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Flaherty v. Filardi

March 20, 2009


The opinion of the court was delivered by: Laura Taylor Swain, Usdj


Plaintiff Marie Flaherty ("Plaintiff" or "Flaherty"), appearing pro se, brings this action, alleging principally that Defendants Jason Filardi ("Filardi"), George N. Tobia, Jr., Esq. ("Tobia"), Burns and Levinson, LLP ("B&L"), Hyde Park Entertainment ("Hyde Park"), Ashok Amritraj ("Amritraj"), David Hoberman ("Hoberman"), Todd Lieberman ("Lieberman"), the Walt Disney Company ("Disney"), Buena Vista Motion Pictures Group ("Buena Vista"), Touchstone Pictures ("Touchstone"), Bungalow 78 Productions ("Bungalow 78"), the Kushner-Locke Company ("Kushner-Locke"), Meespierson Film CV ("Meespierson"), WMG Film ("WMG"), Jane Bartelme ("Bartelme"), Cookie Carosella ("Carosella"), Dana Owens d/b/a Queen Latifah ("Owens"), 7th Calvalry Productions, Inc. ("7th Calvalry), Big House Productions, Inc. ("Big House"), Peter Filardi ("Peter Filardi"), Writer's Guild of America West (the "Guild"), Walt Disney Enterprises, Inc. ("Disney Enterprises"), and Does 6-10 (collectively, "Defendants")*fn1 infringed Plaintiff's copyright in her screenplay, Amoral Dilemma, in creating the motion picture Bringing Down the House, in violation of 17 U.S.C. § 101 et seq.

By Opinions and Orders entered September 16, 2005 (the "September 2005 decision"), and September 19, 2007 (the "September 2007 decision"), the Court granted summary judgment in Defendants' favor on the vast majority of Plaintiff's copyright, Lanham Act and state law claims. Among other things, the Court found that the motion picture Bringing Down the House was not violative of Plaintiff's copyright in her Amoral Dilemma screenplay, in that the motion picture is not substantially similar to Plaintiff's work. Flaherty v. Filardi, 388 F. Supp. 2d 274, 287-290 (S.D.N.Y. 2005). The Court also held that many of Plaintiff's state law claims were preempted by federal copyright law. Id. at 290-91; Flaherty v. Filardi, No. 03 Civ. 2167, 2007 WL 2734633 at *6-7 (S.D.N.Y. Sep. 19, 2007).

In its September 2007 decision, the Court was unable to resolve the motions for summary judgment relating to what appeared to be Plaintiff's claim that Defendants Tobia and Filardi had violated Plaintiff's intellectual property rights by selling to the Disney interests, in the guise of a screenplay,, purportedly written by defendant Filardi, Plaintiff's work Amoral Dilemma. The Court directed the parties to make further submissions as to the identity and nature of the work that was sold to the Disney interests. Defendants' submissions in response to the order for supplemental briefing include uncontroverted evidence that the work in question was the screenplay that was attached as Exhibit H to the Conciatori Declaration, submitted in support of the Disney Defendants' motion for summary judgment filed on September 29, 2006 (the "Conciatori Declaration") (this version of the work is referred to in this Opinion as "JAILBABE.COM"). Concurrently with the issuance of the September 2007 decision, the Court also issued an order to show cause directing Plaintiff to demonstrate why the action should not be dismissed against all of the remaining Defendants, given the Court's determinations as to preemption and lack of substantial similarity, "in light of the fact that Plaintiff's Second Amended Complaint asserts the same, or substantially similar, copyright, Lanham Act and/or common law causes of action against the remaining Defendants." (Docket Entry No. 255.)

