No.

13-1523
In The Supreme Court of the United States
_______________
MARK WARREN PEARY AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF JOSEPH SHUSTER,
Petitioner,
v.

DC COMICS,
Respondent.
_______________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
_______________
BRIEF OF AMICI CURIAE THE SOCIETY OF
CHILDRENS BOOK WRITERS AND ILLUS-
TRATORS, THE NATIONAL WRITERS UNION,
THE SCIENCE FICTION FANTASY
WRITERS OF AMERICA
AND THE GRAPHIC ARTISTS GUILD
IN SUPPORT OF PETITIONER
_______________
DANIEL B. LIFSCHITZ
LOWE & ASSOCIATES
11400 OLYMPIC BLVD.
SUITE 640
LOS ANGELES, CA 90064
(310) 477-5811

Counsel for Amici Curiae
STEVEN W. SMYRSKI
Counsel of Record
SMYRSKI LAW GROUP, A P.C.
3310 AIRPORT AVE., SW
SANTA MONICA, CA 90405
(310) 397-9118
STEVE@SMYRSKI.COM

i
TABLE OF CONTENTS

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT ................................................................ 9
A. The Copyright Act Categorically Prevents
the Contractual Relinquishment of Termi-
nation Rights ..................................................... 9

1. The Ninth Circuits Decision in
Milne v. Slesinger Abrogated an
Unequivocal Statute and Congress
Clear Intent ............................................ 9

2. The Ninth Circuits Ruling Below is
Unsupported in Both Law and Fact .... 12

B. The Ninth Circuits Decision is Sympto-
matic of a Broader Hostility to Copyright
Plaintiffs .......................................................... 15

C. Ninth Circuit Plaintiffs Have Been Effec-
tively Forced To Abandon Copyright
Claims as a Result of These Creative Rul-
ings .................................................................. 21

CONCLUSION .......................................................... 24

ii
TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby,
477 U.S. 242 (1986) .......................................... 15

Baxter v. MCA, Inc.,
812 F.2d 421 (9th Cir. 1987) ............................ 18

Benay v. Warner Bros. Entmt, Inc.,
607 F.3d 620 (9th Cir. 2010) ................. 18, 22-23

Benjamin v. Walt Disney Company,
2007 U.S. Dist. LEXIS 91710
(C.D. Cal. 2007) ................................................ 22

Berkic v. Crichton,
761 F.2d 1289 (9th Cir. 1985) .......................... 19

Bethea v. Burnett,
2005 WL1720631 (C.D. Cal. 2005) ............. 20, 22

Bieghler v. Kleppe,
633 F. 2d 531 (9th Cir. 1980) ........................... 19

Brown Bag Software v. Symantec Corp.,
960 F.2d 1465 (9th Cir. 1992) .......................... 20


iii
Buggs v. Dreamworks, Inc.,
2010 U.S. Dist. LEXIS 141515
(C.D. Cal. 2010) ................................................ 23

Cavalier v. Random House, Inc.,
297 F.3d 815 (9th Cir. 2002) ............................ 16

Classic Media, Inc. v. Mewborn,
532 F.3d 978 (9th Cir. 2008) .............................. 5

Clements v. Screen Gems, Inc.,
2010 U.S. Dist. LEXIS 132186
(C.D. Cal. 2010) ................................................ 23

DC Comics v. Pac. Pictures Corp.,
545 Fed. Appx. 678 (9th Cir. 2013) ............ 12, 14

Feist Publns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340 (1991) .......................................... 16

Fleener v. Trinity Broad. Network,
203 F. Supp. 2d 1142 (C.D. Cal. 2001) ............. 16

Flynn v. Surnow,
2003 U.S. Dist. LEXIS 26973
(C.D. Cal. 2003) ................................................ 22

Fred Fisher Music Co. v. M. Witmark & Sons,
318 U.S. 643 (1943) ............................................ 9

iv
Funky Films, Inc. v. Time Warner Entmt Co., L.P.,
462 F.3d 1072 (9th Cir. 2006) .................. passim

Gable v. National Broadcasting Co.,
727 F. Supp. 2d 815 (C.D. Cal. 2010) ......... 20, 23

Gilbert v. New Line Productions,
2010 U.S. Dist. LEXIS 27134
(C.D. Cal. 2010) ................................................ 23

Gregory v. Murphy,
1991 U.S. App. LEXIS 4893
(9th Cir. 1991) ................................................... 21

Grosso v. Miramax Film Corporation,
2001 U.S. Dist. LEXIS 26199
(C.D. Cal. 2001) ................................................ 22

Idema v. Dreamworks, Inc.,
162 F. Supp. 2d 1129 (C.D. Cal. 2001) ............. 22

In re Apple Computer Sec. Litig.,
886 F.2d 1109 (9th Cir. 1989) .......................... 20

Kodadek v. MTV Networks,
1996 U.S. Dist. LEXIS 20776
(C.D. Cal. 1996) ................................................ 22

Kouf v. Walt Disney Pictures & Television,
16 F.3d 1042 (9th Cir. 1994) ...................... 18, 21
v
Lane v. Universal City Studios,
1994 U.S. App. LEXIS 23769
(9th Cir. 1994) ............................................. 18, 21

Laskay v. New Line Cinema,
1998 U.S. App. LEXIS 23461
(C.D. Cal. 1998) ................................................ 21

Lassiter v. Twentieth Century Fox Film Corporation,
238 Fed. Appx. 194 (9th Cir. 2007) .................. 22

Litchfield v. Spielberg,
736 F.2d 1352 (9th Cir. 1984) .......................... 19

