Douglas Alan Stromback, Plaintiff-Appellant/cross-Appellee v. New Line Cinema, Defendant-Appellee/cross-Appellant, Larry Hess

OPINION

Plaintiff, Douglas Alan Stromback (“Stromback”), sued Defendant, New Line Cinema (“NLC”), and others, alleging violations of the Copyright Act, 17 U.S.C. § 106, and the Lanham Act, 15 U.S.C. § 1Í25, and alleging various state law claims under Michigan and/or California law. Stromback’s claims all.arise out of his allegations that the movie “Little Nicky,” which is owned and distributed by NLC, infringes Stromback’s poem entitled “The Keeper” as well as his original treatment and outline of a screenplay based upon “The Keeper” poem entitled “The Keeper.” 1 The district ' court granted summary judgment to NLC on all of Stromback’s claims and dismissed the case. Stromback filed this timely appeal. We affirm on all issues.

I. FACTUAL AND PROCEDURAL BACKGROUND

In late 1998 and early 1999, Stromback; an actor, aspiring screenwriter, and former professional hockey player, created an original poem entitled “The Keeper.” Stromback then created an original treatment and original outline of a screenplay based upon “The Keeper” poem and entitled. each one “The Keeper.” Later, Stromback created several original screenplays of “The Keeper.” Stromback registered the poem and a version of the screenplay with the Copyright Office. Stromback also registered several versions of the screenplay with the Writers Guild of America.

Stromback alleges that in early 1999, he shared the poem and the screenplay with Larry Hess and John Apothaker to solicit their comments on his work. According to Stromback, Hess and Apothaker subsequently passed copies of “The Keeper” poem and screenplay to NLC. In November 2000, NLC released a movie it produced called “Little Nicky,” starring Adam Sandler. Stromback alleges that after seeing “Little Nicky” in the theater, he realized that it contained substantial similarities to his works, including similarities in theme, character treatment and development, idiosyncratic character traits, and scene selection. A description of the two works follows. 2

*290 The Keeper

The registered screenplay version of “The Keeper” is a story about “Ted,” who brings down the corrupt Governor of California, “John.” Racial themes are presented throughout the story. Ted is white. Ted’s adoptive mother is “Martina,” an older black lady. Ted’s grandfather, “Fred,” is an 87-year-old black man who lives in a nursing home and is apparently losing his mental faculties. When Ted was young, Fred taught Ted to speak in rhymes, as Ted often does throughout the story. Fred thought that being able to rhyme was the secret to succeeding in life because Muhammed Ali spoke in rhymes. Fred told Ted that he was teaching Ted how to rhyme so that Ted would deliver the family “from the gutter.” Ted regularly talks to himself in his apartment, apparently responding in a schizophrenic manner to voices inside his head. Ted asks Martina to explain the voices and why he is troubled but she is reluctant to tell him the truth, which is that he was abandoned in a dumpster as a baby by his birth mother. Eventually, Ted’s mother told him that they found him on church grounds and that his mother was an eighteen year old girl who was having an affair with a politician.

The story opens with Ted starting a new job at the “national paper.” Ted is hired to work in the basement of the building organizing old files. Ted’s boss, “Dave,” calls the basement “the cave” or “the dungeon.” Ted works in the evening and often sleeps during work. Ted is attracted to a female writer named “Sue.” Ted concocts and carries out a plan to approach Sue in the dark and reveal his feelings toward her through a rhyme. Sue figures out that Ted was the person who approached her in the dark but she won’t date him because he is “totally weird.”

Shortly after he begins working at the national paper, Ted begins to obsess about Governor John. 3 Governor John is portrayed as a power hungry politician who does no real work and whose ambition is to become president and take over the world. Ted believes that Governor John is “cocky and arrogant” as well as evil, and at various times Ted refers to Governor John as the devil. Ted begins a campaign against Governor John by sending anonymous rhyming riddles to the national paper that the newspaper prints in its editorial page. Eventually it is revealed that Ted has been reading about a “Jokela murder case,” in which a reporter (“Jokela”) was murdered in the same basement in which Ted now works. Jokela discovered that the then-secretary of state (Governor John’s father) was involved in a cult having “some thing to do with the devil.” Governor John’s father was the prime suspect in the murder but “got off the hook and the case never went to trial.” He went on to have a distinguished career as Governor. Ted knows that Governor John’s father was responsible for the murder and includes clues about it in his riddles.

