Stevens v. Tomlin

District court dismisses with prejudice screenwriter’s copyright infringement suit accusing filmmaker and writer Mattson Tomlin of copying screenplay in production of Netflix film Project Power for failure to plead access or substantial similarity.

Andrew Stevens, an amateur screenwriter, wrote the unpublished screenplay Way Out West, which focuses on a former assassin for a dangerous crime syndicate pursued by corrupt detectives and hitmen hired by his former boss. After the protagonist is injured, he uses a specially formulated powder that grants him five minutes of “angelic power.” In August 2020, Netflix released the film Project Power, which involves a pharmaceutical company that develops a drug in collaboration with the military that grants users five minutes of an unpredictable superpower.

Stevens filed suit for copyright infringement against the writer of Project Power, Mattson Tomlin, alleging that Tomlin’s film copied elements of Way Out West. Tomlin moved to dismiss, arguing that Stevens failed to plead a plausible theory of access and failed to allege facts showing that Way Out West is substantially similar to Project Power beyond its unprotectable abstract concepts and general character archetypes.

Assuming valid registration of Way Out West, the court examined whether Stevens had sufficiently alleged that Tomlin had actually copied his screenplay by demonstrating that he had access to the work. Stevens’ sole allegation regarding access was his personal belief that Tomlin accessed his screenplay through the Writers Guild of America (WGA) registry. The court agreed with Tomlin that Stevens failed to plead a plausible theory of access because the complaint lacked allegations that Tomlin had any relationship or engagement with the WGA that could support the theory. Stevens’ theory of access was further undercut by the lack of any allegations that Stevens sent copies of the screenplay to Tomlin or anyone Tomlin may have known, and the fact that Way Out West was unpublished and therefore was likely not widely disseminated, if it was disseminated at all.

The court next analyzed whether Stevens had sufficiently alleged substantial similarity between Way Out West and Project Power. According to the court, plaintiff alleged the following copied elements: (1) a substance causing five minutes of superpowers, which at times “cause[s] the body to freeze,” (2) the ability to become invisible, (3) corrupt detectives pursuing the protagonist, (4) the reference to “Superman” due to the main character’s “skills,” (5) bandages applied to the protagonist’s arms after injury in explosions, (6) carrying a cellphone, (7) the protagonist experiencing flashbacks, (8) a chase scene and (9) large bundles of money. According to the court, all the alleged similarities were unprotectable ideas and scenes a faire that were expressed differently between the two works. 

For example, the court held that broader themes of superheroes and superpowers, such as invisibility, are unprotectible as a general matter. The court also noted that the concept of a substance granting five minutes of superpowers were expressed differently in the two works: while the powers in Way Out West were “absolute,” the powers depicted in Project Power were limited to the powers of specific animals, such as the electric shock of a pistol shrimp. Furthermore, the court rejected other alleged similarities between the works such as bandaged arm injuries following explosions, flashbacks, large bundles of money, chase scenes and superhuman abilities as scenes a faire. The court also rejected Stevens’ argument that Project Power misappropriated his depiction of the main character in Way Out West, holding that the only alleged similarity between the two characters is that they both possess “ninja powers,” which is an unprotectible stock character trait in an action film. Finally, the court held that Stevens failed to establish an inference of copying based on striking similarity for the same reasons he failed to allege a substantial similarity between Way Out West and Project Power.

Because Stevens had already been given leave to amend twice, the court dismissed his complaint with prejudice, holding that no amendment could reasonably be expected to cure the defects that warrant dismissal of his speculative claims. 

Summary prepared by David Grossman and David Forrest