Singleton v. Dean

• Decision Date: 10 December 2014
• Docket Number: Case No. 4:13cv391-MW/CAS
• Parties: ANGELA D. SINGLETON, Plaintiff, v. GAYLE EUTSEY DEAN, Defendant.
• Court: U.S. District Court — Northern District of Florida

ANGELA D. SINGLETON, Plaintiff, v. GAYLE EUTSEY DEAN, Defendant.

Case No. 4:13cv391-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

December 10, 2014

REPORT AND RECOMMENDATION

Pending is the pro se Plaintiff's motion for default judgment, doc. 13. A default has already been entered by the Clerk of Court against Defendant Gayle Eutsey Dean pursuant to FED. R. CIV. P. 55(a). Doc. 8.

Plaintiff's complaint alleged copyright infringement by Defendant Dean who authored the book, GABRIELLE'S FAT JOURNEY. Doc. 1. Plaintiff claimed that Dean plagiarized ideas, dialogue, language, events, and scenes from a book Plaintiff had written entitled DIAMOND'S FATE. Id. at 3. Plaintiff filed proof of service, doc. 6, demonstrating that on September 12, 2013, a process server served Dean. Because it appeared that Defendant had been served in this case but had not filed an answer or other response to the complaint, an Order was entered on October 17, 2013, findingDean in default and directing the Clerk of Court to mail the Order to the Defendant at the address provided by Plaintiff's process server. Doc. 7. Dean was required to file an answer and, pursuant to Rule 4(d), demonstrate why she should not be required to pay the expenses incurred in making service. Id. Dean did not respond. A subsequent Order was entered requiring Dean to pay the $40.00 fee required to serve the complaint and directing the Clerk to mail the Order to Dean. Doc. 9. She did not respond to that Order either.

Another Order was entered noting that Defendant was in default, but Plaintiff "had not yet moved for a default judgment against the Defendant." Doc. 12. Plaintiff was advised that she must support her motion for entry of default judgment and she was informed that she must demonstrate two elements in order to establish a claim of copyright infringement: (1) ownership of a valid copyright, and (2) "copying of constituent elements of the work that are original." Id. (citing Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1232-33 (11th Cir. 2010); see also Cambridge Univ. Press v. Becker, 863 F.Supp.2d 1190, 1221 (N.D. Ga. 2012) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991))). In response to that Order, doc. 12, Plaintiff filed the instant motion for default judgment, doc. 13. In support of her motion, Plaintiff submitted a lengthy document (doc. 13 at 984) providing a "page by page comparison" of Dean's book, GABRIELLE'S FAT JOURNEY (published in 2012), and Plaintiff's book, DIAMOND'S FATE (published in 2011). Plaintiff also provided copies of both books which have been reviewed along with the factual allegations of the complaint, doc. 1.

Standard of Review

A default judgment for injunctive relief may appropriately be entered when a defendant fails to defend against claims of copyright infringement. Arista Records, Inc. v. Beker Enterprises, Inc., 298 F.Supp.2d 1310, 1312 (S.D. Fla. 2003). The mere entry of a default by the Clerk does not, in itself, warrant the Court entering a default judgment. Tyco Fire & Sec. LLC v. Alcocer, 218 F. App'x 860, 863 (11th Cir. 2007) (citing Nishimatsu Constr. Co. v. Hous. Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Rather, a defaulted defendant is only deemed to admit to the plaintiff's well-pled allegations of fact.¹ Bait Prod. PTY Ltd. v. Aguilar, No. 8:13cv161, 2013 WL 5653357, at *2 (M.D. Fla. Oct. 15, 2013) (citing Tyco Fire & Sec., 218 F. App'x at 863). Thus, before a default judgment may be entered, a court must ensure that the well-pled allegations in the complaint, which are taken as true due to the default, actually state a substantive cause of action and provide "a sufficient basis in the pleadings for the judgment entered." Nishimatsu Constr. Co., 515 F.2d at 1206.

As noted above, there are two required elements which must be shown to demonstrate a prima facie case of copyright infringement: (1) that Plaintiff owns a valid copyright and (2) that Defendant copied protected elements from the book. Peter Letterese And Assoc., Inc. v. World Institute Of Scientology Enter., 533 F.3d 1287, 1300 (11th Cir. 2008) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991), and Suntrust Bank v. Houghton Mifflin Co.,268 F.3d 1257, 1266 (11th Cir. 2001)).² Plaintiff has met the first element and has demonstrated that she was issued a copyright registration, effective October 10, 2012. Doc. 13 at 2. As the copyright owner, Plaintiff has the "exclusive" right to prepare and to authorize others to prepare "derivative works³ based upon the copyrighted work." 17 U.S.C. § 106(2). Therefore, ruling on Plaintiff's motion focuses on whether Plaintiff has shown that Defendant copied protected expression from her book DIAMOND'S FATE.

