Moore v. Lightstorm Entertainment et al
Filing
175
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 1/16/2014. (rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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Plaintiff,
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v.
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LIGHTSTORM ENTERTAINMENT, et al., *
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Defendants.
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BRYANT MOORE,
Case No. RWT 11-cv-3644
MEMORANDUM OPINION
In his Second Amended Complaint, Plaintiff Bryant Moore (“Moore”) seeks various
forms of relief from Defendants for allegedly using content from Moore’s copyrighted works to
create the movie Avatar, a blockbuster science-fiction film. Defendants now move for summary
judgment, arguing that Moore cannot raise a genuine dispute of material fact as to whether (1)
Defendants had access to his works and (2) his works are substantially similar in protected
expression to Avatar. Moore also moves for summary judgment on the issue of Defendants’
access to Moore’s works in 2003 and on the existence of striking and/or fragmented literal
similarities between the works.
BACKGROUND FACTS
Bryant Moore, a Maryland resident, is a science fiction writer who has written several
original works, including the screenplays Aquatica and Descendants: The Pollination
(“Pollination”).
Second Amended Complaint, Aug. 29, 2013, ECF No. 45 (“Second Am.
Compl.”) at 1. Moore wrote Aquatica between 1992 and 1994, and registered it with the U.S.
Copyright Office in May of 1994. Id. ¶¶ 10-11. He wrote Pollination between 2002 and 2003,
and registered it in July of 2003. Id.
Defendants are individuals and entities involved in creating the film Avatar. James
Cameron (“Cameron”) is a writer, producer, director, and principal owner of Lightstorm
Entertainment, Inc. (“Lightstorm”), a California Corporation. Id. ¶ 4. Cameron wrote the
screenplay for Avatar and Lightstorm produced the film. Id. ¶ 5. Twentieth Century Fox Film
Corporation (“Fox”), a Delaware corporation with its principal place of business in California,
produced and distributed Avatar, releasing it worldwide in December of 2009. Id. ¶¶ 6, 8.
Avatar subsequently grossed box office earnings of $2,782,275,172, and won Golden Globe and
Academy Awards. Id. ¶ 9.
Moore alleges that his copyrighted works pre-date the Avatar screenplay and that there is
substantial similarity between his copyrighted works and Avatar, such that the film and its
screenplay infringe his copyrights.
Id. ¶¶ 11, 36.
He alleges that Defendants selectively
extrapolated themes and content from his copyrighted works and used these “selective and
substantial extracts” to “develop, write, and produce the movie Avatar.” Id.
Moore asserts that prior to Cameron’s writing of the screenplay for Avatar, he and the
other Defendants, Lightstorm and Fox, had access to Moore’s two screenplays, Aquatica and
Pollination, as well as related copyrighted drawings. Id. ¶¶ 21-32. According to Moore's
Second Amended Complaint, he first submitted the screenplay for Aquatica to Lightstorm in
1994 and then again in 1995, each time through an intermediary. Id. at ¶¶ 23–24. Eight years
later, in early 2003, Moore alleges that he sent a script to Cameron’s business manager, and on
April 7, 2003, to Tom Cohen, Lightstorm's Creative Director. Id. at ¶ 25–27. He also submitted
a copy of Pollination to Lightstorm in July of 2003. Id. ¶ 29. Moore asserts that he made a
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series of follow-up phone calls and sent mail to Lightstorm throughout 2003 and 2004. Id. at ¶¶
30–31.
On April 29, 2005, Moore registered Pollination-themed artwork with the U.S.
Copyright Office and, on some unstated date, submitted the art to an intermediary alleged to be
connected to Cameron. Id. at ¶ 32.
Moore requests actual damages and profits in excess of $1,500,000,000, a preliminary
and permanent injunction enjoining Defendants from infringing further upon his copyrighted
material, an accounting of all gains by Defendants’ infringement of his copyrighted works,
declaratory relief relating to his copyrights, punitive damages in excess of $1,000,000,000, and
statutory damages, attorney’s fees, and costs. Second Am. Compl. at 16-17.
PROCEDURAL HISTORY
On December 19, 2011, Moore filed his original Complaint in this Court. ECF No. 1.
The Complaint has since been amended twice. Corrected Am. Compl., June 11, 2012, ECF No.
21; Second Am. Compl. Moore’s Second Amended Complaint originally included six counts,
but on March 18, 2013, this Court dismissed all but two on preemption grounds. ECF No. 59.
On April 15, 2013, Moore moved for reconsideration of the dismissal, ECF No. 73, which this
Court denied on August 9, 2013. ECF Nos. 92, 93. The remaining counts are for alleged
copyright infringement of Pollination and Aquatica in violation of the Copyright Act.
On September 16, 2013, Defendants moved for summary judgment under Fed. R. Civ. P.
