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Did someone steal your book or screenplay and want to make it into a movie?

Posted by Steve Vondran | Mar 24, 2018 | 0 Comments

Theft of Idea under Copyright Law in the 9th Circuit – The E.T. Spielberg case – [736 F.2d 1352]


Our law firm can assist writers, authors, screenplay and other creative artists in copyright theft of  idea cases.  For example, pitching a reality TV show and someone steals your idea, or someone reviews your movie screenplay and takes your idea and tries to convert it into a movie, all without paying a licensing fee, or paying compensation.  In theses cases, it is important to know what it will take to prove copyright infringement for making a copy of your work, or making a derivative work (ex. turning your book into a film or a play).  One of the key cases that shows what a Plaintiff will need to be able to prove (Called the Burden-Of-Proof) to get past a motion for summary judgement (which if successful, will either allow the case to go to a jury trial, or not).

Litchfield vs. Spielberg (the E.T. case)

Here is an overview of the case, which is laid out so nicely I will just post this as the decision was written:

EUGENE A. WRIGHT, Circuit Judge:


(1) Did the producers of the motion picture, E.T.,–The Extra Terrestrial, infringe the copyright of a musical play, Lokey from Maldemar,


(2) was summary judgment proper on the issue of substantial similarity?


Litchfield wrote and copyrighted Lokey from Maldemar. Subsequently the defendants produced E.T.

Litchfield sued for copyright infringement, unfair competition, and various state claims, alleging that E.T. was copied from her play. The district court granted defendants' motion for summary judgment on the copyright claim and dismissed the remaining claims.

On appeal, the main question is whether summary judgment was proper on the issue of substantial similarity. We hold that it was.

The district judge's findings of fact of June 10, 1983 state the case accurately:

“Plaintiff Lisa Litchfield is the author of a one-act play entitled “Lokey from Maldemar.” Litchfield wrote the play in 1978, and public performances were given in Los Angeles in September 1978. Subsequently, she submitted a copy of “Lokey” to defendant Universal City Studios, Inc., in the hope that the work would be purchased for purposes of developing a motion picture. These aspirations were disappointed, however, when Universal rejected “Lokey” as unsuitable for film treatment in October 1979. Nonetheless, plaintiff continued her efforts to market the work, adapting a “screenplay outline” of “Lokey” in 1980 from the 1978 theatrical version. Despite repeated efforts to find a receptive buyer for her works, plaintiff failed to find success in Hollywood.

As originally developed in 1978, “Lokey” was a musical play about the adventures of two aliens, Fudinkle and Lokey, who are temporarily stranded on Earth when their spacecraft is immobilized by gravity. After landing near the North Pole, the aliens meet Lisa Marie, her younger brother Michael, and their father, a scientist stationed at the Sorenson Research Center at the North Pole. After temporarily detaining the children with an energy field, the aliens quickly learn English and are invited home by Lisa Marie to meet her father. At the cabin, Lokey demonstrates his extraordinary extra-terrestrial powers by psychokinetically taking a gun away from her father; reviving the father from a heart attack; projecting a map of the Earth on the cabin wall through mind power; and revealing his own destiny as a future ruler of his planet. Lisa Marie demonstrates her own terrestrial charms, teaching Lokey to kiss and inducing him to promise to send “mind pictures” to her after the aliens' departure. Fudinkle and Lokey then travel to a beach in Japan, where they capsize a fishing boat filled with porpoise hunters. Next, the aliens travel to the Andes Mountains, where they meet Tollie Marx, a prophetic witch. Finally, all of the characters appear on the edge of the Pacific Ocean, where the aliens bid the humans farewell as they return to their ship.

On June 11, 1982, the defendants' film “E.T.–The Extraterrestrial” opened at commercial movie theaters. “E.T.” is the story of a small alien accidentally left behind when his fellow explorers are forced to hastily leave Earth. E.T. is lured, by hunger and curiosity, into the California suburban home of 10-year-old Elliot, his brother and sister, and their mother. During the following days, E.T. learns a few words of English; discovers television, beer, and other appurtenances of contemporary American life; and constructs a transmitter to “phone home.” The children, in turn, learn that E.T. possesses unearthly powers: E.T. levitates objects through psychokinesis; heals a small cut with his glowing finger; revives a wilted flower; and establishes a psycho-physical empathy with Elliot. Yet E.T.'s powers are not total; as time passes, E.T. gradually deteriorates. After an apparently unsuccessful attempt to contact his people, E.T. is captured by the scientific investigators who have stalked his existence since he was left behind by his spaceship. Following his capture E.T. appears to have expired, but he revives when he senses that his people are returning for him. A chase ensues, and the film concludes with E.T. bidding farewell to earthling friends and returning home.”

Litchfield sued for copyright infringement, violation of the Lanham Act, unfair competition, misrepresentation of story authorship, breach of implied in fact contract and breach of confidence. On February 9, 1983, the district court dismissed the Lanham Act, state unfair competition and misrepresentation of story authorship claims. Plaintiff appealed this interlocutory order, but asked for and was granted voluntary dismissal in August, 1983.

