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IP/Entertainment Case Law Updates

Gal v. Vicaom International, Inc., et al., USDC S.D. New York

Court granted defendants’ motion for summary judgment in this case involving plaintiff’s claim that the Mary Higgins Clark novel The Second Time Around infringed the copyright in her unpublished screenplay. Court held that plaintiff had failed to establish access or “striking similarity.”

In the Second Circuit, to prove access a plaintiff needs to show either that the infringed work was widely disseminated, or that a particular chain of events existed by which the defendant might have gained access to the plaintiff’s work. In this case, the plaintiff did not offer evidence on either of these two issues; instead, plaintiff argued that the defendants’ access to her work could be inferred from the speed with which Clark wrote her novel. The court acknowledged that the speed with which a defendant creates a work can be a factor when determining whether defendant had access to plaintiff’s copyrighted work, but the three months that defendant spent writing her novel was not “suspiciously compressed” and did not raise an inference that defendant had access to plaintiff’s screenplay.

Since the plaintiff was not able to prove access, she had to show that the two works were strikingly similar, which is a higher burden than showing two works are substantially similar. The court examined both works and noted that the screenplay was told from one person’s point of view, while the novel was told from two people’s point of view; one character in the novel had no counterpart in the screenplay; and there was no terrorism subplot in the novel. The court also highlighted differences in character, tone and theme, and explained that many of the similarities between the works are common to the mystery/thriller genre and/or the defendant’s previous novels, such as a female journalist protagonist, a corporate meeting, the development of a miracle drug, the disappearance of the drug’s inventor, a murder, a hit-and-run accident, and a romantic sub-plot. The court also took judicial notice of three other novels which had similar plots featuring a pharmaceutical company, a miracle drug, and murder. The court denied defendants’ requests for attorneys’ fees and Rule 11 sanctions.