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IP/Entertainment Case Law Updates

Brown v. Twentieth Century Fox Home Entertainment

District court grants defendants’ motions to dismiss copyright infringement complaint, holding that legally protectable elements of plaintiff’s works were not substantially similar to legally protectable elements of defendants’ horror film “Devil’s Due,” and rejecting plaintiff’s argument that movie’s distribution in Kentucky provided basis for court to assert personal jurisdiction over individual defendants.

Pro se plaintiff Rhonda Kay Jackson Brown, author of the novel Jackson Road and the related screenplay, “Mother’s Son,” brought copyright infringement and unfair competition claims against Twentieth Century Fox and individuals involved in Fox’s production of the 2014 horror film “Devil’s Due.” Fox moved to dismiss for failure to state a claim, and the individual defendants moved to dismiss for lack of personal jurisdiction.

The Kentucky federal district court granted Fox’s motion to dismiss for failure to state a claim after comparing the works and concluding that Brown had not plausibly pleaded substantial similarity. All three works derive from the idea that there may be one or more “anti-Marys” capable of birthing an Antichrist through supernatural circumstances. Brown principally argued that the female protagonists of the works were similar, and that the works all “introduce the concept of many Antichrists.” The district court disagreed, reasoning that, although the works reference the same biblical passage, the similarity was insignificant because it is the only passage containing both the plural “Antichrists” and the plural “children.” Further, the idea of multiple Antichrists and the notion that an anti-Mary could give birth to an Antichrist are not protectable because these ideas are alluded to in the Bible and therefore not original.

The court also found that various small similarities in the works’ theme, plot, characters and setting did not support a conclusion that the works were substantially similar, noting that the thematic similarities of the works all relate to the unprotectable idea of an anti-Mary birthing multiple Antichrists. The district court also pointed out the differences between Brown’s works and “Devil’s Due,” contrasting the medical research angle of Brown’s works with the cult-ritual theme of “Devil’s Due” and the slow-paced, chronological narrative of Brown’s works with the swift escalation of “Devil’s Due.” Other similarities Brown submitted were simply “classic scènes à faire flowing from the uncopyrightable idea of a newlywed female and the various difficulties she may face, especially when she is inseminated with an antichrist,” the district court added. It also rejected as unfounded Brown’s allegations that the works had similar titles and were advertised similarly.

The district court granted the individual defendants’ motion to dismiss for lack of personal jurisdiction on due process grounds. The district court held that it did not have general jurisdiction over the individual defendants because they never consented to personal jurisdiction, are not domiciled in Kentucky and have not been present in Kentucky since the alleged infringement took place. It also rejected Brown’s argument that the individual defendants’ involvement in nationwide interviews and advertisement for “Devil’s Due” and their movie-related social media activities, together with the movie’s distribution in Kentucky, were enough to establish purposeful availment.

Under Sixth Circuit case law, “only advertisements directly targeting or even actually reaching the forum State satisfy the purposeful availment requirement” — and Brown did not allege that the individual defendants had directed their interviews and ads at Kentucky, the district court said. Similarly, “general internet communications” and the use of social media sites in a way that does not specifically target Kentucky are not enough to create personal jurisdiction. In addition, mere knowledge that a third party is likely to distribute a film nationally is insufficient to establish personal jurisdiction, it added.

Finally, the district court also dismissed Brown’s federal unfair competition claim, holding that it mirrored her failed copyright claim, as well as Brown’s state law claims, holding them to be preempted by the Copyright Act.

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