## Facts

- Lou Shaw wrote a television pilot script titled “The Equalizer” and granted NBC an option to develop it into a series; NBC declined and the rights reverted to Shaw.
- NBC executive Richard Lindheim had read Shaw’s script while working at NBC.
- After leaving NBC, Lindheim wrote a series treatment also titled “The Equalizer,” and admitted copying the title from Shaw’s script.
- Michael Sloan expanded Lindheim’s treatment into a pilot script for a television series that later aired on CBS beginning in 1985.
- Shaw alleged defendants copied protectable elements of his script, including a lone protagonist who “equalizes the odds” by working outside the system to help underdog clients, and a plot involving a woman in jeopardy, a cover-up/blackmail conspiracy, and a criminal organization blackmailing a public official.
- Defendants emphasized differences in plot execution and setting, including different locales and criminal organizations, and variations in the number of clients/cases.

## Issues

1. Whether summary judgment was proper where a reasonable factfinder could find substantial similarity in protected expression under the Ninth Circuit’s extrinsic/intrinsic test.
2. Whether dismissal of Lanham Act and related unfair competition claims could stand when based on the same “no substantial similarity” conclusion.

## Decision

- The Ninth Circuit reversed summary judgment for defendants on the copyright infringement claim.
- The court held that, viewing the evidence in Shaw’s favor, a reasonable trier of fact could find substantial similarity in protected expression, including the works’ “total concept and feel.”
- The court reversed summary judgment on the Lanham Act and related unfair competition claims because they were dismissed on the same no-similarity rationale.
- The case was remanded for further proceedings.

## Legal Principles

- Substantial similarity in the Ninth Circuit is assessed under a two-part test:
  - The extrinsic test is objective and considers articulable similarities in elements such as plot, themes, dialogue, mood, setting, pace, characters, and sequence of events, while filtering unprotectable material (ideas, scènes à faire, stock elements).
  - The intrinsic test is subjective and asks whether an ordinary reasonable person would find substantial similarity in the works’ “total concept and feel.”
- Summary judgment on intrinsic similarity is appropriate only when no reasonable juror could find substantial similarity; otherwise, intrinsic similarity is for the factfinder.
- Courts must distinguish unprotectable ideas from potentially protectable expression; when similarities plausibly extend beyond general concepts into expressive selection and arrangement, summary judgment is generally improper.

## Conclusion

The Ninth Circuit held that similarities between the two television works could permit a reasonable factfinder to find substantial similarity in protected expression under the intrinsic test, so the district court erred by resolving the question on summary judgment and by dismissing related Lanham Act and unfair competition claims on the same basis.


Shaw v. Lindheim, 919 F.2d 1353 (9th Cir. 1990)