Marvel Characters Inc. v. Simon,
310 F.3d 280 (2d Cir. 2002) ................................ 5

Merrill v. Paramount Pictures Corporation,
2005 U.S. Dist. LEXIS 45401
(C.D. Cal. 2005) ................................................ 22

Mestre v. Vivendi Universal U.S. Holding Co.,
273 Fed. Appx. 631 (9th Cir. 2008) .................. 22

Metcalf v. Bochco,
200 Fed. Appx. 635 (9th Cir. 2006) .................. 22

Metcalf v. Bochco,
294 F.3d 1069 (9th Cir. 2002) .............. 16, 17, 22

vi
Milano v. NBC Universal, Inc.,
584 F. Supp. 2d 1288 (C.D. Cal. 2008) ............. 22

Mills Music, Inc. v. Snyder,
469 U.S. 153 (1985) ............................................ 9

Milne v. Stephen Slesinger, Inc.,
430 F.3d 1036 (9th Cir. 2005) .................. passim

Novak v. Warner Bros Pictures, LLC,
387 Fed. Appx. 747 (9th Cir. 2010) .................. 23

N.Y. Times Co. v. Tasini,
533 U.S. 483 (2001) .......................................... 12

Ostrowski v. Creative Artists Agency,
1994 U.S. App. LEXIS 23732
(9th Cir. 1994) ................................................... 21

Pelt v. CBS, Inc.,
1993 U.S. Dist. LEXIS 20464
(C.D. Cal. 1993) ................................................ 21

Petrella v. Metro-Goldwyn-Mayer, Inc.,
695 F.3d 946 (9th Cir. 2012) .............................. 4

Rice v. Fox Broadcasting Co.,
330 F.3d 1170 (9th Cir. 2003) .............. 17, 19, 22


vii
Rosenfeld v. Twentieth Century Fox Film,
2009 U.S. Dist. LEXIS 9305
(C.D. Cal. 2009) ................................................ 22

Roth Greeting Cards v. United Card Co.,
429 F.2d 1106 (9th Cir. 1970) .......................... 16

Satava v. Lowry,
323 F.3d 805 (9th Cir. 2003) ............................ 16

Shaw v. Lindheim,
809 F. Supp. 1353
(C.D. Cal. 1992) .................................... 16, 18, 21

Shaw v. Lindheim,
919 F.2d 1353 (9th Cir. 1990) .............. 16, 18, 20

Sheldon v. Metro-Goldwyn Pictures Corp.,
81 F. 2d 49 (2d Cir. 1936) ................................. 18

Stewart v. Abend,
495 U.S. 207 (1990) ...................................... 5, 12

Stewart v. Wachowski,
574 F. Supp. 2d 1074 (C.D. Cal. 2005) ............. 22

Swirsky v. Carey,
376 F.3d 841 (9th Cir. 2004) ...................... 16, 20


viii
Thomas v. Walt Disney Company,
337 Fed. Appx. 694 (9th Cir. 2009) .................. 22

Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ............................ 16

United States v. Hamilton,
583 F.2d 448 (9th Cir. 1978) ............................ 16

Walker v. Viacom International, Inc.,
2010 U.S. App. LEXIS 1475
(9th Cir. 2010) ................................................... 23

Weygand v. CBS,
1997 U.S. Dist. LEXIS 19613
(C.D. Cal. 1997) ................................................ 21

White v. Samsung Electronics America, Inc.,
989 F.2d 1512 (9th Cir. 2003) ............................ 4

Wild v. NBC Universal, Inc.,
2013 U.S. App. LEXIS 4169
(9th Cir. 2013) ................................................ 23

Wyler Summit Pship v. Turner Broad. Sys., Inc.,
235 F.3d 1184 (9th Cir. 2000) ........................ 19

Zella v. E. W. Scripps Company,
529 F. Supp. 2d 1124 (C.D. Cal. 2007) .......... 22

ix
STATUTES

17 U.S.C. 203 ......................................................... 10

17 U.S.C. 304 ................................................. passim

RULE

Supreme Court Rule 37.6 ........................................... 1

OTHER AUTHORITIES

H.R. Rep. No. 60-2222 (1909) ................................... 10

1 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 6.03
(Matthew Bender, Rev. Ed. 2012) ................... 6

3 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 11.07
(Matthew Bender, Rev. Ed. 2012) ........... 10, 11

4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 13.02
(Matthew Bender, Rev. Ed. 2012) ................. 17
4 Melville B. Nimmer & David Nimmer,
Nimmer on Copyright 13.03
(Matthew Bender,Rev. Ed. 2012) .................. 18
x
William F. Patry, Patry on Copyright,
7.46 (2014) ...................................................................... 10
1
INTERESTS OF AMICI CURIAE
1

The following amici curiae respectfully submit
this brief pursuant to Supreme Court Rule 37 in
support of Petitioner.
The Society of Childrens Book Writers and
Illustrators (SCBWI) is a non-profit organization
and the only professional organization specifically for
those individuals writing and illustrating for children
and young adults in childrens literature, magazines,
film, television, and multimedia. There are currently
more than 22,000 members worldwide, in over seven-
ty regional chapters, making it the largest children's
writing organization in the world. Its members
include New York Times bestselling authors, New-
berry Medal recipients, and household names like
Judy Blume and Tomie DePaola. SCBWI joins this
brief as part of its mission to effect important chang-
es within the field of children's literature and as a
powerful force in promoting new copyright legisla-
tion, equitable treatment of authors and artists, and
fair contract terms.

