The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
MEMORANDUM OPINION AND ORDER
In this copyright action, Plaintiff Patsy Maharam ("Plaintiff") argues that Defendant s James Patterson ("Patterson"), Michael Garland ("Garland"), Little Brown & Co., Saks Inc. ("Saks"), Linn Tanzman, and Time Warner, Inc., and its subsidiaries, Time Inc. and Time Warner Book Group, Inc., (collectively "Defendants"), infringed her copyright in "'Kid' Santa Claus," and its central character, Holly Nicole. Plaintiff contends that Defendants' children's book "santaKid" and window displays based thereon "actually copy" and "unlawfully misappropriate" her work.*fn1 Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56(b).*fn2 For the reasons stated below, Defendants' motion for summary judgment is granted.
To establish copyright infringement, Plaintiff must prove:
(1) ownership of a valid copyright; and (2) unauthorized copying of constituent elements that are original. E.g., Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003); Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997). Only the second element is in issue here.
"To satisfy the second element of an infringement claim --the 'unauthorized copying' element -- a plaintiff must show both that his work was 'actually copied' and that the portion copied amounts to an 'improper or unlawful appropriation.'" Jorgensen, 351 F.3d at 51 (citing Castle Rock Entm't, Inc. v. Carol Publ'g Group, Inc. et al., 150 F.3d 132, 137 (2d Cir. 1998)). "Actual copying may be established 'either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.'" Castle Rock Entm't, Inc., 150 F.3d at 137 (citing Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir. 1992)). There is no infringement, however, if the evidence supports the conclusion that a defendant created his or her work independently. E.g., Folio Impressions, Inc. v. Byer Calif., 937 F.2d 759, 765 (2d Cir. 1991); Cox v. Abrams, No. 93 Civ. 6899, 1997 WL 251532, at *7, 1997 U.S. Dist. LEXIS 6687, at *19-20 (S.D.N.Y. May 14, 1997).
The Court assumes, arguendo, that Plaintiff has made a prima facie case of infringement and turns to Defendants' evidence that Patterson created "santaKid" independent of Plaintiff's work.*fn3
"Even where a plaintiff is successful in creating a triable issue of fact with respect to actual copying, a defendant may defeat a copyright infringement claim by demonstrating independent creation of the allegedly infringing work." Silberstein v. Fox Entm't Group, Inc., 424 F. Supp. 2d 616, 628 (S.D.N.Y. 2004). "Summary judgment is appropriate where a plaintiff fails to offer evidence sufficient to raise a factual question about a defendant's proof of independent creation." Chivalry Film Prods. v. NBC Universal, Inc., No. 05 Civ. 5627, 2006 WL 3780900, at *2, 2006 U.S. Dist. LEXIS 92956, at *9, (S.D.N.Y. Dec. 22, 2006).*fn4
Here, Defendants have produced a vast amount of evidence, in the form of sworn testimony, and contemporaneous drafts, e-mails, letters, memos, and sketches,*fn5 to demonstrate that Patterson (the author) and Garland (the illustrator) created "santaKid" independent of any knowledge of Plaintiff's work. Specifically, Defendants have produced copies of Patterson's original handwritten manuscript and ten subsequent re-drafts, along with correspondence between Patterson and his secretary, and between Patterson and his editors, which includes detailed editorial comments.*fn6 Second Patterson Decl. Exs. A-E, H-X. Defendants also produced Garland's initial black-and-white sketches and subsequent drafts, many of which contain editorial comments. Second Garland Dec. ¶¶ 15-16, Exs. A-F. Defendants corroborate the authenticity of these drafts with affidavits and declarations supporting that Defendants independently created and developed the "santaKid" story and its illustrations. Second Patterson Decl. Ex. A-C; Jennifer Rudolph Walsh*fn7 Dep. 15:5-20 (stating that Patterson spoke with her about "an idea for a book about a little boy who was Santa's child . . . and this little boy basically has to save Christmas.";) Second Patterson Decl. Ex. O (attaching a letter from Andrea Spooner, Patterson's editor, which states: "The idea of a super-kid that saves Christmas from evil forces has wide and timeless appeal. And, I honestly think it's the first time I've seen a story told from the point of view of Santa's own progeny -- a fantastic premise.").
Plaintiff fails to offer evidence sufficient to raise a factual question about Defendants' proof of independent creation. Instead of rebutting Defendants' evidence, Plaintiff makes generalized assertions that Defendants' evidence is unconvincing and even falsified. For example, Plaintiff uses Patterson's deposition testimony, in which he states that he cannot remember the precise date that he conceived of the "santaKid" story, to argue that Patterson must have infringed Plaintiff's work. Pl.'s Mem. of Law in Opp'n to Defs.' Motion for Summ. J. 45 (stating that Defendants' documentation of independent creation is "pure fiction" because: (1) Patterson did not know when he conceived of the idea for "santaKid"; (2) Patterson has no documents indicating the date of conception; (3) Patterson offers no testimony from anyone who saw him write "santaKid"; (4) Patterson has no notes of his initial thoughts about "santaKid"; (5) Patterson "is a compulsive outliner" but has no outline for "santaKid" and is not sure if he created one; (6) Patterson never told his secretary that his son was the inspiration for "santaKid"; and (7) Patterson does not explain why he "allegedly" created two early drafts of "santaKid" in early 2003 with a male protagonist "when he agreed with his former agent in March 2002 that the central character should be a girl"). Plaintiff attempts to argue that Patterson could not have created "santaKid" independent of "'Kid' Santa Claus," because, although it is Patterson's usual practice to use idea folders and outlines to write his novels, he has produced no idea folders or outlines for "santaKid." Pl.'s Mem. of Law in Opp'n to Defs.' Motion for Summ. J. 45 ("Although [Patterson] has 3,000 folders of ideas for new books, he never had a folder for santaKid.") She suggests, with no evidence to back the suggestion, that the correspondence and drafts that Patterson relies upon were created after Plaintiff filed this lawsuit to manufacture a defense. Pl.'s Mem. of Law in Opp'n to Defs.' Motion for Summ. J. 47 (stating only that Patterson had "a few initial drafts that seem suspiciously prepared for this litigation"). Plaintiff argues that Garland failed to demonstrate that he created his illustrations independent of Plaintiff's work because "[h]is declaration says nothing about how he was selected to create the illustrations, who selected him, when he was selected and what instructions he was given at the outset with respect to the illustrations he created." Pl.'s Mem. of Law in Opp'n to Defs.' Motion for Summ. J. 48. Because these generalized, speculative arguments fail to rebut Defendants' showing of independent creation, there is no genuine issue of material fact for trial. Jorgensen, 351 F.3d at 51 ("[Plaintiff] to avoid summary judgment, 'may not reply simply on conclusory allegations or speculation . . . but instead must offer evidence to show that [her] version of the events is not wholly fanciful.'") (citing Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999)).
Thus, even assuming, arguendo, that Defendants had access to Plaintiff's work, they have defeated her copyright infringement claim by producing substantial, uncontradicted evidence that the "santaKid" works were created independent of her work.*fn8 The Court therefore grants Defendants' Motion for Summary Judgment [#73].
The Clerk of Court is directed to close this case. Any pending motions are moot.
Kimba M. Wood, United States ...