Ninth Circuit ogles strip club tropes in copyright appeal

PASADENA, Calif. (CN) — A panel of the Ninth Circuit Court of Appeals on Thursday considered a case from the creator of the musical “Soul Kittens Cabaret,” who claims that the cable channel Starz’s “P-Valley” television series about a strip club in Mississippi is an unauthorized knock-off of her work.

Nicci Gilbert-Daniels, who wrote “Soul Kittens Cabaret” about the lives and struggles of the dancers at a Detroit nightclub, asked the appellate court to overturn a federal judge’s ruling that there were no substantial similarities between her work and “P-Valley” beyond “scenes-a-faire” that related to working in a strip club and aren’t protected under copyright law.

The Ninth Circuit panel on Thursday appeared reluctant to agree, instead seeming to agree with the lower court that parallels largely came from common strip club themes.

A lower court judge had approached the question of substantial similarity between the works with somewhat of a “jaundiced eye” toward the niche strip club genre, Benjamin Janke, Gilbert-Daniels’s attorney, told the panel at a hearing in Pasadena, California. He said the judge should have further considered the opinion of the plaintiff’s expert in distinguishing what is an ordinary trope or scenes-a-faire from what is unique and protectable.

The term, from the French phrase scènes à faire meaning “scenes to do,” refers to aspects of creative works that are so integral to a particular genre as to not be copyrightable.

U.S. District Judge Stephen Wilson, a Ronald Reagan appointee, had abused his discretion by declining to consider their expert’s findings, Janke said. He stressed that in both works, the owner of the club is fending off closure from a local casino.

“Judge Wilson gives short thrift to the casino element in our work, saying it was only a minor element,” Janke argued. “Our expert refutes that. He says no, the casino element is indeed an important plot arc.”

This particular example of a purported substantial similarity didn’t appear the persuade the panel. U.S. Circuit Judge Gabriel Sanchez, a Joe Biden appointee, observed that the casino plot runs through the entire first season of “P-Valley,” whereas it is only fleetingly mentioned in “Soul Kittens Cabaret.”

“You’re here trying to dispute that there are no triable facts, and your contention is that this is a major plot point,” Sanchez said. “So, can you back it up with some references to the record?”

Another substantial similarity that Wilson had rebuffed concerned parallels between Tata Burlesque, the Soul Kittens Cabaret’s LGBTQ+ Black owner, and Uncle Clifford, the genderfluid Black owner of the Pynk strip club in “P-Valley.”

The judge concluded that, because Tata is a gay man and Uncle George is a nonbinary person, they had fundamentally different identities.

“Are those difference important?” Janke argued. “Yes, in general, but for purposes of what we’re talking about here, substantial similarity, that’s not what we should be talking about.”

Senior U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, noted that a more fundamental problem for Gilbert-Daniels’ claim might be that the themes, dialogue and mood couldn’t be more different between her work and “P-Valley,” which she said is dark and violent.

David Halberstadter, an attorney for Starz Entertainment and the creators of “P-Valley,” argued that purported similarities in the case were less compelling than those in other copyright cases where the Ninth Circuit had found that the comparisons involved unprotectable ideas, stock elements and stock characters.

Rounding out the panel was U.S. Circuit Judge Holly Thomas, another Biden appointee.

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