56. Defs.’ Mot., Sept. 16, 2013, ECF No. 118. Moore filed his opposition on October 18, 2013,
Pl.’s Opp’n, Oct. 18, 2013, ECF No. 151, and Defendants replied on November 1, 2013. Defs.’
Reply, Nov. 1, 2013, ECF No. 168. Moore moved for partial summary judgment in his favor on
October 18, 2013. Pl.’s Mot., Oct. 18, 2013, ECF No. 150. Defendants filed an opposition on
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November 1, 2013, Defs.’ Opp’n, Nov. 1, 2013, ECF No. 166, and Moore replied on November
18, 2013. Pl.’s Reply, Nov. 18, 2013, ECF No. 170. The Court held a motions hearing on
November 25, 2013 to consider both motions.
STANDARD OF REVIEW
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure,
which states that a court “shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton,
Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that “might affect the outcome of
the suit under the governing law.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir.
2001) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A dispute of material fact
is only “genuine” if sufficient evidence favoring the non-moving party exists for the trier of fact
to return a verdict for that party. Anderson, 477 U.S. at 248-49. “When faced with crossmotions for summary judgment, the court must review each motion separately on its own merits
to determine whether either of the parties deserves judgment as a matter of law.” Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). “When considering each individual motion, the
court must take care to resolve all factual disputes and any competing, rational inferences in the
light most favorable to the party opposing that motion.” Id. (internal quotation omitted).
ANALYSIS
The Copyright Act of 1976, as amended, provides that an owner of a copyright has the
exclusive rights “to distribute copies . . . of the copyrighted work to the public by sale or other
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transfer of ownership, or by rental, lease, or lending.” 17 U.S.C. § 106(3). “Anyone who
violates any of the exclusive rights of the copyright owner as provided by sections 106 through
122 . . . is an infringer of the copyright or right of the author . . . .” Id. § 501(a). To establish a
claim of copyright infringement, “two elements must be proven: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are original.”
Feist
Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991). The parties
do not contest that Moore owns a valid copyright in his works. While there is no evidence of
literal copying, a plaintiff can raise a “presumption of copying by showing both that [defendants]
had access to [plaintiff’s copyrighted material] and that the . . . screenplays in question are
substantially similar.” Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996).
I. Defendants’ Access to Moore’s Works
In order to prove access, a plaintiff must show that a defendant had a reasonable
opportunity to view or copy the work at issue. “A mere possibility that such an opportunity
could have arisen will not suffice. Rather, it must be reasonably possible that the paths of the
infringer and the infringed work crossed.” Towler, 76 F.3d at 582. Moore’s Complaint posits a
number of ways that Defendants may have accessed his works but fails to introduce anything
more than mere speculation to back these assertions. The access claims fall into two different
time periods: 1994-1996 when Defendants allegedly accessed Aquatica through intermediaries
and 2003-2005 when Moore formally submitted both Aquatica and Pollination to Lightstorm.
None of these theories of access creates a dispute of material fact. “[S]peculation and
conjecture” that Defendants may have accessed the works, that amount to no more than a
“tortious chain of hypothetical transmittals… [are] insufficient to infer access.” Towler, 76 F.3d
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at 583. See also Eaton v. National Broadcasting Co., et al., 972 F. Supp. 1019, 1025 (E.D. Va.
1997) (“[H]ypothetical possibilities [that someone may have forwarded a script to a senior
executive] are mere conjectures insufficient to create a genuine issue of material fact.”).
a. The 1994-1996 Access Claims
Moore alleges that during this time period, he gave his screenplays to two intermediaries
who could have transmitted them to Cameron. The first of these is Howard Gibson, a production
assistant who worked on the set of James Cameron’s movie True Lies. Second Am. Compl. ¶
22. Although acknowledging that Moore gave him a copy of Aquatica around 1994, Gibson
testified in deposition that he only spoke to Cameron once during his employment and never
passed the script to Cameron or anyone at Lightstorm. Defs.’ Mot., Ex. Williams 25, ECF No.
118-106. Despite this testimony, Moore argues that there remains a question of fact about
whether Gibson delivered the screenplay to Lightstorm. In 1994, Gibson went to Lightstorm’s
offices and met with a white male with brown hair in his late-twenties or early thirties for a job
interview. Pl.’s Opp’n at 13. Moore relies on the testimony of another Lightstorm employee
who said that Tom Cohen, an employee who later became a creative executive, fit a similar
description, and argues that Gibson may have given Cohen a copy of the screenplay during his
interview. Pl.’s Opp’n at 13-14. In a summary judgment analysis, “[t]he nonmoving party . . .
cannot create a genuine issue of material fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Moore’s argument
is just such speculation.1 Furthermore, even assuming that Gibson met with Cohen, Gibson
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On page 14 of his Opposition, Moore attempts to make various other inferences from Gibson’s deposition
testimony to suggest that he may have delivered the script to someone at Lightstorm at some time. For example,
Gibson testified that if he told Moore he passed the script along, he would not have lied to him about it. Moore
attempts to bootstrap this to his own testimony that Gibson told him that he passed the script on and discussed it at
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denied bringing the script to the interview and “a copyright plaintiff cannot base [his or] her
opposition to summary judgment entirely on the hope that a fact finder will disbelieve the
persons who have submitted affidavits on issues of access.” Eaton, 972 F. Supp. at 1024
(internal quotation omitted).
