute the allegation of access by showing that the chain of events calls for speculation or conjecture. Thus, it is in every plaintiff’s best interest to bring infringement claims as expeditiously as possible, lest critical evidence decay or disappear entirely.

It has been suggested that barring the equitable defense of laches in copyright will encourage plaintiffs to ‘‘lie in wait’’ in order to determine that a project is successful. However, this argument is entirely antithetical to the business reality of the entertainment industry. For example, a film generates most revenue in the weeks and months immediately after the film’s release, when the film is at peak availability, having a highest level of marketing and public awareness behind the release. Consequently, a plaintiff can readily assess the value of a lawsuit and seek redress for a claim well within the copyright law’s three-year statute of limitations.

In short, the rule of diminishing returns is a primary concern in the world of delayed copyright infringement lawsuits. Quite apart from laches, plaintiffs have plenty of incentives not to sleep on their rights.

1. Empirical Data Demonstrates No Forum-Shopping On Laches

Petitioner’s Brief notes that six federal Circuits have considered whether and when the doctrine of laches may apply to copyright claims.[40] Five of those six federal Circuits apply laches, if at all, in far fewer scenarios than the Ninth Circuit.[41] If there were any validity to the fear that a more restrictive application of laches would lead to an onslaught of untimely copyright claims, Amicus must ask: where is the flood?

According to LexisNexis, federal courts have only mentioned “copyright” and “laches” in the same paragraph 425 times since 1957, when the Copyright Act’s uniform statute of limitations was first implemented. For perspective, removing “laches” from the search yields 31,349 results. Thus, laches is discussed in only one per cent of all copyright-infringement cases. The majority of these cases hail from the Second Circuit (123 mentions) and Ninth Circuit (96 mentions), both jurisdictions in which film and television studios have prevailed in virtually all copyright infringement suits brought against them for over twenty years.[42] This is true notwithstanding the fact that the Second Circuit applies the laches doctrine in far more limited circumstances than the Ninth.[43]

As noted by this Court, a “parade of horribles” is only as strong an argument as the probability that the parade will in fact materialize.  Harmelin v. Michigan, 501 U.S. 957, 986 n. 11 (1991). Respondents have not so carried their burden; indeed, they have presented no evidence whatsoever to indicate that denying the applicability of laches to copyright claimants will lead to anything other than application of the Copyright Act’s statute of limitations. Indeed, despite the current copyright landscape yielding a slew of laches standards, not one Circuit appears to have yielded an aberrant number of cases grappling with the defense. If there is no parade of horribles now, it seems unlikely that there will ever be.

Conclusion

Copyright litigation is already filled with a great number of obstacles for plaintiffs to overcome, and application of laches in addition to the three-year statute of limitations spelled out in the Copyright Act is an unnecessary additional burden. Without any logical or empirical evidence for the notion that curtailing laches will encourage plaintiffs to ‘‘sleep on their rights’’ or ‘‘lie in wait’’, the fear of an onslaught of stale copyright claims is baseless. Any such danger would have manifested long ago, given the spectrum of the current circuit split.  This only reinforces how unnecessary the doctrine of laches is to a functioning system of copyright law.

[1] Pursuant to Supreme Court Rule 37.6, counsel for amicus certify that no counsel for a party authored this brief in whole or in part and no such counsel or party made a monetary contribution to the preparation or submission of the brief. Letters from all parties consenting to the filing of this brief have been submitted to the Clerk.

[2] See generally, Steven T. Lowe, Death of Copyright, L.A. LAWYER, Nov. 2010, available at http://www.loweandassociatespc.com/press/publications/death-of-copyright; Steven T. Lowe & Daniel Lifschitz, Death of Copyright, the Sequel, THE COMPUTER & INTERNET LAWYER, Sept. 2012, available at http://www.loweandassociatespc.com/press/publications/death-of-copyright-the-sequel.

[3] Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 361 (1991).

[4] Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 US 539, 547-549 (1985).

[5] 17 U.S.C. §103.

[6] See, 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 5.05; U.S. Copyright Office, Circular 1, “Copyright Basics,” p. 2, available at http://www.copyright.gov/circs/circ01.pdf.

[7] See, e.g., 17 U.S.C. §411(a).

[8] 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.01[A] (2011).

[9] Feist, 499 US at 361.

