Table of Contents
Moore v. Lightstorm Entertainment, USDC, D. Maryland, January 17, 2014
Click here for a copy of the full decision.
District court grants summary judgment dismissing screenwriter’s copyright infringement claims against producers of motion picture Avatar, finding that plaintiff had not raised a material factual dispute that defendants had access to his works, or that plaintiff’s works and Avatar were “substantially similar.”
Plaintiff Bryant Moore is a science fiction writer who has written works including the screenplays Aquatica and Descendants: The Pollination, which he registered with the copyright office in 1994 and 2003, respectively. Moore brought a copyright infringement action against a group of individuals and entities involved in creating the blockbuster motion picture Avatar. Moore alleged that defendants copied elements from his works and sought more than $1.5 billion in actual damages and over $1 billion in punitive damages.
Ruling on defendants’ motion for summary judgment, the district court concluded that Moore had not produced evidence sufficient to create a material fact as to defendants’ access to his works. Specifically, Moore had claimed that writer and director James Cameron had access to Moore’s works (as well as related copyrighted drawings) before he wrote the screenplay for Avatar. Moore alleged that he had submitted copies of the Aquatica script to Cameron’s business manager and to the creative director of Lightstorm Entertainment, the company that produced Avatar. He also alleged that he submitted related artwork to an intermediary allegedly connected to Cameron.
While Moore asserted that he had submitted scripts during the period from 1994 to 1996 to intermediaries who could have transmitted the scripts to Cameron, the court deemed the evidence too speculative, given the opposing testimony that the screenplay was never passed along to Cameron or anyone at Lightstorm. Moore also contended that he submitted scripts in the 2003 to 2005 period, but the evidence indicated that Cameron had already produced a “scriptment” containing the major elements of Avatar by 1996, rendering Moore’s later access arguments effectively moot. Moore attempted to rely on the “corporate receipt” doctrine to support an inference of access based on the fact that a Lightstorm employee had received a submission of Moore’s script. The court rejected Moore’s argument, finding that the employee did not have a close working relationship with Cameron and explicitly testified that he had never read Moore’s screenplays or discussed them with anyone at Lightstorm.
Having determined that Moore’s evidence of access was too speculative to survive summary judgment, the court nevertheless engaged in an analysis of the works’ “substantial similarity.” Assessing the works’ extrinsic similarity, the court concluded that “[a]ny similarities are limited to general stock themes, scenes a faire and ideas not subject to copyright protection.” Even on a very general level, the works’ plot, setting, characters and dialogue, and mood were markedly different. As to intrinsic similarity, the court concluded that the total “concept and feel” of the works was “palpably different.”
Finally, the court noted that even if Moore had succeeded in making a prima facie showing of infringement, defendants could nevertheless overcome the presumption of copying by demonstrating independent creation of Avatar. While the weakness of Moore’s evidence made it unnecessary for it to assess this element, the court noted that defendants had made a strong enough showing of independent creation to rebut any presumption of copying. Accordingly, the court granted summary judgment for defendants.
Dice v. X17, Inc., Court of Appeal of California (Second Appellate District), January 10, 2014
Click here for a copy of the full decision.
In action arising from distribution of video of purported illegal drug transaction with Lindsay Lohan, California appellate court reverses in part trial court’s order granting anti-SLAPP motion, finding that plaintiff was not a limited purpose public figure, and that defendant published video with reckless disregard as to truth or falsity.
This case involves an article containing photographs and a video posted online by X17, Inc., a celebrity news reporting agency. The photographs and video showed celebrity Lindsay Lohan with sobriety coach Peter Dice and another man. The man sitting next to Lohan looks at a plastic bag, and the words “cocaina” and “droga” can be heard in the conversation between the videographer and his associate. X17’s article and caption accompanying the video and photographs suggest that they depict a drug purchase involving Dice and Lohan.
Dice filed a complaint against X17 and its owner, Francois Navarre, alleging that the publication was defamatory and violated his rights of privacy and publicity. X17 and Navarre filed a special motion to strike the complaint under California Code of Civil Procedure Section 425.16 (the anti-SLAPP motion). The trial court denied the motion as to most of plaintiff’s claims, but granted the motion in part as it related to plaintiff’s right of publicity claim. Both sides appealed.
The California Court of Appeal explained that a cause of action may be stricken through an anti-SLAPP motion if (1) the defendant shows that the claim arises from an act in furtherance of the defendant’s constitutional right of petition or free speech in connection with a public issue, and (2) the plaintiff fails to demonstrate a probability of prevailing on the claim. A plaintiff establishes a probability of prevailing on a claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if proved at trial, would support a judgment in the plaintiff’s favor.
Applying this standard, the appellate court affirmed the trial court’s denial of the anti-SLAPP motion as to Dice’s defamation counts and other related counts. Although the defendants argued that the anti-SLAPP motion should have been granted because Dice is a limited purpose public figure who must prove actual malice in order to prevail on the merits, the appellate court found that Dice was not a limited purpose public figure. Here, when Dice approached Lohan in public, it was reasonably foreseeable that he would be photographed with her, but he had not undertaken any voluntary act to influence resolution of a public issue. Dice’s conduct in handing the man with Lohan a plastic bag did not show an attempt to influence the resolution of a public controversy; Dice wanted no part in any public controversy concerning Lohan and drug use, and never sought to influence public opinion on the subject.
The appellate court further held that the video and article included a statement of fact, namely, that Dice was involved in a drug transaction with Lohan. A defamatory statement must contain a provably false assertion of fact, and statements of opinion are not actionable. The defendants argued that the word “cocaina” on the recording was stated in the context of a question and therefore should be understood as a statement of opinion rather than one of fact. Even if the word “cocaina” was spoken in an inquisitive manner, the word “droga” was spoken repeatedly in a manner suggesting a statement of fact, and the caption, text, and article all made actionable factual statements that Lohan was purchasing drugs and that Dice was involved in the transaction.
The appellate court concluded that the trial court erred by granting the anti-SLAPP motion as to Dice’s claim for commercial appropriation of likeness under Civil Code Section 3344. The appellate court ruled that Dice presented evidence sufficient to overcome the First Amendment “news exception” to liability based on violation of his publicity rights. The appellate court noted that the “news exception” does not provide blanket immunity, and is subject to an exception where the reporting is knowingly or recklessly false. Viewing the video in its entirety, the appellate court concluded that it provided no reasonable support for the statement that Lohan purchased drugs from Dice or the man with her. Because the evidence tended to show that defendants’ video and article were published with at least reckless disregard for their truth, the appellate court concluded that Dice’s right of publicity claim should have survived defendants’ anti-SLAPP motion.
Westlaw decisions are reprinted with permission of Thomson/West. If you wish to check the currency of these cases, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.