Copyright
2
• The Computer & Internet Lawyer
Volume 28 • Number 3 • March 2011
a ‘reasonable’ possibility of access is di
cult to draw.”
6
If the work has not been widely disseminated, whichis usually the case for unpublished screenplays, “a par-ticular chain of events” must be established betweenthe plainti
’s work and the defendant’s access to thatwork.
7
For almost every principle of lawfavorable to creators, the courtshave endorsed and applied anopposite principle.
Early cases outside of the Ninth Circuit found accesseven when the plainti
could not actually place thework in the hands of the defendant. For example, in theFirst Circuit case of
Morrissey v. Procter & Gamble Com-pany
, the plainti
o
ered evidence that he had mailedhis copyrighted work to the defendant’s principal o
ce.The court held that this mailing created “an inferencethat the letter reached its proper destination” and thatto require the plainti
to show that the “particularlyresponsible employees had received his communica-tion” would have been unfair.
8
Similarly, in 1971, a NewYork district court held in
Bevan v. Columbia Broadcast-ing System, Inc
., that corporate receipt could be “su
-cient to raise a triable issue, despite plainti
’s inabilityto show receipt by the responsible employee,”
9
becauseit would be unfair to “saddle a plainti
with disprovingnon-access within a corporate structure foreign to himand with witnesses not his own.”
10
Unfortunately for creators, the
Bevan
holding wasrejected by some courts.
11
For example, in
Meta-FilmAssociates, Inc. v. MCA, Inc
., a 1984 case, the Central Dis-trict of California identi
ed only three circumstancesthat would meet the type of close relationship betweencoworkers necessary to give rise to a reasonable oppor-tunity of access. The person who received the plainti
’swork must (1) be “a supervisor with responsibility for the defendant’s project,” or (2) “part of the same workunit as the copier,” or (3) have “contributed creativeideas or material to the defendant’s work.”
12
By limiting,as a matter of law, the instances in which a plainti
canprove access within a corporate structure, the
Meta-Film
court e
ectively precluded plainti
s from establishingaccess in numerous scenarios in which there is actualaccess but the facts do not fall into one of the court’senumerated categories.
13
The
Meta-Film
court also recognized situations inwhich a third-party intermediary not of the same busi-ness enterprise as the alleged infringer may be foundto have passed along the plainti
’s work.
14
The courtlimited such situations, however, to instances in whichthe third-party intermediary “provided creative sug-gestions and ideas” concerning the allegedly infringingwork and “the dealings between the three entities (plain-ti
, defendants, and [intermediary]) . . . related to theidentical subject matter.”
15
Although
Meta-Film
’s e
ectin the Ninth Circuit has been limited to several districtcourt cases
16
—and the Ninth Circuit has not adoptedits holding
17
—
Meta-Film
has been in
uential in the Sec-ond Circuit, which expressly relied on the case when itoverruled
Bevan
.
18
Thus,
Meta-Film
remains a prominentexample of why commentators note that “many courtsset an unrealistically high bar as to what constitutes aclose relationship” for establishing access.
19
Substantial Similarity
Even when access is established, the path to a favor-able judgment remains perilous for plainti
s.
20
In fact,in many cases in which summary judgment has beengranted for defendants, the courts simply presumed thataccess existed.
21
This is because “even massive evidenceof access cannot by itself avoid the necessity of also prov-ing the full measure of substantial similarity.”
22
And thisfull measure has become virtually impossible to establishunder recent case law.To determine whether substantial similarity existsbetween works at the summary judgment phase, theNinth Circuit has instructed courts to perform an“extrinsic” analysis of the works’ objective elements,focusing on “articulable similarities between the plot,themes, dialogue, mood, setting, pace, characters, andsequence of events.”
23
In application, however, this anal-ysis has been unpredictable and has resulted in wildlycon
icting case law and results. In addition, in recentyears, the Ninth Circuit has ignored established case lawthat requires the court to not only include “unprotect-able elements” in its analysis
24
but also exclude dissimi-larities between the two works.
25
A long line of copyright infringement cases holdsthat a plainti
’s and defendant’s works should be com-pared in their entirety, including both protectable andunprotectable elements,
26
to determine whether aqualitatively (or quantitatively) signi
cant portion of aplainti
’s work was appropriated.
27
This comports withbasic principles of copyright law and is known as theselection-and-arrangement test.
28
In the seminal 1991 case
Feist Publications Inc. v. Rural Telephone Services Company
, the US Supreme Courtheld that, when dealing with works largely (or evenentirely) composed of unprotectable elements, “choicesas to selection and arrangement, so long as they aremade independently by the compiler and entail a mini-mal degree of creativity, are su
ciently original.”
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