to tell about the strange things that they witnessed. Through Ozzie's leadership, the other animals constructed barriers similar to beaver dams to block the logging road. After the media filmed these strange events, the logging was stopped and the forest was spared.
D. Defendants' Awesome Possum
Defendants' instructional comic book began with a possum living in a forest with his parents and siblings. Abruptly, robot-loggers came into the forest and cut down his home. The possum avoided the robot-loggers by "playing possum." The possum then allied himself with "Rad Rhino" and "Killer Bee" and demolished the robot-loggers. After seeing the possum battle against the robot-loggers, Killer Bee used the term awesome, which the possum then adopted as his own name. The possum swore that he would fight against the destruction of the earth and the environment and then set out to find the source of the world's pollution. The possum traveled to the city, where he discovered that Dr. Machino was the source of the pollution and destruction. The possum then tracked Dr. Machino to the arctic, where he battled robot-hounds and was saved by an Arctic Tern. The possum chased Dr. Machino to his off-shore oil rig, where he fought robot-sharks with the assistance of "Manta Ray." Finally, Awesome Possum cornered Dr. Machino at his headquarters, a garbage dump, and defeated him -- "kicked his butt."
II. STANDARD OF REVIEW
Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022, 115 S. Ct. 590, 130 L. Ed. 2d 503 (1994). "Summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. The affirmative evidence must consist of verified or documented materials. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In a copyright infringement case, a plaintiff must show (1) that he owned a valid copyright; and (2) that the defendant copied the plaintiff's work. See Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir.), cert. denied, 502 U.S. 939 (1991); Whelan Assocs. v. Jaslow Dental Lab., 797 F.2d 1222, 1231 (3d Cir. 1986), cert. denied, 479 U.S. 1031, 93 L. Ed. 2d 831, 107 S. Ct. 877 (1987). In this case, there is no dispute that Roginski had a valid copyright in his manuscript entitled "Awesome Possum" as of March 31, 1993. The issue is whether the defendants' copied Roginski's story. More precisely, as Roginski observes, "the principal issue on summary judgment is whether Plaintiff has produced sufficient evidence so that a reasonable juror, drawing all justifiable inferences in favor of Plaintiff and presuming Plaintiff's version of any disputed fact to be correct, could conclude that Defendants copied Plaintiff's work." (Plf's Mem. in Opp. to Def's S.J. Mot. (Dkt. Entry 44) at 8.)
The record establishes that the defendants had envisioned an "awesome possum" character before Roginski had even begun to write his manuscript. Defendants clearly did not copy Roginski's generic idea of an "awesome possum" in an environmental theme. At oral argument, Roginski's counsel conceded that the record had established that defendants were working on the "awesome possum" video game with an environmental theme prior to Roginski's work and that a copyright infringement claim based upon the video game would be tenuous, at best. Given defendants' strong evidence that it was in the process of creating the "awesome possum" video game prior to Roginski's work, Roginski cannot maintain a claim for infringement based upon the video game. See Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir. 1996) ("Such prior creation renders any conclusion of access or inference of copying illogical.").
Roginski argues, however, that defendants copied his manuscript in their comic book, which was included in the "Awesome Possum Kicks Dr. Machino's Butt" instruction manual. Therefore, the narrow issue left to resolve is whether there is sufficient evidence to support a claim that defendants copied Roginski's story in the production of their comic book.
It is often impossible to demonstrate a copyright infringement by direct evidence as a defendant will rarely admit that he or she copied the plaintiff's work. Therefore, copyright infringement can be established by demonstrating inferentially that: (1) the defendant had access to the material; and (2) the defendant's work is substantially similar to the plaintiff's work. See Whelan Assocs., 797 F.2d at 1231-32.
The plaintiff must first demonstrate that the defendant had reasonable access to his or her product. There are three manners in which a defendant's access can be demonstrated: (1) direct access; (2) access through a third party; and (3) "striking similarities" between the works such that there is no reasonable way that the defendant could have arrived at the end product without copying the plaintiff's work. See Hofmann v. Pressman Toy Corp., 790 F. Supp. 498, 505 (D.N.J. 1990), aff'd mem., 947 F.2d 935 (3d Cir. 1991), cert. denied, 503 U.S. 963 (1992). If a plaintiff cannot establish that the defendant had access to his or her work, then a copyright claim cannot be maintained. Id.; see also Grubb, 88 F.3d at 3.
