As of Girl Meets Demolitionhe is credited as a co-producer. In addition to several episodes, he also directed the GMW title sequence the show began using as of season 3. Contents [ show ] Biography Savage was born in Chicago, Illinois, the son of Joane and Lewis Savage, who were an industrial real estate broker and consultant. Ben made his film debut at the age of 9 in his brother Fred's hit Little Monsters and appeared in the feature films Big Girls Don't Cry They Get Evenas Sam, the brainy little brother, and as a year-old in Cliffordthe latter starring Martin Short.
Savage established himself more prominently on TV. His first major speaking role on network television was playing the recurring role of Matthew, son of the Judd Hirsch character, on the comedy series Dear John Cory Matthews s-model Dennis the Menace, was constantly at daggers drawn with authority figures—especially his sixth grade teacher, Mr.
At age 13, Savage once said: I mean, they're the ones who give you the grades. Indeed, the sitcom became a staple of the ABC's "T. This area contains the full text of federal court decisions in the advertising law, marketing law and commercial speech areas.
Background This case involves two competing direct marketing sellers of the same product -- a disk-shaped battery-operated light that illuminates when its dome is pressed. Plaintiff markets its light under the name "Tap Light," and Defendants fn1 market their light under the name "Click Light" collectively, the "Light".
In AugustPlaintiff finished shooting its television commercial for the Tap Light. In mid-AugustPlaintiff tested the commercial with limited air time purchases. Satisfied with the viewer responses, in late AugustPlaintiff rolled out the commercial nationwide. Defendant International Brands Marketing, Inc. But Defendant Allied Communications Corp.
For purposes of this preliminary injunction motion only, the Court shall refer to both "Defendants" as the competing sellers in this case. Defendants launched their nationwide advertising campaign in mid-January Plaintiff claims a copyright on its two-minute commercial. On January 25,it filed this action against Defendants, alleging that the two-minute Click Light commercial infringes on Plaintiff's copyright, violates state and federal unfair competition law and violates state and federal false or deceptive advertising laws.
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On February 24,the Court denied Plaintiff's ex parte application for a temporary restraining order. However, the Court granted Plaintiff's request for an order to show cause why a preliminary injunction should not be issued. On March 3,Defendants filed their opposition to Plaintiff's request for a preliminary injunction. On March 10,Plaintiff filed a reply.
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Standard for Preliminary Injunction In the Ninth Circuit, preliminary injunctive relief is appropriate when the moving party demonstrates either " 1 a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or 2 the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor. These two alternatives "'are not separate tests but the outer reaches of a single continuum.
Copyright Infringement Claim To establish copyright infringement, the plaintiff must prove 1 ownership of a valid copyright and 2 that the defendant copied the plaintiff's copyrighted work. In most infringement cases, evidence of direct copying is difficult to obtain. Therefore, copying may be established by circumstantial evidence of 1 the defendant's access to the copyrighted work before the creation of its work and 2 substantial similarity of both the ideas and expression between the copyrighted work and the defendant's work.
Once a plaintiff demonstrates probable success on the merits of a copyright infringement claim, it is entitled to a presumption of irreparable injury. Here, for purposes of the preliminary injunction motion, Defendants do not challenge the validity of Plaintiff's copyright. P 4 admission re access. Thus, the determinative factor in this case is whether there is "substantial similarity" between the Tap Light commercial and the Click Light commercial. Section ; see also American Direct Marketing, Inc.
Substantial Similarity The Ninth Circuit applies a two-part test to determine substantial similarity.
First, the "extrinsic" test "objectively considers whether there are substantial similarities in both ideas and expression. Thus, the extrinsic test "encompass[es] all objective manifestations of creativity. In dramatic works, the objective elements include the theme, plot, dialogue, mood, pace, setting, characters and sequence of events. Second, the "intrinsic" test evaluates the similarity of expression from the standpoint of an ordinary reasonable observer.
Apple Computer, 35 F.
