Canal+ Image UK Ltd. v. Lutvak

Defendants Steven Lutvak and Robert L. Freedman (“Defendants”) move to dismiss claims by Canal + Image UK Ltd. (“Canal+ ”) for infringement of Canal+’s copyright in the film Kind Hearts and Coronets (the “Film”) as well as for breach of a contract regarding the rights to develop a stage musical adaptation of that film. For the reasons that follow, the Court finds that no reasonable jury could find that Defendants’ musical is substantially similar to the protectible aspects of the Film and that the Copyright Act preempts a claim for breach of contract in the circumstances of this case. Accordingly, Defendants’ motion is granted.

*425 BACKGROUND

Roy Horniman’s novel Israel Rank (“the Novel”) was first published in 1907. The Novel, which has passed into the public domain, is written in the form of the prison memoirs of a man condemned to death. It tells the story of its eponymous protagonist, the son of Jewish father and a noble mother whose marriage to a Jewish man caused her family, the Gascoynes, to disinherit her. The protagonist is reared to be acutely aware of his disinheritance, an awareness that turns to vengeance when he is rejected from a position at the family’s banking house and by a social-climbing lover, Sibella, who marries a more promising man. The protagonist then hatches a plan to murder the eight people between him and the family’s noble title. The protagonist begins by murdering the heir who refused him the position at the banking house and his mistress and then kills six other Gascoynes, several in disturbing fashion but all without detection. Along the way, as he moves closer to the Gascoyne title, the protagonist joins the banking house and his increased stature and wealth enable him to have an affair with his former flame, Sibella, and marry the sister of one his victims. When the protagonist takes the final step and poisons Lord Gascoyne himself, he takes the title but is arrested for the crime. However, the protagonist is exonerated when a governess at the family’s estate falsely confesses to the murder because she has fallen in love with the protagonist.

In 1949, Ealing Studios released the Film, a comic adaption of the Novel starring Dennis Price as the protagonist with Valerie Hobson as his wife and Joan Greenwood as his lover. In one of his most memorable supporting roles, Sir Alec Guinness plays each of the protagonist’s victims. The Film tells essentially the same story as the Novel, with a few differences described in more detail below. Canal+, however, alleges that “having all of the murder victims played by the same leading comic actor is central to the artistic expression of the Film” and “affects, and is inextricably intertwined with, not just the tone but all of the dramatic situations in the Film, including its ‘total concept and feel.’ ” (Compl. ¶ 20.) Canal + owns the copyrights to the Film pursuant to valid registration number PA-931591.

Defendants are a lyricist and a songwriter. On April 1, 2003, Canal + and Defendants entered into a licensing agreement (the “Agreement”) pursuant to which Canal + provided Defendants with “the exclusive authorization, to the extent of the interests of [Canal +] ... to adapt the Film ... as a live stage musical presentation .... ” (emphasis added). The authorization extended through October 1, 2004, at which time Defendants were to provide Canal + with all materials necessary for Canal + to decide whether to produce the “live stage musical presentation.” If Canal + elected to do so, it would “have the sole right to enter into agreements to ... present the Play with [Defendants] on terms to be negotiated in good faith.” However, if Canal-)- elected not to produce the play, the Agreement provided that Defendants’ “rights [t]hereunder shall immediately terminate” and Defendants “shall immediately thereafter cease dealing in and with any materials written or created by you which represent, incorporate or embody the Film or any elements in the Film, including without limitation the text, characters, and situations in the Film, all of which elements shall be deemed to have reverted to [Canal+].”

Defendants submitted materials as required by the Agreement pursuant to releases dated September 1, 2004 which incorporated the terms of the Agreement. (Garmise Aff. Exs. A, B.) Canal + decided *426 not to produce Defendants’ live musical adaption. However, Defendants proceeded with developing their adaption (“the Musical”) which appears to have been variously titled Kind Hearts and Coronets, The Truth About Monty, and, ultimately, A Gentleman’s Guide to Love and Murder. According to several media sources to which Canal + has referred the Court and whose veracity Defendants have not contested, Defendants planned to use one actor to play all of the victims in the Musical and previewed the Musical in that fashion.

