Opinion
No. 01 Civ 814 (GEL).
Filed: September 26, 2001.
Dennis Manuel, pro se for Plaintiff Dennis Manuel.
Sharon M. Sash, Esq., Squadron Ellenoff Plesant Sheinfeld LLP, New York, N Y (Slade Metcalf: Esq., Squadron Ellenoff Plesant Sheinfeld LLP, New York. N Y of counsel) for Defendants Paramount Pictures and Twentieth Century Fox.
OPINION AND ORDER
Dennis Manuel, an aspiring screenwriter, filed this pro se complaint on February 1, 2001, charging that defendants violated his copyright in an unpublished and unproduced script variously entitled Rape and Council andCamp Terror, by producing the film Titanic. Liberally construed, his complaint and the appended documents also appear to contend that two television series produced or distributed by one or the other defendant,Dark Angel and Queen of Swords, also infringe his copyright. Defendants move for summary judgment on a variety of grounds, which will be granted.
At a conference on July 13, 2001, the Court set a briefing schedule requiring the filing of this motion by August 3, 2001, with a response from plaintiff due on August 24. The motion was timely filed in accordance with this schedule Plaintiff has not responded, although he described his contentions at the July 13 conference and has forwarded the Court copies of correspondence directed to defendants' counsel in which he sets forth additional arguments.
Plaintiff's complaint fails on numerous grounds. First, the claims against Titanic are barred by the statute of limitations Actions for copyright infringement must be brought within three years after the claim accrued 17 U.S.C. 507(b). "A cause of action accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised." Merchant v. Levy, 92 F.3d 51. 56 (2d Cir. 1996) Titanic was released in the United States, amidst oceans of publicity, in 1997. Anyone whose own work might have been in any way infringed by the film surely was on notice of its content and features within weeks of its release. Since plaintiffs complaint was filed more than three years later, it is time-barred.
Second, and more fundamentally, neither the film Titanic nor either of the two television series bears any resemblance whatsoever to plaintiffs script. Titanic tells a romantic story of a love affair between a wealthy young woman and a poor artist set aboard the doomed ocean-liner that sank after a collision with an iceberg in 1912. Of the two television series,Dark Angel is a science-fiction story, set in Seattle in the near future, about the adventures of a genetically-engineered superwoman, while Queen of Swords, is a western romance set in Spanish California in the early nineteenth century, whose heroine, a masked sword fighter with a secret identity, is a kind of female Zorro. Plaintiffs script, a present-day horror story heavy on sex and violence, is set at a summer camp, in which the heroine, a young black woman hired as a counselor, is persecuted by the white staff, until a group of ex-convicts invade the camp and rape and murder most of the staff. The protagonist escapes, and returns heroically to wipe out the villains.
Among other things, a copyright plaintiff must prove "the substantial similarity of protectible material in the two works." Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996). The test of similarity is whether, "in the eyes of the average lay observer," the allegedly infringing works are "substantially similar to the protectible expression" in the plaintiffs work. Id. Summary judgment is available when "no reasonable trier of fact could find the works substantially similar" Id. (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986)).
The Second Circuit has emphasized that a determination of substantial similarly requires "detailed examination of the works themselves,"Walker, 784 F.2d at 49, including "such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting" Williams, 84 F.3d at 588. Such an examination leaves no doubt that no sane fact finder could find the various works involved in this case substantially similar. About the only similarity among the works is that all have a female protagonist. But to make out a claim of copyright infringement, the similarity must involve a protectible element of the copyrighted work. Female action heroes are older than the Amazon Queen Hippolyta and the Biblical Judith, and are not plaintiffs original creation. (For that matter, the heroine of Titanic, a love story, is — unlike plaintiffs protagonist and the TV adventurers — not even related to this particular archetype.)
Other similarities claimed by plaintiff, such as that both Titanic andCamp Terror include scenes where the leading female character "is trembling" or "winds up in totally uncertain and bewildering circumstances" or "asks another character if he remembers . . . her" (Compl. at 3), involve standard or generalized types of scenes such as occur in thousands of works of fact or fiction, long pre-dating plaintiffs script Such "scenes that necessarily result from the choice of a setting or situation, incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic, and thematic concepts . . . which necessarily must follow from certain plot situations, are not entitled to copyright protection" and cannot form the basis of an infringement claim. Hogan v. DC Comics 48 F. Supp.2d 298, 309 (S.D.N.Y. 1999) (internal citations omitted) (quoting Walker, 784 F.2d at 50, Hoehling v. Universal City Studios Inc., 618 F.2d 972, 979 (2d Cir 1980) and Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir. 1976))
Defendants describe plaintiffs script as "vile, even pornographic." (D. Br. at 4.) It is not for the Court to act as film critic, or to characterize either plaintiffs or defendants' works as more or less artistically successful or morally uplifting than each others'. All that the Court must say, having carefully examined the works in question, is that no reasonable fact finder could find any of the questioned works substantially similar in total concept and feel, theme, characters, plot, sequence, pace, or setting, or in any other way
Accordingly, since plaintiffs claims of copyright infringement are time-barred as to Titanic and completely without merit as to all three challenged works, summary judgment for the defendants is granted.
SO ORDERED
Dated New York, New York September 24, 2001.