The second alleged intermediary during the 1994-1996 time period is Anthony Lancto, an
employee of Fox Broadcasting (a different corporate entity from Defendant Twentieth Century
Fox) to whom Moore gave a copy of his screenplay. Defs.’ Mot. at 14; Affidavit Lancto, ECF
No. 118-50. In his deposition, Lancto unequivocally denied delivering the script to or having
any relationship with Defendants. Id. Moore’s Opposition and oral argument did not address
this issue and there is nothing in the record to suggest that any issue of fact exists with regard to
this alleged intermediary.
b. James Cameron’s Scriptment Pre-Dates the Other Access Claims
James Cameron originally completed a “scriptment” of Avatar—a “detailed script-length
treatment that contains the plot, sequence of events, characters, themes, moods, and settings
contained in the film”—no later than March of 1996.2 Defs.’ Mot. at 6. Cameron states that he
concluded that the technology was not sufficiently developed at the time to make the film and he
saved the scriptment until 2005, at which time he resurrected the project and began working on
the movie. Id.
Lightstorm’s offices in order to create an issue of fact. Pl.’s Opp’n at 14. The tenuous chain of inferences Moore
asks the Court to make is not sufficient to defeat a motion for summary judgment.
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There is some dispute regarding whether Cameron gave inconsistent testimony about whether he finished the
scriptment in 1995 or 1996. Moore’s Opposition makes much of this issue and even implies that Cameron was
attempting to be misleading in his deposition. Pl.’s Opp’n at 8-9. Defendants, however, accurately describe this
issue as a “red herring.” Defs.’ Reply at 3. As the 1994-1995 access claims are frivolous, whether Cameron wrote
the scriptment in 1995 or 1996 is immaterial as Moore doesn’t claim to have given the screenplay to Lightstorm
again until 2003. Id. This is not a material fact that could affect the outcome of a trial.
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Although there were clearly some changes made in the film, the major copyright eligible
elements of the work are contained in this early scriptment. See Expert Report of Mark Rose,
Defs.’ Mot., ECF No. 118-61; Expert Report of Jeff Rovin, Defs.’ Mot., ECF No. 118-63. Even
without considering the expert reports, a comparison of the scriptment and film make clear that
they include the same plot, characters, setting and themes. Any differences between the two are
limited to contextual details and elements that are not subject to copyright protection.
In
addition, Moore relies on James Cameron’s testimony that the scriptment was intended as a
“guide” and was not a “complete document” to bolster his argument that it differs materially
from the final product. Pl.’s Opp’n at 6. The argument is without merit as an independent
review of the scriptment shows it is clearly comprehensive and contains the major elements of
the film, which the Court has also reviewed.
c. The 2003-2005 Access Claims
To prove access, a plaintiff must show that there was “a reasonable opportunity to view
the copyrighted work before creating the infringing work.” Building Graphics, Inc. v. Lennar
Corp., 708 F.3d 573, 578-79 (4th Cir. 2013) (emphasis added). Therefore, as the scriptment was
written at least seven years earlier, whether or not Defendants had access in 2003 is immaterial.
Even if there were significant differences between the scriptment and Avatar movie, Moore fails
to demonstrate the existence of a genuine issue of material fact with respect to access in 2003.3
Neither party disputes that in 2003, Moore submitted both Pollination and Aquatica to
Tom Cohen, a development executive at Lightstorm. Pl.’s Opp’n at 14. Cohen treated the
scripts in accordance with company practice—he passed them to a third party reviewer who read
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Note that Moore even argues in his Motion for Partial Summary Judgment that the Court should find as a matter of
law that Defendants had access to the scripts in 2003. Pl.’s Mot. at 7.
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them and entered a summary into an electronic database. In this case, the review was largely
negative and the reader recommended that Lightstorm pass on the scripts.4 Defs.’ Mot. at 15.
Both Cohen and Cameron deny ever reading or discussing the screenplays. Defs.’ Mot.
at 15. Such denials, however, are not necessarily dispositive in access cases. In Zervitz v.
Hollywood Pictures, a claim of access was sufficient to survive summary judgment even though
an employee of a production company denied forwarding a screenplay to Defendant who denied
receiving it. 989 F. Supp. 727 (D. Md. 1995). Despite the denials, the Court found sufficient
“evidence of a channel of communication” between the two individuals to create an issue of fact
as to access. Id.at 729. In that case, the employee actually read the screenplay, told the plaintiff
she had forwarded it to someone higher up, and had a close working relationship with the
defendant.
