In Quirk v. Sony Pictures Entertainment, Inc., the Northern District of California granted summary judgment in favor of movie studio Sony Pictures and its co-defendants. In determining that author Joe Quirk had failed to show a genuine issue as to any material fact as to copyright infringement or implied-in-fact contract claims arising from a motion picture that Quirk alleged Sony Pictures made by illegally relying on Quirk’s novel, the court clarified the correct substantial similarity analysis for copyright infringement and provided some insight into theDesny implied contract test.
Plaintiff Joe Quirk published his novel, Ultimate Rush, in 1998. The story of a San Francisco package delivery messenger on rollerblades who is drawn into adventures involving criminals, Ultimate Rush was pitched to movie studios and producers before publication by Quirk’s agent at CAA. Warner Bros optioned the book but, after having commissioned two screenplays based on Ultimate Rush, it allowed the option to lapse.
Premium Rush, starring Joseph Gordon-Levitt, was placed into production by Sony Pictures in 2010. Set in New York, Premium Rushtells the story of a bicycle messenger pursued by a corrupt policeman trying to obtain the mysterious contents of a package that the messenger had been hired to deliver. Upon learning of Premium Rush, Quirk concluded that it represented an unauthorized adaptation ofUltimate Rush and brought actions for copyright infringement andDesny claims against various entities involved in the production of the movie.
The defendants filed for summary judgment on both claims. On April 2, 2013, summary judgment was granted on both counts.
Copyright Infringement Claim
The defendants persuasively argued that their film bore no substantial similarity to any protectable elements in Quirk’s novel. The basis for Quirk’s opposition against Sony’s motion was that in the process of adapting the novel to the Warner Bros.-owned screenplays and then (arguably) to the final motion picture that Sony released, certain elements that were “adapted” from the novel became present in the screenplays, which then were further “adapted” to become elements in the motion picture, and therefore these elements – even if not found in the novel and the motion picture – could still be considered in the substantial similarity analysis.
In the court’s view, this was a bridge too far. Repeatedly in the opinion, the court wrote that “copying deleted or so disguised as to be unrecognizable is not copying.” Accordingly, even if the allegedly infringing work was developed through an adaptation process that relied on borrowing and modifying elements of Quirk’s book and the Warner Bros. screenplays, the relevant inquiry is solely whether the book Ultimate Rush and the final produced, edited and released feature film Premium Rush are substantially similar.
Applying the correct analysis, the court found no substantial similarity between Ultimate Rush and Premium Rush, stating that “the two works differ greatly in many large and small details as well as in their overall mood, style and structure.” The court also accused Quirk of misstating matters to create “an exaggerated sense of the degree of similarity.”
Finding no substantial similarity, the court granted summary judgment with respect to Quirk’s copyright infringement claim.
A Desny claim (often referred to as the “pitch law” or an “idea submission” claim), as first established in California in 1956 and reaffirmed by the Ninth Circuit, recognizes an implied contractual right to compensation when a writer submits material to a producer with the understanding that the writer will be paid if the producer uses the concept. The essence of the claim rests on “an expectation on both sides that use of the idea requires compensation.” Montz v. Pilgrim Films & Television, Inc., 649 F.3d 975. The idea purveyor cannot prevail in an action to recover compensation for an abstract idea 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.”” Also, the law will not imply a promise to pay solely because the idea has been conveyed, is valuable, and has been used for profit (even if the conveyance was made with the hope or expectation that some obligation will ensue).
Here, Quirk asserted that evidence supported a compelling inference that the defendants obtained the Warner Bros scripts and a copy of the novel from CAA. Quirk insisted that it is a “virtual certainty” that defendant David Koepps (the motion picture’s writer and director) obtained Ultimate Rush from his agents at CAA (who also represented Quirk). In support, Quirk relied on a lack of evidence that defendant obtained the book through other means in addition to the presence of the book and scripts in CAA’s library, the shared representation by CAA of Koepps and Quirk, and “some indications that persons at CAA circulated materials related to Ultimate Rush at a point in time long after Warner Bros. efforts to develop the project had been abandoned.” Quirk also relied on the “adaptation process” premise that formed the basis of his flawed copyright infringement claim.
The court found that Quirk’s Desny claim failed for several independent reasons, including that the facts on summary judgment still remained speculative. Perhaps most fatal to the claim was the fact that because the novel was widely distributed, the ideas in the novel could have been used by anyone without payment – assuming that the use did not rise to the level of copyright infringement (which the court found it did not). Quirk’s publication of his book was an “unconditioned disclosure” to the public at large of all of the ideas contained in the novel. This precluded Quirk’s ability to claim that he disclosed his ideas in consideration of expected compensation. Quirk himself admitted that if defendants worked from a copy of a novel purchased on the open market, he would have no viable Desny claim. Accordingly, the court reasoned, there is “no reason in law or logic” that the result should be different even assuming defendants worked from a copy of the novel or Warner Bros. script obtained by CAA.
The Quirk case illustrates how parties alleging copyright infringement frequently become confused as to how courts apply the substantial similarity test. The Northern District of California sets forth the test with clarity here and emphasizes that the key analysis is whether the final versions of the original work and allegedly infringing work are substantially similar. The development process involved in crafting the allegedly infringing work is irrelevant for these purposes. This is useful, perhaps, when considering the growing trend of fan-fiction authors revising their previous derivative fan-fiction works into original works (Fifty Shades of Grey, for instance, famously began as Twilight fan-fiction).
The decision also highlights the relatively limited utility of the Desnydoctrine, especially outside of the niche world of writers pitching ideas to Hollywood studio executives. While the court stated that it is possible a plaintiff could possess a viable claim without the subject ideas being treated with the utmost degree of secrecy and confidentiality, a Desny claim is most successful where the disclosing party explicitly states that the ideas are confidential and implies the receiving party may not disclose and/or exploit the ideas without compensation or consent. A party that publishes ideas before such disclosure (whether through a novel as was the case here or, for instance, through online channels) forfeits any potential Desny claim automatically.