District court grants defendant video game developer’s motion for summary judgment on plaintiff production company’s copyright infringement claims, finding no substantial similarity between defendant’s video game and plaintiff’s horror film, and that defendant did not have access to plaintiff’s film.
Film production company Ambitious Productions (AP) sued Sweden-based video game developer DVapps AB, owned by Dennis Vukanovic, for copyright infringement over Vukanovic’s series of computer games titled “Granny,” “Granny Part 2” and “Granny 3.” AP produced a horror film in 1999 titled Granny, which tells the story of a group of friends who apparently are murdered one by one by a man disguised as an elderly woman. Vukanovic’s “Granny” video games involved solving puzzles to avoid being killed by a grandmother. DVapps moved for summary judgment on the grounds that it did not have access to AP’s film and that the works are not substantially similar. The district court granted DVapps’ motion on both grounds.
As to access, the district court found no evidence that AP’s film was sent to Vukanovic or anyone associated with him. The court also noted Vukanovic’s declaration that he had never heard of the film prior to the lawsuit. AP offered various pieces of evidence to prove access via widespread distribution, including photographs of DVD and VHS packaging, licensing agreements, and Amazon and YouTube links to its film. For a variety of reasons, the district court found this evidence insufficient to establish access. First, two out of the three license agreements produced by plaintiff were unreadable. Second, the agreements or images of packaging alone were not evidence that the film had actually been distributed anywhere in the world, let alone in Vukanovic’s home country of Sweden. Crucially, AP did not provide any evidence as to “how many copies it or its licensees distributed, where they were distributed, or any evidence of the film’s geographic reach.” As to the Amazon and YouTube links, the district court concluded that the mere fact that a film is on a public website would not permit a reasonable jury to find that Vukanovic accessed the film via that website. Overall, AP’s evidence did not give rise to a genuine dispute regarding the widespread dissemination of the film.
The court then found that the competing works were not substantially similar under the ordinary observer test. Noting that it must eliminate unprotectable elements of AP’s work from its analysis, the court found that many of the elements of the film that AP claimed Vukanovic misappropriated were not copyrightable. Elements such as a murderous grandmother antagonist, red lettering, blood stains in the basement and a character being shot with a gun were—both individually and collectively—scènes à faire common to the horror genre. The district court added that the element of a grandmother appearing suddenly to attack victims could not be considered a “unique and copyrightable expression.”
AP also argued that Vukanovic incorrectly focused on differences between the “overall feel, plot, structure, theme, and setting of the works” rather than on similarities between specific scenes. The district court sided with Vukanovic, explaining that the ordinary observer test focuses on whether the allegedly infringing work captures “the total concept and feel of the copyrighted work” rather than an “analytic dissection.” Regardless of whether it was required to compare the overall structure of the works or dissect them, the district court found that the outcome would be the same. The district court stated that the allegedly copied elements would be similar “only if described at a level that is so generic that the elements become completely divorced from any creative expression and merge with bare ideas,” yet copyright law protects only original expression of an idea, not the idea itself.
Summary prepared by Tal Dickstein and Alex Loh