## Facts

- Plaintiffs wrote and registered a 2001 screenplay, “Dodgeball: The Movie.”
- Defendants released a 2004 motion picture, “Dodgeball: A True Underdog Story,” and were sued for copyright infringement.
- Both works involved a comedic dodgeball competition featuring an underdog team facing a stronger, bullying opponent.
- Plaintiffs alleged defendants had access to the screenplay and that similarities supported unlawful copying.
- Defendants argued the shared elements were generic sports-story conventions and other unprotectable material.
- Near trial, defendants sought summary judgment to bar plaintiffs from relying on a “striking similarity” theory and moved to exclude plaintiffs’ proposed similarity expert, Professor Ken Dancyger, under Federal Rule of Evidence 702.

## Issues

1. Whether the screenplay and film were “strikingly similar” in protectable expression such that a jury could infer copying without proof of access.
2. Whether plaintiffs’ proposed expert testimony on similarity satisfied Rule 702 and Daubert and would assist the jury.

## Decision

- The court granted defendants’ motion for summary judgment barring plaintiffs from proceeding on a striking-similarity theory.
- The court granted defendants’ Daubert motion and excluded Professor Dancyger’s testimony under Rule 702.

## Legal Principles

- Copyright infringement requires proof of ownership and copying of original, protectable elements of the work.
- Copying is typically shown through access plus substantial similarity; striking similarity is an alternative only when similarities in protectable expression are so unusual that independent creation is implausible.
- Similarity analysis must filter out unprotectable material, including ideas, concepts, and scènes à faire (stock elements and genre conventions).
- Generic sports-movie structures and “underdog defeats bullies” tropes are not protectable expression.
- Under Rule 702 and Daubert, expert testimony must be reliable and helpful; courts may exclude similarity opinions that usurp the jury’s role or fail to distinguish protectable expression from unprotectable ideas and conventions.

## Conclusion

The court held that the asserted overlaps between the screenplay and film were too general and trope-based to support striking similarity as a matter of law and excluded plaintiffs’ similarity expert because the methodology did not reliably separate protectable expression from unprotectable genre elements and would not assist the jury.


Price v. Fox Ent. Grp., Inc., 499 F. Supp. 2d 382 (S.D.N.Y. 2007)