CLONUS ASSOCIATES v. DREAMWORKS, LLC No. 05 Civ. 7043CSAS).
457 F.Supp.2d 432 (2006)
CLONUS ASSOCIATES and Robert S. Fiveson d.b.a. Fiveson Productions, Plaintiffs, v. DREAMWORKS, LLC and Warner Brothers Entertainment, Inc., Defendants.
United States District Court, S.D. New York.
August 25, 2006.
Marc Toberoff, Law Offices of Marc Toberoff, PLC, Los Angeles, California, Laurence Singer, Washington, DC, for Plaintiffs.
Stephen F. Huff, Tom J. Ferber, William L. Charron, Colleen E. Parker, Pry or Cashman Sherman & Flynn, LLP, New York, New York, Louis P. Petrich, Vincent Cox, Leopold, Petrich & Smith, Los Angeles, California, for Defendants.
OPINION AND ORDER
SCHEINDLIN, District Judge.
This litigation involves two movies about secret facilities in which clones are unwittingly confined until their organs are harvested for the rich and powerful. Robert Fiveson alleges that defendants infringed the copyright of his 1979 movie, Parts: The Clonus Horror ("Clonus") through production and distribution of The Island, a movie released by defendants in July 2005. Following discovery, the parties filed cross-motions for summary judgment.
A. Procedural History 2
In 1978, Robert Fiveson produced and directed Clonus, which was based on a story and screenplay by Robert Sullivan.
In early 2004, DreamWorks purchased the screenplay for The Island, which had been written on "spec" by Caspian Tredwell-Owen.
On August 8, 2005, plaintiffs filed a complaint alleging copyright infringement under the Copyright Act of 1976,
B. The Movies
Because the determination of substantial similarity in a copyright case "requires a detailed examination of the works themselves," I have examined plaintiffs' movie Clonus and defendants' movie The Island.
Clomis is a movie about an isolated colony where clones are created to be organ donors for powerful people. These clones are not aware of their purpose or the fact that they are being held in captivity. Their lives are regimented to encourage physical health, and they are told that if they are fortunate enough to "qualify," they will go to "America," a happy and idyllic place.
The story is told from the point of view of a clone named Richard, who seems to be the first clone to question aspects of this existence. As Richard begins to raise doubts about life at Clonus, he is simultaneously falling in love with a female clone named Lena. Like Richard, Lena is a "control clone," meaning that her intellectual capacities have not been artificially diminished by her creators. Although Richard and Lena were never intended to interact and sexuality is discouraged at Clonus, the doctors allow them to develop a sexual relationship as an experiment, under video surveillance. While the romance between Richard and Lena progresses, the audience learns more about the nature of the colony. For example, when a clone named George reaches peak physical condition and is told that he has been chosen to go to America, he is instead killed and preserved in a plastic bag.
Doctors and guards at Clonus have the clones under constant surveillance. Richard discovers that he is being watched, and soon afterward he is told that he will be leaving for America in two days. Deciding he wants to learn more, Richard breaks into the building where George was taken. Richard finds a videotape about the facility's cloning activities, evidence that he is a clone of someone named Professor Richard Knight, and a room full of dead clones including George.
Richard's unauthorized exploration is discovered, and he flees from Clonus, pursued by a gunman on a motorcycle. He escapes with only superficial wounds and ends up at the home of an elderly couple, Jake and Anna Noble, who agree to help him find his "original." Professor Richard Knight ("Rich"), an older version of Richard himself, turns out to be the brother of Senator Jeff Knight, whose presidential campaign speech was shown in the opening minutes of the movie without previous explanation of its relevance. Senator Jeff Knight is revealed as a beneficiary and proponent of the cloning program, who
Richard had returned to Clonus before this violence in the outside world began, in hopes of rescuing Lena. Upon arrival, he discovers that she has been lobotomized, and the guards are awaiting Richard in her room. In the final moments of the movie, the deceased Richard is shown, preserved in his own plastic bag. Yet one positive outcome of Richard's adventure is revealed—there is a scene at a press conference that shows Senator Jeff Knight as a presidential candidate, paying lip service to human rights. The scene concludes with a question from a reporter who holds up a videotape and says, "Senator, could you please tell us about Clonus?"
2. The Island
The opening scenes of The Island are set in the Merrick Institute, a colony of unsuspecting clones who are raised for organ harvesting or to carry babies. The clones have been told that the earth is contaminated and that a place called "the island" is the only safe place left where one can enjoy nature; all clones are told they have a chance to go to this paradise if they "win the lottery." The male protagonist, "Lincoln Six Echo," suffers from unsettling nightmares, and seems to be the first clone to begin questioning various aspects of life within the Institute. Lincoln has a friend, "Mack," who turns out to be a non-clone who works as a mechanic at the Institute, and a love interest named "Jordan Two Delta," who is not permitted to touch Lincoln because clones are not supposed to be aware of sexuality.