1
Pursuant to Supreme Court Rule 37.6, counsel for amici
certify that no counsel for a party authored this brief in whole
or in part, and no counsel or party made a monetary contribu-
tion intended to fund the preparation or submission of this
brief. No person other than amici made such a monetary
contribution. The parties have been given at least ten days
notice of amici curiaes intention to file this brief and both
parties have consented to the filing.
2
The National Writers Union (NWU) was
founded in 1981 and represents freelance writers in
all genres, formats, and media in thirteen local
chapters nationwide. Its more than 1,200 members
include journalists, book authors, poets, and business
writers. The NWU works to advance the economic
and working conditions of writers by lobbying for
legislation that protects writers rights, promoting
viable alternatives to unfair practices, and educating
the public. In the past 15 years, NWU has witnessed
the increasing disenfranchisement of writers, due in
part to the consolidation of ever-larger corporate
entities and the advent of technologies that facilitate
the exploitation of a writers work. NWU joins this
brief to protect its members from unscrupulous
employers that misuse writers' work and demand
their rights.
Science Fiction and Fantasy Writers of
America (SFWA) is a professional organization for
authors of science fiction, fantasy and related genres.
Founded in 1965, esteemed past members include
Ray Bradbury, Isaac Asimov, Anne McCaffrey, and
Andre Norton. Today, SFWA is home to over 1800
authors, artists, and allied professionals, and is
widely recognized as one of the most effective non-
profit writers organizations in existence. Each year
the organization presents the prestigious Nebula
Awards for the years best literary and dramatic
works of speculative fiction. SFWA joins this brief as
3
part of its dedicated effort to inform, support, pro-
mote, defend and advocate for its members.
The Graphic Artists Guild (GAG) was founded
in 1967 to promote and protect the social, economic
and professional interests of its members, which
include animators, cartoonists, designers, illustra-
tors, and digital artists. Through its national net-
work in five regions, and seven chapters, GAG
connects design and illustration professionals of all
disciplines interested in their own career develop-
ment, skills enhancement, and industry knowledge.
GAG also helps members protect and advance their
careers by advocating for fair treatment and deliver-
ing practical advice. GAG joins this brief as part of
its commitment to improving conditions for all graph-
ic artists and raising standards for the entire indus-
try.
In the instant case, Petitioner has demonstrated
in detail the error of the Ninth Circuits ruling and
analyzed the conflicts of authority justifying this
Courts intervention. Amici agree with Petitioner
that the clear text of the Copyright Act requires this
Court to intervene and resolve the conflict of law that
the Ninth Circuit has created through its contrary
decisions, as the decision below directly impedes the
clear and uniform application of a federal body of
law. The case below provides a clean vehicle for
resolving the conflict, as the elimination of the Copy-
4
right Acts termination right was dispositive of
Petitioners claim.
SUMMARY OF ARGUMENT
In 2012, Judge William A. Fletcher of the Ninth
Circuit Court of Appeals wrote, with no small
amount of self-awareness, that [o]ur circuit is the
most hostile to copyright owners of all the circuits.
Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946,
958 (9th Cir. 2012). This observation, which spiritu-
ally succeeds Chief Justice Alex Kozinskis quip that,
"for better or worse, we are the Court of Appeals for
the Hollywood Circuit" (White v. Samsung Electron-
ics America, Inc., 989 F.2d 1512, 1521 (9th Cir.
2003)), neatly encapsulates the struggle that plain-
tiffs in the Ninth Circuit endure simply to exercise
and protect their statutory rights under the Copy-
right Act. These rights, guaranteed to authors by
federal law, inevitably and repeatedly take a
backseat to the business interests of the entertain-
ment industry in the Ninth Circuit, resulting in
contradictory case law and ultimately unintelligible
legal doctrines.
At issue in the present case is the termination
right under 17 U.S.C. 304(c) covering transfers of
the extended copyright renewal term. Quite simply,
under what circumstances, if any, can the statutory
termination right be contractually destroyed?
5
Under 304(c)(5), the termination of a copyright
grant may be effected notwithstanding any agree-
ment to the contrary... (emphasis added). Such clear
and unambiguous language demonstrates Congresss
intent to categorically prevent the divestment of the
statutory termination interest. See Marvel Charac-
ters Inc. v. Simon, 310 F.3d 280, 290 (2d Cir.2002)
(the clear Congressional purpose behind 304(c)
was to prevent authors from waiving their termina-
tion right by contract) (citing Stewart v. Abend, 495
U.S. 207, 230, (1990)). Anything contrary to this rule,
it was warned, would allow litigation-savvy publish-
ers to use their superior bargaining power to compel
such waivers from authors, thus rendering 304(c) a
nullity. Simon, 310 F.3d. at 290-91.
Apparently unwilling to heed this warning, the
Ninth Circuit created a significant exception to
304(c)(5) in Milne v. Stephen Slesinger, Inc., 430 F.3d
1036 (9th Cir.2005), holding that where a statutory
heir uses the leverage of imminent vesting [of a
termination right] to revoke [a] pre-1978 grant and
enter into a highly remunerative new grant of the
same rights ... it [is] tantamount to following the
statutory formalities, and achieve[s] the exact policy
objectives for which [the termination right] was
enacted. Classic Media, Inc. v. Mewborn, 532 F.3d
978, 987 (9th Cir. 2008), citing Milne, 430 F.3d at
1044-45.
6
On a purely functional level, Milne and its proge-
ny represent a disturbing development in copyright
law, as they attempt to replace a clear, categorical
federal statute with a subjective judicial balancing
test under state contract law. Adding insult to injury,
these cases also replace the judgment of Congress
with that of district court judges. Nimmer on Copy-
right, the nations preeminent copyright treatise, has
labeled Milne an evisceration of Congresss intent:
Notwithstanding the broad and transparent mean-
ing of the word any in the statutory language,
explicated unmistakably in its legislative history,
writes Professor Nimmer, the Milne decision and its
subsequent Second Circuit counterpart invite grant-
ees to engage in all manner of opportunistic behavior
to frustrate Congress's clearly expressed language
and intent. Melville Nimmer and David Nimmer,
Nimmer on Copyright (Nimmer) 11.07[A].