On June 16, 1983, the district court granted summary judgment to the defendant on the copyright infringement claim and dismissed the pendent state claims. Plaintiff filed notice of appeal of the summary judgment order on July 13, 1983.

A. Subject Matter Jurisdiction

Defendants question the court's jurisdiction over the unfair competition and misrepresentation of story authorship claims because the July 13 notice of appeal did not name these claims.

A mistake in designating the judgment appealed from does not cause the loss of the appeal as long as intent to appeal from a specific judgment can be fairly inferred from the notice, and appellee is not misled by the mistake. Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir.1981). An appeal from a final judgment draws in question all earlier, non-final orders and rulings which produced the judgment. Id. Here, the premature appeal of the interlocutory order had been filed and served, and the issues were fully briefed. Defendants have shown no prejudice resulting from our review of these claims.

B. Copyright Infringement

(1) Elements

To prove copyright infringement, the plaintiff must show:

(1) ownership of the copyright,

(2) access to the copyrighted work,


(3) substantial similarity between the copyrighted work and the defendant's work.

See Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977).

The parties agree that plaintiff owns the copyright to Lokey. For the purposes of the motion for summary judgment, defendants concede they had access. The only issue is whether summary judgment was proper as to substantial similarity.

Substantial Similarity

Substantial similarity is usually an extremely close issue of fact and summary judgment has been disfavored in cases involving intellectual property. Twentieth Century-Fox Film Corporation v. MCA, Inc., 715 F.2d 1327, 1330 n. 6 (9th Cir.1983).

It is appropriate, however, if reasonable minds could not differ as to the absence of substantial similarity in expression. See v. Durang, 711 F.2d 141, 143 (9th Cir.1983).

We review the propriety of summary judgment de novo. Twentieth Century-Fox, 715 F.2d at 1328. The evidence and inferences must be viewed in the light most favorable to the plaintiff.

Comparison of E.T. and Lokey

Before considering a motion for summary judgment on the issue of substantial similarity, the court must make a detailed comparison of the allegedly infringing and infringed works. To this end, the district judge:

(1) read the 1978 and 1980 versions of Lokey,

(2) read the “continuity” script of E.T.,


(3) viewed E.T. at defendants' screening room.

Summary Judgment on the Issue of Substantial Similarity

We may uphold summary judgment if no reasonable jury could find substantial similarity between E.T. and Lokey. See v. Durang, 711 F.2d at 143.

To prove infringement, a plaintiff must show that the works are substantially similar in both ideas and expression. See Sid & Marty Krofft, 562 F.2d at 1164.


Similarity of ideas may be shown by an extrinsic test which focuses on alleged similarities in the objective details of the works. Id. The extrinsic test requires a comparison of plot, theme, dialogue, mood, setting, pace and sequence.  See Jason v. Fonda, 698 F.2d 966 (9th Cir.1982).

Similarity of expression depends on a subjective, intrinsic test. This test focuses on the response of the “ordinary reasonable person” to the works. Sid & Marty Krofft, 562 F.2d at 1164.

Litchfield relies on a list of similarities between Lokey and E.T. to show the extrinsic similarity of the works. She argues that there are too many similarities, especially in the sequence of events and incidents leading to the climax, for the court to determine that there is no material issue of fact.

While we have relied on such lists of similarities in the past for “illustrative purposes,” Twentieth Century-Fox, 715 F.2d at 1329 n. 5, they are inherently subjective and unreliable. We are particularly cautious where, as here, the list emphasizes random similarities scattered throughout the works. See McMahon v. Prentice Hall, Inc., 486 F.Supp. 1296, 1304 (E.D.Mo.1980).

Viewed in the light most favorable to the plaintiffs, some similarities in the opening scenes of Lokey and the movie E.T. may be more than stock scenes. There is no substantial similarity, however, between the sequences of events, mood, dialogue and characters of the two works. Any similarities in plot exist only at the general level for which plaintiff cannot claim copyright protection. See Jason, 526 F.Supp. at 777.


There is even less similarity of expression. To constitute infringement of expression, the total concept and feel of the works must be substantially similar. Sid & Marty Krofft, 562 F.2d at 1164. The concept and feel of the works here are completely different.

Whereas E.T. concentrates on the development of the characters and the relationship between a boy and an extra-terrestrial, Lokey uses caricatures to develop its theme of mankind divided by fear and hate. No lay observer would recognize E.T. as a dramatization or picturization of Lokey. See Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 484 (9th Cir.1961).

C. Production of a Derivative Work

Litchfield argues that defendants violated section 106(2) of the Copyright Act, 17 U.S.C. Sec. 106(2) (1982), by preparing a derivative work based on Lokey. The district court did not address this issue.

Section 106(2) grants the exclusive rights to prepare a derivative work to the holder of the copyright. 17 U.S.C. Sec. 106(2). To constitute a violation of section 106(2) the infringing work must incorporate in some form a portion of the copyrighted work.