One evening, Jordan is chosen in the lottery, and later the same night Lincoln has another nightmare and goes to a part of the facility that he is not permitted to explore. Lincoln ends up infiltrating the medical facility, where he learns the true nature of the colony and rushes back to save Jordan before she "leaves for the island." The two have to fight guards as they escape from the Institute. Meanwhile, the audience sees the head of the Institute, Dr. Merrick, doing a presentation to wealthy prospective clients—Dr. Merrick assures them that the clones he is selling as insurance policies are raised in a persistent vegetative state. But soon after, Dr. Merrick has a more forthright discussion with a bounty hunter he hires to pursue Lincoln and Jordan. Dr. Merrick admits that he has been lying to his customers about the business, because organs failed when earlier clones were raised without consciousness.
Lincoln and Jordan find Mack and enlist his help to track down their "sponsors," but Mack is killed by the bounty hunters that arrive on the scene to try to stop the escaped clones. Lincoln and Jordan engage in a series of violent chase scenes with the bounty hunters and police, who are pursuing them at cross-purposes—the two clones are involved in a car crash, a street shoot-out, the strategic, violent release of an eighteen-wheel truck's payload, a chase via flying bikes, and a suspension and fall from a seventy story building.
The next day, Lincoln and Jordan find Lincoln's physically identical sponsor, Tom Lincoln, who agrees to help them but instead reveals their location to the Merrick Institute. After a high-speed chase scene in Tom's car, Lincoln tricks a bounty hunter into shooting Tom instead of Lincoln. Meanwhile, Dr. Merrick has decided that Lincoln's entire generation of clones must be "recalled" because they exhibit too
II. LEGAL STANDARDS
A. Summary Judgment
Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact that does "`not rely on conclusory allegations or unsubstantiated speculation.'"
B. Copyright Infringement
To prevail on a claim of copyright infringement, a plaintiff must establish "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."
1. Actual Copying
Access to a copyrighted work may be inferred from the fact that a work was widely disseminated at the time of copying.
"Access means that an alleged infringer had a `reasonable possibility'— not simply a `bare possibility'—of hearing [or seeing] the prior work; access cannot be based on mere `speculation or conjecture.'"
b. Probative Similarity 32
In determining whether two works are similar enough to prove actual copying, courts ask "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."
c. Independent Creation
Once a plaintiff establishes a prima facie case of actual copying using either direct or indirect evidence, a defendant may rebut the finding by proving independent creation of the alleged copy.
The Second Circuit has held that the strength of a defendant's "independent creation" defense is "a question for the factfinder."
C. Actionable Infringement
After establishing that copying has occurred, a court must examine whether the "copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred."
The quantitative component of substantial similarity "concerns the amount of the copyrighted work that is copied, which must be more than `de minimis.' "
"Substantial similarity is customarily an extremely close question of fact."
A. Valid Copyright
Plaintiffs have submitted a copy of the certificate of copyright registration for Clonus, and defendants have not contested the ownership or validity of this copyright.
"Wide dissemination" is the key issue here.
Given that a work only needs to be "readily available on the market" for a party to establish wide dissemination, plaintiffs have clearly raised a triable issue of fact as to access.
C. Degree of Similarity
Given that there is a material issue of fact as to access, plaintiffs would have to prove striking similarity as a matter of law in order to be granted summary judgment. But reading the evidence in the light most favorable to defendants, it is impossible to conclude that the resemblance between the two movies is so overwhelming as to mandate such a finding. The degree of similarity between these movies is also an issue for the trier of fact.
I note that even if plaintiffs are able to establish actual copying through evidence of access plus probative similarity or through striking similarity, the jury will have to decide whether the similarities are qualitatively substantial, and therefore actionable. This will require differentiation between similarities that constitute original artistic expressions and those that flow from non-protectable ideas, from scenes a faire, or from conventions of science fiction and Hollywood films. These questions are also fraught with fact-based disputes.
D. Independent Creation
Defendants argue that they should be granted summary judgement because they can rebut any proof of copying with "uncontroverted evidence" establishing independent creation of The Island.
Finally, defendants urge the Court to decide as a matter of law that
In this case, defendants' methods of calculating profit is highly contested, as are the material facts that affect that calculation.
For the reasons set forth above, plaintiffs' and defendants' motions for summary judgment are denied in their entirety. The Clerk of the Court is directed to close these motions [Nos. 36 and 47 on the Docket Sheet], A conference is scheduled in this matter for September 18, 2006 at 4 p.m.
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