Canal + filed suit against Defendants on February 19, 2010 alleging copyright infringement and breach of contract. Canal + alleges that Defendants “have simply taken the same musical which they previously called Kind Hearts and Coronets, changed the title and the names of certain characters, made other immaterial changes, and have now announced a preBroadway commercial production of that musical.” (Compl. ¶ 16.) Specifically, Canal + alleges that “in the current re-titled musical [Defendants] have retained the style and occurrence of humorous, non-realistic deaths from the Film, deaths which are very different from the horrifyingly realistic ways in which the victims die in Israel Rank.” {Id. at 18.) Moreover, Canal + alleges that “defendants’ re-titled musical has retained the central and most memorable expressive part of Kind Hearts and Coronets: the comedy inherent in having all eight of the aristocratic murder victims played by a single actor.... ” {Id. at 19.)

Defendants have moved [18] under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim for which relief can be granted. 1

LEGAL STANDARD

“Courts ruling on motions to dismiss must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor.” Dickerson v. Mut. of Am., 703 F.Supp.2d 283, 290 (S.D.N.Y.2010). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Rather, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

“To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.” Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir.1999) (emphasis in original and quotation marks omitted). “[B]ecause the question of substantial similarity typically presents an extremely close question of fact, questions of non-infringement have traditionally been reserved for the trier of fact.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d *427 Cir.2010) (internal citation omitted). Nevertheless, “it is entirely appropriate for a district court to resolve that question as a matter of law, ‘either because the similarity between two works concerns only non-copyrightable elements of the plaintiffs work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.’ ” Id. (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir.1983)).

“When a court is called upon to consider whether the works are substantially similar, no discovery or fact-finding is typically necessary, because ‘what is required is only a ... comparison of the works.’ ” Gaito, 602 F.3d at 64 (quoting Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 766 (2d Cir.1991)). Thus “where ... the works in question are attached to a plaintiffs complaint, it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation.” Gaito, 602 F.3d at 64.

Canal + has not attached a copy of either the Film or the Musical to its complaint, nor has it formally incorporated either work by reference. But “when a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant’s motion to dismiss, without converting the proceeding to one for summary judgment.” Int’l Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (quotation marks omitted). Where Canal + repeatedly characterizes or invokes the Novel, the Film, and the Musical in its complaint, alleges that the Musical “is nothing more than Kind Hearts and Coronets under a different name,” and has alleged a claim for copyright infringement which requires proof that the Musical is substantially similar to the Film, it is plain that the Novel, the Film, and the Musical are integral to the complaint. Accordingly, the Court will consider these works for purposes of Defendants’ motion to dismiss.

The Court will also consider the Agreement. “[Wjhere the claim is for breach of contract, the complaint is deemed to incorporate the contract by reference because the contract is integral to the plaintiffs’ claim.” Verzani v. Costco Wholesale Corp., 641 F.Supp.2d 291, 297-98 (S.D.N.Y.2009). Though Canal + has not attached a copy of the Agreement to the complaint or formally incorporated the Agreement by reference, Canal + quotes from and relies upon that Agreement. (Compl. ¶ 10, 11, 12, 13, 23.) A plaintiff “cannot avoid the Court’s consideration of [a] document simply by failing to explicitly reference it....” RBS Holdings, Inc. v. Wells Fargo Century, Inc., 485 F.Supp.2d 472, 477 (S.D.N.Y.2007). The Agreement is therefore properly considered.