[10] Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp.,562 F. 2d 1157, 1162 (9th Cir. 1977); Berkic v. Crichton, 761F. 2d 1289, 1291 (9th Cir. 1985); Apple Computer, Inc. v. Microsoft Corp., 35 F. 3d 1435, 1442 (9th Cir. 1994); Three Boys Music Corp. v. Bolton, 212 F. 3d 477, 481 (9th Cir. 2000).

[11] Three Boys Music, 212 F. 3d at 482.

[12] Id.

[13] See, 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02 [A]

[14] See, e.g., Rice v. Fox Broad. Co., 330 F.3d 1170, 1178 (9th Cir. 2003)

[15] Benay v. Warner Bros. Entertainment, Inc., 607 F. 3d 620, 624 (9th Cir. 2010).

[16] Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir. 1994).

[17] Metcalf v. Bochco, 294 F. 3d 1069, 1074-75 (9th Cir. 2002) (noting that “random similarities scattered throughout“ works are insufficient to constitute substantial similarity).

[18] Cavalier v. Random House, Inc., 297 F. 3d 815, 822 (9th Cir. 2002).

[19] 17 USCA § 411(a); See, Cosmetic Ideas, Inc. v. IAC/INTERACTIVECORP, 606 F. 3d 612 (9th Cir. 2010) (discussing the requirements of registration).

[20] Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23, 33 (2003).

[21] Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1399 (C.D. Cal. 1990).

[22] Micro Star v. Formgen Inc., 154 F. 3d 1107, 1114 (9th Cir. 1998).

[23] 17 U.S.C. § 507(b); Roley v. New World Pictures, Ltd., 19 F. 3d 479 (9th Cir. 1994).

[24] Effects Associates, Inc. v. Cohen, 908 F. 2d 555 (9th Cir. 1990).

[25] Feist at 344-45.

[26] Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1439 (9th Cir. 1994), cert. denied,  513 U.S. 1184, 115 S. Ct. 1176, 130 L. Ed. 2d 1129 (1995).

[27] Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (U.S. 2003).

[28] Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000).

[29] Apple Computer v. Microsoft Corp., 35 F.3d 1435, 1447 (9th Cir. 1994)

[30] Rice v. Fox Broad. Co., 330 F.3d 1170, 1175 (9th Cir. 2003).

[31] Satava v. Lowry, 323 F.3d 805, 812, fn. 5 (9th Cir. 2003).

[32] Metcalf v. Bochco, 294 F. 3d 1069, 1074-75 (9th Cir. 2002).

[33] 17 U.S.C. §107.

[34] Newton v. Diamond, 349 F.3d 591, 594 (9th Cir. 2003).

[35] 17 U.S.C. §108-122 (providing a variety of statutory exceptions and licenses).

[36] See footnotes 37 and 42, infra.

