Towler v. Sayles, 94-1147

• Citation: 76 F.3d 579
• Decision Date: 23 February 1996
• Docket Number: No. 94-1147,94-1147
• Parties: 1995 Copr.L.Dec. P 27,498, 37 U.S.P.Q.2d 1785 Virginia L. TOWLER, Plaintiff-Appellant, v. John SAYLES; Atchafalaya Films, Incorporated; Esperanza, Incorporated; Miramax Film Corporation, Defendants-Appellees, and SCS Communications, Incorporated, Defendant, Tracy Strain, Party in Interest.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 579

76 F.3d 579

1995 Copr.L.Dec. P 27,498, 37 U.S.P.Q.2d 1785

Virginia L. TOWLER, Plaintiff-Appellant, v. John SAYLES; Atchafalaya Films, Incorporated; Esperanza Incorporated; Miramax Film Corporation Defendants-Appellees and SCS Communications, Incorporated, Defendant Tracy Strain, Party in Interest.

No. 94-1147.

United States Court of Appeals, Fourth Circuit.

Argued July 11, 1995.

Decided Feb. 23, 1996.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-93-704-A).

ARGUED: James Phillip Chandler, III, Chandler & Robertson, Washington, DC, for Appellants. Michael Dennis Sullivan, Ross, Dixon & Masback, Washington, DC, for Appellees. ON BRIEF: Elizabeth C. Koch, Jay Ward Brown, Ross, Dixon & Masback, Washington, DC, for Appellees.

Before MURNAGHAN, Circuit Judge, and BUTZNER and PHILLIPS, Senior Circuit Judges.

Affirmed by published opinion. Senior Judge BUTZNER wrote the opinion, in which Judge MURNAGHAN and Senior Judge PHILLIPS joined.

OPINION

BUTZNER, Senior Circuit Judge:

In an action for infringement of copyright, Virginia Towler appeals from the district court's grant of judgment as a matter of law to John Sayles, Atchafalaya Films, Inc., Esperanza, Inc., and Miramax Film Corporation. Because we find that Towler did not present sufficient evidence showing that Sayles infringed her copyright, we affirm.

Virginia Towler wrote the screenplay, "Crossed Wires or Bobbie and Wendy were Neighbors" ("Crossed Wires"), which she copyrighted in 1990. John Sayles wrote and directed "Passion Fish," which he initially called "The Louisiana Project." Towler became aware of Sayles' screenplay when it was shown throughout the country in 1992.

Alleging numerous similarities between "Passion Fish" and "Crossed Wires," Towler brought suit for infringement of copyright and for violations of the Lanham Act and the Virginia unfair competition laws. The district court dismissed one of the defendants, SCS Communications, Inc., before trial. It also dismissed the Lanham Act and unfair competition law claims. Towler has not appealed these rulings. At the close of Towler's evidence in the trial of the copyright infringement claim, the district court determined that the evidence was insufficient to show access and substantial similarity, and it granted the defendants' motion for judgment as a matter of law. Towler appealed, assigning error to the court's ruling with respect to both access and similarity.

I

Judgment as a matter of law is appropriate when "a party has been fully heard ... and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party." Fed.R.Civ.P. 50(a)(1). On appeal, we evaluate the sufficiency of the evidence de novo, while viewing the facts and drawing all reasonable inferences in favor of the nonmoving party. Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d 655, 660-61 (4th Cir.1993).

To prove copyright infringement, a plaintiff must show first that she owned the copyright to the work that was allegedly copied, and second, that the defendant copied protected elements of that work. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1295, 113 L.Ed.2d 358 (1991). Here, it is undisputed that Towler possesses a valid copyright to "Crossed Wires."

At issue is whether Towler has presented sufficient evidence to satisfy the second prong of the test--proof that Sayles copied her work. As is often the case, direct evidence of copying is lacking, making it necessary to look to circumstantial evidence. Accordingly, Towler can raise a presumption of copying by showing both that Sayles had access to "Crossed Wires" and that the two screenplays in question are substantially similar. Dawson v. Hinshaw Music Inc., 905 F.2d 731, 732 (4th Cir.1990).

To prove access, Towler must show that Sayles had an opportunity to view or to copy her work. 3 Nimmer on Copyright § 13.02[A], at 13-16 to 13-18 (1995). A mere possibility that such an opportunity could have arisen will not suffice. Rather, it must be reasonably possible that the paths of the infringer and the infringed work crossed. Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939, 942 (8th Cir.1992).