This Opinion and Order addresses that portion of the Defendants' summary judgment motion relating to JAILBABE.COM, as well as: Plaintiff's motion for reconsideration of the Court's September 2007 decision, and the Disney Defendants' application for sanctions in connection therewith; Plaintiff's response to the Court's September 17, 2007, Order to Show Cause; the Guild's motion to dismiss the Complaint, which was held in abeyance pending submissions on the Order to Show Cause; Plaintiff's cross-motion for summary judgment, filed in response to the Guild's motion to dismiss; Plaintiff's objections to Magistrate Judge Pitman's Opinions and Orders dated August 14, 2007, and September 12, 2008; the Disney and B&L Defendants' request for sanctions in connection with Plaintiff's objections to Judge Pitman's decisions; and the Disney and B&L Defendants' request to strike Plaintiff's response to that request for sanctions.

The Court has subject matter jurisdiction of Plaintiff's copyright and Lanham Act claims pursuant to 28 U.S.C. §§ 1331, 1338(a), and 1338(b), and of the state law claims pursuant to 28 U.S.C. § 1367.

The Court has reviewed thoroughly and considered carefully all of the submissions made in connection with these matters. The pending matters are resolved as follows. Filardi and Tobia's motion for summary judgment with regard to the sale of the work JAILBABE.COM, which was held in abeyance pending further submissions, is granted. Plaintiff's motion for reconsideration and the Disney Defendants' related application for sanctions are denied. Plaintiff's remaining claims are dismissed against all remaining Defendants. The Guild's motion to dismiss is denied as moot in light of the Court's decision on the Order to Show Cause; Plaintiff's cross-motion for summary judgment is denied. Plaintiff's objections to Judge Pitman's decisions are overruled; the Disney and B&L Defendants' application for sanctions against Plaintiff pursuant to 28 U.S.C. § 1927 in connection with her objections is denied, and their motion to strike Plaintiff's response to that application is granted.

Familiarity with the background of the instant case, which is detailed in the Court's September 2005 and September 2007 decisions, is presumed. See Flaherty v. Filardi, 388 F. Supp. 2d 274 (S.D.N.Y. 2005); Flaherty v. Filardi, No. 03 Civ. 2167, 2007 WL 2734633 (S.D.N.Y. Sep. 19, 2007).


I. Filardi and Tobia's Summary Judgment Motion with Respect to JAILBABE.COM

As explained in the September 2007 decision, Plaintiff appears to assert a claim that Defendants Tobia and Filardi sold to Disney interests*fn2 a screenplay, JAILBABE.COM, that either was actually Plaintiff's Amoral Dilemma screenplay or was so similar to Amoral Dilemma as to infringe on Plaintiff's protective rights in that work. In her briefing on her motion for reconsideration and in response to the Order to Show Cause, Plaintiff appears to elaborate on earlier suggestions that, after the sale, Defendants inserted protected elements of Amoral Dilemma into JAILBABE.COM and other draft screenplays that were eventually developed into the motion picture Bringing Down the House. The claim relating to other screenplays will be addressed in the section of this opinion relating to the Order to Show Cause. This section addresses Plaintiff's claim insofar as it is focused specifically on JAILBABE.COM. The Court has considered thoroughly all of the parties' supplemental submissions on this issue.

Summary judgment shall be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether summary judgment is appropriate, the facts will be viewed in the light most favorable to the party opposing the motion and all reasonable inferences will be drawn in the non-movant's favor. Consarc Corp. v. Marine Midland Bank., N.A., 996 F.2d 568, 572 (2d Cir. 1993). A fact is material in the context of a motion for summary judgment "if it 'might affect the outcome of the suit under the governing law.'" Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A 'genuine' issue of fact arises if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. In opposing a motion for summary judgment, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). "[M]ere conclusory allegations, speculation or conjecture," will not provide a sufficient basis for a non-moving party to resist summary judgment. Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