Litchfield argues that section 106(2) was intended to expand the definition of derivative works to include any work based on a copyrighted work. She argues that the similarities between her play and the movie constitute the required “incorporation” and show that E.T. was based on Lokey for purposes of the statute. Litchfield apparently believes that she does not have to show substantial similarity to show that E.T. is a derivative work.

Litchfield cites no authority to support this novel proposition. The little available authority suggests that a work is not derivative unless it has been substantially copied from the prior work. See Harry Fox Agency, Inc. v. Mills Music, Inc., 543 F.Supp. 844, 849 (S.D.N.Y.1982), rev'd on other grounds, 720 F.2d 733 (2d Cir.1983), cert. granted sub nom. Mills Music, Inc. v. Snyder, 80 L.Ed.2d 151 (1984); Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); 1 M. Nimmer, The Law of Copyright, Sec. 3.01 at 3-3 (1983 ed.).

We have stated that “[a] work will be considered a derivative work only if it would be considered an infringing work if the material which it has derived from a prior work had been taken without the consent of a copyright proprietor of such prior work.” United States v. Taxe, 540 F.2d 961, 965 n. 2 (9th Cir.1976) (emphasis added).

To prove infringement, one must show substantial similarity. See v. Durang, 711 F.2d at 143, Krofft, 562 F.2d at 1172. Litchfield's arguments that section 106(2) radically altered the protection afforded by the law of copyright are frivolous.


The summary judgment was proper because no reasonable jury could conclude that Lokey and E.T. were substantially similar in their ideas and expression. The district court properly dismissed the other claims.

As is too often the case, Litchfield's action was premised “partly upon a wholly erroneous understanding of the extent of copyright protection; and partly upon that obsessive conviction, so common among authors and composers, that all similarities between their works and any others which appear later must inevitably be ascribed to plagiarism.” See Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612 (2d Cir.1945).


PODCAST – Listen to Attorney Steve explain this topic in this episode of Vondran Legal Hour

What is the “Striking Similarities” test?

Where the original protected work and alleged infringed work are “strikingly similar” this will help a Plaintiff overcome the inability to prove “access” to the copyrighted work as noted in one key case from the 9th Circuit:

“To prevail on a copyright infringement claim, a plaintiff must show:

(1) ownership of a valid copyright


(2) copying of the original elements of the protected work. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1037 (9th Cir.2000); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1043, n. 2 (9th Cir.1994).

Absent direct evidence of copying, the second element of the claim requires a fact-based showing that defendant had “access” to plaintiff's work and that the two works are “substantially similar.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000) (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996)), cert. denied, 531 U.S. 1126, 121 S.Ct. 881, 148 L.Ed.2d 790 (2001).

Where evidence of access is lacking, a “striking similarity” between the works may give rise to a permissible inference of copying. See Three Boys Music, supra, 212 F.3d at 485 (“in the absence of any proof of access, a copyright plaintiff can still make out a case of infringement by showing that the songs were ‘strikingly similar' ”); Onofrio v. Reznor, 208 F.3d 222 (9th Cir. Feb.23, 2000) (“Without any showing of access, Onofrio can only prevail by establishing that Reznor's songs are ‘strikingly similar' to the protected elements in his songs”); Baxter v. MCA, Inc., 812 F.2d 421, 424, n. 2 (9th Cir.) (“Proof of striking similarity is an alternative means of proving ‘copying' where proof of access is absent”), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987); see also Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1249 (11th Cir.1999) (“If the plaintiff cannot show access, the plaintiff may still prevail by demonstrating that the works are so strikingly similar as to preclude the possibility of independent creation”); Smith, supra, 84 F.3d at 1219 (citing Baxter and noting that “establishing access eliminates the need for a plaintiff to establish a ‘striking similarity' between plaintiff's and defendant's work”).

See Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1084 (C.D. Cal. 2005).

Tips to help you determine whether your might have a case of copyright infringement idea theft

If you feel you may have been a victim of theft of idea or copyright infringement, here are some questions to ask before calling us:

1.   Did you register your work with the U.S. Copyright Office?

2.  Are you going after a Defendant that has money, or insurance, and can afford to pay you settlement or royalties?

3.  Do you have a way to show the Defendant had “access” to your copyrighted work?

4.  Are you confident that you can show substantial similarities or better yet, striking similarities so that you can hold the Defendant(s) liable?

5.  Have you had a detailed comparison performed as to the similarities in the following factors:

  • Concept
  • Feel of Work
  • Characters
  • Plot
  • Pace
  • Mood
  • Setting
  • Theme
  • Dialogue
  • Sequence

These are some of the important factors to consider.  There may be others depending upon the facts of your case.

Contact an Intellectual Property & Entertainment Law Firm

Our IP law firm can represent both Plaintiff and Defendant clients involved in intellectual property theft cases, and copyright infringement.  Call us at (877) 276-5084.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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