II

In an effort to find a producer for "Crossed Wires," Towler contacted numerous individuals in the film industry. In May 1991, she phoned Cinecom Pictures in an attempt to contact Sayles, a well known independent film director and screenwriter. Because of Cinecom's involvement with the distribution of two of Sayles' previous films, Towler mistakenly assumed that Cinecom was one of Sayles' companies. In any event, after Towler asked to speak with a Cinecom representative, the telephone operator instead gave her the number for SCS Films.

The reasons why the operator referred Towler to SCS are readily explained. Facing mounting financial difficulties, Cinecom had filed for bankruptcy. Subsequently, Cinecom's chairman of the board, Steven Clark Swid, created SCS Communications, which he named after himself. SCS Communications and one of its divisions, SCS Films, occupied Cinecom's former office and employed several of the bankrupt company's personnel, including Tracy Strain and her supervisor, Shelby Stone.

After receiving SCS's phone number from the operator, Towler assumed that SCS was affiliated with Cinecom. She then called SCS and spoke with Tracy Strain. She testified that Strain told her that SCS stood for "Secaucus Seven," the title of one of Sayles' prior films. Towler took this as an affirmation of her belief that SCS was one of Sayles' companies and asked Strain to forward "Crossed Wires" to Sayles. Towler testified that Strain agreed to do so.

Shortly after speaking with Strain, Towler sent Strain a copy of "Crossed Wires" along with a follow-up letter, dated May 28, 1991. She addressed the letter to Strain at SCS Films and did not mention Sayles. Towler had no further contact with Strain or SCS, except for a letter in which SCS rejected "Crossed Wires." At no time did Towler write to Sayles directly, nor did she ever receive any correspondence from him. In excerpts from Strain's deposition that were read to the jury, Strain stated that she knew SCS stood for Steven Clark Swid. She also stated that she did not know Sayles and did not recall speaking to Towler about sending "Crossed Wires" to Sayles. Towler admitted on cross-examination that Sayles was not affiliated with either Cinecom or SCS.

Sayles, testifying as a witness called by Towler, denied knowing Strain or receiving anything from her at any time. He testified that he began researching and writing a screenplay, entitled "The Louisiana Project," in January 1991, at least four months before Towler sent "Crossed Wires" to SCS on May 28, 1991. To support his testimony, he introduced numerous book receipts and other documents related to his research that were dated prior to May 28, 1991. He also testified that he spoke with Mary McDonnell in late March 1991 to find out if she was interested in acting in the film that he hoped to make from his screenplay. He introduced additional evidence showing that he was on a multi-city book tour from May 28 until June 7, 1991. During the tour, he told an interviewer that he had just given the first 80 pages of the script to a friend to read. In late 1991, Sayles sold the production rights to "The Louisiana Project." He retained the right to direct the film version, renaming it "Passion Fish." He derived this title from the name of a small fish in Louisiana that legend credits with the ability to grant the wish of a person who holds it.

Towler asserts that access is established because Strain said she would forward the screenplay to Sayles. At this stage of the proceedings, we must credit Towler's testimony that Strain said she would forward "Crossed Wires" to Sayles. But this is just the beginning, not the end, of our inquiry. Towler introduced no evidence that Strain actually sent "Crossed Wires" to Sayles. Nor has Towler introduced evidence from which a jury could draw a reasonable inference that Sayles received "Crossed Wires." This gap in the proof is enlarged by Sayles' testimony, which Towler introduced, that he never received "Crossed Wires" from Strain. Towler has presented no evidence upon which a jury could base an inference that Sayles was not truthful. Cf. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th Cir.1978).

We conclude that Towler has failed to prove a reasonable possibility that Sayles gained access to "Crossed Wires" through Towler's contact with Strain.

III

A court may infer that the alleged infringer had a reasonable possibility of access if the author sent the copyrighted work to a third party intermediary who has a close relationship with the infringer. An intermediary will fall within this category, for example, if she supervises or works in the same department as the infringer or contributes creative ideas to him. Moore, 972 F.2d at 944-45; Meta-Film Associates, Inc. v. MCA, Inc., 586 F.Supp. 1346, 1358 (C.D.Cal.1984).

Towler contends that Strain and Stone, along with a number of named and unnamed individuals in the film industry, all satisfy the definition of an intermediary, thereby permitting the inference of access. With regards to Strain, Towler's primary argument is that Strain expressed interest in the screenplay and told her she would send it to Sayles. Stone is implicated because she supervised Strain at SCS and worked with Sayles previously when Cinecom distributed two of his films. As further evidence of Stone's continuing relationship with Sayles, Towler points to the fact that Sayles' business attorney, John Sloss, had worked for Cinecom and knew Stone socially. Towler concludes her argument by naming a host of individuals...