“Premium Rush” Movie By Sony Pictures Not Substantially Similar Enough To “Ultimate Rush” Novel For Copyright Infringement

The Court for the Northern District of California granted defendant Sony Pictures’ motion for summary judgment against plaintiff Joe Quirk regarding Quirk’s allegations that Sony made an unauthorized adaptation of Quirk’s novel for one of Sony’s movies.  Quirk v. Sony Pictures Entertainment Inc., et al., Case No. C 11-3773 RS (N.D. Cal. April 2, 2013) (available here).  Quirk sued Sony alleging copyright infringement and a Desny claim (coined from the case Desny v. Wilder, 46 Cal. 2d 715 (1956)), contending that Sony breached an implied contract, based upon Sony’s 2012 movie “Premium Rush.”  Quirk argued that the movie was an unauthorized adaption of his 1998 novel “Ultimate Rush,” which was about a rollerblading package delivery messenger in San Francisco who became involved in dangerous situations with criminals regarding the contents of packages he had to deliver.  Sony’s movie took place in New York City and revolved around a bicycle messenger pursued by a rogue police officer, who was trying to obtain the unknown contents of a package the messenger was trying to deliver.  Sony moved for summary judgment.  The Court granted the motion, finding that the similarities between the book and the movie were only based on general ideas, which are not protected under copyright law.

Summary judgment is proper if “the pleadings and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).  Sony’s defense against Quirk’s copyright infringement claims was that Quirk failed to produce sufficient evidence of substantial similarity between the copyright-protected material in the novel and Sony’s movie.  The Court noted that Sony’s access to Quirk’s novel was not at issue in the case because Sony did not contest that it had access to the novel.  Therefore, the Court limited its analysis to the substantial similarity between the two works.  Summary judgment is only proper in cases examining substantial similarity when no reasonable juror could find substantial similarity of ideas and expression in the two works.  A plaintiff bringing a claim for copyright infringement must demonstrate “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”  Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, (1991).  The Court noted because “Quirk’s ownership in the copyright of his novel is undisputed, he need only demonstrate a trìable issue of fact whether the defendants copied anything that was original” to his novel.  Quirk, Slip Op. P. 5.

During summary judgment on substantial similarity, courts apply the extrinsic test, which is objective and focuses on the presence or absence clear similarities between the characters, plot, dialogue, setting, sequence of events, mood, and pace of the two works.  Quirk’s case rests on his argument that Sony’s movie is an adaptation of his novel.  However, the “fundamental flaw in Quirk’s analysis is that he effectively assumes he has a viable claim in copyright and/or under Desny as long as he can prove the movie is an ‘adaption’ of the novel[.]” Quirk, Slip Op. P. 7.  Instead, the movie could be an adaptation of the novel while not retaining substantial similarities that would result in copyright infringement.

Quirk attempted to show that the movie was an adaptation of his novel by pointing to similarities between the early versions of the movie scripts compared to his novel.  However, the Court found that Quirk had not pleaded a claim that the draft scripts of the movie were infringing on his novel.  Quirk then argued that since Sony did not contest that it had access to his novel that he is entitled to the benefit of the “inverse ratio rule,” which states that the amount of similarity a plaintiff must establish is reduced when evidence shows that the defendant had extensive access to the plaintiff’s work.  However, even with this lower standard, the Court could not find enough similarity between Quirk’s novel and Sony’s movie.

“Quirk’s novel tells the story of Chet, a rollerblading messenger in San Francisco who is wrongly suspected of murdering a fellow messenger and who is being pursued by members of a criminal enterprise. . . The story unfolds over the courts of many days in a linear narrative told from Chet’s point of view.”  Quirk, Slip Op. P. 11.  However, “Premium Rush” focused on one afternoon in the life of the main character Wilee, “who is attempting to deliver a package that, unknown to him for much of the story, contains a ‘Hawala ticket’ [that] can be exchanged for cash. . . A corrupt police officer learns about the ticket . . .  determines to steal the ticket, and begins chasing Wilee through the streets of New York.”  Quirk, Slip Op. Pp. 11-12.  The Court concluded that Quirk’s arguments of similarity were based on generic elements, such as the role of the dispatchers or the fact that both works had Chinese gangsters.  “Quirk’s remaining points of comparison virtually all suffer from the same or similar flaws.  Selective and/or distorted characterizations of any two things can, of course, produce points of similarities.  A blue what is much like a hamster with respect to all the mammalian features they share.  Yet a hamster is more like a sparrow than a whale, if one focuses on size. . . The fact that a hamster bears some important features in common with whales, others with sparrows, and yet others with both, does not necessarily make a hamster ‘substantially similar’ to either a whale or a sparrow.”  Quirk, Slip Op. Pp. 13-14.  As a result, the Court granted summary judgment to Sony on Quirk’s copyright infringement claims.

Quirk’s Desny claim stems from the California Supreme Court’s opinion recognizing an implied contractual right to compensation when a writer sends his material to a producer with the understanding that the writer will be paid if his concept is used by that producer.  Desny, 46 Cal. 2d at 739.  Under the Desny standard, Quirk cannot prevail against Sony unless “(a) before or after disclosure he has obtained an express promise to pay, or (b) the circumstances preceding and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances, show a promise of the type usually referred to as ‘implied’ or ‘implied-in-fact.”  Desny, 46 Cal. 2d at 738.  Quirk alleged that Sony had obtained his novel under circumstances that might support an expectation of payment.  However, Quirk presented no evidence that Sony used any of his ideas giving rise to this expectation of payment.  Further, “any Desny claim arising from use of ideas found in the book necessarily fails as a matter of law, given Quirk’s voluntary wide public distribution of those ideas years before [Sony] ever began working on [its] movie.”  Quirk, Slip Op. P. 16.  Quirk’s novel was distributed to the public and if Sony purchased a copy of the novel and worked from it to develop the movie, Quirk has no Desny claim.  As such, the Court granted summary judgment to Sony on Quirk’s Desny claim.

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