Court rejects the Film Finance and Distribution Expert Witness' opinion on substantial similarity citing lack of literary expertise in Copyright Infringement Suit

Court rejects the Film Finance and Distribution Expert Witness’ opinion on substantial similarity citing lack of literary expertise in Copyright Infringement Suit

In the legal case involving Nicole Gilbert-Daniels as the Plaintiff and Lions Gate Entertainment Corp., Starz Entertainment, LLC, Chernin Entertainment, LLC, Katori Hall, Liz Garcia, and Patrik-Ian Polk as Defendants, Plaintiff contended that Defendants’ television show, “P-Valley”, infringed on her copyright for her musical stage play, “Soul Kitten Cabaret” which led to a pivotal moment during a hearing on September 18, 2023.

During this hearing, the Defendants moved to strike Plaintiff’s expert Rob Aft’s declaration, contending that its filing was untimely per the Federal Rules of Civil Procedure and was barred by the Court’s earlier order from July 5, 2023. However, the Court didn’t find these arguments convincing and declined to consider them further when reiterated in subsequent papers.

Instead, the Court indicated its intention to focus on the substantive claims presented within the motion to strike.

Film Finance and Distribution Expert Witness

Rob Aft has substantial experience in the film and television business, with a particular focus on copyright ownership. For the past fifteen years, he has worked as the “main film consultant/lecturer for the UN’s World Intellectual Property Organization (WIPO).” He helps to organize and speaks at conferences around the world “on business topics related to film and TV.” He has written several books on copyright directed at professionals working in the film and TV industry. He has also been engaged as an expert in cases “involving COT [chain of title] and proper licensing of derivative works on multiple occasions.” All told, his experience in the “film finance/production/distribution industry” exceeds 33 years. Aft has also worked as an “independent financial consultant” and has run sales “at a number of independent production/distribution companies.” Aft’s previous work experiences have included “the negotiation of distribution agreements with major studios, revenue projection, contract negotiation/drafting and dispute resolution.” Id. He was also “very involved in the development and acquisition of content for sale, including chain of title . . . review.”

Discussion by the Court

In the evaluation of substantial similarity between the Plaintiff’s and Defendant’s works, the legal process involved a two-part test. The first part, termed the extrinsic component, focused on assessing the likeness between the Defendant’s work and the protectible elements within the Plaintiff’s work. This assessment was distinct from the probative similarities evaluation, specifically considering only the protectible elements while filtering out the non-protectible ones.

The extrinsic test employed an objective approach, examining specific expressive elements such as plot, themes, dialogue, mood, setting, pace, characters, and sequence of events in both works. Notably, the Court clarified that, at this stage of the litigation, its assessment was solely centered on whether the extrinsic test for substantial similarity had been met.

Furthermore, the Court highlighted the varying significance of expert testimony in cases of substantial similarity. It acknowledged that while an expert’s opinion could be particularly beneficial in some instances, in this specific case, which involved works targeting a general audience and dealing with easily understandable subject matter, expert testimony was deemed less critical. Both the Plaintiff’s and Defendant’s works were categorized as aiming at a broad audience and addressing subject matters comprehensible to the ordinary person, thus diverging from cases where expert testimony would hold greater relevance.

Expert testimony  is admissible pursuant to Federal Rule of Evidence (“FRE”) 702 if it is helpful and reliable. Pursuant to FRE 702, a witness may offer an expert opinion only if they draw on some special “knowledge, skill, experience, training or education to formulate that opinion.”

In the legal proceedings, the Defendants contested Aft’s qualifications as a literary expert. Both parties referenced a precedent set by the Court in the case of Gable v. Nat’l Broad. Co., where the Court excluded an expert report by David Nimmer, acknowledged as an “expert in the field of copyright law,” due to limitations in Nimmer’s ability to perform a literary analysis of two fiction works.

The Court in Gable highlighted a crucial flaw in relying on Nimmer’s expertise for commenting on substantial similarity. It noted that despite Nimmer’s impressive legal credentials, there was a lack of evidence indicating his experience, knowledge, training, or education in the literary field. The absence of indications that Nimmer had worked in capacities such as film criticism, publishing, teaching English, editing, directing, writing fiction, or engaging extensively with literary works led the Court to conclude that his expertise did not extend to providing an expert literary analysis.

The Court acknowledged that while comparing two fiction works might not demand highly technical skills and could be conducted without specific training, offering an expert literary analysis required some form of demonstrated experience or involvement in watching, reading, writing, comparing, or analyzing literary works, which Nimmer lacked.

Defendants contested Aft’s credentials, paralleling the accusation made against David Nimmer in the Gable case, highlighting the absence of specific literary qualifications in Aft’s background. They argued that Aft lacked formal education or training in literature, comparative literary analysis, or creative professions like writing for film or television.

In response, the Plaintiff asserted Aft’s extensive experience of 34 years involving the review, analysis, and comparison of numerous scripts, films, and literary works. They emphasized Aft’s role in advising on similarities between literary pieces in various professional contexts, such as evaluating Errors and Omissions coverage for film projects, providing opinions on chain of title, and advising on literary endeavors.

The Plaintiff’s reliance on a specific language excerpt from the Gable case lacked important context. They argued that because Nimmer hadn’t alleged certain relevant facts, his testimony’s inability to be considered on substantial similarity was evident. However, the Court clarified that highlighting the absence of these crucial facts didn’t inherently imply that presenting such facts would have met the required standard for expertise. The Court indicated that to qualify as a literary expert, Aft needed to demonstrate expertise in literary analysis or writing akin to the illustrative examples listed in Gable.

