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December 31, 1996

EMILIO SINICOLA, Plaintiff, against WARNER BROS., INC., et al., Defendants.

The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge

 Plaintiff Emilio Sinicola brings this action against defendants Warner Bros., Inc. ("Warner Bros."), Warner Home Video ("WHV"), *fn1" and Steven Seagal ("Seagal") (collectively, "defendants"), *fn2" claiming defendants infringed plaintiff's copyright in an unpublished novel entitled "The Family . . . and Some" (the "Novel") by and through their motion picture entitled "Out for Justice" (the "Film"). Presently before the Court is defendants' motion for summary judgment to dismiss plaintiff's amended complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons below, the motion is granted.


 A. The Parties and the Plaintiff's Claim

 Defendant Warner Bros. is engaged in film production and distribution. WHV is engaged in distribution of videotapes of film productions for home viewing. Seagal is a screen actor and producer of films. Warner Bros. produced the Film in 1991 and distributed it throughout the world. WHV distributed the Film on video tape for home viewing. Seagal portrays the main character in the Film and is identified in the credits of the Film as one of the Film's producers. The Film was a relative box office success, earning Seagal in excess of one million dollars.

 Plaintiff maintains that in 1976 he created and authored the Novel. Thereafter, he attempted to have the Novel published or made into a screen play. He submitted a manuscript of the Novel to various persons, including agents, sales managers, and producers, none of whom, defendants maintain, has any connection with defendants. Plaintiff claims that defendants infringed plaintiff's copyright in the Novel by and through the Film.

 For purposes of this motion only, defendants do not dispute that plaintiff is the owner of a valid copyright in the Novel, and that defendants had access to the Novel. Thus, the Court must determine if there are genuine issues of material fact as to whether the two works are substantially similar as to copyrightable elements of plaintiff's work. In reaching its determination, the Court has read the 334-page Novel and viewed the 91-minute Film (in addition to reviewing the parties' briefs and other submissions). The following is a brief description of the Novel and the Film.

 B. The Works

 1. The Novel

 The Novel is set primarily in an Italian-American neighborhood in Manhattan, New York, beginning in the summer of 1947. Most of the story is recounted in the first person by Vince Accola, the Novel's protagonist, a 17-year-old high school basketball star at the time. The events of the Novel take place over approximately two years.

 As the Novel begins, Vince's father, Salvatore, and brother, Paul, are innocent bystanders who are shot and killed after witnessing the murder of a friend, Ralph Gaetano, a reputed mobster, in the apartment building where Vince and his family live. With his father's and brother's deaths, Vince has become the "head of the family," expected to look after his mother, Jennie, and sister, Helen, as he prepares to enter his last year of high school.

 The police, led by a homicide detective named Kelly, investigate the murders, but are unsuccessful in identifying the killers. Vince and his uncle, Gino Accola, vow to find the killers and avenge the murders of their family members, as they are certain the justice system will not adequately punish the killers if they are caught.

 Vince and Uncle Gino soon learn the identity of one of the killers from a resident of their apartment, Julia. Julia tells Vince and Uncle Gino that she saw the killers pursue Ralph Gaetano to the roof of the apartment building and then flee via the fire escape; she also saw them drop something in a garbage can as they fled. The discarded objects were silencers, which she had retrieved from the garbage can and handed to Uncle Gino. She then tells then that one of the killers -- identified by a conspicuous tattoo of the devil on his wrist -- is a local mobster named Frankie "Eyes" Rizzo, a ruthless thug.

 After a closed-casket funeral for Vince's father and brother, the local mob boss, Vittorio, invites Uncle Gino and his family to live in an apartment building above the social club that the mob uses as a hangout in exchange for Uncle Gino's handyman services at the club. The offer is made out of sympathy for Gino's family, as Vittorio is unaware of the killers' identities. Consequently, Uncle Gino and his wife (Vince's Aunt Rosa), Vince, and Vince's mother and sister move into an apartment above the club. Over time, Uncle Gino, Aunt Rosa, and Vince's mother become fond of Vittorio, who bears an uncanny resemblance to Vince's slain father, and who has moved into another apartment above the club. In fact, Vince's mother and Aunt Rosa often cooks meals for Vittorio.