However, the Court will not consider what Canal-I- calls an “expert” report by Dr. Michael Newton, a docent at the University of Leiden and the author of the only book-length study on the Film. (See Aff. of Michael Newton in Supp. of PL’s Opp’n to Defs.’ Mot. to Dismiss.) “The well-established general rule in this circuit has been to limit the use of expert opinion in determining whether works at issue are substantially similar.” Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir.1992). It is true that “expert testimony may be used to assist the fact finder in ascertaining whether the defendant had copied any part of the plaintiffs work,” but copying is not at issue. Id. Thus “it remains solely for the trier of *428 fact to determine whether the copying was ‘illicit’ ” and “[s]ince the test for illicit copying is based upon the response of ordinary lay observers, expert testimony is thus ‘irrelevant’ and not permitted.” Id. While the Second Circuit has found expert testimony permissible in cases involving computer software, see id., this is not such a case.

DISCUSSION

A. Copyright Infringement

“To prove infringement, a plaintiff with a valid copyright must demonstrate that: (1)' the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.” Hamil Am. Inc., 193 F.3d at 99 (emphasis in original and quotation marks omitted). Defendants have not contested actual copying. Rather, they contend that that the Musical is not substantially similar to the Film as a matter of law.

The requirement of substantial similarity reflects the proposition that “not all copying results in copyright infringement, even if the plaintiff has a valid copyright.” Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir.2001). Rather, the question “is whether ‘the copying is quantitatively and qualitatively sufficient to support a finding of infringement.’ ” Nihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 70 (2d Cir.1999) (emphasis added) (quoting Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir.1997)). Put another way, the question is “whether an average lay observer would ... recognize the alleged copy as having been appropriated from the copyrighted work.... ” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995). Hence “[t]he standard test for substantial similarity between two items is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (quotation marks omitted).

However, “where [a court] compare[s] products that contain both protectible and unprotectible elements, [its] inspection must be more discerning,” Knitwaves, Inc., 71 F.3d at 1002 (quotation marks omitted), because “copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s.” Hamil Am. Inc., 193 F.3d at 99 (emphasis added). Therefore, where the allegedly infringed work consists of both protectible and unprotectible elements, the court “must attempt to extract the unprotectible elements from [its] consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, Inc., 71 F.3d at 1002 (emphasis in original). That is, “[t]he court, confronted with an allegedly infringing work, must analyze the two works closely to figure out in what respects, if any, they are similar, and then determine whether these similarities are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.” Tufenkian Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134-35 (2d Cir.2003).

Nevertheless, the nature of the creative process is such that even this discerning approach can prove clumsy. “ ‘[I]n Hollywood, as in the life of men generally, there is only rarely anything new under the sun.’” Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996) (quoting Berkic v. Crichton, 761 F.2d 1289, *429 1294 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985)). Since “all creative works draw on the common wellspring that is the public domain,” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 132, copyright protection does not extend only to new forms of expression but also, and more commonly, to assembling old forms in original ways. Cf. Salinger v. Random House, Inc., 811 F.2d 90, 98 (2d Cir.1987) (“Though a cliche or an ‘ordinary’ word-combination by itself will frequently fail to demonstrate even the minimum level of creativity necessary for copyright protection, such protection is available for the ‘association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.’ ”) (internal citation omitted) (quoting Nutt v. Nat’l Inst. Inc. for the Improvement of Memory, 31 F.2d 236, 237 (2d Cir.1929)). Considering only those elements that alone are protectible “would result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectible elements like letters, colors and symbols.” Boisson, 273 F.3d at 272.

Accordingly, the Second Circuit has recognized that “the defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work ... are considered in relation to one another.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 134. The Court of Appeals therefore “ha[s] disavowed any notion that ‘[courts] are required to dissect [the works] into their separate components, and compare only those elements which are in themselves copyrightable.’ ” Gaito, 602 F.3d at 66 (quoting Knitwaves, Inc., 71 F.3d at 1002). Instead, courts must be “principally guided ‘by comparing the contested [work’s] total concept and overall feel’ with that of the allegedly infringed work, as instructed by [their] good eyes and common sense.” Gaito, 602 F.3d at 66 (quoting Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 133). This “total-concept-and-feel locution functions as a reminder that, while the infringement analysis must begin by dissecting the copyrighted work into its component parts in order to clarify precisely what is not original, infringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 134 (emphasis in original). Rather, “in the end, [the] inquiry necessarily focuses on whether the alleged infringer has misappropriated ‘the original way in which the author has selected, coordinated, and arranged the elements of his or her work.’ ” Gaito, 602 F.3d at 66 (quoting Knitwaves Inc., 71 F.3d at 1004) (other quotation marks omitted).