Moore relies on a similar case, Bouchat v. Baltimore Ravens, Inc., 228 F.3d 489 (4th Cir.
2000), in which an amateur artist created a logo for the Baltimore Ravens football team. The
artist spoke with John Moag, Chairman of the Maryland Stadium Authority, who offered to show
the drawings to the team’s owner, David Modell, with whom he shared office space. Id. at 492.
On Moag’s request, Bouchat faxed him the drawings which, according to the practice of the
office, may have been delivered to the office space he shared with Modell. Defendants in that
case denied receipt of the drawings but the Court found that this was not dispositive.
Bouchat offered evidence that his shield drawing was transmitted first to Moag,
who shared an office with Modell (who had a close relationship with the alleged
infringers on the design project). Bouchat testified that Moag offered to forward
his (Bouchat’s) drawings to the Ravens and that Bouchat sent the fax of the
drawings to MSA, addressed to Moag. The jury was entitled to credit that
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Although the online review of the screenplays was written in 2003, Moore claims that information turned over in
discovery shows they were updated in 2004, suggesting presumably that they were considered again at that time.
Defendants claim that a computer system update is responsible for the change in the date in the library system. This
type of manufactured dispute about immaterial issues, which Moore claims constitute factual issues appropriately
determined by a jury, is not sufficient to defeat summary judgment.
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testimony…. By proving that the drawings were transmitted to Moag, and that
Modell shared the same office space with Moag, Bouchat proved that Modell had
‘access’ to Bouchat’s drawing.
Id. at 493. Moore points out that like Moag and Modell in Bouchat, Cohen and Cameron shared
office space. In fact, Moore makes much of the fact that the Lightstorm offices are small and
Cameron and Cohen work in close physical proximity to each other.5
This case is
distinguishable, however, because Moag told Bouchat he would pass the drawings to Modell
whereas Cohen never offered to pass the script to Cameron. Additionally, it is a routine matter
for a production company like Lightstorm to receive screenplays. It is for this reason that the
company has a protocol in place for reviewing such scripts. Finally, Cohen testified that he and
Cameron did not have a close working relationship and in fact only attended a few meetings
together during Cohen’s thirteen years at the company. Defs.’ Reply at 5.
Some courts have applied the corporate receipt doctrine in copyright cases, finding that,
“the fact that one employee of the corporation has possession of plaintiff’s work should warrant
a finding that another employee (who composed defendant’s work) had access.”
JCW
Investments, Inc. v. Novelty, Inc., 482 F.3d 910, 916 (7th Cir. 2007). In support of this theory,
Moore relies on the Fourth Circuit’s decision in Robinson v. New Line Cinema 211 F.3d 1265
(4th Cir. 2000) (unpublished), which overturned a district court’s finding of summary judgment
on the issue of access. In that case, as here, an unsolicited movie script was logged into a
company’s electronic script library and sent to a third-party reader to review. The Court found
that where the person at the company who received the script and the alleged infringer had a
“close working relationship, … attended the same weekly meeting … [and] worked for the same
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Moore also emphasizes the fact that Cameron’s office was within 80 feet of the “script library” where the scripts
were stored. Pl.’s Opp’n at 17.
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company in the same building, only two floors apart … a reasonable jury could find that [access]
was reasonably possible.” Id. at *2. While this case has some similarities to Robinson, Cohen
here testified that he himself never read the screenplays, that he never discussed them with
anyone at Lightstorm and that he and Cameron did not have a close working relationship. Defs.’
Reply at 5.
Cases that apply the corporate receipt doctrine contemplate situations where
recipients worked closely with alleged infringers.
See e.g., Moore v. Columbia Pictures
Industries, Inc., 972 F.2d 939, 943 (parties within the company “had on-going professional and
personal relationships”). That is certainly not the case here.
In addition, other courts have “rejected ‘bare corporate receipt’ as sufficient proof of
access, requiring plaintiffs to introduce some evidence that it was ‘reasonably possible that the
paths of the infringer and the infringed work crossed.’” Jones v. Blige, 558 F.3d 485, 493 (6th
Cir. 2009) (quoting Towler, 76 F.3d at 583). In Glanzmann v. King, the Sixth Circuit declined to
rely on the corporate receipt doctrine and affirmed a finding that it was an “implausible …
quantum leap” to assume that Stephen King had access to a script submitted to a secretary at
Columbia Pictures. 1988 WL 212507, 2 (E.D. Mich. 1988) (affirmed by Glanzmann v. King,
887 F.2d 265 (6th Cir. 1989) (unpublished). In this case, the mere fact that a script was sent to a
production company is insufficient to infer access by everyone at that company.
d. Access to Pollination Artwork
Finally, Moore alleges that he gave certain Pollination-related artwork to an actress
named Sybil Danning in 2005 and asked her to transmit the drawings to Defendants. Danning
testified in deposition that she never did so and Moore does not contest this in his Opposition or
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produce any evidence of the existence of a factual issue with regard to the drawings. Defs.’ Mot.
at 16.