In this case, the Ninth Circuit appears even less
beholden to the policy objectives of 304(c)(5) than
before. In Milne, the situation expressed by the Ninth
Circuit exception was that of an author or heir who,
on approaching the date for exercising his or her
termination rights, used the threat of such termina-
tion rights as leverage to renegotiate an existing
contract for distribution rights to the authors book,
for example. Here, there was no termination right
wielded and no leveraged renegotiation attempt, only
a simple quitclaim in a 1992 pension agreement with
7
the authors siblings, who lacked any rights whatso-
ever under the Copyright Act. This was further
reflected in their wholly unremunerative compensa-
tion a meager pension increase from $5,000 to
$25,000, dwarfed by the joint copyright interest in
the billion-dollar Superman franchise held to have
been impliedly relinquished. Yet by working back-
wards, the Ninth Circuit deprived the authors later-
probated estate of its statutory termination rights
provided in the 1998 Copyright Term Extension Act
(CTEA).
The Ninth Circuit, under the color of law, decided
to retroactively gift to the authors quitclaiming
siblings copyrights they did not and could not possess
in 1992, and have these siblings simultaneously
assign those copyrights back to Supermans publisher
(which already owned them) by reading such terms
into a contract that states none of this on its face, all
in clear contravention of 304(c)(5) and Congresss
unmistakable objective to protect the termination
right.
While certainly alarming, the opinion rendered in
this case is not entirely surprising. The Ninth Cir-
cuit, purporting to know best in the face of contrary
controlling law, has a tendency to bend legal doc-
trines in result-oriented decisions to subvert the
claims of author-litigants, a well-known phenomenon
to those familiar with Ninth Circuit copyright juris-
8
prudence. In fact, the Ninth Circuit has not yielded a
victory for a copyright plaintiff against a studio or
network defendant in well over twenty years. Other
casualties of the Ninth Circuits outcome-oriented
copyright jurisprudence beyond termination rights
include its dilution of the tests for copyright protec-
tion mandated by this Court, diminution of the
longstanding rules for evaluating substantial similar-
ity between copyrighted works, and subversion of the
essential role of the fact-finder in evaluating copy-
right infringement claims.
By relegating all these aspects of copyright litiga-
tion to judicial discretion, the Ninth Circuit has
sacrificed canonical principles of copyright law for
the sake of judicial economy, providing inadequate
guidance to lower courts deciding copyright cases.
Because authors and artists lack the resources of
major conglomerates in the entertainment industry,
they have little hope of reversing this ongoing trend
within the Ninth Circuit. This Court should take this
opportunity to rein in the Ninth Circuits extreme
hostility to copyright plaintiffs, and uphold Con-
gresss clear intent to protect the rights of authors.




9
ARGUMENT
A. The Copyright Act Categorically Prevents
the Contractual Relinquishment of
Termination Rights

1. The Ninth Circuits Decision in Milne v.
Slesinger Abrogated an Unequivocal Stat-
ute and Congresss Clear Intent.

The termination provisions of the Copyright Act
occupy a venerable position in federal law, having
been explicitly fashioned by Congress to correct the
historical exploitation of creative professionals by
corporate entities. Mills Music, Inc. v. Snyder, 469
U.S. 153, 172-173 (1985) ([T]he termination right
was expressly intended to relieve authors of the
consequences of ill-advised and unremunerative
grants that had been made before the author had a
fair opportunity to appreciate the true value of his
work product). To ensure the preservation of this
right, Congress drafted it to be essentially inaliena-
ble. See 17 U.S.C. 304(c)(5); William F. Patry, Patry
on Copyright, 7:46 (2014)("[ 304(c)(5)] is intended
to make Congress's intent as clear as humanly possi-
ble: an author cannot agree to waive his or her ter-
mination right").
Section 304(c)(5) was enacted in direct reaction to
Fred Fisher Music Co. v. M. Witmark & Sons, 318,
U.S. 643 (1943), which permitted the assignment of
10
the 1909 Copyright Acts termination right despite
Congress intent that the termination right was to be
"exclusive" to authors and their families so that they
"could not be deprived of this right." H.R. Rep. No.
60-2222, at 14-15 (1909). Realizing that it could
afford no ambiguity in the statute, Congress drafted
the 1976 Copyright Acts termination provisions with
considerable clarity, explicitly determining that
successive extensions of the copyright renewal term
(most recently in the CTEA) should be for the benefit
of authors and their statutory successors, instead of
operating as a windfall to prior grantees. See 17
U.S.C. 203(a)(2), 304(c)(2), 304(c)(5) (incorporated
by reference in 304(d)(1)).
In the years since the passage of 304, however,
the lower courts have all but eviscerated the absolute
nature of its protections. In Milne, the Ninth Circuit
rejected the assertion that 304(c)(5) was plain on its
face, relying on a passing statement taken out of
context from the 1976 Acts legislative history that
"[n]othing in the Copyright Act has altered the power
of private parties to contract." 430 F.3d at 1045.
2
The
Ninth Circuit established a new exception to the

