Jason v. Fonda

• Decision Date: 21 September 1981
• Docket Number: No. CV 79-4723-RJK (Kx).,CV 79-4723-RJK (Kx).
• Citation: 526 F. Supp. 774
• Parties: Sonya JASON, an individual, Plaintiff, v. Jane FONDA, an individual; Bruce Gilbert, an individual; Jerome Hellman, an individual; JPL Productions, Inc., a corporation; United Artists Corporation, a corporation; National Broadcasting Company, Inc., a corporation; Nancy Dowd, an individual; Robert C. Jones, an individual; Waldo Salt, an individual, Defendants.
• Court: U.S. District Court — Central District of California

526 F. Supp. 774

Sonya JASON, an individual, Plaintiff, v. Jane FONDA, an individual; Bruce Gilbert, an individual; Jerome Hellman, an individual; JPL Productions, Inc., a corporation; United Artists Corporation, a corporation; National Broadcasting Company, Inc., a corporation; Nancy Dowd, an individual; Robert C. Jones, an individual; Waldo Salt, an individual, Defendants.

No. CV 79-4723-RJK (Kx).

United States District Court, C. D. California.

September 21, 1981.

Sonya Jason, in pro. per.

Silverberg, Rosen, Leon & Behr, Ronald S. Rosen and Robert M. Nau, Los Angeles, Cal., for defendants.

MEMORANDUM OF DECISION AND ORDER

KELLEHER, District Judge.

This is an action for copyright infringement, unfair competition, misappropriation, and implied contract, brought by plaintiff Sonya Jason against the producers and broadcasters of the motion picture "Coming Home." The action was filed on December 6, 1979. Defendants are Jane Fonda, Bruce Gilbert, Jerome Hellman, Jerome Hellman Enterprises, Nancy Dowd, Robert C. Jones, Waldo Salt, United Artists Corporation, and National Broadcasting Company. Plaintiff claims that defendants infringed her copyright in a book entitled "Concomitant Soldier — Woman and War" (hereinafter "Concomitant Soldier") by producing, exhibiting and broadcasting over network television the theatrical motion picture entitled "Coming Home." Plaintiff's other three claims are pendent state law claims.

On May 11, 1981, defendants brought this motion for summary judgment on the grounds that as a matter of law plaintiff could not establish that defendants had access to the allegedly infringed book nor that the motion picture "Coming Home" was substantially similar to her book. Plaintiff opposed defendants' motion and defendants thereafter filed a reply memorandum. Plaintiff first argued that defendants' summary judgment motion was premature in that plaintiff sought further discovery that might assist her in opposing the motion. However, in the four months that have passed between the filing of defendants' motion and today's disposition, plaintiff neither sought additional discovery nor submitted additional support for her position. Indeed, defendants argue in their reply brief, and plaintiff does not suggest otherwise, that plaintiff's discovery is now complete. Therefore, the Court now is prepared to rule on the merits of defendants' summary judgment motion. The Court has taken great care in reading the competing works, the parties' memoranda of points and authorities, and supporting exhibits and affidavits, and thus is fully informed.

For the purpose of their summary judgment motion, defendants do not contest plaintiff's ownership of a copyright in her book "Concomitant Soldier." Therefore, the only contested element of plaintiff's case is her allegation that defendants "copied" her work. A plaintiff may establish copying by showing (1) circumstantial evidence of access to the protected work and (2) substantial similarity of "ideas" and "expression" between the copyrighted work and the allegedly infringing work. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977).

1. Access

Plaintiff fails completely to put in issue her allegation that the defendants had access to her book at any time prior to this lawsuit. Whether "access" be defined as the actual reading or knowledge of plaintiff's work by the defendants, see Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 479 (9th Cir. 1961), or as a "reasonable opportunity to view" the plaintiff's work, Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), plaintiff has not controverted the explicit denial by each defendant that they had never heard of her book prior to the lawsuit. Indeed, all of the material facts relevant to the issue of access are undisputed. They are as follows. Defendants Fonda and Gilbert originally conceived of the idea for a film about Vietnam in the late sixties and early seventies following their tour of several military bases. Nancy Dowd began to write a screenplay for such a film in late 1972. Near the end of 1973, Dowd submitted her draft of the screenplay to Fonda and Gilbert, after which time she ceased to participate in the production of the film. Thereafter, Fonda and Gilbert hired Waldo Salt and Robert Jones to revise Dowd's screenplay. In January of 1977, filming for the motion picture began. It was released in February of 1978 through United Artists. Finally, in 1979, NBC broadcast "Coming Home" over its television network.

Plaintiff Jason testified at her deposition that she wrote "Concomitant Soldier" over a span of 20 years. Jason financed the first printing of her book in April, 1974. The first printing consisted of approximately 1,100 copies. About half of these copies were sold by a representative in the New Jersey area. Another 100 or so copies were sold through Jason's church. Some 150 to 200 copies were defective and never sold. The remainder, claimed by plaintiff to consist of between 200 and 700 copies, were sold through Southern California booksellers. In December of 1977, several months after principal photography for the film had been completed, Jason submitted her book to Marcia Nasatir, an employee of United Artists. United Artists returned her book. Jason also claims to have submitted her book to NBC employees Rolf Gompertz and Mike Brockman. However, there is absolutely no evidence that NBC participated in any way in the production of "Coming Home."

Finally, Jason claims that Nancy Dowd, the original author of the movie screenplay, may have received a copy of her book from Jack Neumann of Paramount Pictures. In her deposition Jason asserts that she gave a copy of her book to Frank Capka in June, 1974, that Capka said he gave the copy to Neuman, and that Neuman allegedly told Capka that he gave it to Dowd. Not only does the timing of these alleged events follow the date on which Dowd completed her work on the screenplay, but Jason's assertion is multiple hearsay and could not be considered as admissible evidence. In sum, there is not one shred of evidence that any of the defendants who were involved in producing "Coming Home" had access to Jason's book during production except for plaintiff's undisputed claim that between 200 and 700 copies were available through various Southern California bookstores. That level of availability creates no more than a "bare possibility" that defendants may have had access to plaintiff's book. In and of itself, such a bare possibility is insufficient to create a genuine issue of whether defendants copied plaintiff's book. See, e. g., Ferguson v. National Broadcasting Co., 587 F.2d 111, 113 (5th Cir. 1978).

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