     11-1202-cv
     Latimore v. NBC Universal Inc., et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 23rd day of May, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                AMALYA L. KEARSE,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SONYA WHITTEN LATIMORE,
14                Plaintiff-Appellant,
15
16                    -v.-                                               11-1202-cv
17
18       NBC UNIVERSAL TELEVISION STUDIO, 3 BALL
19       PRODUCTIONS, INC., 25/7 PRODUCTIONS,
20       LLP, A DELAWARE LIMITED LIABILITY
21       COMPANY, TWENTIETH TELEVISION, INC., A
22       DELAWARE CORPORATION, SHINE LIMITED, AN
23       ENTITY OF UNKNOWN ORIGIN, DANIEL
24       TIBBETS, AN INDIVIDUAL, ANDREW HILL, AN
25       INDIVIDUAL, BEN SILVERMAN, AN
26       INDIVIDUAL,
27                Defendants,
28

                                                  1
 1   and
 2
 3   NBC UNIVERSAL INC., REVEILLE, LLC, A
 4   DELAWARE LIMITED LIABILITY COMPANY,
 5   KIM FULLER, INDIVIDUALLY AND AS
 6   PARTNER OF MCCREARY & FULLER PUBLIC
 7   RELATIONS CORP., DOES, 1 THROUGH 50,
 8   INCLUSIVE,
 9            Defendants-Appellees.
10   - - - - - - - - - - - - - - - - - - - -
11
12   FOR APPELLANT:             Joseph Boswell Barrett, Barrett
13                              & Winn, Amityville, NY.
14
15   FOR APPELLEES:             Alan Robert Friedman (Joel
16                              Robert Weiner, Katten Muchin
17                              Rosenman LLP, Los Angeles CA, on
18                              the brief), Katten Muchin
19                              Rosenman LLP, New York, NY, for
20                              appellees NBC Universal Inc. and
21                              Reveille, LLC.
22
23        Appeal from a judgment of the United States District
24   Court for the Southern District of New York (Hellerstein,
25   J.).
26
27        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
28   AND DECREED that the judgment of the district court be
29   AFFIRMED.
30
31        Sonya Whitten Latimore appeals from a judgment of the
32   United States District Court for the Southern District of
33   New York (Hellerstein, J.), granting defendants’ motion for
34   summary judgment and denying her cross-motion to conduct
35   additional discovery. Latimore’s amended complaint alleges
36   that the NBC reality program called The Biggest Loser
37   infringes on her copyrighted treatment for a television show
38   entitled Phat Farm. The district court concluded that The
39   Biggest Loser was not substantially similar to Latimore’s
40   idea and that Latimore had failed to uncover any evidence
41   that the creators of the show had access to Latimore’s
42   proposal. We assume the parties’ familiarity with the
43   underlying facts, the procedural history, and the issues
44   presented for review.

                                  2
 1        After conducting a de novo review of the district
 2   court’s summary judgment ruling, we affirm. In the absence
 3   of direct evidence of copying, a plaintiff can
 4   circumstantially prove that a defendant copied her work by
 5   showing both the defendant’s “access to the copyrighted
 6   work” and the “substantial similarity of protectible
 7   material in the two works.” Williams v. Chrichton, 84 F.3d
 8   581, 587 (2d Cir. 1996) (internal quotation marks omitted).
 9   “The standard test for substantial similarity between two
10   items is whether an ordinary observer, unless he set out to
11   detect the disparities, would be disposed to overlook them,
12   and regard the aesthetic appeal as the same.” Yurman
13   Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001)
14   (internal quotation marks and alterations omitted). In a
15   case such as this, where the copyrighted work necessarily
16   has both protected and unprotected elements, a court applies
17   a more discerning analysis, in which it “must attempt to
18   extract the unprotectible elements from [] consideration and
19   ask whether the protectible elements, standing alone, are
20   substantially similar.” Knitwaves, Inc. v. Lollytogs Ltd.,
21   71 F.3d 996, 1002 (2d Cir. 1995) (emphasis omitted). After
22   undertaking “a detailed examination of the works
23   themselves,” Williams, 84 F.3d at 583 (internal quotation
24   marks omitted), the district court properly found that The
25   Biggest Loser is not substantially similar to Latimore’s
26   idea. Although both ideas take advantage of staples of
27   reality television such as team-based competition,
28   elimination, and communal living, the way in which The
29   Biggest Loser combines and supplements these common elements
30   results in a concept and overall feel that is entirely
31   different than Latimore’s proposal.
32
33        As an independent basis for affirming, we agree with
34   the district court that, after protracted discovery,
35   Latimore utterly failed to uncover evidence that the
36   creators of The Biggest Loser ever had access to her
37   proposal, or heard of it.
38
39        Finally, the district court did not abuse its
40   discretion in denying Latimore’s cross-motion for additional
41   discovery under Federal Rule of Civil Procedure 56(d).
42   Latimore had more than enough time to conduct discovery, and
43   she did not demonstrate that further discovery would likely
44   uncover any evidence of access or assist her in showing
45   substantial similarity.

                                  3
1            Finding no merit in Latimore’s remaining
2   arguments, we hereby AFFIRM the judgment of the district
3   court.
4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




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