Art and Humanities Expert Witness' Testimony Did Not Employ a "Prior Art" Methodology

Art and Humanities Expert Witness’ Testimony Did Not Employ a “Prior Art” Methodology

A district judge in California limited the testimony of the Defendant’s substantial similarity expert witness as he lacked the requisite qualifications to express his opinions regarding Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture.

Plaintiff Buck Goodday Woodall filed a copyright infringement case against Defendant The Walt Disney Company, Buena Vista Home Entertainment Inc et al. The present case involves allegations of copyright infringement and misappropriation of trade secrets between Plaintiff’s “Bucky” and Defendants’ animated film Moana.

The Defendants disclosed expert Jeff Rovin as their “substantial similarity expert.” Plaintiff filed a motion to exclude Rovin’s testimony on Daubert grounds. Plaintiff aimed to prevent Defendants’ expert, Jeff Rovin, from presenting testimony and opinions, arguing two primary grounds. Firstly, Plaintiff contended that Rovin’s “prior art” methodology was unreliable and had been dismissed by Ninth Circuit Courts, asserting its inapplicability to copyright cases. Secondly, Plaintiff argued that Rovin lacked the qualifications to provide opinions on “Oceanic mythology, folklore, religion, culture, and/or history.”

Art and Humanities Expert Witness

Jeff Rovin has written numerous histories on heroic and fantasy films, including works such as Of Mice and Mickey (1975), The Fabulous Fantasy Films (1977), From the Land Beyond Beyond (1977), The Fantasy Almanac (1979), The Encyclopedia of Monsters (1989), The Illustrated Encyclopedia of Cartoon Animals (1991), and Adventure Heroes (1995). During his career, he wrote, edited, and created many comic book characters, several of whom were teenagers like The Dark Avenger, Wulf, and Vicki P.I. He also served as a testifying and consulting expert in numerous intellectual property claims.

Get the full story on challenges to Jeff Rovin’s expert opinions and testimony with an in-depth Challenge Study. 

Discussion by the Court

A. Expert’s Methodology

Defense expert Rovin’s initial and rebuttal reports cited various other works. Plaintiff sought to exclude both reports entirely, arguing that Rovin’s opinions relied on an unreliable “prior art” methodology rejected by Courts within and beyond that Circuit.

Rovin clarified the methodology he employed in applying the extrinsic test for substantial similarity. The Court found that he did not utilize a “prior art” approach but instead referenced other works to support his opinion that the alleged similarities identified by Plaintiff included elements not protected under copyright.

Additionally, the Court held that merely referencing prior works within the same genre does not automatically render an expert’s opinion unreliable or inadmissible. Plaintiff also contested Rovin’s identification of different genres in his reports but Defendants countered that these genres were defined by Plaintiff’s own expert. Even if there were differences in how the experts defined relevant genres, this does not justify excluding Rovin’s reports and testimony under Daubert standards.

Furthermore, if Rovin’s reports referenced works outside the relevant genres, this would affect the weight of his opinion, not its admissibility. Plaintiff further argued that Rovin’s references to other “prior art” could mislead the fact-finder into believing certain scenes were familiar stock scenes when they were not. But this concern also pertained to the weight of Rovin’s testimony, not its admissibility.

The Court concluded that Rovin’s methodology did not involve a “prior art” approach, thus refuting Plaintiff’s assertion that his opinions and testimony were unreliable and inadmissible. Consequently, the Court rejected Plaintiff’s motion to exclude Rovin’s testimony and opinions based on reliability concerns.

B. Expert’s Qualifications

Plaintiff had also sought to exclude Rovin’s opinions and testimony, arguing he lacked the requisite qualifications to discuss “Oceanic mythology, folklore, religion, culture, and/or history.”

Defense counsel had disclosed that they specifically designated Rovin “as their substantial similarity expert.” Therefore, the Court prohibited Rovin from offering expert opinions or testimony concerning Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture.


The Court ruled as follows:

The Plaintiff’s motion to exclude opinions and testimony from defense expert Rovin, arguing his opinion was unreliable, was denied.

Plaintiff’s motion to exclude expert testimony or opinions from defense expert Rovin regarding Polynesian, Oceanic, or Hawaiian mythology, folklore, history, religion, or culture was granted.

Key Takeaway:

The Court rejected Plaintiff’s argument that employing “prior art” approach rendered Jeff Rovin’s opinions unreliable, stating that referencing works within the same genre does not inherently undermine an expert’s credibility. The Court held that Rovin did not use a “prior art” methodology, but instead referenced other works in opining that the alleged similarities in the parties’ works identified by Plaintiff include unprotectable elements.

As Rovin was designated solely as a substantial similarity expert, the Court granted Plaintiff’s motion to preclude him from providing opinions or testimony on Polynesian, Oceanic, or Hawaiian subjects.

Case Details:

 Case Caption: Buck G. Woodall V. The Walt Disney Company
 Docket number: 2:20cv3772
 Court: United States District Court, California Central
(Western Division – Los Angeles)
 Date: May 22, 2024


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