Accordingly, the infringement analysis proceeds as follows. First, the Court will determine what elements of the Film are protectible. Second, the Court will determine whether there is a substantial similarity between those elements and the Musical. Third, since both the Second Circuit and Canal + have emphasized the importance of one element — the total concept and feel of the works — the Court will treat total concept and feel separately.

1. What Elements of the Film are Protectible

Courts assessing whether two works are similar “examine the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting....” Williams, 84 F.3d at 588. The first question is whether any of these elements of the Film are protectible. Answering that question in this case *430 requires a brief discussion of the law governing derivative works because Canal + alleges that the Novel served as “source material for the Film.” (Compl. ¶ 15.) 2

“Originality is the sine qua non of copyright.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 131. “If a work is not original, then it is unprotectible.” Boisson, 273 F.3d at 268. “Originality does not mean that the work for which copyright protection is sought must be either novel or unique, it simply means a work independently created by its author, one not copied from pre-existing works, and a work that comes from the exercise of the creative powers of the author’s mind, in other words, the fruits of the author’s intellectual labor.” Id. (internal citation and quotation marks omitted).

The originality requirement applies in equal measure to derivative works. Section 101 of the Copyright Act defines a derivative work as:

a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.

17 U.S.C. § 101 (emphasis added). “The subject matter of copyright ... includes compilations and derivative works.... ” 17 U.S.C. § 103(a). However, “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” 17 U.S.C. § 103(b). Thus “copyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.” Silverman v. CBS Inc., 870 F.2d 40, 49 (2d Cir.1989); see also Psihoyos v. Nat’l Geographic Soc’y, 409 F.Supp.2d 268, 278 (S.D.N.Y.2005) (“Only the original elements of a derivative work, i.e. the non-trivial additional matter transforming a prior work, are protected by copyright.”); Earth Flag Ltd. v. Alamo Flag Co., 153 F.Supp.2d 349, 353 (S.D.N.Y.2001) (“Although derivative works are protectible, copyright protection extends only to the non-trivial, original contributions of the derivative work’s author.”).

While this is “a low threshold,” “[t]he law requires more than a modicum of originality” and the Copyright Act “has been interpreted to require a distinguishable variation that is more than merely trivial.” Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775, 782 (2d Cir.1994). “In the case of a derivative work based on an underlying work that is in the public domain, only the material added to the underlying work is protected by copyright.” Id. Accordingly, to the extent that any of the similarities between the Film and the Musical are derived from the public domain Novel, those similarities are not protectible.

a. Characters

Most of the characters in the Film appear in the Novel: a protagonist de *431 scended from a non-noble father and a noble mother whose marriage causes the protagonist’s disinheritance; Sibella, the protagonist’s coquettish childhood friend whose snub catalyzes the criminal plan; a second principal female character related to Henry whom the protagonist ultimately marries; and six similar victims: the head of the family, the manager of the family’s private banking business, the manager’s son (and his mistress), the character named Henry, a heavy-drinking reverend, and a military officer. At most, then, small details of these characters are protectible. For example, unlike the protagonist of the Novel whose father is Jewish, the protagonist of the Film is the son of an Italian father. Similarly, in the Novel (as in the Musical) the second principal female character related to Henry whom the protagonist courts and to whom he becomes engaged is Edith, Henry’s sister. In the Film, however, the same character is Phoebe, Henry’s widow. These differences could be protectible, but the characters in general are not.