Governor John reads the riddles and eventually catches on that the author is out to get him. The Governor and his henchmen decide to kill “that rhyming dude.” Ted reveals himself to the Governor and dares him to “get me if you can.” Governor John arranges for three individuals to find and murder Ted at the national paper. However, Ted sets a trap in which he uses his “good friend,” “Scott,” to trick the hit-man into thinking that Scott is actually *291 Ted. The hit-man ends up killing Scott. Having video-taped the murder, Ted tells a dying Scott: “I needed you, you were a good friend, but everybody needs a ladder to get to the top. You’re my ladder scott [sic].”

Ted shows the tape of the murder to the police, who eventually link the murder to Governor John. The story ends with the Governor going to jail and Ted being elected as the Governor of California. On election night Sue goes to Ted’s hotel room, where he rapes her. Sue has no recourse because Ted now has the power. Ted calls Sue a “bitch” as she leaves.

Little Nicky

Little Nicky is a “comedy” about the Devil, “Satan,” and his three sons: “Casi-us,” the strong, tough son; “Adrian,” the smart, ruthless son; and “Nicky,” the weaker, sweet son, who also has a speech impediment caused by his brother hitting him in the face with a shovel. Adrian and Casius frequently pick on Nicky and “mind wrestle” with him, causing him to do or say things against his will. The grandfather, “Lucifer” (Rodney Dangerfield), appears occasionally but does not really interact with Nicky.

The movie opens with Satan trying to decide if he should retire after 10,000 years of rule. If he does, one of his sons would take over Hell. Casius and Adrian both want the job. Nicky does not want it and prefers that his father keep the job. Satan decides to keep the job and rule for another 10,000 years in order to maintain the balance between good and evil (he does not believe that his sons are capable of doing this). Casius and Adrian are furious at this decision and plan to escape to Earth, where they will try to corrupt as many souls as possible (to threaten the balance between good and evil) in then-quest to assume control. During their escape, Casius and Adrian travel through a wall of fire, by which damned souls are intended to fall into, but not leave, Hell. Adrian and Casius cause the wall of fire to freeze and a logjam of souls ensues outside the wall of fire. Without new souls entering, Satan begins to decompose. His only hope is to send Nicky to Earth to force his brothers to drink from a magic flask, in which they will be trapped. Once he has his brothers inside the flask, Nicky must pass through the wall of fire and return to Hell, which will save Satan.

Nicky travels to New York City, where Satan’s friend, a talking dog, “Beefy,” serv.es as Nicky’s guide. Nicky is also assisted by two cult-worshiping “groupies” named “John” and “Pete.” Beefy, John, and Pete all want Nicky to “release his inner evil” in order to overpower Casius and Adrian. Nicky has a difficult.time finding his brothers because they hide by randomly “possessing” humans. Casius possesses the Mayor of New York and lowers the drinking age from 21 to 10, causing chaos. All three of them have a difficult time adapting to Earth’s cold weather.

While on Earth, Nicky meets and falls in love with a woman named “Valerie.” During a chance encounter, Adrian mind wrestles with Nicky and causes him to insult Valerie. However, Nicky wins back Valerie’s affection by telling her the truth about his family and mission on Earth. During the story, Nicky is killed several times (e.g., by a train or bus) and is sent back to' Hell, where he is re-dispatched to Earth. The final time, Nicky dies trying to save Valerie and goes to Heaven. There, he meets an angel named “Holly,” who turns out to be his mother. Holly tells Nicky that she met Satan at a “Heaven and Hell Mixer.” Holly tells Nicky releasing his inner good is the key to victory over his brothers. Holly also, gives Nicky .a magic *292 sphere from God for Nicky to use when it is time.

Nicky manages to trap Casius in the magic flask, but Adrian has assumed the throne of Hell and has caused Hell to rise through Central Park in New York. At the stroke of midnight, all of New York’s souls will be damned and belong to Adrian in Hell. Nicky uses the magic sphere, releasing “good” versus “evil.” Nicky smashes the magic sphere and Ozzy Osbourne (a rock star with a reputation for biting the heads off bats) appears and bites off Adrian’s head (who appears in the form of a bat) and spits it into the magic flask. Nicky then commits one last superficially bad act to ensure that he will be sent to Hell. Valerie tells Nicky that she loves him and then smashes him on the head with a rock (out of love) to kill him and send him back to Hell. Satan is saved and the balance between good and evil is restored. Satan sends Nicky back to Earth to be with Valerie and they have a son and live happily ever after.