A. There Is No Competent Evidence of Access to Roginski's Work
There is no evidence of direct access in this case. In this regard, it is undisputed that Roginski never sent a copy of the manuscript to the defendants. Further, there is no evidence of third party access. In this regard, there is no evidence that the book publishers to whom Roginski sent his manuscript shared it with any of the defendants. Moreover, those book publishers do not have any relationship with any of the defendants such that access could be assumed. Under these circumstances, no rational trier-of-fact could conclude that defendants had access to Roginski's manuscript simply because he made it available to others. As one court, in rejecting a similar argument, explained:
Plaintiff's works were never provided to the Defendants. Instead, Plaintiff alleges access to her unpublished work by virtue of its dissemination to nineteen other named publishers. The gravamen of Plaintiff's theory seems to be that by virtue of her work being provided to a variety of other publishers, these Defendants somehow had access to it also. . . . A finding of access cannot be based on [such] speculation or conjecture.
Evans v. Wallace Berrie & Co., Inc., 681 F. Supp. 813, 816 (S.D. Fla. 1988) (citations omitted).
Roginski argues that the defendants could have obtained access to the manuscript through the Copyright Office, pointing out that after this case was filed defense counsel obtained a copy of his manuscript from the Copyright Office. Such an argument must also fail. The Copyright Office permits parties to copy a file only under limited circumstances -- none of which would have permitted the defendants to get a copy of the manuscript during the development of the comic book.
Roginski next argues that the defendants may have obtained a copy of the manuscript from the Library of Congress. (Def's Stat. of Facts (Dkt. Entry 38) P 2.) In terms of access, the plaintiff must demonstrate that such access was reasonably possible. A finding of access, however, cannot be the product of speculation or conjecture. See Hoffman, 790 F. Supp. at 505 (citing Gaste v. Kaiserman, 863 F.2d 1061, 1066 (2d Cir. 1988)); see also Grubb, 88 F.3d at 3 ("To satisfy its burden of showing access, the plaintiff must produce evidence from which a reasonable finder of fact could infer that the defendant had a reasonable opportunity to copy his or her work."); Moore v. Columbia Pictures Indus., Inc., 972 F.2d 939, 942 (8th Cir. 1992). Roginski theorizes that the defendants, in a rush to complete their video game before the Christmas buying season and inexperienced in the preparation of comic book stories, conducted a search of the Library of Congress for any stories involving a possum fighting against the environment, found Roginski's 60-page manuscript, and then copied small portions of that manuscript into a 12 page comic book. No competent evidence exists that such an effort was undertaken. Indeed, there is no competent evidence that the manuscript was even in the Library of Congress at the time the alleged copying occurred.
"It has been held that the mere fact that a plaintiff's manuscript is physically in the same city in which the alleged infringer resides does not furnish the reasonable opportunity to view the manuscript and thus constitute access, notwithstanding the bare physical possibility of such viewing." Selle v. Gibb, 567 F. Supp. 1173, 1181 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984). In this case, Roginski has not even shown that any agent of the defendants went to Washington to undertake a literature search. Accordingly, a determination of third party access through the Library of Congress would not be reasonable; instead, it would be the product of the grandest type of conjecture and speculation. See Higgins v. Woroner Prods., Inc., 161 U.S.P.Q. (BNA) 384 (S.D. Fla. 1969) (fact that document was in Copyright Office and Library of Congress and that defendant's President was in Washington, D.C. insufficient to warrant trial on access issue).
B. Defendants' Comic Book Is Not Strikingly Similar to Roginski's Work
Even where there is no evidence of direct access, "an inference of access may still be established by proof of similarity so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded." Hoffman, 790 F. Supp. at 505; see also Lipton v. Nature Co., 71 F.3d 464, 471 (2d Cir. 1995); Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954 (1987).
The courts, however, have disagreed on whether "striking similarities" standing alone are sufficient to establish that a defendant had access to the plaintiff's work. Compare Arthur Rutenberg Homes, Inc. v. Berger, 910 F. Supp. 603, 608 (M.D. Fla. 1995) ("Generally, courts have held that access can be shown indirectly from striking similarities despite the existence of uncontradicted sworn denial of access by the other party."); with Takeall v. Pepsico, Inc., 809 F. Supp. 19, 22 (D. Md. 1992) (finding that striking similarity, when standing alone, is insufficient to support a finding of access and that the plaintiff must present additional circumstantial evidence to establish a reasonable probability of access), aff'd mem., 14 F.3d 596 (4th Cir. 1993), cert. denied, 512 U.S. 1236 (1994). Regardless of whether additional evidence of access should be required, a comparison of Roginski's and defendants' works does not disclose the type of similarities that would permit a reasonable juror to infer that defendants copied Roginski's product.