2
Not only is the statement not actually in the legislative history
(see H. Rep. p.128), but Nimmer On Copyright notes that the
actual quote of the legislature only references the 35-year
termination window under 203 and is structurally inapplica-
ble to 304(c), which allows one and only one termination
window, maturing after the passage of fifty-six years.
11.07[D][4][c][i]
11
clearly worded statute, determining that if an
agreement to the contrary provides more favorable
terms than an initial grant of copyright, the spirit of
304(c)(5) is fulfilled and the inalienable termination
right can be ceded. Id. at 1046. As sternly noted by
Professor Nimmer, the Ninth Circuit did not even
purport to justify the basis on which it effectively
deprived the statutory successors' rights in the
additional twenty years that Congress conferred in
1998. Nimmer 11.07[C][1]. Professor Nimmer
recognized that a door Congress intended to keep
permanently shut had been inexplicably opened in
the Ninth Circuit Milne decision.
The Milne decision ushered in a subjective and
uncertain analysis of statutory termination cases
completely disconnected from the statute itself.
Courts now purport to uphold the rationale of
304(c)(5) by taking the agreements that 304(c)(5)
was intended to categorically bar, labeling them
reasonable, stripping rights from authors and their
heirs, and posturing as though they have fulfilled the
Congressional mandate. A judges determination that
an authors trust or heir received a better deal
through a contractual revocation and regrant of
rights is apparently a license to override the express
provisions of the Copyright Act and alienate that
which Congress unequivocally made inalienable.
N.Y. Times Co. v. Tasini, 533 U.S. 483, 496 n.3 (2001)
(noting the inalienable authorial right to revoke a
12
copyright transfer); see also id, at 497; Stewart v.
Abend, 495 U.S. 207, 230 (1990)( [t]he 1976 Copy-
right Act provides a single, fixed term, but provides
an inalienable termination right.).
2. The Ninth Circuits Ruling Below is
Unsupported in Law and Fact.

The Ninth Circuits ruling in the instant case
clearly demonstrates why judges should not be
permitted to engage in the subjective analysis en-
couraged by Milne. The court eliminated the exceed-
ingly valuable termination interest of Joseph
Shusters estate under the 1998 CTEA by holding
that the authors siblings (who held no copyrights)
implied[ly] novated Shusters 1938 copyright as-
signment to DC Comics in a perfunctory 1992 pen-
sion agreement containing a boilerplate quitclaim
and settlement of any rights which [the siblings]
may have. DC Comics v. Pac. Pictures Corp., 545
Fed. Appx. 678, 681-82 (9th Cir. 2013).
The problems with this decision are numerous,
starting with the fact that no party to the 1992
agreement possessed termination rights at the time
of its execution, as an authors siblings have never
held such rights under the Copyright Act. Under
304(c)(2), the right to terminate a deceased authors
grant in the absence of a widow, child, or grandchild
is limited to the author's executor, administrator,
personal representative, or trustee, but the termina-
13
tion rights of an executor did not subsist until the
CTEA extended those rights to this class of benefi-
ciaries in 1998, six years after the agreement in
question.
Thus, the decision below leapfrogged even Milnes
justification for upholding an agreement to the
contrary in spite of 304(c)(5). In this case, no
leverage of imminent vesting existed, and no statu-
tory heir used this to revoke the pre-1978 grant and
enter into a highly remunerative new grant of the
same rights[.] 430 F.3d at 1044-45. Here,the Ninth
Circuit simply disregarded 304(c)(5)s mandate
altogether.
With the understanding that no one was entitled
to any termination rights in 1992, the Ninth Circuits
conceptualization of this case becomes even less
plausible, as no conceivable reason existed for DC
Comics to exchange its clear chain-of-tile from the
author of Superman himself for a mere quitclaim and
release from the authors unempowered siblings. It is
just as implausible, in light of Supermans astronom-
ical asset value and the sophistication of the Re-
spondent, that such an intention (if honestly held)
would not have been clearly articulated in the 1992
agreement Respondent drafted. The document com-
pletely fails to mention the authors original contract
which it purportedly extinguished, and omits the
Superman property allegedly being regranted. To
14
imply a revocation and regrant, the court of appeals
gratuitously read all of the preceding elements into
an otherwise-trifling pension agreement and did so
on summary judgment when everything pointed to
the fact that this surely was no ones intent in 1992..
The Ninth Circuits disinterest in an accurate ap-
praisal of the parties actions is further reflected in
its failure to meaningfully consider that Shusters
siblings lacked the legal capacity to revoke his con-
tracts and/or re-grant his copyrights. Stating that
[t]he factual and legal dispute regarding whether
Joseph Shusters sister acted as his executor when
she signed the 1992 Agreement is a potentially
complex one, the Court chose to simply disregard
this critical issue in a dismissive footnote. DC Com-
ics, 545 Fed. Appx. at 681, n.3. The dissent, however,
cut through these supposed complexities quite easily:
there is no indication in the 1992 Agreement that
the prior agreement was extinguished by the new
agreement. There is no statement to that effect in the
1992 Agreement. In fact, the prior copyright grant is
not referenced at all. Further, this record is not
sufficient to establish that Joe Shusters siblings
[even] had the authority in 1992 to revoke and super-
sede his 1938 copyright grant[] as Joe's estate
hadn't [yet] been probated. Id at 683.
The opinion of the Ninth Circuit majority should
be seen by this Court for what it is: a complete disre-
15
gard not only of 304(c)(5) and Congress clear
intent, but of the Federal Rules of Civil Procedure as
well.. In order to deprive the Shuster estate of its
invaluable statutory termination interest, the Ninth
Circuit, on summary judgment, ignored all of the
logical inferences described above, when it was
required to view the evidence, including that agree-
ment, in the light most favorable to Petitioner, the
non-moving party. Anderson v. Liberty Lobby, 477
U.S. 242, 256 (1986). This, combined with the Ninth
Circuits cherry-picking of issues and selective quota-
tion of the 1976 Acts legislative history at the ex-
pense of the Acts clear and explicit text, gives the
Ninth Circuits opinion all the hallmarks of results-
oriented jurisprudence.
B. The Ninth Circuits Decision is Sympto-
matic of a Broader Hostility to Copyright
Plaintiffs

