Blakeman v. The Walt Disney Co.
| Decision Date | 11 May 2009 |
| Docket Number | No. 08-CV-3212 (JFB)(ETB).,08-CV-3212 (JFB)(ETB). |
| Citation | 613 F.Supp.2d 288 |
| Parties | Bradley A. BLAKEMAN, Plaintiff, v. THE WALT DISNEY COMPANY, Walt Disney Motion Pictures Group, Inc., Touchstone Pictures, Kelsey Grammer, Grammnet Productions, Steven Stark, Treehouse Films, LLC, Swing Vote—The Movie Productions, LLC, Kevin Costner, Joshua Michael Stern, Jason Richman, Robin Jonas and John/Jane Does I-X, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Todd C. Rubenstein, Esq., Abrams, Fensterman, Fensterman, Eisman, Greenberg & Formato, Lake Success, NY, for Plaintiff.
John J. Lynch and John F. Burleigh, Esqs., Jacobs deBrauwere LLP, New York, NY, for Defendants.
Plaintiff Bradley A. Blakeman ("Blakeman" or "plaintiff") filed the instant action on August 7, 2008 against The Walt Disney Company, Walt Disney Motion Pictures Group, Inc., Touchstone Pictures, Kelsey Grammer, Grammnet Productions, Steven Stark, Treehouse Films, LLC, Swing Vote—The Movie Productions, LLC, Kevin Costner, Joshua Michael Stern, Jason Richman, Robin Jonas and John/Jane Does I-X (collectively, "defendants"), alleging that defendants infringed upon his copyrighted work "Go November" by creating, producing, and distributing the motion picture "Swing Vote." Specifically, plaintiff asserts a claim of copyright infringement under the Copyright Act, 17 U.S.C. § 101, et seq. against all defendants, and state law claims of (1) unfair competition against defendants Grammer, Stark and Grammnet Productions; and (2) fraud and misrepresentation against defendants Grammer and Stark. Plaintiff seeks an order permanently enjoining all defendants from exploiting any work that infringes upon "Go November," a judgment declaring that all defendants have willfully and maliciously infringed upon plaintiff's copyright, a judgment requiring defendants to afford plaintiff sole story credit for "Swing Vote," an award of actual damages and disgorgement of all profits attributable to "Swing Vote," an award of statutory damages under 17 U.S.C. § 504, attorney's fees, interests and costs under the Copyright Act, and compensatory and punitive damages under the common law.
Defendants Grammnet Productions and Stark moved to dismiss all claims against them, pursuant to Federal Rule of Civil Procedure 12(b)(2), for lack of personal jurisdiction. Further, all defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiff's first cause of action for copyright infringement on the following grounds: (1) plaintiff cannot establish that defendants actually copied his "Go November" work; and (2) there is no substantial similarity between "Swing Vote" and protectible elements of "Go November." At oral argument on April 6, 2009, the Court advised the parties that, in an abundance of caution, the Court was converting the defendants' Rule 12(b)(6) motion to a summary judgment motion on the "substantial similarity" issue and provided both sides with an opportunity to submit any additional evidence.
For the reasons set forth herein, the motion to dismiss defendants Grammnet Productions and Stark for lack of personal jurisdiction is denied. Specifically, plaintiff's amended complaint, which alleges that defendants Grammnet Productions and Stark supplied the infringing work to the other defendants with full knowledge that it would be developed into a movie and distributed nationwide (including in New York), satisfies both the requirements of New York's long-arm statute, as well as the Due Process Clause. However, the motion by all defendants to dismiss the copyright claim under Rule 12(b)(6) is granted. In particular, given the vastly different themes, plot, scenes, characters, sequence, pace, setting, and overall concept and feel—and the lack of any similarities of protectible elements in this case in any of those categories—no rational factfinder could conclude that the works are substantially similar. Any similarities between the works are simply scenes a faire that are non-protectible components of works that use the framework of a hotly-contested, modern election and, in any event, no rational trier of fact could conclude that the average lay observer would consider the works as a whole to be substantially similar to one another. Accordingly, the Court concludes that the works are not substantially similar as a matter of law and defendants are entitled to summary judgment on the copyright claim. Although the Court would decline to exercise supplemental jurisdiction over the state law claims given the dismissal of the federal claim, plaintiff has requested leave to file a second amended complaint to allege diversity jurisdiction with respect to the state claims. That application is granted, and plaintiff will have 30 days to submit a second amended complaint that provides a basis for the Court's exercise of diversity jurisdiction over the remaining state causes of action.
