Herzog v. Castle Rock Entertainment

Decision Date27 October 1999
Docket NumberNo. 98-5651,98-5651
Parties(11th Cir. 1999) Karen C. HERZOG, an individual, Plaintiff-Appellant, v. CASTLE ROCK ENTERTAINMENT, a California partnership, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeal from the United States District Court for the Southern District of Florida.

Before BIRCH and MARCUS, Circuit Judges, and MILLS*, Senior District Judge.

PER CURIAM:

Based on the well-reasoned district court opinion, we AFFIRM. A copy of the opinion is annexed hereto.

APPENDIX

KAREN C. HERZOG, an individual, Plaintiff,

vs.

CASTLE ROCK ENTERTAINMENT, a California partnership, RIO DULCE INC., a New York corporation, and JOHN SAYLES, individually, Defendants.

CASE NO. 97-505-CIV-MIDDLEBROOKS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Sept. 29, 1998.

MIDDLEBROOKS, District Judge:

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

THIS CAUSE came before the Court upon Defendants' Motion for Summary Judgment. Plaintiff filed this action against Defendants for copyright infringement under the Copyright Act of 1976, 17 U.S.C. 101 et seq., alleging that Defendants infringed her copyright in her screenplay, "Concealed." The allegedly infringing work is "Lone Star," a motion picture written and directed by Defendant John Sayles, produced by Defendant Rio Dulce Inc., and financed by Defendant Castle Rock Entertainment. Plaintiff is seeking actual or statutory damages, punitive damages, attorney's fees, costs, and equitable relief.

Defendants' Motion for Summary Judgment was filed February 20, 1998, on the grounds that Plaintiff cannot raise a genuine issue of material fact as to Defendants' access to "Concealed" or substantial similarity of protected expression between "Concealed" and "Lone Star," and Defendants are therefore entitled to summary judgment as a matter of law. Plaintiff filed a response, to which Defendants replied; Plaintiff surreplied on May 19, 1998. The Court heard oral argument on September 1, 1998. Based upon the arguments of the parties and a thorough review of the record, Defendants' Motion for Summary Judgment (DE 69) is GRANTED, for the reasons fully explained below.

FACTS

Plaintiff Karen C. Herzog ("Herzog") is a teacher of cinematography, history of film and television production at Braddock Senior High School in Miami, Florida. In the fall of 1991, she was a student in the Master of Fine Arts (M.F.A.) program at the University of Miami in Coral Gables, Florida. To obtain a Master of Fine Arts Degree in Film from the University of Miami, Ms. Herzog was required to write a feature length screenplay under the supervision of a thesis committee comprised of three professors. Her initial thesis committee members were Janet Bohak, William Rothman and Peter Zorn.

In 1992, Ms. Bohak left the University of Miami and Ms. Herzog was required to find a replacement member of the thesis committee. She approached William Cosford, an adjunct professor within the Department, gave him a copy of "Concealed" and asked him if he would serve on her committee. According to Ms. Herzog, Mr. Cosford, who was also a film critic for The Miami Herald, advised her that he did not have time to serve on the committee, but he did not return the copy of her screenplay she had given him. Mr. Cosford died in January 1994.

Ms. Herzog then approached Stephen Bowles, who agreed to serve on her committee. Professor Bowles teaches film history, theory, criticism, and script writing at the University of Miami. Ms. Herzog also alleges that she gave "Concealed" to Scott Manders, a fellow student, for his critique prior to her submission of the screenplay to the committee.

In April 1993, Plaintiff deposited and registered her screenplay entitled "Concealed" with the Writer's Guild of America ("WGA"). "Concealed" was also deposited and registered with the United States Copyright Office. Certificate of Registration No. Pau-2-113-247 was obtained on September 6, 1996.

Plaintiff does not allege that she ever submitted "Concealed" to Mr. Sayles or to any other Defendant. Instead, she alleges that Mr. Sayles gained access to "Concealed" through the late William Cosford, Scott Manders, and/or the members of her thesis committee, Stephen Bowles, William Rothman, and Peter Zorn.

Defendant John Sayles ("Sayles") is a critically acclaimed screenwriter and director. In late 1994/early 1995, Mr. Sayles wrote the screenplay for "Lone Star"1; he also directed the motion picture, which was released in 1996. The "Lone Star" screenplay was nominated for an Academy Award in 1996.

