Walker v. Time Life Films, Inc.

• Decision Date: 07 January 1986
• Docket Number: D,No. 518,518
• Citation: 784 F.2d 44
• Parties: , 228 U.S.P.Q. 505, 1986 Copr.L.Dec. P 25,882, 12 Media L. Rep. 1634 Thomas WALKER, Plaintiff-Appellant, v. TIME LIFE FILMS, INC., David Susskind, Gill Champion, Martin Richards and Heywood Gould, Defendants-Appellees. ocket 85-7690.
• Court: U.S. Court of Appeals — Second Circuit

Page 44

784 F.2d 44

54 USLW 2418, 228 U.S.P.Q. 505, 1986

Copr.L.Dec. P 25,882,

12 Media L. Rep. 1634

Thomas WALKER, Plaintiff-Appellant, v. TIME LIFE FILMS, INC., David Susskind, Gill Champion, Martin Richards and Heywood Gould, Defendants-Appellees.

No. 518, Docket 85-7690.

United States Court of Appeals Second Circuit.

Argued Nov. 20, 1985.

Decided Jan. 7, 1986.

Jimmie L. Engram, New York City, for plaintiff-appellant.

Eugene L. Girden, New York City (Patterson, Belknap, Webb & Tyler, Blair Axel, of Counsel), for defendants-appellees.

Before FEINBERG, Chief Judge, LUMBARD and OAKES, Circuit Judges.

FEINBERG, Chief Judge:

Plaintiff Thomas Walker, author of the book "Fort Apache," appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, J., granting summary judgment for defendants in plaintiff's copyright action against Time Life Films, Inc., David Susskind, Gill Champion and Martin Richards, producers of the film "Fort Apache: The Bronx," and Heywood Gould, the film's screenwriter. The district court held as a matter of law that the book and the film were not substantially similar in their copyrightable aspects, 615 F.Supp. 430. Appellant argues that substantial similarity remained a genuine factual issue, and contends that the district court made several evidentiary errors in comparing the two works. We conclude that no reasonable observer could find substantial similarity between the protectible elements of plaintiff's book and defendants' movie, and that the district court did not abuse its discretion in its other rulings. Accordingly, we affirm.

I.

This litigation arises out of two works depicting the violence and urban decay of the 41st Precinct of the New York City Police Department. The 41st Precinct, located in the South Bronx, has been known among police officers by the nickname "Fort Apache" since the late 1960's for its high incidence of violent crime, which has drawn the attention of the press and other news media. Appellant Walker, a former New York City police officer, was assigned there as a lieutenant from May 1971 until August 1972. Based upon his experiences, he wrote a book entitled "Fort Apache," published in 1976 in hardcover and in paperback, which sold in excess of 100,000 copies.

As its author describes it, "Fort Apache" is a chronicle of true events. Narrated by Walker, it begins on his first day at the precinct station house, where he is shocked by its squalor, an attack on the station house by an angry mob, and the apparent inability of the police to maintain its security. On his first day, he also witnesses several violent crimes, and notes that much of the area's housing is ruined or dilapidated. Successive chapters give Walker's harrowing impressions of dozens of ugly and sometimes bizarre murders, suicides, robberies and other crimes, as well as of the drug-dealing, prostitution and physical devastation that characterize the neighborhood. Through his accounts, he illustrates some of the social patterns of the South Bronx, including family life and the popularity of youth gangs. Through anecdotes, the book also illustrates the morale of the precinct's officers and the ways they respond to the stresses of their work.

The book unfolds as a chronicle of police work and daily life in a violent neighborhood. Several chapters focus on specific topics, such as attacks on policemen. Throughout the book, Walker expresses compassion for those he considers the victims of the South Bronx, hopelessness regarding the prospects for basic improvement there, and a sense that the officers of the 41st Precinct will continue to fight a rearguard action against lawlessness with very limited success. The book ends with his transfer to another precinct.

Defendants produced and wrote the screenplay for the film entitled "Fort Apache: The Bronx," which is set in the same milieu as plaintiff's book. In 1973 Heywood Gould made a contract with the newly formed Fort Apache Company to write a screenplay for a film set in the South Bronx. The following year, the Company filed a draft screenplay written by Gould with the United States Copyright Office. In 1976, defendants placed an advertisement in the trade journal "Variety" announcing the production of a film. "Fort Apache: The Bronx" was released in 1981.

