## Facts

- Douglas Alan Stromback wrote and registered a poem and screenplay titled *The Keeper*, and also registered screenplay versions with the Writers Guild of America.
- *The Keeper* depicts a serious narrative involving a protagonist who exposes a corrupt California governor, with prominent racial and political themes and a redemptive sacrifice.
- Stromback shared his work with two individuals for feedback and alleged they later provided copies to New Line Cinema (NLC).
- NLC released *Little Nicky*, a slapstick comedy about the son of Satan, involving supernatural characters and a good-versus-evil storyline.
- After viewing the film, Stromback alleged the movie copied protectable aspects of his work, citing similarities in themes, character types (including a Black female celestial figure), and certain plot devices.
- Stromback sued NLC for copyright infringement, Lanham Act reverse passing off, and state-law claims (commercial misappropriation, trade secret misappropriation, and tortious interference with prospective economic advantage).
- The district court granted summary judgment to NLC on all claims; Stromback appealed, and NLC filed a limited cross-appeal.

## Issues

1. Whether the film was substantially similar to the plaintiff’s copyrighted work in protectable expression, supporting a copyright infringement claim.
2. Whether a Lanham Act reverse-passing-off theory can be used to recover for alleged copying without attribution of creative content.
3. Whether the plaintiff’s state-law claims were preempted by 17 U.S.C. § 301 because they asserted rights equivalent to the exclusive rights in § 106 without a qualitatively distinct extra element.

## Decision

- The Sixth Circuit affirmed summary judgment for NLC on the copyright claim because no reasonable jury could find substantial similarity in protectable expression.
- The court affirmed dismissal of the Lanham Act claim because the theory sought to police authorship/attribution of creative expression rather than trademark-type source confusion.
- The court held the state-law claims were preempted by the Copyright Act because they were based on alleged unauthorized use of the work without an extra element making them qualitatively different.
- The judgment was affirmed in full; NLC’s cross-appeal was moot.

## Legal Principles

- Copyright protects expression, not ideas; general themes, plot concepts, and scenes à faire (stock elements common to a genre) are not protectable.
- Substantial similarity requires similarity in protected expression, evaluated by comparing the works’ overall look and feel, including plot, theme, characters, and sequence of events, while filtering out unprotectable elements.
- Generalized character types and stock devices (e.g., angels, demons, Hell, good-versus-evil, redemption) are typically unprotectable absent distinct expressive delineation.
- The Lanham Act does not supply a substitute cause of action for claims that, in substance, allege copying of creative content and lack of attribution.
- Under 17 U.S.C. § 301, a state-law claim is preempted if it concerns a work within copyright’s subject matter and asserts rights equivalent to § 106 rights, unless it contains an extra element that changes the nature of the claim.

## Conclusion

The Sixth Circuit upheld summary judgment for the film distributor, finding that the alleged similarities consisted largely of unprotectable ideas and stock supernatural elements and that the two works differed materially in plot, tone, and character development; it also ruled that the plaintiff’s reverse-passing-off and state-law theories impermissibly duplicated copyright-type interests and were barred by federal law.


Stromback v. New Line Cinema, 384 F.3d 283 (6th Cir. 2004)