The following facts are taken from the amended complaint ("Amended Compl.") and the affidavits and exhibits of the parties and are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the nonmoving party. The Court also notes that the descriptions of the works at issue here are based upon a review of plaintiff's written works (namely, the treatment and amplification of "Go November") and a review of defendants' work (namely, the screenplay and motion picture "Swing Vote").
Plaintiff is a political commentator and consultant and the sole proprietor of the copyright to the treatment and amplification entitled "Go November." (Amended Compl. ¶¶ 1, 9.) Defendant Grammer is a well-known actor, producer and director who owns defendant Grammnet Productions ("Grammnet"), a corporation duly organized under the laws of the State of California with production offices in Hollywood, California, and also had a character role in "Swing Vote." (Id. ¶¶ 15-16.) Defendant Stark, a domiciliary of the State of California, was the President of Grammnet during the relevant time frame of the instant action. (Id. ¶ 17; Stark Decl. ¶ 9.) The Walt Disney Company is a publicly traded corporation in the business of, among other things, commercially exploiting feature films. (Amended Compl. ¶ 12.) Touchstone Pictures is a division of the Walt Disney Company and worked in conjunction with Walt Disney Motion Pictures Group, Inc. and/or Swing Vote—The Movie Productions, LLC, a limited liability company duly organized under the laws of the State of California, to distribute "Swing Vote" in the United States and Canada. (Id. ¶ 14.) Treehouse Films, Inc. is a limited liability company duly organized under the laws of the State of California that distributed and/or produced the motion picture "Swing Vote." (Id. ¶ 18.) Defendant Costner is a well-known actor who portrayed the leading role in "Swing Vote," and funded and distributed and/or produced the feature film, in conjunction with other defendants. (Id. ¶ 19.) Defendant Stern wrote and directed the feature film and defendant Jonas served as its executive producer. (Id. ¶¶ 21-22.) Defendants John/Jane Does I-X are various unknown individuals and/or entities who exploited the feature film. (Id. ¶ 24.)
On or about October 27, 2006, plaintiff and non-party Peter Sobich met with Grammer and Stark at the Grammnet offices in Hollywood, California to discuss development of "Go November." (Id. ¶ 26.) Prior to the meeting, plaintiff mailed a copy of the treatment and amplification of "Go November" to Grammer and Stark, allegedly with the understanding that it would not be used in any manner unless plaintiff was fairly compensated. (Id. ¶¶ 27, 29.)
At the meeting, plaintiff advised Grammer and Stark that: (1) the feature film should be released in late July or early August of 2008; (2) the feature film should cast reporters playing themselves to provide authenticity; (3) the political parties in the feature film should have a "win at all costs" strategy and engage in dirty tricks; (4) the actual 2008 presidential election would be decided by swing voters; (5) the feature film should utilize an electoral "red/blue" map as its logo for marketing purposes; (6) the feature film should "come down to the last day in order to build to a crescendo"; (7) the official website of the feature film should have an interactive feature to involve visitors in the "`political process'" of the film; and (8) the feature film should use the "`trappings' of the Office of the Presidency, like Air Force One, to make it more realistic." (Id. ¶ 31.)
Grammer represented to plaintiff that he would star as the incumbent Republican president in the film production of "Go November"; further, Stark and Grammer agreed that they would assist in finding a screenwriter to develop the treatment and amplification. (Id. ¶ 33.)
The treatment of "Go November" states, by way of background, the following:
This story involves a race for the White House. The time frame is just prior to the Convention through Election Day. The Incumbent President is a fatherly Reagan type, moral, likable, principled. The story is about a moral President who is engaged in a very tough race. He has an amoral staff that will do anything to win. The Challenger is a liberal charismatic California U.S. Senator who has a young idealistic staff. "Go November" has a double meaning . . . . first being Election Day the other being the frequency on the Incumbent's staff radio that the staff refers to when something bad is happening or someone is about to get an a* * chewing. A staff person would get on the radio and demand that the offending staffer to "Go November," as a result, all staff would "Go November" on their radios to listen to the gossip.
(Lynch Decl.,...
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