In establishing substantial similarities between literary works, a plaintiff must demonstrate "articulable similarities between plot, themes, dialogue, mood setting, pace, characters, and sequence of events." McCormick, 1995 WL 580339, at *2. Although Roginski must satisfy the more stringent "striking similarity" test to establish the defendants' access, it is appropriate to consider the same factors which courts have utilized in considering other literary works under the "substantially similar" test.
Roginski has outlined a number of similarities which he claims rise to the level of "striking similarity." Each of these similarities will be considered in turn.
(1) Description of the Possum
Roginski notes that his "Awesome Possum" is an environmental superhero who is described by other animals as a "magnificent marsupial."
The defendants' "Awesome Possum" is described as an environmental "mega-hero," who is also described as a "mild-mannered marsupial" and "marsupial mega-hero."
Although Roginski claims that his possum was a superhero, this term is never used in his manuscript. In fact, Roginski's possum does not really resemble an average cartoon superhero -- Ozzie never uses any "superpowers" to protect the forest. On the other hand, the defendants' possum is initially portrayed in a superhero garb and pose on the first page of the comic. The defendants' possum also physically battles with the forces of evil to protect the world. A careful review of Roginski's manuscript and the comic book demonstrate that the term "superhero" more readily applies to the defendants' character -- not Roginski's.
Further, the coincidental use of the term marsupial cannot be considered a striking similarity. A possum is a marsupial. In writing any story about a possum, it cannot be considered striking that the defendants described their possum as a marsupial.
(2) The Element of a Family
Roginski's possum has a wife and numerous children. On two occasions, the tree in which Ozzie's family is living is cut down by loggers. On both occasions, Roginski's possum was able to avoid death by "playing possum." Defendants' possum had a mother, father and siblings. On only one occasion, defendant's possum was forced from his home by robot-loggers and "plays possum" to avoid them. Although there are very general similarities, these similarities amount to nothing more than generalized concepts which could easily be applied by any writer creating an environmental story about a possum.
The fact that defendants' possum has a family is not striking, especially where the family structure between the two works is different -- defendants' possum is a sibling, while Roginski's possum is a father and husband. Further, the fact that the possum lives in a forest which is threatened by loggers is not striking given the environmental theme that the defendants were pursuing.
Finally, the fact that the both possums avoid danger by "playing possum" is a general similarity which would result from any story about a possum.
Furthermore, this portion of the comic book simply reproduces an aspect of the video game -- Awesome Possum is able to "play possum" to avoid certain enemies.
(3) The Naming of Awesome Possum
In Roginski's story, Mother Nature told Roginski's possum that if he ever needed help that he could call on her. Then, Mother Nature ordered Roginski's possum to save the forest from the human loggers. Almost immediately, Roginski's possum was confronted by a cougar which tried to eat the possum. Just as the cougar was about to strike, Roginski's possum called upon Mother Nature for help and a bolt of lightning struck the cougar. The other animals were so amazed by this occurrence that they began using the name "awesome possum."
In the defendants' comic book, the possum battles through the robot-loggers with the assistance of two allies, Killer Bee and Rad Rhino. At the conclusion of the fighting, Killer Bee says to defendants' possum that "you are pretty awesome for a possum." Defendants' comic shows the possum contemplating the term "awesome possum." There is not one instance in the entire comic in which another animal uses the name "awesome possum." It appears to be a self-given title. Further, it is undisputed that the term "awesome possum" was created independent of Roginski's manuscript. It cannot be considered striking that another animal used the term awesome to describe a possum who was a superhero.
(4) The Oath
In Roginski's manuscript, the animals which follow Roginski's possum must make a pledge to the possum to protect the land and other animals. In the defendants' comic book, the possum takes a pledge to "seek out all those who would spoil the planet and then I'll give them a solid boot to the backside." Roginski claims that the presence of an oath in each story demonstrates striking similarity. First, it should be noted that Roginski's possum never took any form of an oath. Even in his conversations with Mother Nature, he indicated that he was reluctant to lead any causes and stated that he could do nothing to stop the loggers. Mother Nature had to give Roginski's possum a direct order to lead a fight against the loggers. This attitude is in sharp contrast to the defendants' possum, who, while assuming a superhero-like pose, volunteers his oath to kick any polluter's butt. At the time that defendants' possum made this oath, he did not know that Dr. Machino was the mastermind behind the world's pollution. When the defendants' possum discovers the source of the world's pollution, he sets out to "kick his butt" -- as he swore he would do. Therefore, the oath in the comic book directly relates to defendants' video game and the possum's quest to kick Dr. Machino's butt.
