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Clay v. Cameron

District court grants defendant James Cameron’s motion to dismiss copyright action alleging that the motion picture Avatar copied elements of plaintiff’s book, Zollocco, holding that plaintiff’s allegations that her work was in wide circulation on the Internet and in the entertainment industry failed to establish that Cameron had access to it.

Plaintiff Cynthia Clay brought suit for copyright infringement, vicarious copyright infringement, contributory infringement, and unjust enrichment, claiming that, in creating the motion picture Avatar, defendants James Cameron, Twentieth Century Fox Film Corp., and Dune Entertainment III, LLC, copied elements of her book, Zollocco: A Story of Another University. Plaintiff alleged that she created Zollocco, an unpublished book, in the mid-1980s and that it was in wide circulation in the entertainment industry prior to defendant Cameron’s claimed date of creation for Avatar in the mid-1990s. In moving the court to dismiss plaintiff’s claims, defendants argued that (1) plaintiff failed to adequately allege that defendant Cameron had access to her work; (2) the two works are not substantially similar in their protectable expression; and (3) plaintiff’s unjust enrichment claim fails as a matter of law. The court held that plaintiff failed to allege adequately that defendant Cameron had access to plaintiff’s work. Accordingly, the court granted defendants’ motion to dismiss.

The court initially addressed plaintiff’s copyright infringement claims. To state a claim for copyright infringement, a plaintiff must allege ownership of a valid copyright and defendants’ copying of the copyrighted work. To establish copying in this case, plaintiff needed to allege that defendant Cameron had access to plaintiff’s work and that the alleged infringing work is substantially similar to plaintiff’s work. With respect to access, the court concluded that plaintiff did not adequately allege a nexus between the alleged circulation of Zollocco and defendant Cameron.

Attempting to create an inference that defendants had access to her work, plaintiff alleged that Zollocco was available on various websites such as and that plaintiff’s literary agent, among others, circulated the work within the motion picture industry. Even accepting plaintiff’s allegations as true and drawing all reasonable inferences in her favor, the court found that allegations that Zollocco was widely circulated were insufficient to support an inference of a “reasonable possibility” that defendant Cameron had access to plaintiff’s work. To support such an inference, the court concluded that plaintiff needed to allege a nexus between the circulation of her work and defendant Cameron. In finding that plaintiff’s complaint had not alleged the requisite nexus, the court noted that several courts have rejected the contention that the availability of a work on the Internet, generally, warrants an inference that a defendant has had access to the copyrighted work. The court also found that plaintiff’s second amended complaint, which alleged that Zollocco was circulated in the entertainment industry, was devoid of any allegations that defendant Cameron knew or did business with the third parties who allegedly circulated plaintiff’s work.

The court distinguished Green Bullion Financial Services LLC v. Money4Gold Holdings, Inc., 639 F.Supp. 2d 1356 (S.D. Fla. 2009), the sole decision on which plaintiff relied. In Green Bullion, the district court noted that anyone with access to the internet had access to plaintiff’s website, and went on to focus on the element of similarity. In that case, however, the defendant was a web-based competitor of the plaintiff who allegedly copied elements from the plaintiff’s website. In contrast, Clay’s complaint contained no allegations to suggest that defendant Cameron conducted business via the Internet or would have had reason to access Zollocco on the various websites cited by plaintiff.

Finally, the court dismissed plaintiff’s claim for unjust enrichment. The court concluded that plaintiff failed to allege that defendants infringed upon her work and therefore had not alleged that she conferred any benefit upon the defendant or that defendants knowingly accepted any benefit.