This Court should review Petitioners writ fully
aware not only of the injustice that occurred in this
case, but just how common such injustice is for
copyright plaintiffs in the Ninth Circuit. The subjec-
tive analysis permitted by Milne and conducted in
the instant case is representative of a template that
applies across much of Ninth Circuit copyright juris-
prudence.
Perhaps the most glaring example of the Ninth
Circuit skewing copyright law in favor of defendants
16
is its subversion of this Courts ruling on standards
for copyright protection in Feist Publns, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340 (1991). In Feist, the
Court explained that, although copyright law does
not generally protect basic elements of creative works
(such as characters, generic plot premises, or stock
scenes), the original selection and arrangement of
such elements is protectable. Feist 490 U.S. at 348. In
fact, a long line of Ninth Circuit case law supported
an identical notion, both before and after Feist.
3

At the same time that the Ninth Circuit purports
to support the selection and arrangement test, how-
ever, it has also established a preemptive screening
test that fundamentally contradicts Feist by fil-
ter[ing] out and disregard[ing] all individually
unprotected elements from works before comparing
them, removing all the constituent elements of any
protectable selection or arrangement.
4
Attempts to

3
See Roth Greeting Cards v. United Card Co., 429 F.2d 1106
(9th Cir. 1970); United States v. Hamilton, 583 F.2d 448 (9th
Cir. 1978); Shaw v. Lindheim, 919 F.2d 1353, 1363 (9th Cir.
1990); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th
Cir. 2000); Fleener v. Trinity Broad. Network, 203 F. Supp. 2d
1142 (C.D. Cal. 2001); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir.
2002); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003); Swirsky v.
Carey, 376 F.3d 841 (9th Cir. 2004).

4
Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir.
2002).

17
harmonize the conflicting tests
5
ultimately resulted
in the Ninth Circuit intimating that it would only
consider protecting a plaintiffs work by selection and
arrangement if the defendant admitted that he or she
had access to the plaintiffs work.
6
Essentially, this
Courts ruling in Feist has been overruled in the
Ninth Circuit in the absence of such a confession,
which is rarely obtained.
7

The subversion of Feist becomes even more prob-
lematic when taken in conjunction with the Ninth

5
See Metcalf v. Bochco, 294 F.3d 1069, 1074 (9th Cir. 2002)
(distinguishing Cavalier and permitting protection by selection
and arrangement).

6
Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1179 (9th Cir.
2003) ("[O]ur decision in Metcalf was based on a form of inverse
ratio rule analysis: the plaintiff's case was "strengthened
considerably by [defendants'] concession of access to their
works"); Funky Films, Inc. v. Time Warner Entmt Co., L.P., 462
F.3d 1072, 1081 n.4 (9th Cir. 2006) (declining to apply Metcalf
because "this is not a circumstance in which the defendant has
conceded access to the purportedly copied material"). Funky
Films, 462 F.3d, at 1078.

7
4-13 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER
ON COPYRIGHT 13.02[A] (Matthew Bender, Rev. Ed. 2012)
(Just as it is virtually impossible to offer direct proof of copy-
ing, so it is often impossible for a plaintiff to offer direct evi-
dence that defendant (or the person who composed defendant's
work) actually viewed or had knowledge of plaintiff's work. Such
viewing will ordinarily have occurred, if at all, in a private office
or home outside of the presence of any witnesses available to
the plaintiff.)

18
Circuits rejection of the traditional directive that
when analyzing an infringement claim, judges are to
only compare the similarities between works.
8
This
directive was borne from an understanding that no
plagiarist can excuse the wrong by showing how
much of his work he did not pirate,
9
as even a quan-
titatively unimpressive similarity can be qualitative-
ly important to a plaintiffs work.
10
According to
recent Ninth Circuit decisions, however, that a
defendants work contains greater, more significant
differences than similarities is now a viable defense
to copyright infringement.
11

By denying use of the selection and arrangement
test and permitting dissimilarity to overshadow

8
See, e.g., Kouf v. Walt Disney Pictures & Television, 16 F.3d
1042, 1045 (9th Cir. 1994).

9
Shaw, 919 F.2d at 1362 (quoting Sheldon v. Metro-Goldwyn
Pictures Corp., 81 F. 2d 49, 56 (2d Cir. 1936)).

10
See, e.g., Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir.
1987) (Even if a copied portion be relatively small in proportion
to the entire work, if qualitatively important, the finder of fact
may properly find substantial similarity.); See also, NIMMER
13.03[B][1][a], at 13-53 (Dissimilarity is only relevant when
points of dissimilarity not only exceed the points of similarity,
but indicate that the remaining points of similarity are, within
the context of plaintiff's work, of minimal importance.) (empha-
sis added).

