“To prevail on a copyright infringement claim, the plaintiff must show that: (1) she owns a valid copyright in a work, and (2) the defendant copied constituent elements of the plaintiff’s work that are original, i.e., actionable copying,” said Emilio Nicolas, a partner at Jackson Walker in Austin. “In the absence of direct evidence of copying which is usually the case, the plaintiff must prove actionable copying circumstantially by showing that: (1) the defendant had ‘access’ to the plaintiff’s work; and (2) the two works are ‘substantially similar’ to each other.”

In this context, “access” means having an opportunity to view or copy the plaintiff’s work. According to a news report by Variety, Shyamalan told the court that he and his team behind Servant had neither seen nor heard of The Truth About Emanuel,which starred Jessica Biel, until Gregorini filed the case.

Under the “substantial similarity” question, the court compares the objective similarities of specific expressive elements in Servant and the Italian director’s movie. To do this, the court focuses on “articulable similarities between the plot, themes, dialogue, mood setting, pace, characters and sequence of events in the two works.”

“The trial court ignores the unprotectable elements of the two works, such as mere ideas and concepts, familiar stock scenes and themes that are staples of film/television, and determines ‘whether the protectable elements, standing alone, are substantially similar,’” explained Nicolas. 

If they are found to be similar, the court will next test for “similarity of expression.” “The jury tests for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance,” said Nicolas.