b. Plot

As set forth above, both the Film and the Musical present the same basic story. The protagonist learns of his disinheritance and, spurred in part by rejection by Sibella and the noble family’s banking house, conceives and carries out a plan to murder the eight heirs between him and the noble title. With the family in the dark as to the protagonist’s plan, the protagonist’s move up the family hierarchy leads to an invitation to join the banking house and with it ever more recognition, prestige, and wealth. Sibella takes notice of the protagonist’s advancement and, bored by Lionel whom she agreed to marry when his prospects seemed brighter than the protagonist’s, begins an affair with the protagonist. At the same time, the protagonist courts and becomes engaged to a mourning relative of Henry. After the protagonist has dispatched all but the head of the noble family, the head of the noble family dies, and the protagonist inherits the title. He is then arrested for and falsely accused of murder. A woman in love with him, however, hatches a plan to exonerate the protagonist and he is freed only to discover that he has left his memoirs, and thus a confession, in his cell.

This basic story is not protectible, however, because it is a story almost entirely derived from the Novel. The only notable differences between the just described common plot of the Musical and the Film and the plot of the Novel are that the protagonist in the Novel actually murders the head of the family, is rightly accused and convicted of that crime, and is exonerated not by Sibella but by a governess at the ancestral home who falsely confesses to the murder. The Film adapts that ending such that the head of the family dies naturally, and Sibella falsely accuses the protagonist of murdering Lionel but exonerates him after blackmailing him into agreeing to murder Edith. Since that adaption is original, it may be protectible. But the basic skeleton of the story is not.

c. Theme

Plaintiffs allege that Defendants “have simply taken the same musical which they previously called Kind, Hearts and Coronets, changed the title and the names of certain characters, made other immaterial changes, and have now announced a pre-Broadway commercial production of that musical.” (Compl. ¶ 16.) Defendants, however, argue that “the concept of creating a humorous derivative work based on Israel Rank is a nonprotectible idea, which cannot give rise to a claim of copyright infringement.” (Defs.’ Br. at 16.) That argument implicates what the *432 Supreme Court has called the “idea/expression dichotomy” which “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). Pursuant to this dichotomy, “copyright does not protect ideas; it protects only the author’s particularized expression of the idea.” Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135-36 (2d Cir.2004); see also Boisson, 273 F.3d at 268 (“[C]opyright protection extends only to a particular expression of an idea, and not to the idea itself.”). Thus “the similarity between two works must concern the expression of ideas, not the ideas themselves.” Gaito, 602 F.3d at 67.

That statement of the law, however, is “a distinction easier to state than to apply.” Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986). Indeed, “no single ‘principle can be stated as to when an imitator has gone beyond copying the “idea,” and has borrowed its “expression. Attia v. Soc’y of New York Hosp., 201 F.3d 50, 54 (2d Cir.1999) (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (Hand, J.)). Cf. 1 Nimmer on Copyright § 13.03[A][1] (2003) (dismissing the “idea/expression dichotomy” as “a reformulation not a solution of the problem”). “Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc., 274 F.2d at 489.

Nevertheless, this case is far less difficult than some. The notion of a comic adaption of a novel about murder is an idea, or an interpretation, that can be expressed in many different ways. Indeed, Canal 4- effectively concedes that “[w]hat is at issue is not that defendants turned Israel Rank into a comedy....” (Pl.’s Opp’n at 5.) Accordingly, a comedic adaption of the Novel is not protectible.

d. Setting

The Film appears to be set in Edwardian England. There are several clues to that setting: antiquated versions of motorcars and cameras, the general’s tale of his exploits in the Boer War, and the portrayal of the female suffragist. This setting is not protectible not only because it is historical but because it is also the setting of the Novel. See, e.g., Bevan v. Columbia Broad. Sys., Inc., 329 F.Supp. 601, 606-7 (S.D.N.Y.1971) (“What resemblance remains between the two works arises from the nature of subject matter, a POW camp within Hitler’s Germany. ... Similarity of this kind fails to meet the appropriate legal tests either of substantiality or wrongful appropriation.”).

e. “Composite Victim”