The intrinsic test measures expression subjectively, looking for substantial similarity in the "'total concept and feel of the works. The trial court must use "analytic dissection fn3 to determine the scope of copyright protection before works are considered 'as a whole'" "because only those elements of a work that are protectable and used without the author's permission can be compared when it comes to the ultimate question of illicit copying[.
Analytic dissection requires the court to separate unprotectable facts and ideas from potentially protectable expressions. Then, the court must "apply the relevant limiting doctrines in the context of the particular medium involved, through the eyes of the ordinary consumer of that product.
Relevant limiting doctrines include the merger and "scenes a faire" doctrines. After "dissecting the alleged similarities and considering the range of possible expression, the court must define the scope of the plaintiff's copyright -- that is, decide whether the work is entitled to 'broad' or 'thin' protection. Unprotectable Elements and Limiting Doctrines a. Expression It is an axiom of copyright law that ideas are not protected.
Data East, F. Section "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery. Copyright protects only an author's expression of an idea.
The scope of protection, or "the degree of substantial similarity required to show infringement[,]" will vary "according to the type of work and the ideas expressed in it. Scrabble Crossword Game Players, Inc. For example, fictional works involving the basic idea of a "boy meets girl" generally fall within the first category. This idea can and has been expressed in countless ways, "with infinite variations in setting, sequence of incident and characterization.
In contrast, authors wishing to convey facts fn4 often can only choose from a narrow range of expression. Feist Publications, U. But original compilations and arrangements of facts may be copyrightable. The Court rejects Plaintiff's assertion that unprotectable facts are not involved in this case. See Reply at 4. As explained below, certain of the allegedly similar scenes contain unprotectable factual elements. Functional elements are those that are dictated by the function performed, or necessary to depict a certain form of expression, e.
Works containing strong functional elements receive "thin" protection. Sega Enterprises, F. Defendants, misconstruing the concept of a "functional" element, contend that practically every scene at issue constitute a "functional feature of the commercial. Defendants' contention has no merit. None of the 11 alleged similarities at issue involve "functional" elements. Therefore, the Court will not specifically address each of Defendants' "functional" arguments. Merger In addition, the Ninth Circuit recognizes the so-called "merger" doctrine, which applies when an idea and its expression coincide.
For example, the idea of a jeweled bee pin and its expression -- a jewel-encrusted bee pin -- are essentially indistinguishable. In such a case, "[a] high degree of similarity" between the idea and its expression is "'inevitable. Similarly, because "the idea of an icon in a [computer] desktop metaphor representing a document stored in a computer program can only be expressed in so many ways[,]" the expression by way of an "iconic image shaped like a page" is considered merged with the idea.
When the merger doctrine applies, "the expression will only be protected against nearly identical copying. Scenes a Faire The doctrine of "scenes a faire" -- or "'scenes which must be done'" fn6 -- is closely related to the merger doctrine. See Apple Computer, 35 F. Scenes a faire are "expressions that are 'as a practical matter, indispensable or at least standard in the treatment of a given [idea]. Thus, they are not protectable. Woman fumbling in dark bedroom for light switch with narration: Woman getting up from bed and using Tap Light with narration: Woman getting up from bed and using Click Light with narration: Scrolling list of uses and locations for the Tap Light.
Scrolling list of uses and locations for the Click Light.
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Tap Light mounted in a closet. Click Light mounted in a closet. Tap Lights mounted along a dark indoor staircase, with a child climbing down the stairs, with narration: Tap Lights mounted along an outdoor walkway with narration: Child's hand reaching up and clicking a wall-mounted Tap Light with narration: Tap Light used to replace a broken interior light in a vehicle.
Click Light used to replace a broken interior light in a vehicle.
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Tap Light used during storm with narration: Just click your way to safety. Plaintiff argues that a comparison of these scenes shows that Defendants copied Plaintiff's commercial.