 In the meantime, the early chapters of the Novel focus extensively on Vince's childhood and high school friendships and experiences, including racial riots (between blacks and whites and between Irish and Italians), his basketball successes (culminating in a championship game at Madison Square Garden), and his early sexual encounters (with prostitutes and his high school history teacher). Before a tryst with his history teacher, Vince goes to a local candy store to purchase condoms. The candy store is owned by a former prize fighter named "Johnny Vito," who once fought in Madison Square Garden. The candy store also functions as the mob's local gambling center, activities which are protected through police payoffs. While Vince is leaving the candy store, he is confronted by an Irish police detective, Detective Finn, who is there with other officers of Irish descent to extort protection money from the proprietor. Finn recognizes Vince as a participant in a riot at a local high school football game between the Italian fans and players of Vince's brother's high school and the Irish fans and players of the opposing school. With tension apparently high between the neighborhood's Irish police officers and its Italian residents, Finn makes an ethnically insulting reference to Vince. To humiliate Vince further, Finn takes the condoms from Vince's hand, holds them up, and refers to them as "Italian sausage holders." He pushes Vince around, but is prevented from doing so further by Vito's threat to stop the payoffs should the cops harm Vince. Vito further warns the corrupt police officers that "if you weren't cops, you would be getting your asses pushed in."

 As the Novel progresses, Uncle Gino meticulously plans his revenge. While he plays the humble handyman at the club, where the mobsters refer to him as "Greezer," he plans the murder of Frankie "Eyes," a regular at the club. Uncle Gino allows himself and Vince to be used by Frankie as "patsies" in a drug deal -- a heroin buy Frankie and two others arranged without the mob's knowledge, because the mob bosses prohibited members from dealing in drugs. As part of Frankie's scheme, Frankie purchases a car for Uncle Gino from a New Jersey car dealer, Carl Bino. Carl, who is indebted to Frankie, fears Frankie and is easily bullied by him. Frankie instructs Carl that he is not to tell anyone that Frankie bought a car for Uncle Gino. Frankie tells Uncle Gino that the deal involves the purchase of valuable lamps and requests that Uncle Gino drive the car to assist in the deal, despite realizing that Gino is a terrible driver. In preparing for the buy, Uncle Gino, Vince, and Frankie drive to a house in Staten Island. There, Frankie has Uncle Gino and Vince empty cartons of stolen dental supplies from a hidden compartment under a trapdoor in the floor of the house. He also has Uncle Gino make certain repairs to a crack in the concrete within the compartment because it emits a foul odor. Uncle Gino discovers guns, silencers, and bullets in the compartment, which Vince refers to as "Devil's Hole." All the while, Uncle Gino secretly plans his revenge against Frankie.

 As he pursues Frankie, Uncle Gino's passion for revenge, capacity for violence, and sense of justice become clear to Vince, particularly as Vince recalls a story his father once told him. As his father told him, back in Italy Vince's grandfather (Salvatore's and Gino's father) had a dog which was named "CoCo" for its "sudden outbreaks of crazy actions." CoCo was bludgeoned, decapitated, and buried by two dirt poachers when it threatened them. Upon investigating and learning the poachers' identities, Uncle Gino and Salvatore, armed with a hatchet and a razor, set out for the poachers. When they caught the poachers, Uncle Gino smashed each one over the head with a wooden staff and severed a portion of one ear of each. The brothers fled to the United States after that incident to avoid arrest. Uncle Gino's resolve to exact vengeance on his own terms clearly troubles Vince, and Vince becomes distracted, anxious and frightened, doubting his own ability to carry out the killing.

 Once the heroin is purchased, Uncle Gino, Vince and Frankie drive to the Staten Island house. There, Uncle Gino ambushes Frankie. In pleading for his life, Frankie blames another mob member, Eddie "Blimp" Velella, for Vince's father's and brother's murders. Eddie is one of Frankie's partners in the heroin deal and another regular at the social club. Uncle Gino tortures and mutilates Frankie, cutting off Frankie's penis and nailing it to Frankie's forehead with a hammer and a spike he brought with him in a tool chest. Uncle Gino guides Vince to Frankie's corpse, places a gun in Vince's hand, and directs Vince to shoot Frankie's "stilled body." Although sickened by his uncle's brutality, Vince reluctantly complies. They then dump Frankie's body, the heroin, the guns, and the stolen dental supplies into the hidden compartment and fill it with concrete, leaving only a two-foot space to the top of the trapdoor.

