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finding claims to be meritless on motion for summary judgment
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No. 03-CV-1008 (FB) (LB).
April 29, 2004
GREGORY HUDSON, Pro Se, Springfield Gardens, New York, for the Plaintiff.
RICHARD DANNAY, ESQ., THOMAS KJELLBERG, ESQ., Cowan, Liebowitz Latman, P.C., New York, NY, For the Defendants Universal Pictures Corporation, Imagine Entertainment Corporation, and Eddie Murphy.
MEMORANDUM AND ORDER
Plaintiff Gregory Hudson ("Hudson"), appearing pro se, brings this action for infringement under the Federal Copyright Act, 17 U.S.C. § 101 et. seq. Defendants are Universal Pictures Corporation ("Universal"), Imagine Entertainment Corporation ("Imagine"), Eddie Murphy ("Murphy"), Dwight Meyers a/k/a Heavy D ("Meyers"), Brian Grazer ("Grazer"), Robert Ramsey ("Ramsey"), and Matthew Stone ("Stone"), all of whom are producers, co-producers, co-stars or co-writers of a feature film entitled Life. Hudson's complaint alleges that the defendants used the copyrighted script from his play No Harm, No Foul (Certificate of Registration No. Pau 1-860-849) as the source of a substantial amount of material for Life.
Pending before the Court are two motions. First, Universal, Imagine and Murphy (collectively, "defendants") move for summary judgment "on the sole ground that Life is not substantially similar to No Harm, No Foul as to any material protected by copyright." Notice Of Motion For Summary Judgment Dismissing The Complaint at 2. Second, Hudson moves for default judgment against Meyers. After closely comparing No Harm, No Foul and Life, the Court concludes that no reasonable jury could find that the two works were substantially similar; accordingly, it dismisses Hudson's complaint.
As required by Local Rule 56.2, defendants' motion was accompanied by a Notice To Pro Se Litigant Opposing Motion for Summary Judgment.
Although served, Meyers has not appeared. The Court's docket sheet does not reflect any affidavits of service with respect to Grazer, Ramsey and Stone.
I.
"A copyright-infringement action requires the copyright owner to prove [unauthorized] copying of a copyrighted work by an infringer." Kregos, 3 F.3d at 661 (2d Cir. 1993). To succeed, a plaintiff alleging infringement
must first show that his or her work was actually copied. Copying may be established either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony. If actual copying is established, a plaintiff must then show that the copying amounts to an improper appropriation by demonstrating that substantial similarity to protected material exists between the two works.Laureyssens v. Idea Group, Inc., 964 f.2d 131, 140 (2d Cir. 1992). For purposes of their summary judgment motion, defendants concede that No Harm, No Foul was properly copyrighted, that Hudson owns the copyright, that defendants had access to his script and/or the play's performances, and that actual copying occurred; the sole issue is whether there is a genuine issue of material fact as to whether a substantial similarity to protected material exists between No Harm, No Foul and Life.
Summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). In determining whether a genuine issue of material fact exists, the Court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Summary judgment is improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party. See Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
Although in 1980 the Second Circuit stated that "summary judgment has traditionally been frowned upon in copyright litigation" because "substantial similarity is customarily an extremely close question of fact," Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980) (citations omitted), since then the circuit court has seemingly not hesitated to affirm the grant of summary judgment in copyright cases when "the similarity between the two works concerns only non-copyrightable elements of the plaintiff's work or [when] no reasonable jury, properly instructed, could find that the two works are substantially similar." Arica Inst. Inc. v. Palmer, 970 F.2d 1067, 1072 (2d Cir. 1992) (citation omitted); see, e.g., Matthew Bender Co. v. West Pub. Co., 158 F.3d 693, 705 (2d Cir. 1998) (affirming summary judgment: "if the similarity concerns only noncopyrightable elements of [a copyright holder's] work, or no reasonable trier of fact could find the works substantially similar, summary judgment is appropriate") (citation omitted); Williams v. Crichton, 84 F.3d 581, 590 (2d Cir. 1996) (affirming summary judgment: where "a lay observer would not find substantial similarities between the protectible material" of the two works in question, summary judgment appropriate); Kregos, 3 F.3d at 663 (affirming summary judgment: "lack of substantial similarity between the protectible aspects of the works was `so clear as to fall outside the range of disputed fact questions' requiring resolution at trial") (citation omitted); Walker v. Time-Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986) (affirming summary judgment: "a district court may determine noninfringement as a matter of law on a motion for summary judgment either when the similarity concerns only noncopyrightable elements of plaintiff work, or when no reasonable trier of fact could find the works substantially similar").
