Ninth Circuit rebuffs copyright appeal over strip club TV show

LOS ANGELES (CN) — A Ninth Circuit Court of Appeals panel on Monday turned down an appeal by the creator of the musical “Soul Kittens Cabaret,” who sought to reinstate her claim that cable channel Starz’s “P-Valley” television series about a strip club in Mississippi is an unauthorized knock-off of her work.

The three-judge panel, in an unsigned decision, affirmed the decision by a trial judge in Los Angeles that no reasonable juror could find substantial similarity of ideas and expression between “Soul Kittens Cabaret” and “P-Valley.”

“Many of the purported similarities between the works are based on unprotectable elements such as generic plot devices … familiar stock scenes and themes … or scènes à faire that ‘flow naturally’ from the basic premise of dancers or performers at a cabaret or exotic dancing venue,” the panel said.

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.

Benjamin Janke, an attorney for Nicci Gilbert-Daniels, the creator of “Soul Kittens Cabaret,” didn’t immediately respond to a request for comment on the ruling.

Gilbert-Daniels, who wrote “Soul Kittens Cabaret” about the lives and struggles of the dancers at a Detroit nightclub, earlier this month had asked the appellate court to overturn U.S. District Judge Stephen Wilson’s 2023 ruling.

David Halberstadter, an attorney for Starz Entertainment and the creators of “P-Valley,” argued at a Dec. 5 hearing that the 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.

In their decision, the panel agreed, echoing a concern noted in the hearing by Senior U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, that the themes, dialogue and mood of the dark and violent “P-Valley” and the more lighthearted “Soul Kittens Cabaret” were fundamentally different.

“There are abundant dissimilarities in the respective works’ plots, themes, dialogue, moods, paces, characters and settings. What remains after filtering out the unprotectable elements consists of ‘random similarities scattered throughout the works,’” the judges wrote.

“Several of Gilbert-Daniels’ proffered comparisons reference materials that are not copyrighted, mischaracterize the works, or fail to cite directly to the materials at issue,” the judges added. “Accordingly, we conclude that no reasonable jury could find substantial similarity between the protected aspects of SKC and P-Valley.”

Janke also told the panel at the hearing that Wilson had approached the question of substantial similarity between the works with somewhat of a “jaundiced eye” toward the niche strip club genre. 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 federal judge, according to Janke, had abused his discretion by declining to consider their expert’s findings. He stressed that in both works, the owner of the club is fending off closure from a local casino and that Wilson should not have dismissed that as a minor plot element.

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

“Aft’s expert report and declaration merely restate many of the ‘same generic similarities in expressive content’ that Gilbert-Daniels had already presented,” the panel wrote. “Even if we were to consider Aft’s expert report and declaration, the outcome of our analysis of substantial similarity would not change.”

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

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