To meet the second element, when a plaintiff "does not have direct proof of copying, the plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are 'substantially similar.' " Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir. 1986), reh'g denied, 801 F.2d 404 (11th Cir. 1986) (en banc) (quoted in Herzog v. Castle Rock Entm't, 193 F.3d 1241, 1248 (11th Cir. 1999)). "If the plaintiff cannot show access, the plaintiff may still prevail by demonstrating that the works are 'strikingly similar.' " Ferguson v. National Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (quoted in Herzog, 193 F.3d at 1248.

"To demonstrate copying, a plaintiff must show 'that the person who composed the defendant's work had access to the copyrighted material and that there is substantial similarity between the two works.' " Herzog, 193 F.3d at 1249 (quoted inCorwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007)). Here, Plaintiff has not alleged or presented "direct proof of copying." Although Plaintiff alleged that Dean sent her an "autographed copy" of Dean's book, Plaintiff did not allege how Dean acquired her book or had access to her book.⁴ "Where a plaintiff cannot demonstrate access [s]he may, nonetheless, establish copying by demonstrating that [her] original work and the putative infringing work are strikingly similar." Calhoun v. Lillenas Publ'g, 298 F.3d 1228, 1232 n.6 (11th Cir. 2002) (quoted in Corwin, 475 F.3d at 1253). Thus, Plaintiff's case proceeds under the alternative "strikingly similar" (also known as "substantially similar") theory. Thus, Plaintiff must show that Dean's book, GABRIELLE'S FAT JOURNEY, is "strikingly similar" to her book DIAMOND'S FATE. Doc. 1 at 3.

Plaintiff's complaint alleged that Dean used substantially similar "ideas (dialogue, language, events, and scenes)" from Plaintiff's book when Dean created her own book.⁵ Doc. 1 at 3. "Striking similarity exists where the proof of similarity in appearance is 'so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.' " Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984) (quoted in Corwin, 475 F.3d at 1253). The Court's inquiry focuses on "whether a reasonable jury could find the competing designs substantially similar at thelevel of protected expression." Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1224, n.5 (11th Cir. 2008).

In conducting that inquiry, there are two issues which must be considered. First, has Plaintiff shown substantial or striking similarity?⁶ Corwin, 475 F.3d at 1253-54 (11th Cir. 2007) (similarities are "so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.") (citations omitted). The similarities must be such that "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir. 1982) (quoted in Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1248 (11th Cir. 1999)). Second, do the similarities involve copyrightable material? Herzog, 193 F.3d at 1248 (noting that "in an action for infringement, it must be determined both whether the similarities between the works are substantial from the point of view of the lay reader and whether those similarities involve copyrightable material."). Not all copying constitutes infringement, however, because "[t]he most fundamental axiom of copyright law is that '[n]o author may copyright his ideas or the facts he narrates.' " Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 556, 105 S.Ct. 2218, 2228, 85 L.Ed.2d 588 (1985) (quoted in Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc. 499 U.S. 340, 344-345, 111 S.Ct. 1282, 1287 (1991)). Because copyright protection does not "extend to any idea, procedure, process, system, method of operation, concept,principle, or discovery," a "basic premise of copyright law is that, while expression is protected, ideas are not." Beal v. Paramount Pictures Corp., 20 F.3d 454, 458 (11th Cir. 1994) (citing to 17 U.S.C. § 102(b)). Furthermore, " 'scenes á faire,' stock scenes that naturally flow from a common theme, are not copyrightable." Beal, 20 F.3d at 459 (quoted in Marenem, Inc. v. Jump, No. 5:12cv212, 2013 WL 1693987, at *3 (M.D. Ga. Apr. 18, 2013)).⁷ In addition, "expression is not protected in those instances where there is only one or so few ways of expressing an idea that protection of the expression would effectively accord protection to the idea itself." BellSouth Adver. & Publ'g Corp. v. Donnelley Info. Publ'g, Inc., 999 F.2d 1436, 1442 (11th Cir. 1999) (quoting Kregos v. Associated Press, 937 F.2d 700, 705 (2d Cir. 1991)).

Plaintiff's complaint alleged twenty four statements (including the title) from the Defendant's book which she contends infringed upon her book. Doc. 1 at 4-8. Plaintiff provided partial statements from Dean's book in an attempt to show the similarities to her own. Id....