A. Copyright Claim

"In a copyright infringement case, the plaintiff must show: (i) ownership of a valid copyright; and (ii) unauthorized copying of the copyrighted work." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003). Plaintiff must show that his work " was 'copied,' by proving access and substantial similarity between the works, and also show that his expression was 'improperly appropriated,' by proving that the similarities relate to copyrightable material." Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986). Not all copying constitutes copyright infringement. As the Second Circuit has repeatedly recognized, "[i]t is an axiom of copyright law that the protection granted a copyrightable work extends only to the particular expression of an idea and never to the idea itself." Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976). Furthermore, "[s]imply because a work is copyrighted does not mean every element of that work is protected." Boisson v. Banian, Ltd, 273 F.3d 262, 268 (2d Cir. 2001). Summary judgment is appropriate in an action for copyright infringement where the relevant similarity concerns only non-copyrightable elements of Plaintiff's work or if no reasonable factfinder could find the works substantially similar. Id.

Plaintiff claims that JAILBABE.COM is substantially similar to Amoral Dilemma with respect to copyrightable elements of the latter. Plaintiff also argues that certain Defendants' admissions of access and copyright validity in connection with the initial summary judgment motion preclude them from contesting those issues for purposes of this summary judgment motion practice and at any trial, and necessarily raise genuine issues of material fact regarding copying.

In determining whether two works are substantially similar, the Court uses an "ordinary observer test." Under the ordinary observer test, "the necessary inquiry is 'whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work,'" Kaplan v. Stock Market Photo Agency, Inc., 133 F. Supp. 2d 317, 322 (S.D.N.Y. 2001) (quoting Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir.1966).) The Court considers "similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting" of the two screenplays. Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996). In evaluating two works for similarities, "scenes a faire, sequences of events that necessarily result from the choice of a setting or situation, do not enjoy copyright protection." Id. at 587 (internal quotations omitted).

The Court compares Plaintiff's Amoral Dilemma*fn3 and JAILBABE.COM to determine whether Defendants have demonstrated that they are entitled to summary judgment as a matter of law because JAILBABE.COM is not substantially similar to Amoral Dilemma's protectible elements.

1. JAILBABE.COM and Amoral Dilemma: The Allegedly Similar Screenplays

a) Amoral Dilemma

The Court has previously provided a thorough description of Plaintiff's Amoral Dilemma in its September 2005 decision. Familiarity with that opinion is presumed. See Flaherty v. Filardi, 388 F. Supp 2d 274, 279-80 (S.D.N.Y. 2005).


JAILBABE.COM opens with Peter Potts, a socially awkward, 33-year-old white, male "loser" landscaping his elderly neighbor's lawn. He has trouble talking to his neighbor's beautiful granddaughter, Kate, and turns down a dinner invitation from Kate to go home and eat with his parents. On his way back to his apartment, located over his parents' garage, Peter is confronted by the 12-year-old town bully who wants to take over Peter's lawn job. Lonely and unsuccessful with women, Peter has been corresponding with Chastity, a female inmate, through the website "" Although Peter intends to end their correspondence, Chastity escapes from prison before he can. After escaping, Chastity heads towards Peter's home.

Peter's prurient parents are concerned that Peter is gay and try to set him up with a prostitute. Peter and his best friend Lucky bemoan their luck with women and social status, and Peter is forced to surrender the job he loves to the town bully. Chastity shows up at Peter's apartment claiming that she has been released. After discovering that Peter had intended to end their correspondence, Chastity gets upset and Peter has to convince her not to leave. With Lucky's encouragement, Peter decides to help Chastity get back on her feet. Lucky gives her a job in his bagel store, Peter arranges for a new haircut and clothing for Chastity and tries (with only limited success) to stop her from engaging in any illegal activities.

While Peter tries to help Chastity, the authorities are searching for her. The town's chief-of-police is suspicious of Chastity, despite the new name she is using -- Julia Smith -- and her changed appearance. Peter's parents, however, are thrilled that he has a found a woman. In Chastity's company, Peter and Lucky are finally able to get into the local nightclub. At the club, Kate sees Peter and Chastity together. Unfortunately, Peter cannot handle the alcohol and oversleeps, losing his new job as a mailman before he even starts. After a confrontation with someone from Chastity's past, Widow, and Chastity's disappointment at Peter's inability to stand up to the 12-year-old bully, Peter and Chastity have sex. Although this disturbs the local priest, who overhears the noise, Peter's parents are thrilled to discover that he is not gay. Peter and Chastity become closer and Peter shares his lifelong dream of opening his own landscaping business. Peter is even able to successfully stand up to Widow during a second confrontation.

