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June 20, 1997

PAUL A. ROGINSKI, Plaintiff,

The opinion of the court was delivered by: VANASKIE

 Plaintiff Paul A. Roginski (Roginski) filed this copyright infringement action against defendants Time Warner Interactive, Inc., Atari Games Corp. and Sega of America, Inc., alleging that defendants copied Roginski's unpublished manuscript entitled "Awesome Possum" when the defendants created a video game and accompanying comic book -- "Awesome Possum Kicks Dr. Machino's Butt." (Dkt. Entry 1.) The defendants filed a motion for summary judgment, claiming, inter alia, that their products were independently created and that there was no evidence that the defendants had access to Roginski's manuscript. (Dkt. Entry 31.) Because defendants have demonstrated that the concept of an "awesome possum" was independently created and Roginski has failed to show that the defendants had reasonable access to Roginski's work or that there are striking similarities between the two works which would warrant an inference of defendants' access to the infringed work, the motion for summary judgment will be granted.


 A. Creation of Roginski's "Awesome Possum"

 In late January of 1993, Roginski began working on a children's story with an environmental theme entitled "Awesome Possum." (Def's Supporting Exhibits (Dkt. Entry 33) Exhibit HHH.) *fn1" Although Roginski originally envisioned the "Awesome Possum" in 1985, he did not tell anyone about his story until after he began writing his story in January 1993. (Def's Stat. of Facts (Dkt. Entry 31) P 14; Plf's Stat. of Facts (Dkt. Entry 38) P 14.) On March 31, 1993, Roginski filed a copyright application with a copy of the manuscript with the Copyright Office. (Def's Supporting Exhibits (Dkt. Entry 33) Exhibit HHH.) On May 11, 1993, Roginski received a letter from his counsel forwarding a certificate of copyright registration. (Id.) *fn2" With his copyright registration in hand, Roginski mailed his manuscript (or summaries of his manuscript) to Wait Disney Company, Boyds Mills Press, the Council for Indian Education, Houghton Mifflin Company, Paulist Press, John Muir Publications, Redbud Books, Dutton Children's Books, and Advocacy Press. (Plf's Stat. of Facts (Dkt. Entry 38) P 3.)

 B. Creation of Defendants' "Awesome Possum"

 In April of 1992, well before Roginski even began his manuscript, Richard Seaborne was hired by defendant Tengen. *fn3" (Def's Supporting Exhibits (Dkt. Entry 33) Exhibit HHH.) After learning that Tengen intended to develop an environmental game, Seaborne suggested a character entitled "Awesome Possum." (Id.) *fn4" On July 17, 1992, Seaborne presented his "Rad Rhino and Awesome Possum" game proposal to the management of Tengen and obtained approval for the development of the game. (Id.) *fn5" By the fall of 1992, the design team was developing the computer graphics for the "Awesome Possum." (Id.) Because these initial designs were unsatisfactory, on January 18, 1993, Jules Marino was hired by Tengen to re-animate the "Awesome Possum" character. (Id.) *fn6"

 Because of a dispute as to the name of the video game, a market test was conducted in April of 1993, which revealed that "Awesome Possum" was the most popular name and character. (Def's Supporting Exhibits (Dkt. Entries 34) Exhibit W.) On May 13, 1993, the name of the video game was set as "Awesome Possum Kicks Dr. Machino's Butt." (Id. Exhibit GG.) *fn7"

 At some point, the design team determined that a comic book would be drafted and placed within the "Awesome Possum" video game's instruction manual. Several design team members and a professional writer drafted different versions of the comic book. As a result of these different efforts, the design team members are uncertain as to whose draft actually became the final version of the comic book. (Plf's Stat. of Facts (Dkt. Entry 38) P 9.)

 C. Roginski's Awesome Possum

 In his story, Roginski creates a possum, Ozzie, whose wife and children were threatened by the logging of the forest. After losing two trees in which Ozzie and his family had made their home, Ozzie confronted the loggers. Because of his small size, Ozzie could do nothing to stop the loggers and escaped the loggers by "playing possum." Ozzie was then approached by Mother Nature, a spirit who wanted Ozzie to lead the animals against the destruction of the forest. Ozzie reluctantly agreed, although he did not understand what he could do to stop the humans. In his first encounter with other animals, Ozzie was chased by a cougar and saved when Mother Nature caused a bolt of lightning to strike the cougar. Because the other animals thought that Ozzie had somehow defeated the cougar, they began to call him the "awesome possum." As a result of this, Ozzie found that many animals were willing to join in his fight against the destruction of the forest. When the other animals joined Ozzie's crusade, they were required to give an oath to protect the land and the other animals.

 Ozzie, however, still had no idea as to how the animals could successfully fight against the human loggers. As Mother Nature instructed, Ozzie went to visit Philo the Owl. Ozzie's transportation both to and from the place where Philo the Owl resided was provided by an eagle. Philo the Owl told Ozzie that the animals could not fight against the humans through force. Instead, the animals had to draw the attention of other humans to the destruction of the forest so that those humans would force the loggers to stop. With this advice in mind, Ozzie rejoined the other animals.

 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."


 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 ...

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