(5) Other Alleged Similarities
Roginski alleges that there are other similarities. First, Roginski notes that his possum lived near a garbage dump for a short period of time, while in defendants' comic book, Dr. Machino's base is a garbage dump. Roginski admits that the circumstances through which the garbage dumps appear are dissimilar. Further, Roginski cannot maintain that it is striking that the defendants chose to utilize a garbage dump as a level in an environmental video game or as a scene in a comic book accompanying the game.
Roginski also alleges that defendants' copied a potion of his manuscript in which an animal objects to being called a moose and states that he prefers to be called an Elk. Roginski claims that this is strikingly similar to a scene in which Dr. Machino calls defendants' possum a rodent and defendants' possum objects by noting that he is a marsupial. There is no other similarity between the scenes. There is no other similarity between the characters. Roginski does not contend that his possum was ever called a rodent and objected in such a manner. Although there is a tenuous connection between the humor involved, the similarities are simply not striking.
Roginski also notes that his possum gets a ride on the back of an eagle when he visits Philo the Owl for advice. In the defendants' story, the possum is saved from robot hounds by an arctic tern. But it is not uncommon in a story involving a small animal for that creature to get a ride on the back of a large bird.
Further, the birds were different, the settings were different and the circumstances were different.
Roginski also contends that the purpose of his book and the defendants' comic book is the same -- namely to encourage children to get involved with saving the environment. Roginski notes that his story ends with the former lumberjacks planting trees in an effort to preserve the forest. At the conclusion of defendants' comic, the defendants encourage children to write to various environmental organizations. Roginski cannot claim to have a copyright interest on an environmental theme. Further, there is no indication that Roginski provided children with the environmental information that defendants' printed in their instruction manual. In fact, Roginski never actually encouraged children to become active in environmental causes; instead, he relied upon the indirect effect that his book would have. The defendants' encouragement and instruction to children on how to get involved with environmental organizations is not strikingly similar to anything that is contained within Roginski's manuscript.
(6) The Plot, Theme, Mood, Setting, Pace, Characters & Events
Not only is Roginski's manuscript not strikingly similar to the defendants' work, there are overwhelming differences between the two stories. Although the beginning portion of both stories has some general similarities, these similarities quickly disappear. The possums have different missions. Roginski's possum has the limited task of saving his forest, while defendants' possum wants to save the world. Further, defendants' possum is battling against a criminal mastermind, while Ozzie's enemy is much less defined. The possums also have different personalities. Although Roginski's possum initially attempts to fight against the loggers, his efforts prove to be futile. Defendants' possum, on the other hand, continually battles all manner of robot creatures. After Roginski's possum's initial failures, he avoids confrontation, while defendants' possum actively seeks out such confrontation. Roginski's possum is reluctant to assume a role of leadership and has it thrust upon him, while the defendants' possum becomes a self-proclaimed superhero. In short, although there are some minor similarities as to common elements of the possums' backgrounds, their characters are vastly different.
The general mood and pace of the two works is different. Roginski's manuscript has a somber and dark mood and a slow pace. Throughout much of the 62 page story, Roginski's possum expresses doubt as to whether he can succeed against the humans. The defendants' 12 page comic book has the opposite mood -- it is hopeful and light. The defendants' possum never expresses doubt and rushes brashly against his foes. Further, given the brevity of the comic book, the defendants' story by necessity moves at a quick pace.
Although the initial forest setting is similar, Roginski's possum never leaves this setting. On the other hand, defendants' possum makes his way to the city, the arctic circle, an off-shore oil rig, and Dr. Machino's garbage dump. Defendants' story has significantly different settings which never appear in Roginski's manuscript. Further, the events are significantly different. Roginski's story has no battles between the animals and humans, while defendants' comic book is replete with such battles in many different settings.
Finally, the characters are not even remotely similar. Roginski has a typical forest cast of animals: mice, beavers, badgers, cougars, deer, moose, elk, squirrels and various birds. Defendants have distinct characters: Killer Bee, Rad Rhino, Arctic Tern and Manta Ray. There is no similarity between the characters in the respective stories.
