Wilson v. Walt Disney Company,

Filing 154

ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT. Signed by Judge Vince Chhabria on 4/16/2015. (knm, COURT STAFF) (Filed on 4/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KELLY WILSON,

Case No. 14-cv-01441-VC

Plaintiff,
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v.

ORDER DENYING CROSS-MOTIONS
FOR SUMMARY JUDGMENT

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THE WALT DISNEY COMPANY, et al.,

Re: Dkt. Nos. 84, 105

Defendants.

United States District Court
Northern District of California

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The cross-motions for summary judgment are denied.

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Wilson's Motion

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Wilson contends she should win on summary judgment because the Frozen trailer and The

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Snowman are so "strikingly similar" that they could not have been created independently. In

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support of this argument, Wilson primarily cites emails from Disney employees to one another

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about the similarities between the two works, including one email in which a Disney employee

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described the works as "strikingly similar." But the Disney employee appears to have been

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speaking as a layperson; the employee does not appear to have been using the phrase "strikingly

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similar" as it is used in copyright law. Nor does the testimony of Wilson's expert, assuming for

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purposes of this discussion that it would be admissible at trial, establish as a matter of law that the

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works are "strikingly similar." Indeed, a reasonable jury could go either way on whether the

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Frozen trailer and The Snowman are "substantially similar," see Doc. No. 39, which by definition

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prevents a finding that they are "strikingly similar" as a matter of law.

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Disney's Motion

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Because a reasonable jury could go either way on whether the works are substantially

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similar, and because Disney has not established as a matter of law that the Frozen trailer was

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created independently, Disney cannot win its summary judgment motion unless it can show that

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the creators of the Frozen trailer lacked access to The Snowman as a matter of law. But as

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discussed below, there is a genuine factual dispute on this issue as well.

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To get the "access" question to a jury, Wilson need not present evidence that the creators

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of the trailer actually viewed or copied the The Snowman. Nor is the Court permitted to credit the

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Disney witnesses' denials that they'd ever seen The Snowman. Wilson need only present evidence

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that people involved in the creation of the trailer had enough of a connection to The Snowman that

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there was a "reasonable possibility" that they had an "opportunity" to view or copy it. L.A. Printex

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Ind., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012); Three Boys Music Corp. v.

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United States District Court
Northern District of California

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Bolton, 212 F.3d 477, 482, 484-85 (9th Cir. 2000); 4 Nimmer on Copyright § 13.02.
The most direct connection between The Snowman and the creators of the trailer – a

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connection that's sufficient on its own to create a genuine issue of material fact on the issue of

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access – comes from the 2011 San Francisco International Film Festival. There, The Snowman

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was screened four times back-to-back with the short film Play by Play, which was created by

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employees of Pixar, a Disney subsidiary. Many Pixar employees attended the festival, including

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Elyse Klaidman, an executive producer of Play by Play. Klaidman works with John Lasseter, who

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is Chief Creative Officer for both Disney and Pixar. Lasseter was heavily involved in the creation

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of the Frozen trailer. Klaidman also had at least some work-related interaction with two other

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Disney people who participated in the creation of the Frozen trailer – Greg Coleman and Jessica

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Julius. Therefore, the connection between The Snowman and people involved in creating the

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Frozen trailer is fairly close. And in contrast to many copyright cases, Klaidman is not merely

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some random employee who is alleged to have received a routine submission of a copyrighted

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work from a random aspiring artist and then passed it on to the creator of the allegedly infringing

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work. Klaidman's exposure to The Snowman was much more noteworthy – she saw it at a film

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festival where it was shown back-to-back with her own work. And Klaidman's connection with

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Lasseter was more direct – she has known him for 15 or 16 years, interacts with him every few

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months, and has access to him whenever she needs to speak with him. This connection is

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therefore less attenuated than in other cases where courts have let the question of access go to a
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jury. See, e.g., Three Boys Music Corp. v. Bolton, 212 F.3d at 482-85; Straughter v. Raymond,

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2011 WL 3651350, at *11 (C.D. Cal. Aug. 19, 2011); Allen v. Destiny's Child, 2009 WL 2178676,

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at *5-7 (N.D. Ill. July 21, 2009); Francescatti v. Germanotta, 2014 U.S. Dist. LEXIS 81794, at

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*11-21 (N.D. Ill. June 17, 2014). For that matter, the connection is less attenuated than in the

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cases Disney relies on for the proposition that there is no access as a matter of law. See, e.g.,

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Gable v. Nat'l Broad. Co., 727 F.Supp.2d 815, 824-29 (C.D. Cal. 2010); Stewart v. Wachowski,

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574 F.Supp.2d 1074, 1088-89 (C.D. Cal. 2005); Meta-Film Assoc., Inc. v. MCA, Inc., 586 F.Supp.

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1346, 1355-56 (C.D. Cal. 1984).

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Although the above-described connection is enough on its own to send the case to a jury,
additional circumstances make the "possibility" even more "reasonable" that the creators of the

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United States District Court
Northern District of California

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Frozen trailer had an opportunity to view or copy Wilson's work. For example, there is evidence

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that roughly sixteen Pixar employees saw The Snowman at the San Francisco International Film

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Festival, and Wilson spoke on-stage with Pixar employees twice during the festival. The

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Snowman was also shown at seven other film festivals, which is not an insignificant thing in the

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film world. A screening at a total of eight film festivals (including at least one attended by many

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Pixar employees) might not rise to the level of "widespread dissemination" within the meaning of

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copyright law. Cf. Art Attacks Ink, LLC v. MGA Entm't Inc., 581 F.3d 1138, 1144-45 (9th Cir.

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2009). But that shouldn't make it irrelevant to the ultimate question whether there is a reasonable

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possibility the defendants had an opportunity to view or copy the work. Film festivals are news-

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generating events, and their inclusion of The Snowman certainly increases the chances that people

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in the industry, including people involved in the creation of the Frozen trailer, learned of The

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Snowman through word of mouth and viewed it.

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And there are other circumstances, albeit less significant ones. Wilson and her co-creator

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sent numerous job applications to Disney and Pixar, some of which included images from or

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references to The Snowman. The Snowman was available on YouTube and Vimeo, and one

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unknown person did a YouTube search for "snowman and rabbit" at the same time Disney's

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people were meeting to create the trailer. Disney rightly points out that The Snowman was not

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popular online, but the lack of online popularity actually makes this YouTube search, and its
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timing, more noteworthy. And Wilson's co-creator for The Snowman was Facebook friends with

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one of the animators on Frozen, meaning that whenever Wilson's co-creator posted The Snowman,

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the animator could have been notified of the posting. None of these additional circumstances

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would, on their own, create a reasonable possibility that the people involved in the creation of the

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Frozen trailer had an opportunity to copy or view The Snowman. But they further increase the

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possibility, making Disney's case for summary judgment on the question of access even weaker.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 16, 2015
______________________________________
VINCE CHHABRIA
United States District Judge

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