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Extrinsic test: plot and sequence (9th Circuit)

Discussion in 'Copyright, Trademark, Patent Law' started by OregonOutfielder, Feb 15, 2021.

  1. OregonOutfielder

    OregonOutfielder Law Topic Starter New Member

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    Jurisdiction:
    California
    Hello. The Ninth Circuit has designed an "extrinsic test" for comparing two literary works for copyright infringement cases. The elements of the test include "plot" and "sequence of events."

    Can someone explain the difference?

    Thank you.
     
  2. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    Considering the dictionary definition I looked at the sequence goes into making the plot. You would likely be best off reading the ruling that defined the test.
     
  3. adjusterjack

    adjusterjack Super Moderator

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    If you can name the case, the explanations are probably in the decision.

    If you can't name the case, understand that there are many decisions by the Ninth Circuit that involve copyright infringement. Some of which even reversed the court's earlier decisions. Too many to make it worth taking the time to find one.

    Therefore, I'll give you a simple example.

    Plot - Earth is invaded by extraterrestrial beings bent on either destroying or enslaving humanity and taking over the Earth for any number of reasons. There are dozens, if not hundreds, of stories, novels, movies and TV shows with the same plot.

    Sequence of Events - Arrival, attack, domination, destruction, resistance, victory over the aliens (or not). Handled differently in each.

    Earth vs the Flying Saucers has the same plot as Independence Day and V but that's where the similarity ends.
     
  4. OregonOutfielder

    OregonOutfielder Law Topic Starter New Member

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    Thank you both. Believe me, as a layperson I've researched this endlessly. I can't find that the terms are defined in any meaningful way, and as adjusterjack points out, the Ninth Circuit has repeatedly critiqued and modified the extrinsic test, sometimes criticizing its own rulings.

    So ... my sense is the same as adjusterjack's but I want to make sure I'm getting this right. What if the story (another tricky term) is told out of order?

    Plot: a man is murdered and the detective puts together clues and solves the case.

    Sequence: a man is murdered > we learn what led up to the murder > the detective starts putting together clues > extended flashback to the murder itself > solution.

    Is this right? We might think of Rashomon or a Faulkner novel.

    I think I'm asking: is the "sequence" the order in which events happened in the fictional world of the plot or is it the order in which those events are narrated?
     
  5. flyingron

    flyingron Well-Known Member

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    If that's what the court held, it defies the definitions in common use in English writing. Plot *is* the sequence of events. What you describe as "plot" above is what is commonly called "theme."

    The case is Masterson v. Walt Disney. I'm reading it now:
    MASTERSON v. WALT DISNEY | No. 19-55650. | 20200803130 | Leagle.com

    The course uses more than plot and sequence of events, but I'm still not sure the distinction between those two. Oddly, this decision uses neither. Time to check the precedent.


    "[t]he extrinsic test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in the two works." Funky Films, Inc. v. Time Warner Entm't Co., 462 F.3d 1072, 1077 (9th Cir. 2006), overruled on other grounds by Skidmore, 952 F.3d 1051 (internal quotation marks omitted). The intrinsic test, on the other hand, "requires a more holistic, subjective comparison of the works to determine whether they are substantially similar in `total concept and feel.'"
    Looking at Funky Films v. Time Warner, it seems that the court there holds plot as a higher level of the story flow, whereas "sequence of events" is a more detailed set of story actions.

     
    Last edited: Feb 15, 2021
  6. OregonOutfielder

    OregonOutfielder Law Topic Starter New Member

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    Yes! Isn't it interesting that the court has attempted to set up a test that is considered "objective" and yet hasn't offered (that I can find or has been articulated here) any criteria for what constitutes the very elements to be tested?

    You're right that common English usage often defines plot as "the sequence of events." So ... what distinction is the court making?
     
  7. flyingron

    flyingron Well-Known Member

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    Click on the link in the middle of the quote I posted and it will take you to the precedent case where they analyze "plot," "sequence of events," and the other criteria for the work in question.
     
  8. OregonOutfielder

    OregonOutfielder Law Topic Starter New Member

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    Ah--good catch. Thank you. That's very helpful. (Now I hope that these haven't been changed since 2006.)

    Thank you again. I may well be back for more...
     
  9. flyingron

    flyingron Well-Known Member

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    It would seem less likely since it was the case the Masterson decision was based on (and that was last August).
     
  10. OregonOutfielder

    OregonOutfielder Law Topic Starter New Member

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    I'm not trained as a lawyer but I am trained in literary studies, and I want to follow up with a general question. The example provided by Flyingron is very helpful but it requires extrapolation. I have to read the two commentaries and deduce from their argument what they mean by "plot" and "sequence of events."

    Again, as far as I can tell the court has set up an "objective test" without defining the terms of the test. It lists the elements to be employed for comparison but doesn't define those elements. Is this ... a common practice in the law?

    I should add that I've read many commentaries expressing frustration with the lack of clarity and specificity in the extrinsic test. So interesting!
     

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