discloses the other requested details, Phil simply walks away.
The next morning the alarm goes off in usual fashion. At Gobbler's Knob, Phil approaches Nancy, pretending that he was in her high school English class. He arranges to meet her later to catch up. That evening, while seducing Nancy, Phil twice calls her Rita; Nancy becomes upset, and Phil asks her to marry him in order to appease her.
The following day Phil is seen watching an armored truck pick up money. He comically predicts the movements of the drivers and steals a bag of cash as they pick up quarters that have fallen. That evening Phil, dressed as a desperado, arrives at a movie theater in a Rolls Royce. He is accompanied by an attractive woman dressed in a maid costume who says she thought they were going to a costume party. The ticket clerk asks Phil "One adult and ?" and Phil replies two adults.
The next day Phil and Rita are walking together at Gobbler's Knob. Phil asks Rita what she would do if she only had one day and invites her for a cup of coffee. At the diner, Phil continues to ask Rita personal questions, tells her that he wants someone like her, and asks her to describe her ideal man. She proceeds to list the qualities she seeks in a man, such as sensitivity, intelligence, the ability to play a musical instrument, and a fondness for children, and Phil claims to have most of those traits.
In the next scene, Phil joins Rita at the hotel bar, where she is reading a book. He offers to buy her a drink, ordering a bourbon for himself, while Rita orders sweet vermouth on the rocks with a twist. The next day the scene is repeated, but this time Phil also orders sweet vermouth on the rocks with a twist, to Rita's astonishment. Rita drinks to world peace; the next day Phil does the same.
Phil and Rita spend time together in Punxsutawney; as Phil warms up to the small town, Rita warms up to Phil. While dining together, Phil learns that Rita studied 19th century French poetry in college, and the next night at dinner Phil recites a poem in French. Phil continues to court Rita--they build a snowman, and when some children throw a snowball at them, Phil engages in a playful snowball fight, all the while wistfully hoping that someday he will do the same with his own children. At the end of the evening, Phil invites Rita back to his room. They kiss, but Rita hesitates and becomes offended when Phil says that he loves her. Believing the whole day was a means of seducing her, Rita slaps Phil and leaves. This scene occurs repeatedly--Rita is shown slapping Phil numerous times in various settings.
Phil becomes discouraged and depressed, and begins to look very worn. In one humorous scene, a drunken Phil entertains the guests at the bed and breakfast with his knowledge of the responses on the "Jeopardy" television program. Phil's coverage of the Groundhog Day festivities becomes sarcastic.
One morning, Phil bangs his alarm clock in frustration. The following morning, he smashes the clock to the floor, shattering it into pieces. In his frustration, Phil kidnaps Punxsutawney Phil. The police chase Phil, and Larry and Rita trail them. Driving a red pickup truck, Phil breaks through a fence into a construction site. The police think they have trapped Phil, but Phil drives toward the group and over a cliff, crashing on the ground below. As the pickup truck explodes, there is a shot of the numbers 5:59 with flames in the background. Phil wakes up in the bed and breakfast, goes downstairs in his pajamas, and takes the toaster from the dining room buffet table. He brings the toaster into the bathroom and gets into the tub, plugging the toaster into the wall. As Phil puts the toaster into the tub, the lights go out. Phil attempts suicide in various ways, such as walking in front of a truck and jumping off of a building, only to wake up without a scratch the next morning.
Back at the diner, Phil tells Rita of his seeming immortality, and convinces her that he is experiencing a repeating day by naming various people in the diner and reciting details of their lives. He predicts the dropped tray of dishes and Larry's arrival. After spending the day together, Rita and Phil relax in Phil's room. Rita is surprised when Phil is still there at midnight; Phil explains that the day begins again at 6:00 a.m. Rita decides to stay. At 3:02, Phil and Rita are shown lying in bed. Phil is reading to Rita, who falls asleep. Displaying his newfound tenderness, Phil puts the blanket over her, and tells her how kind she is. He kisses her head, telling Rita of his love for her, as soft music plays in the background.
At 6:00, Phil wakes up alone in bed. He performs various acts of kindness, such as giving money to the derelict, bringing coffee to Larry and Rita, and helping them carry their equipment. Phil decides to take piano lessons, offering the instructor $ 1000 to give him a lesson today rather than tomorrow. Seeing that the old man is ill, Phil brings him to the hospital, where the old man dies. Despite Phil's efforts to save the man, he dies again the following night.
Covering the Groundhog Day festivities the next morning, Phil gives an endearing speech that wins him the admiration of all. Phil catches a boy who falls from a tree, fixes a flat tire for a group of elderly women, and saves the mayor from choking. Rita goes to the Groundhog Day party at the hotel, where she finds Phil playing the piano, entertaining the crowd. Phil leads the band in another song, then dances with Rita. Numerous people approach Phil to thank him for his kindness. It is now time for the annual bachelor auction, and Phil is the first bachelor to be bid for. Rita outbids Nancy and the waitress from the diner. Outside, Phil makes an ice sculpture of Rita, and she is touched. Phil tells Rita that he loves her and they kiss. The Film jumps to a shot of the alarm clock going off, but this time Rita is still in bed with Phil. Looking out the window, Phil sees snow on the ground. Realizing that it is a new day, Phil kisses Rita. Phil and Rita leave the bed and breakfast together, Phil suggesting that they live in Punxsutawney. The Film ends as Phil and Rita walk off together.
A. Copyright Infringement
1. Elements of Claim
To prevail on a claim of copyright infringement, a plaintiff must prove two elements: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991) (citation omitted); see Rogers v. Koons, 960 F.2d 301, 306 (2d Cir.) ("To establish an infringement of a copyright, a plaintiff must show both ownership of a copyright and that defendant copied the protected material without authorization.") (citations omitted), cert. denied, 506 U.S. 934, 121 L. Ed. 2d 278, 113 S. Ct. 365 (1992); Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2278 (1986). As plaintiff has provided the Court with a copy of the copyright registration certificate for One Fine Day, I will assume that a valid copyright exists for the purposes of this motion.