In February 1993, Mr. Sayles came to Miami for the screening of his film "Passion Fish" at the Miami Film Festival ("Festival"). Plaintiff alleges that while Mr. Sayles was in Miami for the Festival, he socialized with Mr. Cosford, Mr. Manders and/or members of her thesis committee, specifically, Mr. Bowles, and thereby gained access to "Concealed."

In his Affidavit, Mr. Sayles states that prior to the commencement of this lawsuit, he had never met nor heard of Karen Herzog or Scott Manders; that he has never seen any screenplay entitled "Concealed," nor has he ever seen any work purporting to have been authored by Ms. Herzog. He states that Mr. Cosford never had any creative input to any of his works. Mr. Sayles believes the last time he saw Mr. Cosford was in 1991 in New Jersey; that although he had visited with Mr. Cosford a few times in Miami, he does not recall seeing him at the 1993 Miami Film Festival; that if he socialized with Mr. Cosford at that time, Mr. Cosford did not deliver any screenplays to him, nor did he review any screenplays. Mr. Sayles states that he was solely responsible for the conception, creation and development of "Lone Star."2

At deposition, Mr. Bowles stated that he never saw Mr. Sayles during the 1993 Miami Film Festival. According to Ms. Herzog's own testimony at deposition, Mr. Manders also denies seeing Mr. Sayles during the Festival.

Plaintiff describes "Concealed" as follows:

"Concealed" tells the story of a small, rural Southern town and the hidden interrelationships and long-buried secrets of its residents. It begins as Marty, a former big-city police detective, returns to her hometown after sustaining emotional and physical injuries and is coerced into joining the sheriff's department. Marty begins an inquiry into the apparently natural death of a prominent citizen. Her investigation develops into a multiple murder investigation in which she uncovers the town's murderous past and her own family's part therein. In the course of the investigation, Marty is forced to deal with her town's history of simmering racial and ethnic tension and must confront the legacy of her own father's actions as sheriff. She discovers painful secrets from her own past, as well as that of some of the town's other residents-including the descendants of the area's black Seminole Indians-all of which have continuing repercussions in the present. The investigation is the thread that weaves these narratives together.

Complaint at 3, 10.

Defendants describe "Lone Star" as follows:

"Lone Star" is the story of Sam Deeds, the sheriff of Rio County, a sleepy Texas/Mexico border community, who investigates the forty year old murder of Charley Wade, a corrupt and bigoted sheriff of Rio County. Sam comes to believe his late father, Buddy Deeds, himself a former Rio County sheriff, killed Wade. Those who honor Buddy's memory think that Sam's suspicions are groundless and find Sam too ready to suspect Buddy because of Sam's long simmering resentment of Buddy's interference in young Sam's courtship of Pilar. Sam, a man of honor, cannot let the matter rest. He presses his investigation, finding evidence that suggests Buddy was not above profiting from his post and may have had good reason to kill Wade-until Hollis, a former sheriff's deputy, finally confesses to killing Wade. Convinced that the homicide was justified, Sam agrees to let the matter rest without making public what he has learned.

Against this backdrop, "Lone Star" develops several subplots. Sam's investigation brings him into contact with Pilar and they finally consummate their affair.

Afterwards, Sam learns that Pilar is his half-sister, the result of a sexual encounter between Buddy and Pilar's mother. Sam shares this stunning information with Pilar in the film's final scenes, and their decision to continue the relationship despite this knowledge constitutes the film's ultimate resolution. In addition, Sam's investigation reintegrates three generations of black men into a family whole: Otis, an older black man who witnessed Wade's murder and participated in the ensuing coverup; his estranged son, Delmore Payne, the new commander of the nearby Army training installation where Wade's body was found; and Chet, Del's young son. Finally, the film deals with Anglo/African- American/Latino relations as it portrays the sociological forces at work in Rio County, which sits on the border with Mexico, and which houses an Army base with a number of black recruits in residence.

Defendants' Motion for Summary Judgment at 2-3.

STANDARD OF REVIEW

The standard to be applied in reviewing summary judgment motions is stated in Rule 56(c) of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.

Summary judgment may be entered only where there is no genuine issue of material fact. The moving party bears the burden of meeting this standard. Adickes v. S.H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

In applying this standard, the Eleventh Circuit has explained:

In assessing whether the movant...

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