Jury Finds in Favor of Apple Inc. in Copyright Battle Over “Servant”

by Daniel Ain and Ariana Zhao

A five-year legal battle concluded last week when a California jury sided with director M. Night Shyamalan, Apple Inc., writer Tony Basgallop, and other parties involved in the production of Servant, the Apple TV+ series which premiered in 2019 and aired for four seasons.  Screenwriter and director Francesca Gregorini filed the lawsuit in 2020, claiming that the first three episodes of Servant infringed on her copyright in the 2013 film The Truth About Emanuel.

The case, filed in the U.S. District Court for the Central District of California, bounced around federal court for years. Initially, the District Court dismissed the case and ordered Gregorini to pay defendants’ attorneys’ fees. However, the Ninth Circuit reversed in 2022 following Gregorini’s appeal. Gregorini’s case later survived summary judgment in 2024 and proceeded to trial early this year.

In The Truth About Emanuel, a mother hires a nanny to care for a baby doll that she believes is her deceased child. The nanny develops a close relationship with the mother, keeps the secret, and similarly treats the doll as if it were a real baby.

In Servant, a young couple is grappling with the death of their baby. As part of their therapy, they are given a grief doll, however, the mother begins to believe the doll is real and the couple hire a nanny to care for it.  At the end of the first episode, the father hears a real cry through a baby monitor and discovers that the doll is, in fact, a real baby.

In order to succeed at trial, Gregorini needed to prove that the defendants had access to her original work and that the allegedly infringing episodes of Servant were substantially similar to her film.

As the District Court noted in its denial of the defendants’ 2024 motion to dismiss, “access can be demonstrated by a ‘chain of events linking the plaintiff’s work and the defendant’s access’ or by ‘showing that the plaintiff’s work has been widely disseminated.’”[1] The analysis boils down to whether there was a “reasonable probability” rather than a “bare possibility” that the defendants viewed the original work.[2]

While The Truth About Emanuel only generated about $4,000 in at the box office (indicating that the film was not “widely disseminated”[3]), it premiered at the Sundance Film Festival in 2013, starred well-known actress Jessica Biel, was screened at 18 other film festivals internationally, and was available on streaming services.[4]  Thus, the court determined that there was, at a minimum, an element of notoriety within the independent film scene.

Although these facts were enough to help Gregorini survive the defendants’ motion to dismiss, the jury ultimately concluded at trial that none of the defendants had access to her film prior to the production of Servant.  Even if the jury had determined that the defendants had access, Gregorini would still have needed to prove the substantial similarity between the series and her film.

At the summary judgement stage, California law requires a court to apply the “‘extrinsic test,’ which ‘compares the objective similarities of specific expressive elements in the two works.’”[5]  The court’s job is to first separate the elements of the work that are protectable by copyright (such as the characters, dialogue, pacing, etc.) and to determine whether there is substantial similarity among solely the protectable elements.  Alternatively, a creator can show substantial similarity by demonstrating that a specific sequence in which unprotectable elements (e.g., general plot elements, familiar themes, etc.) were strung together required a sufficient degree of creativity so as to be, collectively, protectable, and that the same or similar sequence was used in the subsequent work.[6]

Thus, the court determined that a reasonable juror could find substantial similarity based on the extrinsic test, given certain similar aspects in the story (a mother who loses her only baby, keeping from the audience how the baby died, hiring of a young nanny to care for a baby doll, the nanny being complicit in caring for the doll, etc.).  While it is unknown how the jury would have analyzed substantial similarity under the extrinsic test, it is worth noting that Gregorini would have only prevailed at trial had she also satisfied California’s intrinsic test, a subjective analysis as to whether an ordinary, reasonable person would think the works’ total concept and feel are substantially similar.

In the end, the jury’s decision highlights the complexity of copyright cases, particularly when it comes to proving access and substantial similarity. While Gregorini’s drawn-out legal battle ultimately failed, it raised important questions about the sometimes fine line between an original work and an infringing work.

 

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Counsel Daniel Jason Ain who counsels clients in areas of entertainment, media and literary, intellectual property and employment law. Mr. Ain is admitted to practice law in the State of New York and the District of Columbia.

 

 

 

 

[1] Gregorini v. Apple Inc., No. 20 CIV. 00406, 2024 WL 5264949, at *4 (C.D. Cal. Nov. 25, 2024) (quoting Loomis v. Cornish, 836 F.3d 991, 995 (9th Cir. 2016)).

[2] Id., at *4 (quoting Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d 1138, 1143 (9th Cir.)).

[3] Id.

[4] Id.

[5] Id., at *6 (quoting Johannsongs-Publ’g Ltd. v. Lovland, No. 18 CIV. 10009, 2020 WL 2315805, at *3 (C.D. Cal. Apr. 3, 2020), aff’d, No. 20-55552, 2021 WL 5564626 (9th Cir. Nov. 29, 2021)).

[6] See Id., at *7.