 Meanwhile, Vince has decided to attend college in upstate New York at Vincentian University in Niagara, where he is a highly-touted basketball recruit. After Frankie's murder -- over one year after Vince's father's and brother's murders, Vince leaves for college, where he continues playing basketball and where he becomes romantically involved with another student. The Novel focuses significantly on Vince's college experiences, including basketball, his new friendships and college sweetheart, and his confrontations with the school's star football player (an obnoxious brute, whose car Vince and his friends push into a pond on campus because they are "fed up" with him).

 During the Christmas break, Vince's mother, Uncle Gino, and Aunt Rosa make a surprise visit to Vince at college. During the visit, Uncle Gino tells Vince, who is troubled by guilt over Frankie's murder, that he no longer plans to kill Eddie and that he plans to move back to Italy -- partly because he believes that he must leave if his widowed sister-in-law is ever to become romantically involved with another man. Vince is relieved, believing there will be no further killing. Nevertheless, Uncle Gino secretly plans to kill Eddie on his own.

 Following Frankie's disappearance, Carl -- the car dealer from New Jersey -- visits Vittorio. Carl believes he may have been the last one to see Frankie. He also believes that if he provides helpful information to Vittorio, he may be able to obtain a loan for his sagging business. Carl tells Vittorio that Frankie recently purchased a car from him for Uncle Gino. Already concerned by Frankie's mysterious disappearance, Vittorio immediately confronts Uncle Gino, perplexed by Carl's revelation. Uncle Gino admits that Frankie bought him a car; however, he tells Vittorio that the car was in exchange for Uncle Gino's handyman services and that he has not seen Frankie since before Frankie disappeared. Carl then requests, and obtains, a loan from Vittorio.

 Following Cohen's death, Cohen's sister's husband, Sam -- a former mob member known as "Sammy Threads" -- delivers the letter to Vittorio. Upon learning of Frankie's and Eddie's involvement in the foiled heroin deal and the murders, Vittorio explodes, condemning them for dealing in drugs -- an activity forbidden by the mob -- and for killing Ralph Gaetano and innocent people. Vittorio convenes a meeting of mob bosses. At the meeting, the bosses unanimously decide that Eddie must be killed, that his death be one of torture, and that his body should be found to serve as a lesson to anyone who would dare defy the mob bosses. Vittorio arranges to have Eddie murdered under the guise of having Eddie run a mob operation from a hotel in the city.

 As basketball season ends at college and Easter approaches, Vince returns home for Uncle Gino's farewell party for Gino's family and neighborhood friends. The party is thrown by Vince's sister, Helen, and her fiance, Pat Vecchio, whom Helen began seeing shortly after her father's and brother's murders. Pat is a police officer, but he eventually leaves the force to become a firefighter after his corrupt colleagues pressure him to obtain information about Vittorio. Vince invites a two of his basketball teammates to attend the party and to see his home and neighborhood. Vittorio and one of his henchmen also attend. As he is eating, Vittorio compliments the decorations of flowers and wax grapes in the apartment. Aunt Rosa tells him that flowers and grapes have been a "trademark" in the Accola family for many years, and that Salvatore, Gino's late brother, enjoyed growing flowers. After Vince's two teammates go home, his college sweetheart, Dee, comes to meet his family and spends Easter with them.

 Unknown to the mob, Uncle Gino continues planning Eddie's murder. Uncle Gino "bait[s] the trap," hinting to Eddie that he has a package for him from Frankie. Taking the bait, Eddie arranges to meet Uncle Gino at the hotel where Eddie is operating. When Uncle Gino meets Eddie at one of the hotel's rooms, ostensibly to give him the package, Uncle Gino drives a meat clever into his head. Uncle Gino places a bag over Eddie's head, pulls a wire through a drawstring loop in the bag, and strangles Eddie. He then pins flowers and wax grapes -- which he brought, with the meat clever and bag, from his apartment -- to Eddie's corpse in the form of a cross.

 The hitmen sent by Vittorio to kill Eddie arrive at the hotel room later that night to find Eddie already murdered, his corpse decorated with the symbols of Uncle Gino's revenge. Nevertheless, they dispose of Eddie's body under ...

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