Scott-Blanton v. Universal City Studios Prod. Lllp, Civil Action No. 07-0098 (RMU).

• Decision Date: 20 March 2008
• Docket Number: Civil Action No. 07-0098 (RMU).
• Citation: 539 F.Supp.2d 191
• Parties: Janice SCOTT-BLANTON, Plaintiff, v. UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP et al., Defendants.
• Court: U.S. District Court — District of Columbia

539 F.Supp.2d 191

Janice SCOTT-BLANTON, Plaintiff, v. UNIVERSAL CITY STUDIOS PRODUCTIONS LLLP et al., Defendants.

Civil Action No. 07-0098 (RMU).

United States District Court, District of Columbia.

March 20, 2008.

Janice Scott-Blanton, Triangle, VA, pro se.

Steven Jonathan Metalitz, Mitchell Silberberg & Knupp, LLP, Washington, DC, Marc E. Mayer, Mitchell Silberberg &amp Knupp LLP, Los Angeles, CA, for Defendants.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

This case comes before the court on the defendants' motion for summary judgment. The pro se plaintiff, Janice Scott-Blanton, alleges that her novel, "My Husband Is On The Down Low and I Know About It" ("Down Low"), is the creative source for the award-winning motion picture "Brokeback Mountain." In her complaint, the plaintiff alleges violations of the Copyright Act, 17 U.S.C. §§ 101 et seq.; violations under the Lanham Act, 15 U.S.C. §§ 1125(a), 1117; and violations of statutory and common laws of the fifty states, U.S. territories and every foreign country where the defendants generated revenues. Because no reasonable juror could conclude that the defendants had access to the plaintiffs novel before the completion of the short story and because the alleged similarities between "Down Low" and the defendants' works that are not in the short story are not protected under copyright law, the court grants the defendants' motion for summary judgment on the plaintiffs Copyright Act claim. In addition, the court grants the defendants' motion for summary judgment as to the plaintiffs remaining claims because they arise from the same alleged conduct.

II. BACKGROUND

A. Factual History

The pertinent factual background is detailed in the court's November 15, 2007 Memorandum Opinion. Mem. Op. (Nov. 15, 2007), 246 F.R.D. 344, 345-46. In short, after The New Yorker magazine published Annie Proulx's short story "Brokeback Mountain" on October 13, 1997, Diana Ossana and Larry McMurtry adapted it into a screenplay in 1998. Decl. of Marc E. Mayer (Mar. 7, 2007) ("Mayer Decl."), Ex. H. Subsequently, Ossana and McMurtry assigned the rights to their screenplay to Columbia Pictures. Industries, Inc. ("Columbia Pictures"), which obtained copyright certification for two screenplays, one in April 2000 and another in August 2004. Mayer Decl., Exs. J, K. According to Jeffrey Roth, the Senior Vice President of Post Production for Columbia Pictures, the studio completed filming all material scenes for the motion picture by August 5, 2004. Decl. of Jeffrey Roth (Mar. 7, 2007) ("Roth Decl.") ¶¶ 2-3. Roth also stated that the footage was in its final form in January 2005; the studio cut the final print in March 2005; and the studio released the motion picture in theaters on December 9, 2005. Id. ¶¶ 5-6.

In November 2004, the plaintiff authored "Down Low." Am. Compl. ¶ 24. The plaintiff obtained a certificate of registration for her novel on January 20, 2005, and she published it on March 15, 2005. Id. ¶¶ 25, 27 & Ex. I. The plaintiff claims that she recognized "some similarity of expressions in the protected elements of the story and scene" between "Brokeback Mountain" and her novel after watching the film for the first time on June 11, 2006. Id. ¶ 32.

B. Procedural History

Seven months after she noticed the similarities, the plaintiff filed her first complaint seeking a preliminary and permanent injunction as well as damages for copyright infringement. On March 14, 2007, the plaintiff filed a motion to amend her complaint. Nine days later, the defendants filed a motion for summary judgment. Defs.' Mot. for Summ. J. ("Defs.' Mot."). On April 3, 2007, the plaintiff filed a memorandum in opposition to' the defendants' motion for summary, judgment in which she requested that the court permit discovery under Rule 56(f) and, if the court denied this request, leave to file an opposition to the defendants' motion for summary judgment. See generally Pl.'s Mot. for Discovery.

On July 19, 2007, the court denied the plaintiffs motion for a preliminary injunction because the plaintiff failed to demonstrate a substantial likelihood of success on the merits and failed to show that she would face irreparable injury. Mem. Op. (July 19, 2007), 495 F.Supp.2d 74. On August 27, 2007, the court issued a Memorandum Order granting the plaintiffs motion to amend her complaint as of right, Mem. Op. (Aug. 27, 2007), 244 F.R.D. 67, and on November 15, 2007, the court denied the plaintiffs motion to pursue discovery pursuant to Rule 56(f) because the plaintiff failed to set forth a reasonable basis for the discovery, Mem. Op. (Nov. 15, 2007), 246 F.R.D. 344. The court allowed the plaintiff another opportunity to fully respond to the defendants' motion, however. Before turning to the defendants' motion for summary judgment, the court provides a brief synopsis of the parties' works.