See 17 U.S.C. § 410(c) (registration certificate made before or within five years of first publication is prima facie evidence of copyright's validity); Rogers, 960 F.2d at 306 (registration certificate creates rebuttable presumption of copyright ownership).
The second element, defendant's copying of protected work, in turn consists of two requirements: actual copying and improper appropriation. Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992); Green v. Lindsey, 885 F. Supp. 469, 477-78 (S.D.N.Y. 1992), aff'd, 9 F.3d 1537 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 667, 114 S. Ct. 1318 (1994); see Walker, 784 F.2d at 48. Actual copying may be established by direct evidence or by proof of defendant's access to plaintiff's work and sufficient similarity between the works to support an inference of copying. See Laureyssens, 964 F.2d at 140; Walker, 784 F.2d at 48; Green, 885 F. Supp. at 479. To establish improper appropriation, plaintiff must also show that substantial similarity exists with respect to protectable elements of the works. Laureyssens, 964 F.2d at 140 ("If actual copying is established, a plaintiff must then show that the copying amounts to an improper appropriation by demonstrating that substantial similarity to protected material exists between the two works."); Walker, 784 F.2d at 48; see Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir. 1993), cert. denied, 127 L. Ed. 2d 376, 114 S. Ct. 1056 (1994); see also 3 Melville B. and David Nimmer, Nimmer on Copyright §§ 13.01[B], at 13-13; 13.03[A], at 13-29 ("copying as a factual matter" is established by proving "access and probative similarity," while "actionable copying" requires proof of substantial similarity).
For purposes of this motion, defendants concede access to plaintiff's Novel and copying of plaintiff's idea of a repeating day. See Def. Mem. at 5. Thus, the issue presented by this summary judgment motion is whether substantial similarities exist between the Novel and the Film with respect to elements protected under the copyright law. See Walker, 784 F.2d at 48; Kretschmer v. Warner Bros., 1994 U.S. Dist. LEXIS 7805, 1994 WL 259814, at *7 (S.D.N.Y. June 8, 1994).
In determining whether two works share substantially similar protectable elements, the Second Circuit applies the "ordinary observer test." Rogers, 960 F.2d at 307. Courts are to ask "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Id. (citing Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966)); see Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 765 (2d Cir. 1991) (court asked "whether 'the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.'") (quoting Peter Pan Fabrics, Inc.v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960)); Walker, 784 F.2d at 51 (Second Circuit generally judges substantial similarity "by the spontaneous response of the ordinary lay observer.").
Courts may also compare the "total concept and feel" of the works at issue in assessing substantial similarity of a film and a literary work.
See, e.g., Kretschmer, 1994 U.S. Dist. LEXIS 7805, *23, 1994 WL 259814, at *9; Denker v. Uhry, 820 F. Supp. 722, 731 (S.D.N.Y. 1992) (citing Reyher, 533 F.2d at 92) aff'd, 996 F.2d 301 (2d Cir. 1993).
It is well settled that copyright law only protects plaintiff's particular expression of his ideas, not the ideas themselves.
17 U.S.C. § 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea . . . [or] concept . . . regardless of the form in which it is described, explained, illustrated, or embodied in such work."); Rogers, 960 F.2d at 308 ("What is protected is the original or unique way that an author expresses those ideas . . . ."); Walker, 784 F.2d at 48. Thus, upon examining the works, courts must determine "'whether the similarities shared by the works are something more than mere generalized idea[s] or themes.'" Walker, 784 F.2d at 48-49 (quoting Warner Bros. v. American Broadcasting Cos., 654 F.2d 204, 208 (2d Cir. 1981) (Warner I)); see Reyher, 533 F.2d at 91 ("The essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization."); Warner Bros. v. American Broadcasting Cos., 720 F.2d 231, 239 (2d Cir. 1983) (Warner II). Because the copyright law only protects the expression of ideas, rather than ideas themselves, it is clear that the idea of a repeating day, even if first conceived by plaintiff, is not protectible.
In addition, certain literary or cinematographic elements are not protected even if they take the form of concrete expression, such as "stock" themes or "scenes a faire." Walker, 784 F.2d at 50; 3 Nimmer § 13.03[B], at 13-80-13-82. Stock themes, or themes that are "commonly linked to a particular genre," are only protected under the copyright law "to the extent they are given unique . . . expression in an original creation." Walker, 784 F.2d at 50. For example, the "familiar figure of the Irish cop" is a stock theme of police fiction. Id.
Scenes a faire are those elements of a work "that necessarily result from the choice of a setting or situation," Walker, 784 F.2d at 50, or "'sequences of events which necessarily follow from a common theme.'" Green, 885 F. Supp. at 478 (quoting Reyher, 533 F.2d at 91); see Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.) (scenes a faire are those "incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.") (citation omitted), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980). In Walker, which dealt with a novel and a film that both portrayed the 41st Precinct in the South Bronx, the Second Circuit found that depictions of drunks, prostitutes, rodents, and abandoned cars were unprotectable scenes a faire. 784 F.2d at 50.
In assessing whether the works are substantially similar with respect to protectible elements, courts are guided by the goal of copyright law to promote creativity. Warner II, 720 F.2d at 240. As the Second Circuit stated in Warner II,
by assuring the author of an original work the exclusive benefits of whatever commercial success his or her work enjoys, the law obviously promotes creativity. At the same time, it can deter the creation of new works if authors are fearful that their creations will too readily be found to be substantially similar to preexisting works.