Belv vs. Her, A reckoning for Hollywood’s copyright policy.

Over the past 30 years, the Ninth Circuit has taken a pro-Hollywood stance on copyright claims allowing the big studios to beg, borrow, and steal ideas and concepts from amateur writers. Time and time again, the Court has dismissed or granted summary judgment to the big studios who hide behind the “substantial similarity” precedent advanced by the Ninth Circuit. This doctrine will be put to the test again on Monday in the Central District of California, Western Division, as Spike Jonze comes under fire for similarities between his Oscar winning movie, Her, and a script entitled, Belv. Before delving into the merits of the motion to dismiss filed by the attorneys for Mr. Jonze, let us examine the current state of copyright law in the Ninth Circuit. In order to succeed with a copyright infringement claim in the circuit, one must show a valid copyright, access to the author’s work, and a substantial similarity between the two works. The last prong of this test is where big studios have established their stronghold. A plaintiff must show that both works contain enough extrinsic similarity in plot, theme, characters, mood, pace, dialogue, and setting to even get beyond a motion to dismiss. A layman’s view of copyright would seem to dictate that if a big studio used any portion of a writer’s script, idea or concept that compensation for such use should follow. Not in the good old Ninth Circuit. The precedent dictates that copying is allowed as long as the copier makes some changes and makes the work his own. This liberal copyright policy is justified as being for the good of artistic mankind. Frequently, plaintiff’s claims don’t make it past a motion to dismiss as studios drown rightful copyright claims with legal jargon and misguided precedent set by the “Hollywood Circuit1.” This slippery slope has led to a top-heavy Hollywood where amateur screenwriters may get their ideas on the silver screen but no credit where credit is due. Now to the case at hand, Belv is a script about a cellphone that comes to life through a bizarre microwave accident and leads the main character, Phil, through his life as a digital wingman. Belv facilitates Phil’s everyday ventures, such as the texting of Phil’s potential lady friends and the setting up of social events, and is always down to watch a Godfather marathon. Belv was copyrighted in 2011 and sent around to various studios and production companies who gave it no credence. The writers, two childhood friends, Jonathan Sender and Sachin Gadh, were able to shoot a “no-budget” version of the show available on www.thebelvshow.com. As the website gathered dust, Her was released and friends quickly pointed out the similarities between the two shows to the duo. After looking through their files, they realized that their script was sent to Creative Artists Agency (CAA), who coincidentally represents Spike Jonze. CAA generated a kiss-off letter, dated November 17, 2011, which stated that the agency doesn’t accept unsolicited scripts and stated that, “to the extent that any projects generated which contain elements similar to what you submitted, the similarities are purely coincidental.” An email was sent to Jonze’s agent on January 24, 2014 asking for clarification and no response was given by Bryan Lourde at CAA. As such, plaintiffs filed suit and the defendant responded with a 27 page motion to dismiss conceding copyright and access but no substantial similarity. The story initially received some traction on the Huffington Post2, but come Monday it will likely be dismissed and serve as another example of the unmerited decisions being spewed out by the Hollywood Circuit. Plaintiffs are asking for a trial to determine whether there was “access” to their script and if Her is a derivative work of Belv. The case begs the question, what happens to a script submitted to a big Hollywood agency and whether ideas are simply plucked from amateurs with little to no legal recourse. Court Update: As the screenwriters ventured into Hollywood for a showdown in Federal Court, the Ninth Circuit clearly didn’t get the memo. The plaintiffs and defendant agreed to combine the motion to dismiss hearing with the scheduling conference set by the Court on April 14th but that request was denied by the Judge. The Judge then abruptly cancelled the oral argument scheduled for Monday, March 31st. The motion will be decided on the papers. Since the Court was so gracious in giving the pro-se, out-of-towner plaintiffs two
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Nickname given by Alex Kosinski, Chief Judge of the 9th Circuit Court of Appeals. http://www.huffingtonpost.com/2014/02/17/spike-jonze-sued-her-idea_n_4802300.html

days notice, getting a refund for flights was not possible. The doors to courtroom 16 were locked on Monday with no justice in sight. The only consolation prize for the plaintiffs was beer and apps at Duke’s in Malibu. It seems that even in America, a talking cellphone is unable to get his day in court.