11
Funky Films, Inc. v. Time Warner Entmt Co., L.P., 462 F.3d
1072, 1078 (9th Cir. 2006); Benay v. Warner Bros. Entmt, Inc.,
607 F.3d 620, 625 (9th Cir. 2010).
19
similarity, the Ninth Circuit has effectively insulated
copyright defendants from not only infringement
verdicts, but trials altogether. Experts and juries
have no role to play in this process, as even though
the Ninth Circuit reluctantly acknowledges the
maxim that summary judgment is not highly fa-
vored on the substantial similarity issue in copyright
cases,
12
the overwhelming majority of copyright
cases are dismissed as a matter of law on exactly that
issue.
13
The province of the jury to resolve material
issues of fact created by conflicting testimony
14
- has
been appropriated by the court, which now functions
as a collective of judicial officers and literary critics.
15


12
See Funky Films, 462 F.3d at 1076; Berkic v. Crichton, 761
F.2d 1289, 1292 (9th Cir. 1985); Litchfield v. Spielberg, 736 F.2d
1352, 1355 (9th Cir. 1984); Shaw v. Lindheim, 809 F. Supp.
1393, 1355 (C.D. Cal. 1992).

13
See footnote 18, infra.

14
Wyler Summit Pship v. Turner Broad. Sys., Inc. 235 F.3d
1184, 1192 (9th Cir. 2000) (Weighing the credibility of conflict-
ing expert witness testimony is the province of the jury.); In re
Apple Computer Sec. Litig., 886 F.2d 1109, 1116 (9th Cir. 1989)
(citing Bieghler v. Kleppe, 633 F. 2d 531, 534 (9th Cir. 1980) (As
a general rule, summary judgment is inappropriate where an
experts testimony supports the nonmoving partys case.).

15
See Rice, 330 F. 3d 1170 (holding that district court did not
abuse its discretion in disregarding the testimony of plaintiff s
expert); Bethea v. Burnett, 2005 WL1720631, at *12 (C.D. Cal.
2005) (ignoring plaintiffs experts testimony, finding it unhelp-
ful to the courts own analytic dissection); Shaw, 809 F. Supp.
1393 (disregarding plaintiff s experts testimony in overturning
20
In copyright infringement cases, the judiciarys
purpose is to play the role of gatekeeper to the jury.
Its task in analyzing substantial similarity is sup-
posed to be extrinsic--that is, objective.
16
If a plaintiff
can show objective similarity, a jury is brought in to
determine whether the total concept and feelthe
intrinsic testof the plaintiffs and defendants
works are substantially similar.
17
In practice, howev-
er, the extrinsic test has been devoured by an intrin-
sic test performed by the judge, who commands a
body of case law so internally inconsistent that the
standard of review is chosen rather than adhered to.




jury verdict in favor of plaintiff); Funky Films, 462 F.3d at 1076
([T]he district court conducted an independent analysis of [the
works].); Gable v. National Broadcasting Co., 727 F. Supp. 2d
815, 836, footnote 18 (C.D. Cal. 2010) (Expert testimony is far
less critical in a case like this than it is in a case where special-
ized knowledge is required to dissect the objective components
of the copyrighted work.).

16
In re Apple Computer Sec. Litig., 886 F.2d 1109, 1442 (9th
Cir. 1989) (citing Brown Bag Software, 960 F.2d 1465, 1475 (9th
Cir. 1992)); Shaw, 919 F.2d at 1357 ([T]he extrinsic test now
objectively considers whether there are substantial similarities
in both ideas and expression, whereas the intrinsic test contin-
ues to measure expression subjectively) (emphasis added).

17
Swirsky v. Carey, 376 F.3d 841, 845 (9th Cir. 2004).
21
C. Ninth Circuit Plaintiffs Have Been Effec-
tively Forced To Abandon Copyright
Claims as a Result of These Creative Rul-
ings

The cumulative effect of defendant-friendly rul-
ings such as the decision below and those outlined
above has been a dramatic pro-defendant tilt in
copyright litigation within the Ninth Circuit. Studios
and networks have won every one of the dozens of
copyright infringement cases litigated to final judg-
ment in the Ninth Circuit since 1990, to the best of
counsels knowledge and research, usually on sum-
mary judgment or earlier.
18
As a result, authors are

18
See e.g., Gregory v. Murphy, 1991 U.S. App. LEXIS 4893 (9th
Cir. 1991) (summary judgment for defendant affirmed) (Coming
to America); Shaw v. Lindheim, 809 F. Supp. 1393 (C.D. Cal.
1992) (upon remand, judgment as a matter of law in favor of
defendant studio) (The Equalizer); Pelt v. CBS, Inc., 1993 U.S.
Dist. LEXIS 20464 (C.D. Cal. 1993) (summary judgment for
defendant) (Listen Up! Young Voices for Change); Kouf v. Walt
Disney Pictures and Television, 16 F.3d 1042 (9th Cir. 1994)
(summary judgment for defendant affirmed) (Honey, I Shrunk
the Kids); Lane v. Universal City Studios, 1994 U.S. App.
LEXIS 23769 (9th Cir. 1994) (summary judgment for defend-
ants affirmed) (Kojak: Fatal Flaw); Ostrowski v. Creative Artists
Agency, 1994 U.S. App. LEXIS 23732 (9th Cir. 1994) (summary
judgment for defendant affirmed) (To Forget Palermo); Kodadek
v. MTV Networks, 1996 U.S. Dist. LEXIS 20776 (C.D. Cal. 1996)
(summary judgment for defendant) (Beavis & Butthead);
Weygand v. CBS, 1997 U.S. Dist. LEXIS 19613 (C.D. Cal. 1997)
(summary judgment for defendant) (Charlie); Laskay v. New
Line Cinema, 1998 U.S. App. LEXIS 23461 (C.D. Cal. 1998)
22