II. Substantial Similarity6
Even if the Court were to find that there was an issue of fact as to access, summary
judgment would nevertheless be appropriate as the works are not substantially similar. Comins
v. Discovery Communications, Inc., 200 F. Supp. 2d 512, 521 (D. Md. 2002) (“‘[A] court may
determine non-infringement as a matter of law on a motion for summary judgment, either
because the similarity between two works concerns only non-copyrightable elements of the
plaintiff’s work, or because no reasonable jury, properly instructed, could find that the two works
are substantially similar.’”) (quoting Eaton, 972 F. Supp. at 1023)).
“Proving substantial
similarity requires a two-part analysis. First, a plaintiff must show—typically with the aid of
expert testimony—that the works in question are extrinsically similar because they contain
substantially similar ideas that are subject to copyright protection.” Towler, 76 F.3d at 583.
“The ‘extrinsic’ evaluation should assess the similarity between the two works’ objective
elements, such as plot, theme, characters, setting, pace, mood, and dialogue.” Eaton, 972 F.
Supp. at 1026. “Second, a plaintiff must satisfy the subjective, or intrinsic, portion of the test by
showing substantial similarity in how those ideas are expressed.” Towler, 76 F.3d at 583-84.
“This portion of the test considers whether the intended audience could determine that the works
are substantially similar, usually without the aid of expert testimony.” Id. at 584.
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If a plaintiff cannot prove access, courts will still sometimes find copyright infringement if a plaintiff can prove
“striking similarity.” Towler, 76 F.3d at 584-85 (“[P]roof of striking similarity establishes infringement without the
necessity of showing access.”). Striking similarity is a standard that requires a showing greater than substantial
similarity and must be so similar as to “preclude[] the possibility of independent creation.” Id. Thus, as will be
discussed below, as Moore does not present evidence sufficient for a jury to find substantial similarity, he certainly
could not meet the striking similarity test.
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When reviewing works for substantial similarity, courts must separate out “general ideas,
themes, or plots [that] are not eligible for copyright protection,” Eaton, 972 F. Supp. at 1027.
“[C]opyright law does not protect ‘scenes a faire,’ i.e., sequences of events that necessarily result
from the choice of a setting or situation.
Put another way, scenes a faire are ‘incidents,
characters, or settings which, as a practical matter, are indispensable or standard in the treatment
of a given topic.’” Id. at 1029 (internal quotations omitted).
a. The “Extrinsic Test”7
The Court must make an independent comparison of the works at issue in undertaking the
extrinsic test.
Moore, along with his Second Amended Complaint and Opposition to
Defendants’ Motion for Summary Judgment, submitted lists of alleged substantial similarities
between his works and Avatar. The Fourth Circuit, however, has held that “a list comparing
‘random similarities scattered throughout the works’ is ‘inherently subjective and unreliable.’”
Towler, 76 F.3d at 584 (quoting Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984)). “Instead
[of relying on such lists], a court must analyze [works at issue] and the record, searching for
extrinsic similarities such as those found in plot, theme, dialogue, mood, setting, pace or
sequence.” Id. See also Beal v. Paramount Pictures, 20 F.3d 454, 460 (11th Cir. 1994) (“[S]uch
lists are ‘inherently subjective and unreliable,’ particularly where the list contains random
similarities. Many such similarities could be found in very dissimilar works.”).
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This discussion focuses on Moore’s screenplays and not his “Pollination Artwork.” Moore claims, for example,
that his mechanical “canopy crawler” is similar to a dinosaur-like creature in Avatar and that his human figure is
similar to the alien character Neytiri. Defs.’ Mot. at 33-34. There is no issue of fact that these drawings and the six
black-and-white sketches that make up Moore’s “Pollination Art” have no similarity to images in the Avatar movie.
“[T]he subject matter, shapes, colors, materials, and arrangement of the representations” differ markedly. Cavalier
v. Random House, Inc., 297 F.3d 815, 825 (6th Cir. 2002) (listing factors to be considered in determining objective
similarity in appearance of artwork). See also Expert Report of Vincent DiFate, Defs.’ Mot., Affidavit DiFate, Exs.
DiFate 1, 2, ECF Nos. 118-64, 118-65, 118-66.
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In their Motion for Summary Judgment, Defendants appropriately rely on expert
testimony to show that the works are not substantially similar under the extrinsic test. See, e.g.,
Dawson v. Hinshaw Music, Inc. 905 F.2d 731, 732-33 (4th Cir. 1990) (“The plaintiff must
establish substantial similarity of both the ideas of the . . . works and of the expression of those
ideas. It is well established that expert testimony is admissible for proof under the first prong
which courts have referred to as an ‘extrinsic’ or ‘objective’ inquiry.”) (citing Litchfield v.
Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984)).