Canal + stakes much of its infringement argument on the fact that initial previews of the Musical suggest that one actor will play all of the victims just as Sir Alec Guinness did in the Film. 3 Based on that fact, Canal + argues that the defendants “have blatantly appropriated the Film’s central means of expression, and used it as the centerpiece of their musical....” (PL’s Opp’n at 11.) While this *433 argument warrants analysis in considering the total concept and feel of the Film, see Part A3 infra, it lacks merit to the extent that Canal + seeks protection for the Film’s use of a standard convention. The dramatic device of using one actor to play multiple roles in the same production is not protectible in itself because there is nothing original about that device. Indeed, it is no more original than using “a character who talks directly to the audience,” “celebrities appearing as themselves,” or “men disguising themselves as women” which courts in this Circuit have held not protectible in two cases cited by Defendants. See A Slice of Pie Prods., LLC v. Wayans Bros. Ent’mt, 487 F.Supp.2d 41, 48 (D.Conn.2007) (characters in disguise); Willis v. Home Box Office, No. 00-CV-2500, 2001 WL 1352916, at *5 (S.D.N.Y. Nov. 2, 2001) (‘Willis I”), aff'd 57 Fed.Appx. 902 (2d Cir.2003) (“Willis II”) (characters speaking directly to the audience and celebrities appearing as themselves). Nor is it any more original than using a master of ceremonies, celebrity guests, capital letters in title sequences, or black and white costumes, all of which cannot be protected. See Mallery v. NBC Universal, Inc., No. 07-CV-2250, 2007 WL 4258196, at *7 (S.D.N.Y. December 3, 2007) (white block capital letters); Barris/Fraser Enter, v. Goodson-Todman Enter., Ltd., 5 U.S.P.Q.2d 1887, 1889 (S.D.NY.1987) (Weinfeld, J.) (“Nor is protection extended to a system of asking questions, the concept of a master of ceremonies and celebrity guests, or the true stories told on the show. It is only in original expression that defendant can claim copyright protection.”); O’Brien v. Chappel & Co., 159 F.Supp. 58, 59 (S.D.NY.1958) (“[PJlaintiff cannot get copyright ... to the idea of having the actors and actresses in a stage show appear in a scene dressed in black and white costume.”).

2. Similarity

The next question involves application of the “more discerning observer” test: whether “a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s.” Hamil Am. Inc., 193 F.3d at 99 (emphasis added). In this case, the question is whether there is a substantial similarity between what the Court has just determined are the protectible elements of the Film “standing alone,” Knitwaves, Inc., 71 F.3d at 1002, and the Musical? “‘[T]he determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.’ ” Gaito, 602 F.3d at 63 (emphasis in original) (quoting 1 Nimmer on Copyright § 13.03[A]). However, the question is somewhat easier in this case because the Film, as a derivative work, contains limited original elements, and most of those original elements are not similar to elements of the Musical.

a. Characters

As discussed above, the Film’s characters are generally not protectible because they are derived from the public domain Novel. Moreover, even those minor character details that are protectible are not portrayed in the Musical. For example, in the Musical, as in the Novel, the second principal female character is Phoebe, Henry’s sister, not, as in the Film, Henry’s widow Edith. 4 In addition, each *434 work portrays two victims not portrayed in the other: a missionary and an actress in the Musical; a female suffragist and an admiral in the Film. And the Musical also portrays a character named Miss Shingle who first alerts the protagonist to his noble heritage and commits the murder of which the protagonist is later accused but who appears nowhere in the Film. Accordingly, there is no substantial similarity between the protectible aspects of the characters in the Film and the characters in the Musical.

b. Plot

As also discussed above, the Film’s story is generally not protectible because it is derived from the public domain Novel. And while the ending of the Film is an original, and therefore proteetible, adaption of the Novel, it is not the ending of the Musical. The Musical ends as follows: the head of the family does not die naturally but is poisoned by Miss Shingle; the authorities, not Sibella, falsely accuse the protagonist of that murder, not of Lionel’s; Phoebe, not Sibella, visits the protagonist in prison and does not blackmail him; and