(summary judgment for defendant) (Don Juan DeMarco); Grosso
v. Miramax Film Corporation, 2001 U.S. Dist. LEXIS 26199
(C.D. Cal. 2001) (summary judgment for defendant) (Rounders);
Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129 (C.D. Cal.
2001) (summary judgment for defendant) (The Peacemaker);
Rice v. Fox Broadcasting Company, 330 F.3d 1170 (9th Cir.
2003) (summary judgment for defendant affirmed) (The Mystery
Magician); Metcalf v. Bochco, 294 F.3d 1069 (9th Cir. 2002) (jury
verdict in favor of defendant studio), affd, Metcalf v. Bochco,
200 Fed. Appx. 635 (9th Cir. 2006) (City of Angels); Flynn v.
Surnow, 2003 U.S. Dist. LEXIS 26973 (C.D. Cal. 2003) (sum-
mary judgment for defendant) (24); Bethea v. Burnett, 2005 WL
1720631 (C.D. Cal. 2005) (summary judgment for defendant)
(The Apprentice); Merrill v. Paramount Pictures Corporation,
2005 U.S. Dist. LEXIS 45401 (C.D. Cal. 2005) (summary
judgment for defendant) (Crossroads); Stewart v. Wachowski,
574 F. Supp. 2d 1074 (C.D. Cal. 2005) (summary judgment for
defendant) (The Matrix); Funky Films v. Time Warner Enter-
tainment, 462 F.3d 1072 (9th Cir. 2006) (summary judgment for
defendant) (Six Feet Under); Benjamin v. Walt Disney Compa-
ny, 2007 U.S. Dist. LEXIS 91710 (C.D. Cal. 2007) (summary
judgment for defendant) (Sweet Home Alabama); Lassiter v.
Twentieth Century Fox Film Corporation, 238 Fed. Appx. 194
(9th Cir. 2007) (summary judgment for defendant affirmed)
(Drumline); Zella v. E. W. Scripps Company, 529 F. Supp. 2d
1124 (C.D. Cal. 2007) (defendants motion to dismiss granted)
(Rachael Ray); Mestre v. Vivendi Universal U.S. Holding Co.,
273 Fed. Appx. 631 (9th Cir. 2008) (summary judgment for
defendant affirmed) (Billy Elliot); Milano v. NBC Universal,
Inc., 584 F. Supp. 2d 1288 (C.D. Cal. 2008) (summary judgment
for defendant) (The Biggest Loser); Rosenfeld v. Twentieth
Century Fox Film, 2009 U.S. Dist. LEXIS 9305 (C.D. Cal. 2009)
(summary judgment for defendant) (Robots); Thomas v. Walt
Disney Company, 337 Fed. Appx. 694 (9th Cir. 2009) (defend-
ants motion to dismiss affirmed) (Finding Nemo); Benay v.
23
now forced to contort and repackage their claims
under state law, such as implied-in-fact contract law,
to avoid the Ninth Circuits obvious hostility to
copyright claimants.

* * * *

In the case before the Court, the Ninth Circuits
denial of Petitioners termination right despite mul-
tiple red flags in Respondents case continues the
modern hostile trend of the Ninth Circuit against
copyright plaintiffs. The blueprint established for

Warner Bros. Entertainment, Inc., 607 F.3d 620 (9th Cir. 2010)
(summary judgment for defendant affirmed) (The Last Samu-
rai); Buggs v. Dreamworks, Inc., 2010 U.S. Dist. LEXIS 141515
(C.D. Cal. 2010) (summary judgment for defendant) (Flushed
Away); Clements v. Screen Gems, Inc., 2010 U.S. Dist. LEXIS
132186 (C.D. Cal. 2010) (summary judgment for defendant)
(Stomp the Yard); Gable v. National Broadcasting Co., 727 F.
Supp. 2d 815 (C.D. Cal. 2010) (summary judgment for defend-
ant) (My Name Is Earl); Gilbert v. New Line Productions, 2010
U.S. Dist. LEXIS 27134 (C.D. Cal. 2010) (summary judgment
for defendant) (Monster in Law); Novak v. Warner Bros Pictures,
LLC, 387 Fed. Appx. 747 (9th Cir. 2010) (summary judgment for
defendant affirmed) (We Are Marshall); Walker v. Viacom
International, Inc., 2010 U.S. App. LEXIS 1475 (9th Cir. 2010)
(summary judgment for defendant) (SpongeBob SquarePants);
Wild v. NBC Universal, Inc., 2013 U.S. App. LEXIS 4169 (9th
Cir. 2013) (summary judgment for defendant affirmed) (Heroes).
24
easy circumvention of the termination right disre-
gards the plain text of the statute, flouts Congresss
clear objectives, and injects profound uncertainty into
the reliability of the termination provisions. As a
result, the intended beneficiaries of the termination
statute now find themselves beholden to the same
state-based contract law Congress preempted in the
first place. Clear guidance for all parties on the scope
of 304(c)(5) is warranted.
CONCLUSION
For the foregoing reasons, as well as for the rea-
sons stated in the petition, the petition for writ of
certiorari should be granted.

Respectfully submitted,

DANIEL B. LIFSCHITZ
LOWE & ASSOCIATES
11400 OLYMPIC BLVD.
SUITE 640
LOS ANGELES, CA 90064
(310) 477-5811


Counsel for Amici Curiae
STEVEN W. SMYRSKI
Counsel of Record
SMYRSKI LAW GROUP, A P.C.
3310 AIRPORT AVE., SW
SANTA MONICA, CA 90405
(310) 397-9118
STEVE@SMYRSKI.COM