B. Substantial Similarity
The test for substantial similarity has been framed as whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and describe the aesthetic appeal of the two works as the same." Arica Inst., 970 F.2d at 1072 (internal brackets omitted); see also Ideal Toy Corp. v. Fab-L Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966) ("whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work"). Determination of substantial similarity requires a detailed comparison of the works at issue, including "such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting." Williams, 84 F.3d at 588. In conducting its comparison, however, the Court must be mindful that "no 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" upon the facts or ideas. Harper Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547 (1985); see also Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994) ("the plaintiff must show that the defendant appropriated the plaintiff's particular means of expressing an idea, not merely that he expressed the same idea").
Further, as the Second Circuit has instructed, substantial similarity
requires that the copying [be] quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component concerns the copying of expression, rather than ideas[, facts, works in the public domain, or any other non-protectable elements]. . . . The quantitative component generally concerns the amount of the copyrighted work that is copied, which must be more than ` de minimis.'Castle Rock Entertainment, 150 F.3d at 138 (quoting Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997)). The qualitative analysis, in excluding non-protectable elements, must exclude scènes à faire, a term which literally refers to "action scenes" but is legally defined as "unprotectible elements that flow naturally from the work's theme rather than from the author's creativity." PG v. Colgate-Palmolive Co., 199 F.3d 74, 78 (2d Cir. 1999). Substantial similarity may be found as a result of either "global similarities in structure and sequence" or "localized similarity in language." Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366, 1372 (2d Cir. 1993).
The discerning reader may notice that some courts have used the word "protectable" and others have spelled it as "protectible." The on-line edition of the Oxford English Dictionary recommends the former spelling, referring to the latter spelling as "rare." See http://dictionary.oed.com/.
II.
Hudson's synopsis of No Harm, No Foul, as set forth is the play's script, is
[t]he story about a basketball player who is falsly (sic) accused of rape by a woman who wants to cash in on his skills as a potential basketball superstar. He is sentenced to pick cotton for one year on an illegal slave plantation in Walla Walla Washington and he resorts to all kinds of outrageous plans to escape.
[Plaintiff's] Notice of Opposition Motion to Defendant's Motion for Summary Judgment ("Opposition"), Exh. 6 ( No Harm, No Foul script) at 3. The defendants summarize Life as the story of
two very different New Yorkers — the small-time con man Rayford Gibson and the straight-laced, conventionally ambitious Claude Banks [who] . . . travel to the Deep South on a moonshine run, only to be framed for murder by a racist Mississippi sheriff. Sentenced to life in prison, the `buddies' Ray and Claude spend the next 65 years trading insults and intermittently plotting their escape.
Memorandum of Law [of Defendants] in Support of Motion for Summary Judgment at 2. The Court finds both synopses to be accurate characterizations of the respective works.
In opposing defendants' motion, Hudson has submitted several drafts of the movie script (in excerpted form or in their entirety), as well as a videotape of a performance of the play and a number of still photographs from what appears to be the same performance of the play. The Court is under no obligation to consider the draft scripts, as it "need only consider the final version of the film as presented to the viewing public." Walker v. Time Life Films, 615 F. Supp. 430, 436 (S.D.N.Y. 1985), aff'd, 784 F.2d 44 (2d Cir. 1986). Mindful of Hudson's pro se status, the Court has nonetheless reviewed earlier drafts of the film, as well as all of Hudson's other submissions.
After reading the scripts and viewing the movie and the play, the Court concludes that no reasonable jury could find a substantial similarity between the protected elements of No Harm, No Foul and Life. To be sure, the two works share superficial common aspects — for example, both involve false accusations against an African-American male, both have prison-like settings and both involve escape attempts — but these similarities are not particularly emblematic of creative expression; rather, they are more in the nature of non-protectable ideas or scènes à faire common to the prison movie genre. In the Court's judgment, the scenes, characters, and dialogue from the play that Hudson claims are indicative of similarity are either non-protectable or substantially dissimilar to those in the movie.
Hudson has submitted lists of dozens of what he alleges to be similarities between his play and the defendants' movie. For example, in Life, Sylvia "shows lots of cleavage to appear sexy and seductive"; in No Harn, No Foul, Venessa "shows her cleavage and legs to appear sexy and seductive." Compl. [Attachment A, entitled "Scene Similarities") at 3. In Life, Ray and Claude "ride through the country to prison on an old bus," and in No Harm, No Foul Bojack "rides on the back of a truck to the plantation." Id. at 5. In both works the protagonists "follow [the authorities'] instructions reluctantly." Id. In Life, "it was very hot out there as the[y dug] ditches" and in No Harm, No Foul "[i]t was very hot in the cotton field as they picked cotton." Id. Hudson claims Colorado (of the play) and Can't Git Right (of the movie) are similar, saying "both [have] speech impediments, [and] both characters play the guitar and are horrible singers." Opposition at 22. The "speech impediments" referenced belong to, respectively, a character who consistently repeats his last three words and a character who is mute. The mere use of a character with a speech impediment fails to rise to infringement, as the Court must consider the "totality of the characters' attributes and traits." Warner Bros., Inc. 720 F.2d at 241. Similarly, Hudson urges the Court to find substantial similarity in the fact that each work has a scene in which a character consumes bootleg whiskey, which is referred to by an "idiosyncratic word." Opposition at 10. Even were the Court to reject the notion that bootleg alcohol is a commonplace aspect of the prison movie genre, the two scenes are notably dissimilar in length, dialogue and purpose. They do not even use the same "idiosyncratic word" — the play uses "splo," while the movie character refers to the alcohol using the more commonplace term "hooch."
