whether-the-district-court-and-ninth-circuit-erred-in-applying-the-extrinsic-test-for-substantial-similarity

QUESTION PRESENTED Joe Gregory Carlini, (“Carlini”) filed suit against Paramount Pictures Corporation, et al. (collectively “Paramount”) alleging that the film, What Men Want (WMW?’) infringed the copyright to his screenplay What the F Is He Thinking (“WTF”). Despite alleging numerous. similarities between the works — numbering more than sixty (60) in total — the district court, applying its own subjective literary judgment as fact-finder, dismissed the operative complaint on Paramount’s motion under Fed. R. Civ. P. 12(b)(6), finding a lack of substantial similarity and access. Following a de novo review, the Ninth Circuit affirmed, compounding the error The approach taken by the district court and Ninth Circuit reflects a dangerous recent trend that has emerged in the Ninth Circuit in which lower courts have become increasingly unbridled in dismissing copyright infringement claims at the pleadings stage, undermining procedures designed to ensure that the quintessentially factual question of substantial similarity of expression is decided on a more developed record. In cases these courts have hand-waved away such principles as the (i) “no reasonable juror” standard, (ii) “selection and arrangement” test, (iii) inverse-ratio rule, and (iv) the importance of expert opinion regarding what is often subtle and complex literary interpretation. The dismissal gives rise to the following questions: 1. Whether the district court and Ninth Circuit erred in applying the extrinsic test for substantial similarity by “filter[ing] out” elements that the court considered “common” or “unprotected,” without first i analyzing whether’ Carlini selection and arrangement of protected and unprotected elements in WTF are substantially similar to those of WMW. 2. Whether, in characterizing WTF’s literary elements, both the district court and Ninth Circuit erred by improperly substituting their subjective literary judgment for that of the fact-finder, contrary to the rule that dismissal of a claim at the pleading stage is proper only if no reasonable juror could find substantial similarity between the works. ii