Reginald v. New Line Cinema

Filed 4/2/08 Reginald v. New Line Cinema CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE COURT:

It is ordered that the opinion filed herein on March 5, 2008, be modified as follows:

1. On page 9, second full paragraph of footnote 5, beginning Contrary to plaintiffs contention is deleted and the following paragraph is inserted in its place:

We note that in establishing an implied-in-fact contract or plagiarism, a threshold issue is whether, as a matter of law, there is substantial similarity between the two literary works at issue. The Klekas court indicated that, just as for the tort of plagiarism, in order to prevail on a cause of action for an implied-in-law contract, there must be some substantial similarity between the screenplay and the protectable portions of plaintiffs work. (Klekas v. EMI Films, Inc., supra, 150 Cal.App.3d at p. 111, italics added.) For an implied-in-fact contract, substantial similarity is also a threshold issue, but there is no requirement that the substantially similar portion of plaintiffs work be, by law, protectable. (Weitzenkorn, supra, 40 Cal.2d at pp. 791-792.) Because of their common element of substantial similarity, we can look to opinions regarding plagiarism and implied-in-law contract to glean criteria for determining substantial similarity in this case.

2. On page 14, last sentence of footnote 7, beginning As we noted and ending copyright law is modified to read as follows:

As we noted previously, the analysis of substantial similarity is essentially the same in the context of breach of an implied-in-fact contract, as is the issue in the instant action, but the assessment of similarity is not limited to only material which is legally protectable under copyright law.

There is no change in the judgment. Appellants petition for rehearing is denied.

___________________ ___________________ __________________

JACKSON, J^* VOGEL, Acting P. J. ROTHSCHILD, J.

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^* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.