C. The Plaintiff's Novel: "Down Low"

The plaintiffs novel is set in the southern United States during the 1980's and depicts the love story of a married couple, Annette and James. See generally JANICE SCOTT-BLANTON, MY HUSBAND IS ON THE DOWN Low AND I KNOW ABOUT IT (JaRon Publishing Group, Inc. 2005). The novel recounts Annette's exploration of her bisexuality and James' struggle to deal with his bisexuality. Id. As a young adult, Annette realizes that she is bisexual but is afraid to explore physical intimacy with women. Id. at 7-8. To Annette's surprise, James is very accepting of her bisexuality and encourages her to initiate relationships with other women. Id. at 11-20. Unbeknownst to Annette though, James has had sexual desires for men and had a sexual encounter with a childhood friend when he was 15 years old. Id. at 62. They begin interacting with other couples: James has sexual encounters with women and Annette with both men and women. Id. at 77-81. Eventually, Annette tells her family about her sexual orientation, and they are very supportive. Id. at 123.

After several years of marriage, James comes to terms with his own bisexuality and begins having an affair with Thomas, a family friend. Id. at 197-204. James, however, is afraid to discuss his newfound bisexual identity with Annette and is also afraid that his sexual orientation will end his career as an officer in the military. Id. at 141-150. Annette grows suspicious that James is having an affair and begins reading James's journal. Id. In doing so, she confirms that he is having an affair with Thomas and that he has been tormented by his feelings toward men. Id. She then witnesses a sexual encounter between James and another man. Id. at 207-15. When she confronts James, he admits to being bisexual and having an affair. Id. at 223. Devastated by the news, the two separate for several years, but they eventually reunite and rekindle their relationship. Id. at 245-249. By the end of the novel there is a renewed sense of hope built on a foundation of tolerance.

D. The Defendants' Works: "Brokeback Mountain" — the Short Story, the Screenplay and the Motion Picture

Based on Proulx's short story, the motion picture for "Brokeback Mountain" centers on Ennis and Jack, "two young men who unexpectedly forge a complicated lifelong relationship and a decades-long love affair that they try to hide from the rest of the world." Berlent v. Focus Features, LLC, 2006 WL 1594478, at *1 (S.D.N.Y. June 8, 2006); see also Annie Proulx, Brokeback Mountain, THE NEW YORKER, Oct. 13, 1997, at 74; BROKEBACK MOUNTAIN (Focus Features 2005); ANNIE PROULX, LARRY MCMURTRY & DIANA OSSANA, BROKEBACK MOUNTAIN: STORY TO SCREENPLAY (Scribner 2006). This epic love story begins in rural Wyoming in the summer of 1963, when Ennis, a stoic introvert, and Jack, an optimistic extrovert, fall in love while herding sheep together on Brokeback Mountain. ANNIE PROULX, LARRY MCMURTRY & DIANA OSSANA, BROKEBACK MOUNTAIN: STORY TO SCREENPLAY (Scribner 2006) at 6-28. At the end of the summer, however, the men separate, get married and start a family. Id. at 28-30, 40-41, 43, 47.

After four years apart, Jack visits Ennis. Id. at 44-47. When they first see each other, they are so overwhelmed that they kiss each other in front of Ennis' home. Id. at 46-47. Alma, Ennis' wife, witnesses their kiss but remains silent. Id. Once reunited, Ennis and Jack see each other a couple of times a year, telling their respective wives that they are going on fishing trips. Id. at 50, 56-58. During one of these trips, Jack suggests that they move to his father's ranch and live together. Id. at 52-54. Ennis declines because he fears that the reaction to two men living together will lead him to lose his family or his life. Id. As the years progress and as their marriages deteriorate, Ennis and Jack continue to see each other. Id. at 71-72. Alma eventually divorces Ennis, and a few years later, she confronts him about his affair with Jack. Id. at 61, 68-69. Upset, Ennis storms out of the house without saying goodbye to his children. Id.

After the divorce, Ennis is unable to see Jack as often as he had in the past due to his obligation to pay child support. Id. at 80-83: As Ennis and Jack begin to drift apart, Ennis becomes even more withdrawn and melancholy. Id. at 72. Jack expresses his frustration with the surreptitious and infrequent nature of their encounters and admits that he has been with other men. Id. at 81-83. One day as Ennis is going through his mail, he sees a postcard he addressed to Jack with "DECEASED" stamped in red. Id. at 86. Ennis calls Jack's wife and learns that he was killed ostensibly when a flat tire that he was inflating exploded, slamming the rim of the tire into his face. Id. at 86-89. Ennis then visits Jack's family home, and there, in the back of Jack's closet, is a postcard of Brokeback Mountain. Id. at 89-92. Next to the postcard on a wire hanger, he finds his shirt from that first summer on Brokeback Mountain carefully...