Stromback filed his complaint on October 15, 2001, and filed an amended complaint in December 2001. 4 Stromback’s amended complaint alleged claims for copyright infringement; reverse passing off in violation of the Lanham Act; commercial misappropriation; breach of quasi contract; misappropriation of trade secrets; breach of the implied duty of good faith and fair dealing; unfair competition/unjust enrichment; and interference with prospective economic advantage. On September 13, 2002, NLC, the only remaining defendant, moved for summary judgment. At that time, the case had been pending for about a year and Stromback had not sought a Rule 16 conference with the district court, nor had he sought any discovery. In his response, Stromback argued that summary judgment should be denied because he needed to conduct discovery on whether the various screenplays leading up to the final product (the movie) infringed on “The Keeper” poem or screenplay. The district court found that the movie was the only relevant work because only the movie, and not the various versions of the screenplays leading up to the movie, were published to the public and because Stromback alleged in his amended complaint only that the movie was an infringing work. The district court concluded that NLC was entitled to summary judgment on the copyright infringement and Lanham Act claims because no reasonable jury could find that “Little Nicky” is substantially similar to “The Keeper” poem or screenplay. The district court also concluded that summary judgment was proper on Stromback’s state law claims on the basis that they are preempted by § 301 of the Copyright Act.

II. ANALYSIS

A. Standard of Review

Stromback contends that the district court erred in granting summary judgment to NLC on his various claims. In reviewing a district court’s grant of summary judgment, this Court applies a de novo standard. See E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir.2003). Summary judgment is proper only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the plaintiff. See Anderson v. Liberty *293 Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

B. Copyright Infringement Claim

The Copyright Act provides protection for original works of authorship expressed in various media. 17 U.S.C. § § 101-1332. Subject to. certain exceptions not applicable here, the owner of a copyright has the exclusive rights (1) to reproduce the copyrighted work; (2) to prepare derivative works; (3) to distribute copies; (4) to perform publicly a copyrighted work; and (5) to display publicly a copyrighted work. . 17 U.S.C. § 106. A plaintiff may bring a claim against a person who infringes any of the plaintiffs exclusive rights in a copyright under § 106 by demonstrating two elements: “(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); accord Kokus v. Mariol, 328 F.3d 848, 853 (6th Cir.2003). The parties do not dispute Strombaek’s ownership of a valid copyright in “The Keeper” poem and screenplay. Thus, copying is the only issue in dispute.

Since direct evidence of copying is rarely available, a plaintiff may establish “an inference of copying by showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a substantial similarity between the two works at issue.” Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir.1999); see also Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir.1992). “Access is essentially ‘hearing or having a reasonable opportunity to [view] the plaintiff[’s] work and thus having the opportunity to copy.’” Ellis, 177 F.3d at 506 (quoting Tree Publ’g Co. v. Warner Bros. Records, 785 F.Supp. 1272, 1274 (M.D.Tenn.1991)). In Ellis, we observed that in some cases the relationship between the degree of proof required for similarity and access may be inversely proportional: where the similarity between the two works is strong, less compelling proof of access may suffice, and vice-versa. Id. at 507. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.2000) (stating that under the “inverse ratio ■ rule,” a lower standard of proof of similarity is required where a high degree of access is shown); Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir.1946) (stating that “a case' could occur in which the similarities were so striking that we would reverse a finding of no access, despite weak evidence of access (or no evidence thereof other than the similarities)”). ■ For purposes of its motion for summary judgment, NLC conceded the issue of access, electing to focus solely on the issue of substantial similarity of the two works.

