‘The Equalizer’ Infringement Suit Revived : Television: Appeals court overturns federal judge’s dismissal of case contending screenwriter’s concept was stolen.

A federal appeals court has revived a suit claiming “The Equalizer,” whose pursuit of justice for the underdog had a four-year run on CBS, was stolen from a Los Angeles screenwriter.

The 3-0 ruling Tuesday by the U.S. 9th Circuit Court of Appeals overturned a federal judge’s decision dismissing the copyright-infringement suit by veteran writer-producer Lou Shaw against the network and others who he said pirated his work.

Shaw submitted a pilot television script called “The Equalizer” to Richard Lindheim, then an NBC television executive, on an option basis in 1978. NBC rejected it.

Four years later, Lindheim, who had moved to Universal Television, and Michael Sloan wrote a script also called “The Equalizer,” a name Lindheim admitted he had copied from Shaw. The series, about a wealthy lone crime-fighter seeking to right wrongs of the downtrodden, ran on CBS from 1985 to 1989.

Shaw’s suit was thrown out by U.S. District Judge Alicemarie H. Stotler, who said the two scripts had similarities in theme, plot, characters and dialogue but did not have the same “total concept and feel.” But the appeals court said such a subjective decision should be made by a jury.

“A subjective assessment of the ‘concept and feel’ of two works of literature (is) a task no more suitable for a judge than for a jury,” said the opinion by Judge Arthur A. Alarcon.

” . . . Because each of us differs, to some degree, in our capability to reason, imagine and react emotionally, subjective comparisons of literary works that are objectively similar in their expression of ideas must be left to the trier of fact,” the jury.

Once a judge has decided that objective factors in two literary works, such as theme and plot, are arguably similar, the case must be submitted to the jury, Alarcon said.

By contrast, he said, in non-literary cases where the varieties of possible expression are more limited, a judge may be able to decide subjectively that one toy or video game has a different “concept and feel” from another and dismiss a suit without trial.

The court also upheld Stotler’s conclusion that objective characteristics of the two “Equalizer” characters and script could be found to have substantial similarities, despite some differences in detail.

Shaw’s lawyer, Richard Aldrich, called the ruling a legal breakthrough.

Louis Petrich, a lawyer for the CBS and the studios and writers accused in the suit, did not return a telephone call.