In response, Defendants argue that each of these scenes contain non-protectable elements. Defendants contend that the two commercials are not substantially similar after the non-protectable elements are excluded. The Court finds that neither is directly on point. Chuck Blore involves two commercials featuring the same actress advertising completely different products -- newspaper and radio station vs. With such different subject matters, the district court found that the "total concept and feel" of the defendant's commercial, which featured the same artistic choices as the plaintiff's e.
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The extrinsic test applied by the Chuck Blore court is similar to the old Krofft test in the Ninth Circuit, which, as discussed above, has since evolved to a slightly different test.
Also, the district court applied a very superficial extrinsic test analysis before proceeding to evaluate the "total concept and feel" of the commercials, finding in one sentence that there is substantial similarity of ideas in the two commercials: More importantly, unlike this case, the commercials in Chuck Blore involved the marketing of completely different products outside the more constrained direct marketing framework.
The commercials in American Direct Marketing, on the other hand, were both created for direct mail marketing. Also, the case involves competitors of a similar product -- a tooth whitening system and a rotating toothbrush. Moreover, the court fails to thoroughly explain why it concluded that the commercials were not "strikingly similar, although similarities exist" and "the building blocks of the commercials, the individual pictorial images, and word content are not substantially similar.
Therefore, to the extent that either side urges the Court to follow the rulings in these cases, the Court declines to do so. However, although neither Chuck Blore nor American Direct Marketing is directly on point, the Court did find some of their discussions helpful.
Necessarily, the two commercials also attempt to convey the same facts. That the Light is battery-operated, water resistant, and turns on or off with a tap on the dome are facts that cannot be protected by copyright. Therefore, the Court does not consider alleged similarity nos. See Motion at 4. To hold otherwise, as Plaintiff suggests, would give Plaintiff a monopoly on depicting the use of the light in a closet. Because Defendants' depiction of this idea is not identical to Plaintiffs, fn11 the Court does not consider alleged similarity no.
When an interior light or trunk light goes out, a person would generally use a flashlight to illuminate the area if she needed some light. Plaintiff cannot have a protectable interest in the idea of using a battery-operated Light in such a setting. With respect to its expression, only two areas of a vehicle may ordinarily need night -- the interior of the vehicle or the trunk of the vehicle. Thus, the idea of using the Light to replace broken lights in a vehicle, like the idea of an icon in a computer desktop display that represents a document stored in a program in Apple Computer, can only be treated in so many ways.
Therefore, the expression will only be protected against nearly identical copying. Here, because the two expressions are not identical, the Court declines to consider alleged similarity no. Even without considering the above segments, however, substantial similarity exists on an objective level.
The Court discusses the remaining allegedly similar scenes below. Woman fumbling in dark bedroom for light switch In Plaintiff's commercial, this scene involves a young woman in bed who knocks over a glass on her nightstand while reaching for the light switch on the table lamp.
The woman is sleeping on the left side of the bed from the viewer's perspective and a man is sleeping on the right. When the lamp light turns on, the man wakes up. In Defendants' commercial, this scene involves an older woman with gray hair in bed who knocks over a prescription bottle on her nightstand while reaching for the light switch on the table lamp. She is alone in bed. The scenes are accompanied by the narrator saying: My name is Anthony Sullivan and here's another great invention for around the house.
It's called the Tap Light. Thus, the Court treats the woman fumbling in the dark scene as the "first" scene of Plaintiff's commercial.
This contention has no merit. Assuming that the idea is the use of the Light as a nightime visual aid, this idea certainly can be expressed in a myriad of ways. This idea is not indistinguishable from the expression. Nor are there only a limited number of ways to express this idea. Indeed, the fact that Defendants identified at least three separate scenes from Plaintiff's commercial that purport to convey this idea belies Defendants' contention. Rather than the broader idea suggested by Defendants, the Court finds that the idea at issue is the use of the Light as a nighttime visual aid in the bedroom.
Although Defendants' version contains some dissimilar details e. Woman getting up from bed and using Tap Light In Plaintiff's commercial, this scene depicts a couple in their 20's to 30's sleeping in bed.
The woman with long blond hair sleeps on the left side of the bed from the viewer's perspective.