In ruling on NLC’s motion, the district court observed, correctly, that the Sixth Circuit had not formally adopted a specific test or approach for determining substantial similarity in copyright cases. Drawing on statements in Diffie as well as prior decisions from the Eastern District of Michigan, the district court applied the “ordinary observer” test,, which allows the trier of fact to gauge his “net impression” of the two .works by conducting a side-by-side comparison without the benefit of expert testimony or dissection. .(Dist. Ct. Op. at 8.) The district court rejected Stromback’s argument that it should apply the two-part test employed by the Ninth Circuit, which consists of an extrinsic test and an intrinsic test, see Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977), although the district court did state that summary judgment would be improper at that stage if the Sixth Circuit employed the “extrinsic” test because expert discovery had not occurred. Subse *294 quent to the district court’s opinion and order granting summary judgment and dismissing the case, this court adopted a two-part test in Kohus v. Mariol, 328 F.3d 848 (6th Cir.2003), which follows the test employed by the D.C. Circuit in Sturdza v. United Arab Emirates, 281 F.3d 1287 (D.C.Cir.2002). We stated that “the first step ‘requires identifying which aspects of the artist’s work, if any, are protectible by copyright,’ [and] the second ‘involves determining whether the allegedly infringing work is “substantially similar” to protecti-ble elements of the artist’s work.’” Ko-hus, 328 F.3d at 855 (quoting Sturdza). This test is really just a refinement of the ordinary observer test that, as its initial step, parses from the work the elements neither afforded copyright protection nor properly considered in the ordinary observer test. “The essence of the first step is to filter out the unoriginal, unprotectible elements — elements that were not independently created by the inventor, and that possess no minimal degree of creativity, through a variety of analyses.” Id. (citation omitted). Our test is similar to the Ninth Circuit’s test, because the first part, like the Ninth Circuit’s extrinsic test, requires a determination of only the expressive elements of a work, while the second part, like the Ninth Circuit’s intrinsic test, asks whether the ordinary, reasonable observer would find the works, taken as a whole, to be substantially similar. Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 318 (6th Cir.2004).

However, significant differences remain in both parts. In particular, we apply a more stringent standard regarding when to allow expert testimony on the first part of the test. Also, not having adopted the eight Kouf factors [Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir.1994) ], the first part of our test remains more free in form than the Ninth Circuit’s extrinsic test.

Id. In addition, for purposes of summary judgment, the Ninth Circuit considers only the extrinsic test, while the intrinsic test is reserved for the jury. See Kouf, 16 F.3d at 1045 (“A plaintiff avoids summary judgment by satisfying the extrinsic test which makes similarity of the works a triable issue of fact.”). In contrast, a court considers both parts of our test in determining substantial similarity on a motion for summary judgment. See Kohus, 328 F.3d at 857-58 (discussing the district court’s analysis on remand under both prongs of the test). This remains consistent with our prior observation that while summary judgment in favor of a defendant in a copyright case is a practice that should be used sparingly, in an appropriate case, “a court may compare the two works and render summary judgment for the defendant on the ground that as a matter of law a trier of fact would not be permitted to find substantial similarity.” Wickham v. Knoxville Int’l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir.1984) (citations omitted); accord Kohus, 328 F.3d at 853.

Our decision in Kohus answers one of Stromback’s central arguments on appeal, namely, that the district court erred by conducting a side-by-side comparison of the two works rather than applying the extrinsic/intrinsic test or some other test that allows for analytic dissection of what Stromback characterizes as “complex copyright subject matter.” Though the district court failed to apply the proper two-part test, we need not remand the case because the issue presented is one of law. See, e.g., Chase Manhattan Bank, N.A. v. Am. Nat’l Bank & Trust Co., 93 F.3d 1064, 1072 (2d Cir.1996) (“An appellate court has the power to decide cases on appeal if the facts in the record adequately *295 support the proper result or if the record as a whole presents no genuine issue as to any material fact.... Thus, if we find that a party must prevail as a matter of law, a remand is unnecessary.”) (internal quotation marks and citations omitted); Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1539 (10th Cir.1996) (“In the present case, the debate is purely legal, and remand on this issue is unnecessary”). That is, the district court applied the ordinary observer test — the second part of the Kohus test — without first filtering out the unoriginal, unprotectible elements of “The Keeper” poem and screenplay. To the extent that the district court considered both protectible and unprotectible elements of Stromback’s works, the inquiry for purposes of this appeal remains the same — whether the district court’s conclusion of no substantial similarity was correct. 5

