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Jennie Nicassio v. Viacom International, Inc., et al.

Paid petition · United States Court of Appeals for the Third Circuit, No. 18-2085 · judgment July 2, 2019

Certiorari denied · December 9, 2019
Pre-decision estimate: 5% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for a Third Circuit decision below and a circuit split argued in the petition, and down for a business respondent and a petition filed soon after the judgment below.

Questions presented

  1. Under the idea/expression dichotomy, the Circuits agree that in comparing original to allegedly copied works to determine actual copying, (a) elements of a generic plot, (b) general themes, and (c) under the scènes-à-faire doctrine, plot elements that are commonly used in, or necessary for, the treatment of generic plots and general themes should not be considered. The first question is: Whether the scènes-à-faire evidence exclusion for actual copying should extend to all plot elements naturally flowing from a simple formulation of the plot of the original work?

  2. Copyright infringement requires actual copying and wrongful appropriation. The Circuits agree that material not original to the author should not be considered in the comparison assessing wrongful appropriation. However, respecting the original expression of the author, the Circuits have created two diametrically opposed rules. The second question is: Whether the proper test to determine wrongful appropriation is (a) comparing the original work as a whole to the copied portions in the allegedly infringing work, or (b) assessing fairness only after (i) removing and disregarding original elements deemed to be scènes-à-faire, and (ii) putting material added by the alleged infringer into the comparison?

Counsel of record

For petitioner
Anthony H. Handal
Handal & Morofsky, LLC

For respondent
Wook Hwang
Loeb & Loeb LLP

Case

Subject area
Economic Activity (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 2 conferences

Orders
Order list, December 9, 2019 · Certiorari denied
Order list, February 24, 2020 · Rehearing denied

Proceedings

  1. Feb 24 2020
    Rehearing DENIED. Justice Breyer took no part in the consideration or decision of this petition.
  2. Jan 15 2020
    DISTRIBUTED for Conference of 2/21/2020.
  3. Jan 02 2020
    Petition for Rehearing filed.
  4. Jan 02 2020
    Motion for leave to proceed further herein in forma pauperis filed by petitioner.
  5. Dec 09 2019
    Petition DENIED. Justice Breyer took no part in the consideration or decision of this petition.
  6. Nov 20 2019
    DISTRIBUTED for Conference of 12/6/2019.
  7. Nov 12 2019
    Waiver of right of respondents Viacom International, Inc., et al. to respond filed.
  8. Oct 25 2019
    Petition for a writ of certiorari filed. (Response due November 29, 2019)