Meanwhile, the authorities are closing in. Chastity flees with Peter's savings but then returns with the money, realizing that she is a changed person. As the FBI approaches Peter's home, Chastity confesses that she has actually escaped from prison. In a climactic firefight, Peter and Chastity lead the authorities on a car chase and eventually escape to Lucky's boat by pretending that Peter is a hostage. Unfortunately the SWAT team shoots the boat's gas tank and it explodes. Peter, tossed out into the water, survives, and as a "hostage," does not appear to face any legal repercussions. Instead, his experience gives him the resolve necessary to face down the 12-year-old bully. As the screenplay concludes, a newly-confident Peter has successfully opened his dreamed-of landscaping business, employing the bully and his posse, and Peter and Kate have finally gotten together. In the final scene, Chastity, having survived the boat explosion, makes it to Holland and meets (presumably) another internet lover.

2. Infringement Analysis

For the following reasons the Court, after a thorough review of Plaintiff's Amoral Dilemma and the allegedly infringing JAILBABE.COM, finds that no reasonable trier of fact could find the works substantially similar with respect to any protectible elements of Amoral Dilemma. Defendants are, accordingly, entitled as a matter of law to summary judgment in their favor as to Plaintiff's copyright claim based on the allegedly infringing nature of JAILBABE.COM. In light of its conclusions regarding substantial similarity, the Court need not reach the issues of access and copyright validity.

a) Alleged Similarities

Plaintiff identifies alleged similarities between Amoral Dilemma and JAILBABE.COM in her November 20, 2006, Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and testified about alleged similarities during her deposition. All of the alleged similarities, however, relate to unprotectible ideas, constitute classic scenes a faire, or are de minimis.

Plaintiff claims that the infringement of Amoral Dilemma is evidenced by the fact that both works' plots involve "a protagonist loser in love casually looking for a social substitute from an on-line source who ends up becoming increasingly involved in the legal plight of the prisoner and who goes through a series of emotional experiences affecting the Lead Character's personal and professional life after corresponding with the Prisoner." (Pl's Nov. 20, 2006, Mem. in Opp. pp. 17-18.) Even assuming that this is an accurate description of the plots of the two works, any resemblance between the plots at this level is limited to uncopyrightible general concepts. As the Court held in its September 2005 decision, "[t]here is nothing remotely original about a professional adult dealing with a failed relationship." Flaherty v. Filardi, 388 F. Supp. 2d 274, 289 (S.D.N.Y. 2005).

The alleged similarities between characters, events and locations are equally unprotectible. Even where Plaintiff's abstract plot description suggests the presence of material similarities, close examination of the works reveals that any such alleged similarities are illusory. For example, Plaintiff alleges that the works are similar because the lead characters in both are Caucasian and that both the lead characters and their respective best friends are in their late twenties to early thirties. However, as the comparison of the characters below reveals, the characters in the two works are dissimilar in nearly every way other than the unprotecible characteristics of age and race. None of Plaintiff's alleged similarities survive the most superficial of examinations.

b) Themes

The principal themes of the two works are not substantially similar. In Amoral Dilemma, the principal theme is of a young attorney's dissatisfaction with her legal practice and the corruption of the legal system, revealed through her civil practice and through her experiences with the prison and prosecutorial offices that she encounters. The screenplay also addresses a woman's attempt to deal with a failed relationship and the desire to take revenge on men.

The principal theme in JAILBABE.COM is of a frequently bullied "loser" learning to stand up for himself. In trying to help a tough, violent prisoner get back on her feet, the good-hearted, if socially awkward, protagonist becomes more confident in himself ...

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