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IP/Entertainment Case Law Updates

Bunick v. UPN, et al.

The district court granted the defendants’ motion for summary judgment, holding that plaintiff failed to show that defendants had “access” to his script and that plaintiff’s unsolicited television script and the defendants’ television show South Beach were not strikingly similar. The court also held that due to the foregoing, defendants had no need to establish their defense of independent creation, but that such evidence could be used to bolster a finding of lack of striking similarity.

Regarding similarity, the plaintiff acknowledged major differences between his script and the defendants’ show, but claimed the defendants made many changes to his script and then used it to create South Beach. Nonetheless, the court held that the only similarities between the works related to non-copyrightable themes and concepts that flow predictably from the common idea, and that the sequence of events, dialogue, mood, pace and theme of the works were not strikingly similar.

Regarding access, the defendants showed that it was unlikely that a UPN producer who received the unsolicited script actually read it because the producer’s assistant usually reviewed the producer’s mail. In addition, the producer who received the script, who left the company in 2001, had no contact with those who created South Beach in 2004. The plaintiff admitted that he “can only speculate that upon receipt of [his] script, [the UPN producer] shared [the] script with people who were involved in the development of the UPN show, South Beach.” The court held that the plaintiff failed to provide proof of a reasonable possibility that the paths of the South Beach creators and the infringed work crossed, and stated that bare corporate receipt of plaintiff’s work, without any allegation of a nexus between the recipients and the alleged infringers, is insufficient to raise a triable issue of access.

The defendants also showed that the brothers who wrote and pitched the idea for South Beach based it on their own experiences. One of the writers testified that South Beach is “about two guys from Brooklyn. [M]y brother and I are two guys from Brooklyn, third generation Brooklynites. . . . [T]he personalities are based on myself and my brother. A model, my fiancee, is a Ford model who I was able to ask . . . constant questions about how that works and have watched her over the years. . . . I lived at the Mondrian Hotel for several months. My brother worked there at the Sky Bar and it’s a very similar situation to the Shore Club in South Beach. . . . [G]rowing up in Brooklyn, I have tons of friends who are involved in graffiti, involved in fights, involved in all kinds of trouble and things you might want to run away from.” According to the court, the sworn testimony from the writers detailing the genesis of the idea in their personal experience was evidence of independent creation that bolstered the court’s finding of no striking similarity.

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