A review of the filings, both parties’ expert reports, and the works themselves makes
clear that there are no substantial similarities to be found in any of the relevant elements. Any
similarities are limited to general stock themes, scenes a faire and ideas not subject to copyright
protection.
i. Plot, Theme and Sequence of Events
Courts must look beyond stock themes and ideas in analyzing plot similarities. For
example, in Muller v. Twentieth Century Fox Film Corp., the Court held that the plots of two
works both telling the story of “an expedition team that travels to Antarctica where they discover
an underground ancient pyramid or city, and subsequently encounter hostile forces” were not
substantially similar and “[a]ny similarities in plot and structure stem directly from the stock
theme of an action-adventure staged in an ancient underground pyramid or city, and thus are
unprotectible [sic].” 794 F. Supp. 2d 429, 445 (S.D.N.Y. 2011). See also Stromback v. New
Line Cinema, 384 F.3d 283, 296 (6th Cir. 2004) (“[T]he sequence of certain events (main
characters leaving Hell, battling their brother, the attempted killing of the main character)… are
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common themes and ideas throughout literature and are beyond any level of abstraction at which
copyright protection might begin to attach.”).
Even at the highest level of generality, the plots of the works at issue here are quite
different. Avatar is about a paraplegic ex-Marine, Jake Sully, who takes over a geneticallyengineered avatar body to study the indigenous people of the planet Pandora. At the beginning
of the film, Jake Sully works with a corporation mining the planet for resources but after falling
in love with an indigenous woman, Neytiri, sides with the native people and fights off the
corporation. Defs.’ Mot. at 7-8; Avatar screenplay, Second Am. Compl., Ex. 5. Pollination is a
story about two warring groups of humans: pollinators and descendants. A woman who has been
fighting the pollinators on her own meets and falls in love with the descendants’ war chief and
together they are able to defeat the pollinators. Aquatica is an underwater adventure story about
two warring factions, one of whom is a ruthless evil tribe attempting to dominate the planet.
Defs.’ Mot. at 12; Pollination screenplay, Second Am. Compl., Ex. 6; Aquatica screenplay,
Second Am. Compl., Ex. 7.
To be sure, the works share certain limited commonalities. Pollination and Avatar, for
example, both involve love affairs between two individuals who subsequently join together to
fight a common enemy. Aquatica and Avatar are both science-fiction, futuristic stories about
conflicts between two groups of people. One theme is the main character’s transition from
scientist to warrior, which is comparable to Jake’s transition in Avatar. Defs.’ Mot. at 13. This
type of broad plot similarity is, however, clearly not protected expression.8 “[T]his degree of
similarity between the basic plots of two works cannot sustain a plaintiff’s claim that the works
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Not only are these plots and main themes clearly not substantially similar on anything but the most general level,
but Defendants’ experts note that major themes in Avatar and Pollination may actually be the opposite of each
other– in Avatar, the heroes protect the natural civilization while in Pollination, the heroes are the technologically
advanced humans who defeat those who want to destroy humans to protect the earth’s environment. Defs.’ Reply at
14.
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are substantially ‘similar.’ No one can own the basic idea for a story. General plot ideas are not
protected by copyright law.” Berkic v. Chrichton 761 F.2d 1289, 1293 (9th Cir. 1985). A
review of the works at issue makes clear that the only similarities between the plots and themes
of Moore’s works and Avatar are elements not eligible for copyright protection and themes
common in the science fiction and action genres.
ii. Setting
Moore argues that a substantial similarity exists with regard to setting, as there are bioluminescent mega-forests in each of the works. Moore claims that both Avatar and Pollination
are “set on a lush, exotic world covered by gargantuan, alien flora and super trees in a forest of
giant tree/tree limbs, vast foliage, giant vines and leaves.” Second Am. Compl. Ex. 1 at ¶¶ 12,
83. The setting of Aquatica, though underwater, is allegedly similar to that of Avatar because,
for example, both settings feature bioluminescence, dramatic foliage and large rainforest-like
plants. Second Am. Compl. Ex. 2 at ¶¶ 8-9. However, these alleged similarities are either far
too general to be protected by copyright law (large forests, bioluminescence) or are scenes a
faire (a 3-D representation of terrain in a futuristic battle movie).
Defendants also point out that many similar aspects of the setting have been used in other
works citing, for example, giant forests in Fellowship of the Ring and bioluminescence in Twenty
Thousand Leagues Under the Sea and Fantasia. Defs.' Mot. at 28. Other courts have denied
claims of substantial similarity in cases with settings far more similar than those at issue here.
See e.g., Muller, 794 F. Supp. 2d at 446-47 (“Although both works are primarily set in or near
Antarctica, and both use an underground pyramid and archeological excavation settings, these
are not forms of expression that can be copyrighted. This is because any similarity based on the
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shared use of these common situations is far too general to be the basis of a copyright
infringement action.”); Funky Films, 462 F.3d 1072 (9th Cir. 2006) (two works taking place in
“contemporary, family-run funeral home” insufficiently similar).
iii. Characters and Dialogue
The “basic human traits that certain characters share, including age, sex, and occupation,
are too general or too common to deserve copyright protection.” Eaton, 972 F. Supp. at 1029.
