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IP/Entertainment Case Law Updates

Kenney v. Warner Bros. Entertainment

California Court of Appeal reverses denial of CBS’s anti-SLAPP motion to strike plaintiff’s gender and age discrimination claims, finding that selection of weather anchors is protected activity in furtherance of free speech, and remands for determination of probability of success of discrimination claims.

Plaintiff Michael Kenney is a self-styled screenwriter, director, and actor who claimed to have developed in 2010 a comic book, screenplay, and movie titled “Ghostman.” Kenney registered his screenplay with the Writers Guild of America in 2011, and at the time of the suit, he alleged his movie was in postproduction and was being considered for screening at independent film festivals. The defendants, Warner Bros. and Langley Park Pictures, acquired the rights to Roger Hobbs’ novel also titled Ghostman with the intention to develop a screenplay and produce the motion picture. After learning of the movie studios’ intention to turn Hobbs’ Ghostman into a motion picture, plaintiff brought this action for copyright infringement. He also registered his “Ghostman” screenplay with the Copyright Office. Warner Bros. moved to dismiss plaintiff’s action, arguing that they had not copied Kenney’s “Ghostman” and did not have access to the plaintiff’s work and that the two works were not substantially similar. The court granted the studios’ motion to dismiss, finding that plaintiff had not adequately alleged access or that the two works were substantially similar.

Plaintiff alleged that the studios could have gained access to his work either through (1) his registration of his screenplay with the Writers Guild of America; (2) his website,; and/or (3) the allegedly wide dissemination of this work in his promotional efforts through local press interviews and media. The court rejected these arguments. First, plaintiff’s registration of his screenplay with the Writers Guild was not sufficient to establish access to his copyrighted work. Second, Kenney’s website did not establish evidence of access or copying, because Kenney did not allege that the website contained his screenplay, the full-length film, or any significant amount of material that Warner Brothers could have plagiarized. Finally, plaintiff’s conclusory allegation of having widely disseminated his work through print and broadcast media, without identifying any specific instance of publication, was also insufficient. In a footnote, the court also remarked that any evidence that Kenney promoted his works in small circulation or local air time outlets could not establish that the studios had a “reasonable possibility of access” to plaintiff’s work.

Although the lack of access was fatal to plaintiff’s claim, the court also considered the issue of substantial similarity between plaintiff’s “Ghostman,” a heist thriller about a masked thief who uses special ghost-like abilities to avoid the FBI, and the Hobbs novel, which tells the story of a career criminal who helps bank robbers and other criminals escape. The court found that the only alleged similarities between the works are the title and the general theme of thieves avoiding detection by spectral means, both of which are insufficient to establish substantial similarity. In addition, because the studios have not yet completed a screenplay or a movie based upon Hobbs’ Ghostman, the court concluded that Kenney was unable to allege other similarities between the works.

For more information, please contact Jonathan Zavin, W. Allan Edmiston, David Grossman, Tal Dickstein or Meg Charendoff.

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