Upon scrutinizing Aft’s qualifications, the Court found the assessment less straightforward than in the Gable case. While Aft boasted over three decades of experience in the finance/production/distribution industry, these roles didn’t involve writing, instructing writing, or literary analysis. Nonetheless, the Plaintiff argued that Aft’s extensive experience in reviewing, analyzing, and comparing thousands of scripts and literary works over the years validated his qualifications as an expert in the field.

In referencing the Counts v. Meriwether, 2015 U.S. Dist. LEXIS 173790, the Court acknowledged two experts, Mark Rose and Kathryn Arnold, as qualified to offer substantial similarity analysis. Rose held a Ph.D. in English literature, had extensive teaching experience, published books on literary subjects, and had been retained as a copyright infringement expert multiple times. Arnold, having worked in script development and reviewed numerous scripts, was also deemed qualified.

In contrast, while recognizing Aft’s substantial experience in the entertainment industry involving various roles like negotiating agreements, assessing risks of production loans, and dealing with copyright elements, the Court aligned with the Defendants’ analysis. The Court reasoned that mere extensive script review, a common aspect of the film industry, wasn’t sufficient to qualify Aft as an expert on substantial similarity.

The Court emphasized that relying solely on years of experience in the entertainment industry to define expertise would undermine the gatekeeping function of standards like FRE 702. It highlighted that the case didn’t necessitate expert opinion significantly and concluded that Aft’s qualifications didn’t meet the criteria for expertise on substantial similarity.

Clarifying its decision, the Court explained that it didn’t base its conclusion on whether Aft specifically specialized in performing substantial similarity analyses for copyright infringement. Rather, the decision stemmed from Aft’s lack of expertise in the craft of writing or the field of literary analysis. The ruling, therefore, centered on Aft’s insufficient relevant qualifications rather than a blanket exclusion of expert testimony.

The Defendants contested the admissibility of Aft’s report, alleging that he didn’t apply the Ninth Circuit’s extrinsic test for substantial similarity. This test mandates filtering out unprotectable elements before comparing the works in question.

The Court acknowledged that Aft’s description of performing the extrinsic test was brief and somewhat implied. Aft indicated that he reviewed other films in the same genre to identify common tropes or scenes, outlining specific similarities between the Plaintiff’s and Defendants’ works that weren’t present in other films he reviewed within the genre. Although the analysis was concise, the Court highlighted that brevity alone didn’t render an expert report deficient.

While Aft’s report primarily focused on countering the Defendants’ portrayal of the works, the Court refrained from concluding that Aft hadn’t conducted a substantial similarity analysis. Despite the emphasis on rebutting the Defendants’ characterization, Aft’s report centered on comparing elements that he deemed protectible, indicating an implicit filtering out of those elements he considered unprotectable. The Court noted that “a comparison that includes both unprotectible and protectible elements is invalid under the extrinsic test and is legally irrelevant” renders an expert report inadmissible which was not the case with Aft’s report. But that did not not change the Court’s finding that Aft is not qualified to offer an expert opinion on that analysis.

The ongoing dispute between the parties regarding the usefulness of Aft’s report echoes their prior arguments about his qualifications and adherence to the Ninth Circuit’s extrinsic test for substantial similarity. The Court reiterates its stance on the limited value of expert testimony in cases where works are aimed at a general audience and deal with easily comprehensible subject matter.

While acknowledging the marginal potential usefulness of expert testimony, the Court underscored a particularly unhelpful aspect of Aft’s report. A substantial part of Aft’s declaration delved into what he termed a “practical question” concerning the risk of a lawsuit related to licensing underlying rights. He posed a hypothetical scenario wherein the Plaintiff pitched her work in a world where the Defendants’ work already existed, concluding that a production company interested in the Plaintiff’s work should expect a lawsuit. However, the Court deemed this portion irrelevant and unhelpful to the substantial similarity analysis.

Highlighting that the consideration of the likelihood of litigation wasn’t within the scope of the extrinsic analysis of substantial similarity, the Court concluded that this section of Aft’s report complicated matters by venturing beyond the necessary focus of the analysis.


The Court granted Defendants’ request to strike the declaration of Plaintiff’s expert Rob Aft.

The Court has not arrived on an outcome for this case since the remaining issues involved in this case still await resolution.

Key Takeaways:

In this case, the Court delved into the qualifications and relevance of expert testimony, particularly regarding substantial similarity analysis. It scrutinized experts’ backgrounds to ascertain their eligibility to provide such analysis, emphasizing the need for expertise in literary analysis or writing for individuals to qualify as literary experts in these evaluations. The Court highlighted that having a career in the entertainment industry or reviewing scripts, while valuable, might not suffice for expert opinion on substantial similarity. It stressed the importance of specific expertise in literary analysis or writing for these cases. Additionally, the Court evaluated whether experts adhered to the Ninth Circuit’s extrinsic test for substantial similarity, emphasizing the focus on protectible elements and the implicit filtering of unprotectible elements in expert reports. The Court noted that expert testimony might hold limited value in cases involving works aimed at broad audiences and dealing with easily understandable subject matter, questioning the necessity and relevance of such testimony in these instances. Furthermore, the Court highlighted the importance of keeping expert testimony within the scope of the extrinsic analysis of substantial similarity, as deviation into irrelevant areas could render portions of an expert report irrelevant to the legal analysis. Ultimately, the decision underscored the need for specific expertise in literary analysis or writing for offering expert opinions on substantial similarity, as well as the significance of keeping expert testimony focused on relevant aspects of the legal analysis.