In order to find substantial similarity of characters, courts look to details and not just general
caricatures.
For example, the Eleventh Circuit held in one case that even though both
protagonists were “crown princes and sole heirs to the thrones of foreign nations who have come
to America” they were not substantially similar because of other distinct character traits. Beal v.
Paramount Pictures Corporation, 20 F.3d 454 (11th Cir. 1994). For example, the Court found
differences in the way each character treated women and also noted that while both characters
were rebellious, one character “tends to be brash and impetuous” while the other does not. Id.
These differences were enough to defeat a similarity claim, showing the level of detailed
comparison courts require to find substantial similarity of characters.
Moore argues that the protagonists in Avatar and Pollination are substantially similar
because, for example, both Jake and Gamil are young male soldiers who are “brave, adventurous
and strategic. Both lead revolts against those who would plunder their world.” Second Am.
Compl. Ex. 1 at ¶ 183. These descriptions are stock character traits that could describe any
number of protagonists in battle films throughout history.
Moore additionally draws comparisons between female scientists who distrust the main
character, matriarchs in their fifties who wear arrow-shaped necklaces, and characters in
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wheelchairs. Pl.'s Opp'n at 35. He claims that the protagonists’ parents in Avatar and Aquatica
are substantially similar because one can “access the voice of ancestors” and the other “has the
unique skill of interpreting ancient computer languages, the voice of an ancient dynasty.”
Second Am. Compl. Ex. 2 at ¶ 2. Not only are these comparisons insufficient to suggest
substantial similarity, but Moore improperly picks and chooses traits of different people instead
of comparing parallel characters. See, e.g., Eaton, 972 F. Supp. at 1028 (finding characters not
comparable because “[w]hile both Zee and Lou are female mechanics who are good at their jobs
Zee is the main character… and Lou is a secondary character”).
With regard to dialogue, “extended similarity [is] needed to support a claim of substantial
similarity based upon this issue.” Olson v. National Broadcasting Co., Inc., 855 F.2d 1446 (9th
Cir. 1988). Moore’s list of random comparisons of words used in the works shows no extended
similarity and no reasonable jury, properly instructed, could find substantial similarity of
dialogue.
iv. Mood and Pace
The mood and pace of Moore’s works differ markedly from those of Avatar. Both
Pollination and Aquatica are action-packed war stories, filled with battle scenes and conflict.
Though Avatar includes a battle scene at the end, it hardly encompasses the entire movie, the
first half of which focuses on the relationship between Jake and Neytiri. In Moore’s Complaint,
he lists the following as alleged substantial similarities of mood and pace: “In both stories the
protagonist is chosen to soldier with science teams” and “In both stories there is concern about
the worsening relationship with between [sic] antagonists and protagonists.”
Second Am.
Compl. Ex. 2 at ¶¶ 124-127. Not only are these broad and vague, but also they do not even
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address mood or pace. In fact, these alleged similarities are so off base that Defendants suggest
Plaintiff has conceded a lack of similarity. Whether or not that is true, an independent review of
the works shows marked differences.
b. The “Intrinsic Test”
The second part of the inquiry, “intrinsic similarity” involves a review of the “total
concept and feel” of the similarity (or dissimilarity) in “mood,” “detail” and “characterization.”
Comins v. Discovery Communications, Inc., 200 F. Supp. 2d 512, 521 (D. Md. 2002) (granting
defendants’ motion for summary judgment after finding no similarity between the works at
issue). “The notion of intrinsic similarity . . . requires the court to inquire into ‘the ‘total concept
and feel’ of the works,’ but only as seen through the eyes of the ordinary observer.” Lyons
Partnership, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801 (4th Cir. 2001) (quoting Dawson
v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir. 1990)) (emphasis in original). “In most
cases, when a copyrighted work will be directed at the public in general, the court need only
apply a general public formulation to the intended audience test.” Id. In this case, the general
public appropriately describes the intended movie-going audience.
Moore alleges that Avatar contains “extrapolated expressions of ideas” from Pollination
and Aquatica, including “themes,” “moods,” and “tones.” Second Am. Compl. at 2. In his
Opposition, Moore argues that he “can cite to over one hundred (100) substantial similarities and
at least seven (7) fragmented literal similarities, the combination of which makes certain the two
works’ similarity in the mind of a reasonable jury.” Pl.'s Opp'n at 44.9 This mischaracterizes the
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The fact that Moore’s expert stated that striking and substantial similarities exist between Avatar and Moore’s
works is not sufficient to create a dispute of material fact. See McRae v. Smith, 968 F. Supp. 559, 567 (“Although
plaintiff’s experts opine that the songs are strikingly similar or so similar as to preclude independent creation, an
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intrinsic similarity test for which courts have consistently held that lists of random similarities
are insufficient. Regardless, a review of the works leaves no doubt that there is no intrinsic
similarity between them. In fact, the total concept and feel of Avatar and Moore’s screenplays is
“palpably different.” Eaton, 972 F. Supp. at 1030.
