## Facts

- Ernest Olson wrote a copyrighted treatment and screenplay for a proposed television pilot, “Cargo.”
- Olson alleged that NBC’s television series “The A-Team,” developed by Stephen J. Cannell and related entities, infringed “Cargo.”
- The works shared a general premise: an action-adventure group portraying Vietnam veterans in a positive light.
- At trial, a jury found “The A-Team” substantially similar to “Cargo” and found NBC liable for copying, but also found the Cannell defendants (the writers/producers) did not copy Olson’s works.
- The district court granted defendants’ post-trial motions, entered judgment notwithstanding the verdict (JNOV) for NBC, and set aside the jury’s substantial-similarity finding, concluding there was no proof the creators had access and no substantial similarity under the extrinsic or intrinsic tests.
- Olson appealed, seeking reinstatement of the jury findings against NBC and an order making the substantial-similarity finding binding on the Cannell defendants despite the jury’s no-copy finding as to them.

## Issues

1. Whether, under the Rule 50 JNOV standard, the evidence permitted only one reasonable conclusion requiring judgment for NBC.
2. Whether Olson presented sufficient evidence that the creators of “The A-Team” had access to “Cargo” and that the works were substantially similar in protectable expression under the extrinsic and intrinsic tests.
3. Whether a substantial-similarity finding could be imposed on the Cannell defendants notwithstanding the jury’s separate finding that they did not copy and lacked access.

## Decision

- The Ninth Circuit affirmed the district court’s JNOV for NBC and the other defendants.
- The court held Olson failed to prove access by the individuals who created “The A-Team,” and liability could not be sustained without that showing.
- Independently, the court held no reasonable juror could find substantial similarity of protectable expression once unprotectable ideas and stock elements were filtered out under the extrinsic and intrinsic analyses.
- The court rejected Olson’s request to apply the jury’s substantial-similarity finding against the Cannell defendants given the jury’s no-copy finding as to them and the absence of access.

## Legal Principles

- JNOV is proper only when the evidence permits only one reasonable conclusion; it is appropriate when a directed verdict would have been warranted under Rule 50(a).
- Copyright infringement requires proof of ownership and copying of protected elements; where direct evidence is absent, copying is shown by access plus substantial similarity.
- The Ninth Circuit evaluates substantial similarity using:
  - an extrinsic test (objective comparison of concrete expressive elements, filtering out unprotectable material), and
  - an intrinsic test (whether an ordinary audience would find the total concept and feel substantially similar).
- Similarity in general ideas, themes, scènes à faire, and stock elements is not protectable and cannot support infringement.
- Without proof of access by the alleged copier, similarity alone cannot establish copying.

## Conclusion

The Ninth Circuit upheld judgment for the defendants because Olson did not show access by the creators of the allegedly infringing series and, in any event, the similarities identified concerned unprotectable ideas rather than substantially similar protectable expression under the extrinsic and intrinsic tests.


Olson v. Nat'l Broad. Co., 855 F.2d 1446 (9th Cir. 1988)