1
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MISSOURIEASTERN DIVISION
RAY K. HARTER, JR., et al.,Plaintiffs,v.DISNEY ENTERPRISES, INC.,Et al.Defendants.)))))))))Case No. 4:11-cv-02207-CDP
PLAINTIFFS
’ JOINT
RESPONSE IN OPPOSITION TO MOTION OF DEFENDANTSDISNEY ENTERPRISES, INC., BUENA VISTA HOME ENTERTAINMENT, INC., KEYPIX PRODUCTIONS, INC., ROBERT VINCE AND ANNA MCROBERTS TO DISMISS
COUNTS 1 AND 4 OF PLAINTIFFS’ COMPLAINT
De gustibus et coloribus non est disputandum
(There is no arguing about tastes and colors.)COMES NOW Plaintiffs Ray K. Harter, Jr., Richard Kearney and Ed Corno, by andthrough their undersigned counsel, and for their Joint Response in Opposition to Motion of Defendants Disney Enterprises, Inc., Buena Vista Home Entertainment, Inc., Key PixProductions, Inc., Robert Vince and Anna McRoberts
(“Movie Defendants”)
to Dismiss Counts
1 and 4 of Plaintiffs’ Complaint (“Motion”)
, state as follows:Plaintiffs respectfully request this Ho
norable Court deny Defendants’ M
otion and permitPlaintiffs to proceed conducting meaningful discovery of Defendants in pursuit of their claims.
Defendants’ motion p
ictures
Santa Buddies: The Legend of Santa Paws
and
The Search for Santa
Paws
and the scree
nplays upon which they are based (collectively, “Motion Pictures”), aresubstantially similar to the protected expression in Plaintiffs’ illustrated Children’s work
Santa
Paws The Story of Santa’s Dog
(“Storybook”)
, such that it is Plaintiffs
’ collective
belief thatMovie
Defendants’
actually copied their work in creating their Motion Pictures.
Case: 4:11-cv-02207-CDP Doc. #: 43 Filed: 03/26/12 Page: 1 of 25 PageID #: 562
2In addition to the argument which follows, Plaintiffs incorporate herein by reference their
contemporaneously filed Response to Defendants’ Request for Judicial Notice of Plaintiffs’ andDefendants’ Works.
ARGUMENT
While not supportive of the proposition in the case at bar, Plaintiffs admire the Movie
Defendants’ Motion’s
commitment to efficient dispute resolution. Plaintiffs, too, would like thismatter resolved in their favor within weeks of the filing of the Complaint. However, as morefully explained below, D
efendants’ Motion is misguided
. There is much discovery to be done inconnection with this litigation before this matter will be ripe for adjudication, much lessdisposition.
Plaintiffs’
cause is comprised of a four count Complaint alleging copyright infringementagainst all Defendants, breach of fiduciary duty and negligence against Defendant WME and acivil conspiracy amongst all Defendants. Movie Defen
dants’ Motion only addresses Counts 1
and 4 as against Movie Defendants. Movie
Defendants’ Motion is substantive in nature. That is,
Movie Defendants have not asserted Plaintiffs have failed to properly plead their causes of action. In fact, Movie Defendants concede, for purposes of their Motion, the first elementPlaintiffs must prove in order to prevail on their action for copyright infringement.Movie Defendants, instead, argue that the Court should make its own comparison of the
Plaintiffs’ Storybook
against the Motion Pictures and, on the strength of same, dismiss counts 1and 4 of the Complaint with prejudice and without leave to amend. In support of this request,Defendants boldly assert Plaintiffs
“
misapprehend the nature of federal copyright law
”.
To thecontrary, it is evident that all parties understand the nature of copyright law, however, there is a
Case: 4:11-cv-02207-CDP Doc. #: 43 Filed: 03/26/12 Page: 2 of 25 PageID #: 563
3fundamental disagreement between the parties concerning whether Movie Defendants have
violated Plaintiffs’ rights.
I.
LEGAL STANDARD FOR COPYRIGHT INFRINGEMENT
Movie Defendants correctly set forth the elements requisite for a finding of copyright
infringement. A plaintiff must prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”
Feist Publications, Inc. v. Rural Tel. Serv.Co.
, 499 U.S.340, 361 (1991). For purposes of this Motion, Movie Defendants concede thatPlaintiffs own a valid copyright to Storybook and that Movie Defendants had access to the work.
See
Motion at 8.
See also
Exh
ibit E to Plaintiffs’ Complaint evidencing the memorialization by
co-
Defendant WME of Movie Defendant Disney’s interest in Plaintiffs’ story.
Accordingly, the lone element Plaintiffs must properly plead to survive a Motion to
Dismiss is “copying of constituent elements of the work that are original”. Plaintiffs have pled
and indeed believe Movie Defendants have actually copied Storybook. This remains in factual
dispute. Further, Defendants appear to concede this is a “potential factual dispute” in Motion
.
See
Motion at 8. To counter, Movie Defendants assert, “[w]here, as here, the lack of similarity between the parties’ respective works is obvious, judgment as a matter of law is appropriate
notwithstanding the presence of potential factual disputes concerning whether there was actual
copying, such as whether defendants had access to the plaintiff’s work”.
Confusingly, thisphrase is followed (after an additional sentence) by a citation to
Nelson
v. PRN Productions, Inc.,et al.
, 873 F.2d 1141, 1143 (8
th
Cir. 1989).Plaintiffs have reviewed this case in great detail insomuch as it is the only 8
th
Circuit casesupporting the
Movie Defendants’ proposition that the
Court may, pursuant to a Motion toDismiss, dismiss the Complaint if the Court believes ther
e is a lack of “substantial similarity”
Case: 4:11-cv-02207-CDP Doc. #: 43 Filed: 03/26/12 Page: 3 of 25 PageID #: 564
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