III. Fragmented Literal Similarities
Moore also argues that his Complaint should survive summary judgment because there
are “striking and/or fragmented literal similarities” between the works. Pl.’s Mot. at 1. Some
courts have found that the substantial similarity test can by modified “for situations in which a
smaller fragment of a work has been copied literally, but not the overall theme or concept-an
approach referred to in the literature as ‘fragmented literal similarity.’ . . . Thus, the copying of
a relatively small but qualitatively important or crucial element can be an appropriate basis upon
which to find substantial similarity.” Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d
267, 275 (6th Cir. 2009).
Moore moves for partial summary judgment on this issue as well and lists eight alleged
“literal similarities” between the works. Pl.'s Mot. at 10-12. For example, in Aquatica and
Avatar, main characters speak to a group of people gathered by the “Eastern Sea.”
Id.
Additionally, Moore argues that 3-D yellow and green holographic maps of the forest and upside
down trees with plants growing out of them are literal similarities. Id. Not only do both of these
amount to nothing more than scenes a faire, but also they do not represent “qualitatively
important or crucial” elements of any of the works.
issue of fact cannot be created by merely reciting the magic words ‘strikingly similar’ and ‘no possibility of
independent creation.’”).
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Another alleged “fragmented literal similarity” that Moore emphasizes is the following
description of trees:
POLLINATION: “Deposited on the tree tops are five large inflatable circular
‘sleds’ that are shaped like a tire with spokes which curve upward then
downward. (the spokes are also inflatable). Between each “spoke” is a
trampoline style mesh.” Pollination at 110.
AVATAR: “The sleeping level -- families nesting in groups on woven hammocks
the size of trampolines. The hunters sleep along SPOKES joining the inner trunk
to the tree’s outer shell.” Avatar at 51; see Avatar film at 00:47:52:00.
Pl.'s Mot. at 12. Despite use of the words “spoke” and “trampoline” in each, this is not the type
of literal or quasi-literal similarity that necessitates a finding of copying, nor is this description a
“qualitatively important or crucial” element of either work. Bridgeport Music, 585 F.3d at 275.
The other five alleged “fragmented literal similarities” in Moore’s motion are comparable.
Moore simply mischaracte rizes what courts consider to be literal similarities and these claims
are without merit.
IV. Independent Creation
If the Plaintiff had presented a prima facie case of copyright infringement, evidence that
Defendants had independently created the work at issue could be used to rebut the presumption
of copying. In the Fourth Circuit, independent creation is not considered to be an affirmative
defense and “defendants, therefore, do not have the burden of persuasion for independent
creation.”
Keeler Brass Co. v. Cont’l Brass Co., 862 F.2d 1063, 1066 (4th Cir. 1988).
“Evidence of independent creation simply tends to prove the reverse of th[e] proposition” that
the defendants copied the works. Id. See also Watkins v. Chesapeake Custom Homes, L.L.C.,
330 F. Supp. 2d 563, 575 (D. Md. 2004) (“Evidence of substantial similarity and access presents
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a prima facie case of copying. However, that presumption is rebutted where the defendant
presents evidence that the allegedly infringing work was ‘independently created.’ . . . This is
true even if the infringing work is ‘practically identical’ to the copyrighted work.”).
As summary judgment is appropriate with regard to access and substantial similarity, the
issue of independent creation need not be addressed in depth. Suffice it to say that Defendants
present a strong case for independent creation that rebuts a presumption of copying. Cameron
submitted a comprehensive declaration that specifically addresses Moore’s allegations and points
to past projects and other sources of inspiration from which he drew in writing Avatar. For
example, he discusses how a story he wrote in college addressed the issue of “transitioning from
a disabled body” which inspired Jake Sully’s handicap. Cameron Decl. at 10. He introduced a
sketch he drew in high school of a large tree on which he modeled the “hometree” in Avatar.
Defs.’ Mot. at 49.
He also, for example, claims that a film he worked on in the 1970s,
Xenogenesis, featured a similar setting to that in Avatar (willow-like trees, blue and green
bioluminescence, etc.).
Cameron Decl. at 12.
accompanying exhibits are persuasive.
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Cameron’s detailed declaration and
CONCLUSION
In conclusion, the story of Jake Sully and his exploits are the original work of the
Defendants and the Plaintiff has failed to demonstrate any valid claim of a violation of his
copyrights.
Accordingly, the Court will, by separate Order, grant Defendants’ Motion for
Summary Judgment, deny Moore’s Motion for Partial Summary Judgment and deny as moot
Defendants’ Motion to Strike Exhibits.
Date: January 16, 2014
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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