Nor is remand required for consideration of expert testimony, as the district court believed might be the case under the extrinsic/intrinsic test. Even in the Ninth Circuit expert testimony is not a requisite for a copyright infringement case. See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir.1994) (stating that a court may use expert testimony, “if necessary,” to determine whether any of the allegedly similar features are subject to copyright protection). Our test “appl[ies] a more stringent standard regarding when to allow expert testimony on the first part of the test.” Murray Hill Publ’ns, Inc., 361 F.3d at 318. We remanded in Kohus in part because the copyright involved a latch for a portable children’s play yard, and we thought that expert testimony would be necessary to determine whether certain elements of such a latch should be excluded from the substantial similarity analysis. See Kohus, 328 F.3d at 856. Whether expert testimony should be allowed in a particular case remains a matter committed to the discretion of the trial court under Federal Rule of Evidence 702 if such testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue.” However, where, as here, the subject matter is not complex or technical, such as a computer program or a functional object, see, e.g., Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 834-35 (10th Cir.1993) (noting that in most cases involving computer programs expert testimony will be helpful to the court in applying an abstractions test), but instead involves a literary work aimed at a general audience, expert testimony will seldom be necessary to determine substantial similarity. See Nichols v. Universal Pictures Corp., 45 F.2d 119, 123 (1930) (Hand, Learned) (“[Expert testimony] ought not to be allowed at all; and while its admission is not a ground for reversal, it cumbers the case and tends to confusion, for the more the court is led into the intricacies of dramatic craftsmanship, the less likely it is to stand upon the firmer, if more naive, ground of its considered impressions upon its own perusal.”); Kindergartners Count, Inc. v. Demoulin, 249 F.Supp.2d 1214, 1232 (D.Kan.2003) (“Unlike technical computer programs, the trier of fact does not need an expert to compare two literary works that are expressed in simple English.”); Costello v. Loew’s Inc., 159 F.Supp. 782, 789 (D.D.C.1958) (“No amount of expert or lay testimony as to fancied similarities could change the obvious content of the exhibits before the court.... Nor could expert testimony affect the spontaneous *296 and immediate impression of the plaintiffs and defendant’s literary works upon the mind of the ordinary observer”). Therefore, we reject Stromback’s suggestion that expert testimony is necessary in this case.

1. Filtering of Unprotected Elements

Although there is no clear line separating protected from nonprotected work, two principles help. to guide that determination in this case. . See Kohus, 328 F.3d at 855-56. First, copyright protection extends only to expression of ideas and not to ideas themselves. 17 U.S.C. § 102(b); Mazer v. Stein, 347 U.S. 201, 217, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954) (“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea — not the idea itself.”). “Ideas are free to the world, and one person’s idea can be appropriated by another with impunity.” Taylor v. Metro-Goldwym-Mayer Studios, 115 F.Supp. 156, 157 (S.D.Cal.1953). “[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work — termed “expression” — that display the stamp of the author’s originality.” Feist Publ’ns, 499 U.S. at 350, 111 S.Ct. at 1290 (quoting Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547, 105 S.Ct. 2218, 2224, 85 L.Ed.2d 588 (1985)) (internal quotation marks omitted). The abstraction test articulated by Judge Learned Hand in Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930), provides some guidance in divining protected expression:

Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of- his “ideas,” to which, apart from their expression, his property is never extended.

Id. at 121. The test itself does not identify protectible elements of a work, but instead is a tool for accomplishing that task. Kohus, 328 F.3d at 855.

Second, the principle of scenes a faire excludes copyright protection for “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 616 (7th Cir.1982); see also 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (“Nimmer”) § 13.03[F][3] (2004). For example, parties, alcohol, co-eds, and wild behavior are natural elements in a story about a college fraternity. Similarly, “[elements such as drunks, prostitutes,, vermin and derelict cars would appear in any realistic work about ... policemen in the South Bronx,” and therefore are not afforded copyright protection. Walker v. Time Life Films, 784 F.2d 44, 50 (2d Cir.1986); see also Murray Hill Publ’ns, Inc., 361 F.3d at 319-20 (citing examples).

Stromback relies upon numerous examples to support his claim of substantial similarity between the works. As Strom-back concedes, however, many of these elements áre superficial, e.g., the Hell/dungeon setting, the sequence of certain events (main characters leaving Hell, battling their brother, the attempted killing of the main character), racial allusions and a love interest. These are common theme's and ideas throughout literature and are beyond any level of abstraction at which copyright protection might begin to attach. See Cavalier v. Random House, Inc., 297 *297 F.3d 815, 823 (9th Cir.2002) (“Familiar stock scenes and themes that are staples of literature are not protected.”). The same is true for character traits or descriptions such as “whacked,” “odd,” “misfit,” “evil,” or “conflicted”; themes, such as saving the world, the battle between good and evil, sibling rivalry or familial secrets and issues, and racial issues; scenes, such as parties; concepts, such as a dam or barrier between Earth and Hell; and plots, such as foiling the antagonist’s attempt to rule the world. See generally Nichols, 45 F.2d at 122 (“A comedy based upon conflicts between Irish and Jews, into which the marriage of their children enters, is no more susceptible of copyright than the outline of Romeo and Juliet.”); Whitehead v. Paramount Pictures Corp., 53 F.Supp.2d 38, 49 (D.D.C.1999) (“The general concept of an interracial relationship ... is not copyrightable”) (citing Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir.1998)). These elements are too general to qualify for copyright protection.

