                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARK GABLE, an individual,                       Nos. 10-55420 and 10-56395

              Plaintiff - Appellant,             D.C. No. 2:08-CV-04013-SVW-
                                                 FFM
  v.

NATIONAL BROADCASTING                            MEMORANDUM *
COMPANY, INC., a California
corporation; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                              Submitted June 7, 2011 **
                                Pasadena, California

Before: D.W. NELSON and IKUTA, Circuit Judges, and PIERSOL, Senior
District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, Sioux Falls, sitting by designation.
      Mark Gable (“Gable” or “appellant”) appeals the district court’s grant of

summary judgment in favor of National Broadcasting Company (“NBC”), Gregory

Garcia (“Garcia”), Twentieth Century Fox Film Corporation, and Twentieth

Century Fox Home Entertainment LLC (collectively, “defendants” or “appellees”)

in this copyright infringement action. We review a district court order granting

summary judgment de novo. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Gable claims that defendants infringed his copyright in the screenplay

Karma! when they created the television program called My Name is Earl (“Earl”).

To establish copyright infringement, Gable must show that (1) defendants had

access to his work and (2) Karma! and Earl are substantially similar in protected

expression. See Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003).

Because Gable failed to raise a genuine issue of material fact regarding substantial

similarity, we need not address the issue of access.

      To determine whether two works are substantially similar for the purposes of

summary judgment, courts in the Ninth Circuit use the “extrinsic test,” which

measures the “articulable similarities between the plot, themes, dialogue, mood,

setting, pace, characters, and sequence of events.” Id. (quotation omitted). A party

claiming infringement may place “no reliance upon any similarity in expression


                                          2
resulting from unprotectable elements.” Id. (quotation omitted). “Similarities

derived from the use of common ideas,” for example, cannot be protected. Id. at

1175 (quotation omitted). Relatedly, the doctrine of scènes à faire holds that

“expressions indispensable and naturally associated with the treatment of a given

idea are treated like ideas and are therefore not protected by copyright.” Id.

(citation and internal quotation marks omitted).

      Because “no reasonable juror could find substantial similarity of ideas and

expression” between Karma! and Earl, the district court did not err in granting

summary judgment for the defendants. Funky Films, Inc. v. Time Warner Entm’t

Co., 462 F.3d 1072, 1076 (9th Cir. 2006) (citation and internal quotations marks

omitted). The mere fact that Karma! and Earl both deal with the ideas of karma

and redemption does not constitute infringement. Rice, 330 F.3d at 1175; see also

Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1045 (9th Cir. 1994)

(attaching “no significance” to the fact that two works involved kids fighting

insurmountable dangers). Likewise, there is no infringement stemming from the

copying of a “selection and arrangement” of otherwise unprotectable elements, as

in Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002), because Karma! and

Earl do not involve the “same totality of similarities and the same degree of

access.” Rice, 330 F.3d at 1179; see also Funky Films, 462 F.3d at 1081 n.4. The


                                          3
superficial points of comparison between Karma! and Earl, gleaned haphazardly

from three seasons of the television series, do not rise to the level of substantial

similarity.

       The district court also did not err in excluding expert testimony from David

Nimmer and Eric Sherman.1 Some of Nimmer’s testimony contained inadmissible

legal conclusions. See United States v. Scholl, 166 F.3d 964, 973 (9th Cir. 1999).

According to the district court, although each were recognized to have a separate

area of expertise, both Nimmer and Sherman also failed to establish that they had

“knowledge, skill, experience, training, or education” relevant to the evidence at

issue. Fed. R. Evid. 702. Determinations of whether a particular witness has such

expertise is “peculiarly within the sound discretion of the trial judge” and

reviewing courts afford “a high degree of deference to the district court’s

findings.” United States v. Chang, 207 F.3d 1169, 1172 (9th Cir. 2000) (citations

and internal quotation marks omitted). The district judge in this case did not abuse

his discretion in excluding Nimmer’s and Sherman’s testimony.

       Finally, the district court did not err in awarding attorneys’ fees to the

defendants. Section 505 of the Copyright Act provides that the district court may



       1
        We review a district court’s exclusion of expert testimony for abuse of
discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141-42 (1997).

                                            4
“award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17

U.S.C. § 505. A district court’s order awarding attorneys’ fees under the

Copyright Act is reviewed for abuse of discretion. Columbia Pictures Television,

Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1197 (9th Cir. 2001).

Here, the district court considered, among other things, that its award of attorneys’

fees “encourages valid copyright owners, such as Garcia, to fight for the protection

of their works where it would otherwise be uneconomical to do so.” The award

also “helps to prevent the filing of similarly meritless copyright actions” in the

future. Under these circumstances, the district court did not abuse its discretion.

See Fogerty v. Fantasy, Inc., 510 U.S. 531, 534 & n.19 (1994).

      AFFIRMED.




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