[37] Gregory v. Murphy, 1991 U.S. App. LEXIS 4893 (9th Cir. 1991) (summary judgment for defendant affirmed) (“Coming to America”); Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal. 1992) (upon remand, judgment as a matter of law in favor of defendant studio) (“The Equalizer”); Pelt v. CBS, Inc., 1993 U.S. Dist. LEXIS 20464 (C.D. Cal. 1993) (summary judgment for defendant) (“Listen Up! Young Voices for Change”); Kouf v. Walt Disney Pictures and Television, 16 F.3d 1042 (9th Cir. 1994) (summary judgment for defendant affirmed) (“Honey, I Shrunk the Kids”); Lane v. Universal City Studios, 1994 U.S. App. LEXIS 23769 (9th Cir. 1994) (summary judgment for defendants affirmed) (“Kojak: Fatal Flaw”); Ostrowski v. Creative Artists Agency, 1994 U.S. App. LEXIS 23732 (9th Cir. 1994) (summary judgment for defendant affirmed) (“To Forget Palermo”); Kodadek v. MTV Networks, 1996 U.S. Dist. LEXIS 20776 (C.D. Cal. 1996) (summary judgment for defendant) (“Beavis & Butthead”); Weygand v. CBS, 1997 U.S. Dist. LEXIS 19613 (C.D. Cal. 1997) (summary judgment for defendant) (“Charlie”); Laskay v. New Line Cinema, 1998 U.S. App. LEXIS 23461 (C.D. Cal. 1998) (summary judgment for defendant) (“Don Juan DeMarco”); Grosso v. Miramax Film Corporation, 2001 U.S. Dist. LEXIS 26199 (C.D. Cal. 2001) (summary judgment for defendant) (“Rounders”); Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal. 2001) (summary judgment for defendant) (“The Peacemaker”); Rice v. Fox Broadcasting Company, 330 F.3d 1170 (9th Cir. 2003) (summary judgment for defendant affirmed) (“The Mystery Magician”); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (jury verdict in favor of defendant studio), aff’d, Metcalf v. Bochco, 200 Fed. Appx. 635 (9th Cir. 2006) (“City of Angels”); Flynn v. Surnow, 2003 U.S. Dist. LEXIS 26973 (C.D. Cal. 2003) (summary judgment for defendant) (“24”); Bethea v. Burnett, 2005 WL 1720631 (C.D. Cal. 2005) (summary judgment for defendant) (“The Apprentice”); Merrill v. Paramount Pictures Corporation, 2005 U.S. Dist. LEXIS 45401 (C.D. Cal. 2005) (summary judgment for defendant) (“Crossroads”); Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) (summary judgment for defendant) (“The Matrix”); Funky Films v. Time Warner Entertainment, 462 F.3d 1072 (9th Cir. 2006) (summary judgment for defendant) (“Six Feet Under”); Benjamin v. Walt Disney Company, 2007 U.S. Dist. LEXIS 91710 (C.D. Cal. 2007) (summary judgment for defendant) (“Sweet Home Alabama”); Lassiter v. Twentieth Century Fox Film Corporation, 238 Fed. Appx. 194 (9th Cir. 2007) (summary judgment for defendant affirmed) (“Drumline”); Zella v. E. W. Scripps Company, 529 F. Supp. 2d 1124 (C.D. Cal. 2007) (defendant’s motion to dismiss granted) (“Rachael Ray”); Mestre v. Vivendi Universal U.S. Holding Co., 273 Fed. Appx. 631 (9th Cir. 2008) (summary judgment for defendant affirmed) (“Billy Elliot”); Milano v. NBC Universal, Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008) (summary judgment for defendant) (“The Biggest Loser”); Rosenfeld v. Twentieth Century Fox Film, 2009 U.S. Dist. LEXIS 9305 (C.D. Cal. 2009) (summary judgment for defendant) (“Robots”); Thomas v. Walt Disney Company, 337 Fed. Appx. 694 (9th Cir. 2009) (defendant’s motion to dismiss affirmed) (“Finding Nemo”); Benay v. Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010) (summary judgment for defendant affirmed) (“The Last Samurai”); Buggs v. Dreamworks, Inc., 2010 U.S. Dist. LEXIS 141515 (C.D. Cal. 2010) (summary judgment for defendant) (“Flushed Away”); Clements v. Screen Gems, Inc., 2010 U.S. Dist. LEXIS 132186 (C.D. Cal. 2010) (summary judgment for defendant) (“Stomp the Yard”); Gable v. National Broadcasting Co., 727 F. Supp. 2d 815 (C.D. Cal. 2010) (summary judgment for defendant) (“My Name Is Earl”); Gilbert v. New Line Productions, 2010 U.S. Dist. LEXIS 27134 (C.D. Cal. 2010) (summary judgment for defendant) (“Monster in Law”); Novak v. Warner Bros Pictures, LLC, 387 Fed. Appx. 747 (9th Cir. 2010) (summary judgment for defendant affirmed) (“We Are Marshall”); Walker v. Viacom International, Inc., 2010 U.S. App. LEXIS 1475 (9th Cir. 2010) (summary judgment for defendant) (“SpongeBob SquarePants”); Goldberg v. Cameron, 787 F. Supp. 2d 1013, 2011 U.S. Dist. LEXIS 36840 (N.D. Cal. 2011) (summary judgment for defendant) (“Terminator”“ franchise); DuckHole Inc. v. NBC Universal Media LLLC, 2013 U.S. Dist. LEXIS 157305, (C.D. Cal. 2013) (dismissal for defendant) (“Animal Practice”); Quirk v. Sony Pictures Entm’t Inc., 2013 U.S. Dist. LEXIS 47954 (N.D. Cal. 2013) (summary judgment for defendant) (“Premium Rush”); Wild v. NBC Universal, Inc., 2013 U.S. App. LEXIS 4169 (9th Cir. 2013) (summary judgment for defendant affirmed) (“Heroes”).

[38] See, e.g., Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D. Cal. 2005) (granting summary judgment to a studio defendant after having denied laches in an earlier proceeding); Goldberg v. Cameron, 787 F. Supp. 2d 1013 (N.D. Cal. 2011) (same).

[39] Petr. Br. 54

[40] Pet. 15-24.

[41] Id.

