but Patti is still unwilling to cooperate for fear Richie will harm his own family if they assist the police. Gino later learns from a cocktail waitress, Terri, who was also having an affair with Bobby, that the woman in the photographs is Richie's girlfriend, Roxanne. Gino goes to Roxanne's apartment with Terri and discovers that Roxanne was viciously murdered approximately 24 hours before Bobby's murder. Gino finds photographs next to Roxanne's body. Although the viewer does not see the photographs, apparently they are sexually explicit photographs of Bobby and Roxanne. Gino determines that Richie murdered Roxanne and Bobby after Richie learned of Bobby's affair with Roxanne. Gino confronts Bobby's widow and finds a bloodied photograph in her pocketbook. Although the viewer is aware that Richie left a photograph on Bobby's body when he killed him, the photograph apparently was removed by Bobby's wife before the police arrived. Gino determines that Richie learned of the affair from Bobby's wife, who, in a jealous fit, sent Richie sexually explicit photographs she found of Bobby and Roxanne. Gino realizes Bobby was not an innocent victim, but a "dirty cop" involved in drugs and caught in an extramarital affair.
By evening, Gino is tipped-off by a local kid that Richie and his associates are at a prostitute's apartment next to where the kid's uncle lives. Gino drives to the apartment and quietly enters with his shotgun. Gino first disposes of Richie's associates, and then battles Richie in protracted hand-to-hand combat, which culminates in the kitchen. After Richie uses various kitchen utensils as weapons, Gino takes a corkscrew from Richie's hand and drives it through Richie's forehead, killing him instantly. When Frank and other mob members arrive moments later, Gino takes Frank's gun and repeatedly shoots Richie's dead body to make the killing look like a mob "hit." Gino even suggests to Frank that Frank "do the ritual thing" and "put him in a . . . trunk in Jersey."
Within a couple days, in the last scene of the Film, Gino and his wife are walking on the Coney Island boardwalk with the puppy when they fortuitously encounter the man who tossed the puppy from the car. Gino confronts the man and words are exchanged. After the man attacks Gino, Gino kicks him in the groin, knocking him to the ground. The Film ends as the puppy urinates on the man's face.
A. Summary Judgment Standard
A party seeking summary judgment must demonstrate that "there is no genuine issue of any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The nonmoving party may defeat the summary judgment motion by producing sufficient evidence to establish a genuine issue of material fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In ruling on a motion for summary judgment, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). However, "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
B. Copyright Infringement
1. Elements of Claim
To establish a claim of copyright infringement, plaintiff must establish: "(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); Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996); 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 noted above, for purposes of this motion only, defendants do not contest the validity of plaintiff's copyright. As for the latter element, because direct evidence of unauthorized copying is rarely available (and plaintiff proffers none), plaintiff may prove copying circumstantially by showing that defendants had access to the copyrighted work and there exists substantial similarity of protectible material in the two works. Williams, 84 F.3d at 587; Walker, 784 F.2d at 48; Warner Bros., Inc. v. American Broadcasting Cos., 654 F.2d 204, 207 (2d Cir. 1981) (Warner I); Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 50 L. Ed. 2d 588, 97 S. Ct. 492 (1976). As noted above, for purposes of this motion only, defendants do not dispute access. To prove copying, therefore, plaintiff must show (1) that the two works are substantially similar, and (2) that such similarities relate to copyrightable material. See Williams, 84 F.3d at 587; Walker, 784 F.2d at 48; Warner Bros. v. American Broadcasting Cos., 720 F.2d 231, 240 (2d Cir. 1983) (Warner II).
On a motion for summary judgment, noninfringement may be determined as a matter of law where "'the similarity concerns only noncopyrightable elements of plaintiff work,' or 'no reasonable trier of fact could find the works substantially similar.'" Williams, 84 F.3d at 587 (quoting Walker, 784 F.2d at 48); Warner II, 720 F.2d at 240; Littel v. Twentieth Century Fox Film Corp., 1995 U.S. Dist. LEXIS 9340, 1995 WL 404939, at *3 (S.D.N.Y. July 7, 1995), aff'd, 1996 WL 47971 (2d Cir. Feb. 2, 1996). Moreover, in determining substantial similarity, the general test is "'whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.'" Warner I, 654 F.2d at 208 (quoting Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966)); see Williams, 84 F.3d at 587; Littel, 1995 U.S. Dist. LEXIS 9340, 1995 WL 404939, at *3; Smith v. Weinstein, 578 F. Supp. 1297, 1302 (S.D.N.Y.), aff'd, 738 F.2d 419 (2d Cir. 1984).
2. Copyright Protection
It is axiomatic that copyright protection extends only to the particular expression of an idea, not to the idea itself. Williams, 84 F.3d at 587; Walker, 784 F.2d at 48; Reyher, 533 F.2d at 90. As the Second Circuit recognizes, this distinction is easier to state than apply. Walker, 784 F.2d at 48. Judge Learned Hand articulated the idea/expression distinction in his often-quoted "abstractions" test:
Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his "ideas," to which, apart from their expression, his property is never extended.