Little Nicky's Big Win in the Sixth Circuit

Kevin Heller posted recently on his blog, Tech Law Advisor on a copyright case, Stromback v. New Line Cinema, which was decided last week by the 6th Circuit Court of Appeals. Douglas Stromback, a former minor league hockey player, wrote a poem entitled “The Keeper”, which he used as a foundation for a screenplay. He claimed that this was used as the basis for the movie, “Little Nicky”, starring Adam Sandler. Heller and the Court both agree that the case appears to be without a great deal of factual merit. From the facts presented in the case, I would have to agree that the two works certainly don’t seem to share anything more than the fact that both involve a basic, good vs. evil conflict, with some satan thrown in, which I think is more or less plot #3 in the Dummy’s Guide to Screenwriting, right after boy-meets-girl…

I’ll keep the facts brief… The Keeper is about a white boy, Ted, who grew up in a black family and was taught by a somewhat senile man in a nursing home that the key to life is speaking in rhymes. Battling a schizophrenic-like condition, Ted starts a career at a newspaper and he pursues the evil Governor of California, John. Ted had discovered that John’s father apparently belonged to a satanic cult and was involved in the murder of a reporter. In a novel twist on the serial murderer taunting the police bit, Ted taunts evil Governor John with his rhymes. Governor John does not like this one bit, and ends up murdering Ted’s friend. The scion has followed in his father’s murderous footsteps… Eventually, Gov. John is arrested and Ted ascends to the head office in Sacramento.

Little Nicky has Satan pondering retirement and deciding whether he should pass the plum position on to one of his three sons. Nicky, played by Sandler, is the nerdy son that is clearly to good for the evil job. He visits Earth – New York, naturally – and meets a number of fine humans and falls in love. Nicky meets his mother, who turns out to be an angel and empowers him for his penultimate battle with evil. He ultimately saves humanity from his evil brothers, one of whom had ascended to the Satanic throne.

The interesting aspect to the decision involves the court’s reasoning as it grapples with the lack of a concise “substantial similarity” test in the circuit. (“Substantial similarity” is one of the two elements required to demonstrate an inference of copying; “access” being the first element. Access was not contested by New Line.) The court is clearly determined to inject a fair dose of judicial economy into the substantial similarity inquiry, and to ensure that summary judgment can be liberally applied by judges in future trivial infringement suits. Stromback espouses the application of a formal two-part test for substantial similarity, modeled on the Ninth Circuit’s extrinsic and intrinsic tests. The attitude of this court, by contrast, is all about keeping things simple. The Sixth feels that the two element test from the Ninth Circuit should be applied as a single, albeit broad, test. The extrinsic test in the Ninth Circuit determines which aspects of the artist’s material may be copyright protected. The Sixth Circuit Court considers this to be relatively straightforward filtering process, which can be handled by the court and then combined with the “ordinary observer test”, whereby filtrate from the two works in question is then compared. This comparison is straightforward and rarely involves experts in the Sixth Circuit, because while they follow the Federal Rule of Evidence 702 regarding expert testimony, in their opinion, “expert testimony will seldom be necessary to determine substantial similarity.”

Though the court also tackles several procedural arguments put forward by Stromback, its tone doesn’t waver as it rejects them all. When all is said and done, Stromback v. New Line Cinema is probably not destined for any textbooks, let alone a Supreme Court audience. Still, it‘s refreshing to see a court recognize that copyright issues do not need to be cloaked behind increasingly complex multi-part tests. A continued focus on common sense standards can only serve to improve the body of precedent available to lower courts and ensure that legal issues in infringement cases are kept straightforward.