This case is directly analogous to Evans v. Wallace Berrie & Co., 681 F. Supp. 813 (S.D. Fla. 1988). In that case, the plaintiff had an unpublished manuscript entitled "Snorkie Snorkel vs. Simon Shark." The defendants then created the children's animated cartoon, "The Snorks." Even though there were many general similarities, the court held that the similarities pertained to elements of the story which would be common to any story about an underwater world. This included such concepts as the "Snorks" themselves, as well as certain names that were virtually identical. Although there were certain coincidental similarities, the court held that a reasonable juror would not be able to conclude that the defendants' product could not have been independently created. As the court explained:
Both Plaintiff's story and Defendant's story involve an underwater world. Such similarities as using a sand dollar as currency, foods made of seaweed, seahorses for transportation and plates made of oyster or mother of pearl are not protected similarities of expression, but are more accurately characterizations that naturally flow from the common theme of an underwater civilization. . . . Similarities in descriptive characterizations are nothing more than scenes a faire because they are merely descriptions one would ordinarily associate with the underwater and ordinarily use if describing underwater events. . . .
Plaintiff states a similarity of events, such as: snork characters using bubbles to scare off predators, a character being banished because he looks different from the other characters, carnivals and picnics taking place, characters doing specific dances and singing particular songs; and a similarity of names, such as Rockey Reef -- Rocky Ridge, Snorkie -- Snorky, Sandy Cove -- Cool Current Cove. The similarities do not rise to the level of substantial similarity necessary for Plaintiff to maintain her case.
Evans, 681 F. Supp. at 817-818.
For similar reasons, Roginski has failed to demonstrate the "striking similarities" that are necessary to infer that the defendants had access to his work. As stated in Evans, "any similarities in the works in question here are not explained only by copying, but are more accurately due to the same idea of an [environmental] setting and the general events that are common to any story." 681 F. Supp. at 818 n.6. Other courts have also determined on a summary judgment record that there are no substantial similarities between a defendant's book or movie and a plaintiff's manuscript simply because both products have a common theme coupled with general similarities. See Beal v. Paramount Pictures, 20 F.3d 454, 460-64 (4th Cir.) (finding that plaintiff's manuscript about a foreign prince traveling to America was not substantially similar to the defendant's movie "Coming to America"), cert. denied, 513 U.S. 1062, 130 L. Ed. 2d 607, 115 S. Ct. 675 (1994); McCormick v. Ferguson, 1995 U.S. Dist. LEXIS 14506, No. 94-3944, 1995 WL 580339, at *2-3 (E.D. Pa. Sept. 28, 1995) (finding that plaintiff's story about a "lion king" was not substantially similar to Disney's movie "The Lion King"), aff'd mem., 82 F.3d 405 (3d Cir. 1996); Glanzman v. King, 1988 U.S. Dist. LEXIS 15705, No. 88-70491, 1988 WL 212507, at *6 (E.D. Mich. Aug. 29, 1988) (finding that plaintiff's story about an indestructible car which continually killed people was not substantially similar to defendant's story about a possessed car which also killed people and was able to restore itself), aff'd mem., 887 F.2d 265 (6th Cir. 1989).
Likewise in this case, Roginski has demonstrated a few coincidental similarities. He has not, however, presented evidence which would preclude a reasonable juror from determining that the defendants could not have independently created their comic book. In fact, it has been established that the "awesome possum" character was conceived prior to any effort on the part of Roginski. Given this independent creation of the "Awesome Possum," the remaining similarities between Roginski's manuscript and the defendants' comic book are simply matters which naturally flow from an environmental theme involving a superhero possum.
Although Roginski claims that defendants improperly copied his unpublished manuscript, he must first demonstrate that the defendants had reasonable access to the manuscript. Roginski has presented no evidence of direct access; instead, Roginski argues that defendants might have obtained access from the Copyright Office or the Library of Congress. A finding of access cannot rest on such speculation. Therefore, Roginski has failed to demonstrate that defendants had reasonable access to his manuscript.
Further, Roginski has also failed to demonstrate that defendants' product is so strikingly similar to Roginski's product that there is no reasonable manner in which it could have been independently created. It is undisputed that defendants independently created the concept of an "Awesome Possum" video game with an environmental theme. Roginski contends, however, that defendants used his manuscript to develop their comic book, which was included in the "Awesome Possum" instruction manual. Although Roginski has pointed to several general similarities, he has failed to demonstrate striking similarities from which an inference of access might be drawn. Given that there is no triable issue as to either access or copying, his copyright claim must fail. Therefore, defendants' motion for summary judgment will be granted. An appropriate Order is attached.
Thomas I. Vanaskie
United States District Judge
Date: June 20, 1997
June 20, 1997
AND NOW, therefore, in accordance with the attached Memorandum, it is hereby ORDERED THAT:
1) The defendants' motion for summary judgment (Dkt. Entry 31) is GRANTED.
2) The Clerk of Court is direct to enter judgment in favor of the defendants and against the plaintiff.
3) The Clerk of Court is directed to mark this case closed.
Thomas I. Vanaskie
United States District Judge