While Hudson levies a variety of allegations of similiarity, each purported similarity between the two works is either so small as to be de minimus or so inherent to the genre as to be unprotectable under the doctrine of scènes à faire. Given the Court's conclusion that no reasonable jury could conclude that Life is substantially similar to the protected elements of No Harm, No Foul, the Court will not recount each of the alleged similarities.
Apparently in further support of his position that defendants have infringed his work, Hudson makes a variety of other claims, including that defendants' retention of a law firm in this matter should be taken as evidence of their culpability and that defendants' screenwriters' adaptation of a Dave Barry novel should be taken as indicative of defendants' inability to create original works. He also asserts that Life was copied from other sources, ranging from Hudson's other play Bronx House to Bingo Long Traveling All Stars and Motor Kings (a 1976 film in which Hudson, by all appearances, had no hand). As with the rest of Hudson's arguments, the Court finds these to be meritless.
To the extent that Hudson's complaint can be construed to raise an allegation of unfair competition under New York state law, such a claim is preempted by federal law. See NBA v. Motorola, Inc., 105 F.3d 841, 848 (2d Cir. 1997) ("Under § 301 [of the Copyright Act], a state law claim is preempted when: (i) the state law claim seeks to vindicate `legal or equitable rights that are equivalent' to one of the bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106 . . . and (ii) the particular work to which the state law claim is being applied falls within the type of works protected by the Copyright Act under Sections 102 and 103."). Additionally, the Court's determination that there is no substantial similarity between the two works precludes a finding under New York law that the defendants "assembled a product which bears so striking a resemblance to the plaintiff's product that the public will be confused as to the identity of the products," which is necessary for a finding of unfair competition in New York. Shaw v. Time-Life Records, 38 N.Y.2d 201, 205 (1975) ("The essence of an unfair competition claim is that the defendant assembled a product which bears so striking a resemblance to the plaintiff's product that the public will be confused as to the identity of the products.").
III.
The Court denies Hudson's motion for default judgment against Meyers. A default judgment is an extraordinary remedy, one which is "left to the sound discretion of a district court because it is in the best position to assess the individual circumstances of a given case and to evaluate the credibility and good faith of the parties." Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). "Where doubt exists as to whether a default should be granted or vacated, the doubt should be resolved in favor of the defaulting party." Id. at 96.
"[A] defendant's default does not in itself warrant a court in entering default judgment [because] there must be a sufficient basis in the pleadings for the judgment entered." Journeyman Plumbers Apprentices UA Local Union No. 22 v. Green, 2002 WL 1628849, at *2 (W.D.N.Y. 2002) (quoting Am. Centennial Ins. Co. v. Seguros La Republica, S.A., 1996 WL 304436, at *18 (S.D.N.Y. 1996)). To allow Hudson to recover a default judgment against one defendant when claims against similarly situated co-defendants have been found to be meritless would be "unseemly and absurd, as well as unauthorized by law." Diarama Trading Co., Inc. v. J. Walter Thompson USA, Inc., 2002 WL 31545845, at *3 (S.D.N.Y. 2002) (quoting Frow v. De La Vega, 82 U.S. 552, 554 (1872)). There is nothing in Hudson's complaint to indicate that Meyer's liability would hinge on some fact not applicable to any other defendant in this action. Meyers is not alleged to have written, directed or otherwise created the movie, but rather to have appeared in the movie as an actor after having had access to the script for the play. As the movie itself is not an infringement of No Harm, No Foul, the Court discerns no basis upon which Meyers could be found liable.
Indeed, given the Court's determination that no substantial similarity exists between the two works, there is no basis upon which Meyers, Grazer, Ramsey or Stone could be found liable. Accordingly, the Court sua sponte grants summary judgment in favor of them and dismisses Hudson's complaint in its entirety. See Pugh v. Goord, 345 F.3d 121, 124 (2d Cir. 2003) ("A sua sponte award of summary judgment may well be appropriate if it is clear that all of the evidentiary material a party might submit is before the court and no material issue of fact exists.").
In light of Hudson's receipt of a Local Rule 56.2 notice from defendants Universal, Imagine and Murphy, and given the futility of pursuing his claims against the remaining defendants, the Court does not view any additional 56.2 notice to Hudson as necessary or appropriate.
CONCLUSION
The complaint is dismissed.SO ORDERED.