Unreported / Non-Citable
Background
Francesca Gregorini is the writer, director, and producer of the independent film The Truth About Emanuel. She sued Apple Inc., filmmaker M. Night Shyamalan, and affiliated production companies and individuals in the Central District of California. She alleged that the first three episodes of the television series The Servant were substantially similar to her film. The district court had earlier dismissed the complaint on the ground that the works were not substantially similar as a matter of law. In a prior appeal, the Ninth Circuit reversed, holding that dismissal was improper because reasonable minds could differ.
On remand the parties completed fact and expert discovery, and the case went to a jury, which returned a verdict for Defendants. Gregorini appealed two matters. The first was the final instruction on access, which used Ninth Circuit Model Civil Jury Instruction 17.18 and did not define 'widely disseminated.' The second was the district court's acceptance of the verdict without answering a pending jury question asking for a definition of that phrase. The panel decided the appeal without oral argument in an unpublished memorandum.
The Court’s Holding
The panel affirmed. It first concluded that Gregorini preserved her objection to the access instruction. Rule 51 ordinarily requires a distinct, on-the-record objection, but a specific objection is unnecessary when the court was fully aware of the party's position and further objection would have been unavailing. Applying the three-factor test, the panel found that she argued the disputed matter with the court throughout trial. It also found that the court understood her grounds, since its summary judgment ruling found enough evidence of industry-specific notoriety to create a genuine issue on access. And she repeatedly offered an alternative instruction defining 'widespread dissemination.' Review was therefore for abuse of discretion as to formulation and de novo as to legal accuracy.
On the merits, the panel found no abuse of discretion in giving Model Instruction 17.18. Use of a model instruction does not preclude error, but this one fairly and correctly covered the law. Access may be shown by a chain of events connecting the plaintiff's work to the defendant's opportunity to view it, or by widespread dissemination of the work. The court was not required to define 'widely disseminated,' because the evidence needed to show it varies from case to case. The instruction did not say that dissemination could be shown only through commercial success. It left the jury free to consider commercial success or market saturation, so Gregorini had ample room to argue her theory.
The panel also found no error in accepting the verdict without answering the jury's request for a definition. This was not a case where the court gave an inadequate answer or refused to answer. With the day ending, the court chose to let the parties argue their positions the next day of deliberation. The jury did not need an answer to reach a unanimous verdict, was polled, and Gregorini presented no evidence of coercion. The parties disputed whether Gregorini preserved this objection, which would affect whether review is for abuse of discretion or plain error. The panel did not decide the question because she would lose under either standard. The judgment for Defendants stands.
Key Takeaways
- A party need not make a formal, specific Rule 51 objection when it argued the issue, the court plainly knew its grounds, and the party offered an alternative instruction, so that further objection would have been a pointless formality.
- Ninth Circuit Model Civil Jury Instruction 17.18, which allows access to be shown by a chain of events or widespread dissemination, was held to state the law accurately here without a further definition of 'widely disseminated.'
- Because the evidence needed to show widespread dissemination varies by case, a court need not define the term, and an instruction that does not confine it to commercial success leaves room to argue market saturation.
- A court did not abuse its discretion by accepting a unanimous, polled verdict without answering a pending jury note when the jury did not need the answer and no coercion was shown.
- The panel declined to resolve a disputed standard of review for the unanswered-note issue because the appellant would lose under either abuse of discretion or plain error.
Why It Matters
The memorandum shows the deference the Ninth Circuit gives trial courts on jury instructions and deliberation management in copyright trials, and it signals that model access instructions are generally adequate. It was decided on a specific record, in which the plaintiff had litigated and proposed alternatives to the instruction, and it turned on the facts of the jury note.
The disposition is not for publication and is not precedent except as provided by Ninth Circuit Rule 36-3, so it carries limited weight beyond this case. It does not decide the standard of review for post-verdict objections to unanswered jury notes, and it does not define the quantum of proof for widespread dissemination.