John R. Fuchs, Mulryan & Fuchs, Santa Monica, Cal., for plaintiff-appellant.
Edmund S. Schaffer, Beverly Hills, Cal., Stern & Miller, Santa Monica, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, Chief Judge, CHOY and FERGUSON, Circuit Judges.
PER CURIAM:
The district court granted summary judgment for defendants-appellees on the ground that no reasonable person could find any substantial similarity of expression between plaintiff’s “Fear of Acting” and defendant’s “The Actor’s Nightmare.” We affirm.
I.
Summary judgment was appropriate. Plaintiff has cited no authority for the contention that the court must always view a production of the play, rather than relying solely on the script. That course might be desirable where the question of substantial similarity is close, but here it is not. In any event, it was not alleged that defendant copied his play from the revised version of plaintiff’s play, which plaintiff wished to have performed for comparison, but instead from plaintiff’s first draft, which was before the court.
The court properly concluded that judgment should not be deferred to afford plaintiff an opportunity to present evidence at trial that defendant had previously copied another author’s play, which defendant denied. Had the case been tried, the court could have excluded such evidence as minimally relevant and presenting serious problems of delay and confusion.
Summary judgment did not preclude reasonable discovery. The only discovery plaintiff suggests is the production of early drafts of defendant’s play on the theory they might reflect copying from plaintiff’s play that was disguised or deleted in later drafts. Copying deleted or so disguised as to be unrecognizable is not copying.
II.
No special standard is applied in determining whether summary judgment is appropriate on the issue of substantial similarity of expression in a copyright case.
