By Robert B. Barnett Jr., J.D.
Copyright infringement claims over the memoir also failed to pass the extrinsic and the intrinsic tests for determining substantial similarity.
A claim by a memoirist that Oprah Winfrey infringed her copyright by televising a series called "Greenleaf" that was allegedly based on the memoirist’s book was dismissed in its entirety with prejudice because no evidence existed that Winfrey or her OWN network had access to the memoir. According to the federal district court in Charlotte, North Carolina, even if the memoirist were to establish that Winfrey had access, the claim would still have failed the extrinsic test for substantial similarity because no similarity (much less, substantial similarity) existed in plot, theme, dialogue, mood, setting, pace, characters, and sequence of events. And if that were not enough, the court ruled that the claim also failed the intrinsic test for substantial similarity because the total concept and feel of the two works were "completely different" (Day v. Winfrey, May 12, 2021, Cogburn, M.).
Background. Freda J. Day wrote a memoir of her first 39 years of life called From the Greenleaf to Greener Pastures: A Memoir, which chronicled her early years of living in poverty with nine siblings followed by an abusive marriage to an alcoholic. In 2005, the year of publication and two years after she registered the copyright, she allegedly sent the book to Oprah Winfrey. Subsequently, Winfrey’s OWN network aired a television show called "Greenleaf," which was the fictional story of a Black well-to-do preacher and his family, set in the present. The show followed the exploits of the family, including three of the children after the fourth child committed suicide, and it addressed issues such as Black Lives Matter, sexual abuse, and religion.
Day sued Winfrey and her network in North Carolina federal court, alleging copyright infringement. Winfrey filed a motion for summary judgment.
Copyright infringement. To establish the second element of a copyright infringement claim—copying of original elements—the memoirist was required to show both that Winfrey had access to the copyrighted book and that the two works at issue were substantially similar.
Access. To establish access, the memoirist was required to prove that Winfrey had a reasonable opportunity to view or copy the book. Several problems existed with the memoirist’s proof of access. First, though she said that she sent the book to Winfrey in 2005 by certified mail, she had no return receipt. Second, the California address that she stated that she used in 2005 to send the book to Winfrey was not used by Winfrey until 2015. Third, Winfrey established that she had a long-standing policy of returning unsolicited submissions. Fourth, books that Winfrey did accept were entered into a log, which upon review did not contain any receipt of the memoir. Fifth, Winfrey did not create the "Greenleaf" TV show. Craig Wright, a named defendant who was never served, supplied an affidavit stating that he created the show and that he had never seen, read, or heard of the memoir, nor did he ever discuss it with Winfrey.
As a result, the court concluded that the memoirist had produced "no evidence" that Winfrey had access to the memoir before the alleged copyright occurred, and it granted summary judgment to Winfrey.
Substantial similarity. Even though the lack of access ended the matter and entitled Winfrey to summary judgment, the court went on to address substantial similarity. To satisfy substantial similarity, the memoirist would have had to satisfy both the extrinsic and intrinsic tests. Determining whether the two tests are passed or failed are questions of law that a court has the right to determine.
Extrinsic test. The extrinsic test examines the specific objective elements of the two works to determine substantial similarity, such as plot, theme, dialogue, mood, setting, pace, characters, and sequence of events. Looking at each objective element separately, the court concluded as a matter of law that "none of the constituent elements of the Book…bear any similarity (let alone substantial similarity) to Greenleaf." For example, looking first at plot, the court noted that the memoir really had no plot. It was a nonfictional account of her life. The TV show, on the other hand, was a fictional piece about a present-day Black church, its bishop, and his family. In the first season, it focused on a serial child molester, the church’s internal affairs, the bishop’s relationship with his congregation, and the children’s relationship to the church. The memoir addressed none of those issues. Moving on to characters, theme, mood and setting, pace and sequence, and dialogue, the court found the same lack of similarity between the memoir and the TV show for each element.
Furthermore, "Green Leaf" (two words) in the memoir referred to a cafe. "Greenleaf" in the TV show referred to the family’s surname. In any event, copyright law does not protect titles. Craig Wright, the creator of the Greenleaf TV show, testified that he took the name from a 1965 short story by Flannery O’Connor. As a result, the court said, "profound differences" existed between the two works in their constituent elements, which meant that the memoirist failed the extrinsic test. Random similarities scattered through the works are never enough to constitute copyright infringement.
Intrinsic test. The intrinsic test looks for substantial similarity in the "total concept and feel" of the two works when viewed from the perspective of an ordinary observer. The memoir was an autobiography, spanning 40 years, of a woman living and then overcoming a life of hardship and abuse. The TV show, on the other hand, was a contemporary drama about a Black church, the bishop, and his family, who live in wealth. "Not only is the ‘total concept and feel’ of the Book and Greenleaf completely different," the court said, "but there is not even superficial similarity between the two works." As a result, the memoirist also failed the intrinsic test.
The court, therefore, ruled as a matter of law that the memoirist had failed to raise genuine disputed issues of material fact about copyright infringement, and it granted summary judgment to Winfrey.
This case is No. 3:19-cv-277-MOC-DCK.
Attorneys: Freda J. Day, pro se. Charles N. Shephard (Greenberg Glusker Fields Claman & Machtinger LLP) for Oprah Winfrey, Lionsgate Entertainment Corp., and Harpo Productions.
Companies: Lionsgate Entertainment Corp.; Harpo Productions
MainStory: TopStory Copyright GCNNews NorthCarolinaNews
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