2. Comparing the Works

After filtering out the unprotectible elements such as ideas and scenes a faire, the final step is to determine whether the allegedly infringing work is “substantially similar” by comparing the two works. Wickham, 739 F.2d at 1097. Substantial similarity exists where “the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiffs protectible expression by taking material of substance and value.” Country Kids ‘N City Slicks, Inc. v. Sheen, 77 F.3d 1280, 1288 (10th Cir.1996) (internal quotation marks and citation omitted). In Murray Hill we wrote:

“A story has a linear dimension: it begins, continues, and ends. If a defendant copies substantial portions of a plaintiffs sequence of events, he does not escape infringement by adding original episodes somewhere along the line.” “The misappropriation of even a small portion of a copyrighted work may constitute an infringement under certain circumstances.” “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.” “No plagiarist can excuse the wrong by showing how much of his work he did not pirate.”

361 F.3d at 320 (citations omitted). In a case such as this, it is appropriate to examine the theme, characters, plot, sequence, pace, and setting for similarities. Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.1996). “However, ‘random similarities scattered throughout the works’ may be discounted.” Murray Hill Publ’ns, Inc., 361 F.3d at 320 (quoting Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir.1984)). In the end, the question is whether, based upon his “net impression” of the works’ expressive elements, the ordinary lay observer would find them substantially similar to one another. See, e.g., Ellis, 177 F.3d at 506 n. 2.

Having reviewed “The Keeper” poem and screenplay and “Little Nicky,” we are unable to find any similarity between the works other than at perhaps the most superficial level. Casting aside the many stock themes, scenes a faire, and raw ideas cited by Strombaek, we are left ■with two works that are completely dissimilar in both their overall look and feel and in their constituent expressive elements.

The respective themes, plots, moods, and settings of the works are dissimilar. “The Keeper” is a dark, disturbing, and humorless story about real people. Its theme is difficult to discern, but it appears to be that power and success in life can be *298 attained through rhyming. The story takes place in California, and much of it occurs in the basement of the national paper where Ted works. While at the national paper Ted is attracted to a woman, Sue, who spurns him because he is “weird.” .Ted dislikes the corrupt Governor and at some point figures out that the Governor was connected' with a cult of devil worshipers and had something to do with a murder. In an effort to bring down the Governor, Ted sends a series of rhyming clues to the national paper that ultimately reveal the Governor’s connection to the murder. 6 Ted refers to the Governor as “evil” and “the antichrist” several times throughout the story, but this is only his use of a metaphor, as there is never any suggestion that Governor John actually is the devil. The Governor eventually figures out that Ted is the “rhyming dude” and sends henchmen to kill Ted. Ted betrays his friend, Scott, by leading a henchman to believe that Scott is Ted. After the henchman shoots Scott,- Ted reveals to Scott that he used Scott as his “ladder.” In the end, Ted becomes Governor and uses his power to exact revenge on Sue by raping her.

In contrast, “Little Nicky” is a comedy about the devil and his three sons. The predominant theme in “Little Nicky” is that good should and will prevail over evil. The story takes place in Hell, New York City, and Heaven. Little Nicky, the youngest of the three sons, is sent to Earth to bring back his two brothers, Ca-sius and Adrian, who have escaped from Hell as part of their plan to assume control. Nicky must bring his brothers back to Hell in order to restore the balance of good and evil and to save his father, Satan. On Earth, Nicky meets and falls in love with Valerie. After dying and returning to Hell several times, Nicky ends up in Heaven and discovers that his mother is an angel. Just as Adrian is about to prevail and claim all of the souls of New York City, Nicky returns to Earth and, using the magic sphere his mother gave him, bottles Adrian in the magic flask. After Nicky returns his brothers to Hell, Satan sends Nicky back to Earth, and Nicky and Valerie have a son and live happily ever after.

The main characters, Ted and Nicky, are markedly