[42] See footnote 37, supra (listing 9th Circuit cases); Novak v. National Broadcasting Company, 752 F. Supp. 164 (S.D. N.Y. 1990) (summary judgment for defendant) (“Saturday Night Live”); Kretschmer v. Warner Bros., 1994 U.S. Dist. LEXIS 7805 (S.D. N.Y. 1994) (summary judgment for defendant) (“Defending Your Life”); Arden v. Columbia Pictures Industries, 908 F. Supp. 1248 (S.D.N.Y. 1995) (summary judgment for defendant) (“Groundhog Day”); Historical Truth Productions v. Sony Pictures Entertainment, 1995 U.S. Dist. LEXIS 17477 (S.D. N.Y. 1995) (summary judgment for defendant) (“Universal Soldier”); Robinson v. Viacom International, 1995 U.S. Dist. LEXIS 9781 (S.D. N.Y. 1995) (summary judgment for defendant) (“Hi Honey”); Williams v. Crichton, 84 F. 3d 581 (2d Cir. 1996) (summary judgment for defendant) (“Jurassic Park”); Cox v. Abrams, 1997 U.S. Dist. LEXIS 6687 (S.D. N.Y. 1997) (summary judgment for defendant) (“Regarding Henry”); Burns v. Imagine Films Entertainment, Inc., 2001 U.S. Dist. LEXIS 24653 (W.D. N.Y. 2001) (summary judgment for defendant) (“Backdraft”); Willis v. HBO, 2001 U.S. Dist. LEXIS 17887 (S.D. N.Y. 2001) (summary judgment for defendant) (“Arli$”); Hudson v. Universal Pictures Corporation, 2004 U.S. Dist. LEXIS 11508 (E.D. N.Y. 2004) (summary judgment for defendant) (“Life”); Mowry v. Viacom International, Inc., 2005 U.S. Dist. LEXIS 15189 (S.D. N.Y. 2005) (summary judgment for defendant) (“The Truman Show”); Brown v. Perdue, 177 Fed. Appx. 121 (2d Cir. 2006) (summary judgment for defendant affirmed) (“The Da Vinci Code”); Bunick v. UPN, 2008 U.S. Dist. LEXIS 35536 (S.D. N.Y. 2008) (summary judgment for defendant) (“South Beach”); Rodriguez v. Heidi Klum Company, LLC, 2008 U.S. Dist. LEXIS 80805 (S.D. N.Y. 2008) (summary judgment for defendant) (“Project Runway”); Blakeman v. Walt Disney Company, 613 F. Supp. 2d 288 (E.D. N.Y. 2009) (summary judgment for defendant) (“Swing Vote”); Flaherty v. Filardi, 2009 U.S. Dist. LEXIS 22641 (S.D. N.Y. 2009) (summary judgment for defendant) (“Bringing Down the House”); Mallery v. NBC Universal, Inc., 331 Fed. Appx. 821 (2d Cir. 2009) (summary judgment for defendant affirmed) (“Heroes”); The Sheldon Abend Revocable Trust v. Steven Spielberg, 748 F. Supp. 2d 200 (S.D. N.Y. 2010) (summary judgment for defendants) (“Disturbia”); Cabell v. Sony Pictures Entm’t, Inc., 425 Fed. Appx. 42 (2d Cir. N.Y. 2011) (summary judgment for defendant affirmed) (“You Don’t Mess with the Zohan“); Muller v. Twentieth Century Fox Film Corp., 794 F. Supp. 2d 429 (S.D.N.Y. 2011) (“Alien vs. Predator”); Alexander v. Murdoch, 502 Fed. Appx. 107 (2d Cir. N.Y. 2012) (“Modern Family”); Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 312 (S.D.N.Y. 2012) (judgment on the pleadings for defendant) (“Effie”); Latimore v. NBC Universal TV Studio, 480 Fed. Appx. 649 (2d Cir. 2012) (dismissal for defendant affirmed) (“The Biggest Loser”); Mena v. Fox Entm’t Group, 2012 U.S. Dist. LEXIS 143964 (S.D.N.Y. 2012) (dismissal for defendant) (“Past Life”); Webb v. Stallone, 910 F. Supp. 2d 681 (S.D.N.Y. 2012) (summary judgment for defendant) (“The Expendables”); Hallford v. Fox Entm’t Group, Inc., 2013 U.S. Dist. LEXIS 19625 (S.D.N.Y. 2013) (dismissal for defendant) (“Touch”).

[43] Pet. 17.