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Court Rejects Copyright Claim Over M. Night Shymalan Apple TV Series

Servant No Slavish Copy

By Ross Ufberg

In May, Federal Judge John F. Walter, of the Central District of California, dismissed claims of copyright infringement against M. Night Shyamalan, Tony Basgallop, Steve Tisch, Apple Inc., and other creators of the Apple TV series Servant. Francesca Gregorini v. Apple. The suit was brought by Francesca Gregorini who alleged that Episodes 1-3 of the TV series amounted to a "brazen" and "wholesale copy," an "unauthorized television adaptation, of Gregorini's 2013 feature film The Truth About Emanuel. However, the real truth about Emanuel is that Judge Walter wasn't buying it: disposing of the matter on the papers, without oral argument, Walter did not find the protectable copyright elements to be substantially similar.

Both works, Judge Walter wrote, share an "unprotectable 'basic premise'": "a mother so traumatized by her baby's death that she cares for a doll she believes to be a real baby." From there, the storylines diverge dramatically, and Walter's analysis digs deep into the plot details from Episodes 1-3 of Servant to explain just how different the court perceived them to be.


The Truth About Emanuel is a 2013 feature film in which a single mother, Linda, hires in a teenage girl, Emanuel, to help care for her newborn, Chloe. Emanuel soon discovers that Chloe is just a doll, albeit a very lifelike one (also known as a "reborn" doll). Linda and Emanuel develop an intimate relationship, with Emanuel taking to the older woman as to the mother she never had; there are "hints of a subtle, perhaps unconscious, sexual tension" between the two.

By movie's end, after Linda has been committed to an institution and Emanuel has had a breakdown, the babysitter breaks the "mom" out of the asylum and the two go to bury the doll, one grieving for the mother she wished she had, and one for her actual child, who, it has been revealed, died earlier of unknown reasons.

Servant also revolves around a reborn doll (Jericho), a mother (Dorothy), and a nanny (Leanne) who is hired to care for the "child." The reborn doll is a therapeutic substitute for Dorothy's child, who died after Dorothy left him in a hot car. Leanne treats her charge as a normal child, never acknowledging the strange reality. There are supernatural insinuations, including the vivification of the doll, voodoo-like afflictions befalling Dorothy's husband, and a nanny who may or may not be among the living dead.

District Court Opinion

Judge Walter's analysis makes clear that he did not even find this to be a close call. Of alleged character similarities: "[U]nlike the doll in Emanuel, the doll in Servant comes back to life, which in the Court's view is a very significant difference." Judge Walter addressed the works' mood with similar dispatch: beside general suspense, which "is not protectable expression and cannot establish the extrinsic similarity necessary to support a copyright infringement claim," the two works shared little in common: Emanuel is "a story of healing," while Servant "is creepy and suspenseful." The court found no similarities of dialogue, sequence of events, theme, or of anything, really, that would hint at copyright infringement.

What was interesting about this decision isn't really that the motion to dismiss was granted. It's that Gregorini may have doomed her own case because of how she framed her argument.

Gregorini's complaint made clear that her copyright claims were informed by a sense of injustice – what the suit calls "the broader picture of Defendant's misappropriation of Emanuel." It wasn't just that Gregorini felt her work was being ripped off; it's that she felt the allegedly derivative series – a "caricature of the male gaze" – was an "utter bastardization of [her] work" by an "all-male team of creators and producers." This claim was not only about one particular film and one particular series. Rather, "[t]he perception that no one is going to stop the already-powerful (usually white men) from simply taking the artistic output of those outside the power structure serves to perpetuate the patriarchy for another generation."

While this is a powerful argument generally, it may have been a dangerous one to make in a copyright case, for one can't sue for specific infringement on behalf of all the other directors and writers who have been similarly wronged, and Gregorini's dismantling and displaying of the allegedly insidious ways the Defendants had perverted her works may have made it seem to the court that their copying went so far afield as to lead it out of the Country of the Substantially Similar.

Judge Walter had no truck for the argument, anyhow. He did not address it in his Opinion, and found merely that the "alleged similarities between the works pale in comparison to the differences."

But perhaps there's hope for Gregorini on appeal. The 9th Circuit, three weeks after Judge Walter's ruling, revived another copyright claim with a (substantially) similar procedural history, Zindel v. Fox Searchlight Pictures, Inc., which alleged infringement against the studio over the movie The Shape of Water. Motions to dismiss and motions for summary judgment are "not highly favored' on questions of substantial similarity," the Ninth Circuit panel wrote, adding that expert witnesses or more evidence may be called for. 2020 WL 3412252, at *1 (9th Cir. June 22, 2020).

Former 9th Circuit judge Alex Kozinski represented the plaintiff in that case, which had likewise been dismissed on papers in CA's Central District. Perhaps there's a theme here: copyright claims, like old movies, reborn dolls, and even former judges' careers, are always at risk of being revivified.

Ross Ufberg, former journalist and publisher, is a 2L at Berkeley Law. Plaintiff was represented by David Erikson, Erikson Law Group, Los Angeles. Defendants were represented by Nicolas A. Jampol, Diana Palacios, Cydney Swofford Freeman and Camila Pedraza of Davis Wright Tremaine, Los Angeles.
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