The movie focuses on Connolly, the newly arrived captain of the 41st Precinct, and Murphy, a rank-and-file veteran of 12 years there, and their responses to the crime and decay of the South Bronx. The film also portrays the close relationship of Murphy and his partner, Corelli. The film opens with the motiveless murder of two rookie policemen by a deranged prostitute. Much of the film shows the extensive, finally unsuccessful efforts of the police to locate the killer. The prostitute, in the meantime, is rescued by Murphy from a beating by her pimp, and thereafter murders another man. While engaged in the search, Murphy and Corelli respond to a bewildering variety of other South Bronx characters, crises and crimes, including a fleet-footed mugger, the birth of a child to a teenage mother and mob attacks on firefighters and policemen. The film centers around Murphy's affair with a drug-addicted nurse, who eventually is killed by drug dealers trafficking in narcotics at the hospital where she works. In addition, Murphy and Corelli witness the murder of a Hispanic teenager by fellow officers who throw the boy off a roof. After agonizing over whether to denounce the officers, Murphy does so against the advice of the nurse and Corelli, but tenders his resignation to Connolly at the same time. Connolly, however, asks Murphy to reconsider. Meanwhile, the drug dealers, who have given the nurse a fatal overdose, barricade themselves with hostages in the hospital. At the movie's climax, Murphy rescues the hostages. He then succeeds in catching the mugger, displaying a pride in his work that implies he will return to his job.

Walker contends that defendants infringed his copyright by copying from the manuscript for his book. He claims that Heywood Gould, then a reporter, met Walker on a visit in late 1971 or early 1972 to the 41st Precinct, and learned that Walker was working on a book. Walker then, he says, showed Gould the manuscript on the condition that Gould not take notes on it. Gould, however, examined the manuscript for several hours and took notes. Shortly thereafter, the manuscript disappeared from the station house. Gould denies ever having met Walker or read any version of his book, and contends that he received the idea for the screenplay from news reports describing a crime in the area and from two other officers.

In 1980, while defendants' film was still in production, Walker sued defendants in New York state court for infringement, common law copyright, fraud, conversion, unfair competition and conspiracy to commit fraud. The New York Supreme Court dismissed the infringement claim on the ground that the federal courts had exclusive jurisdiction over copyright actions. Holding that Walker's other legal theories merely duplicated his infringement claim, the court dismissed the entire action for lack of jurisdiction. Walker v. Time Life Films, Inc., No. 8938/80 (N.Y.Sup.Ct.1983).

Subsequently, Walker brought this action in federal court under 28 U.S.C. Sec. 1338(a), alleging copyright infringement, Lanham Act violations, unfair competition and breach of a confidential and fiduciary relationship. No demand was made for a jury trial. After the parties agreed to a pre-trial order incorporating stipulated facts, defendants moved for summary judgment. Defendants conceded for the purpose of their motion that Gould had had access to Walker's manuscript, but argued that the book and the film were so different that no reasonable trier of fact could find them substantially similar under the copyright laws. In support of this argument, defendants offered affidavits, some of which were prepared by an expert in literary analysis, analyzing and comparing the structure, mood, characters, themes and episodes of the two works. In response Walker also submitted affidavits by an expert, highlighting and listing similarities between the works. In addition, Walker offered documentary evidence purportedly showing that lay observers believed the film to be derived from the book, as well as a videotape of the film, with voiceovers drawing attention to similar events or passages in the book and the first portion of the film (the voiceover version).

After reading the book and viewing the movie, and considering the experts' affidavits, Judge Edelstein granted defendants' motion. The judge rejected the claim of infringement because no reasonable observer could find the works substantially similar, and whatever similarities existed were trivial, abstract or related to noncopyrightable material. The judge refused, however, to view the voiceover version or to compare the works on the basis of Walker's proffered lists of similarities. Concluding that the movie and the book were not confusingly similar and that defendants had not attempted to "pass off" the film as derived from the book, the court granted summary judgment on the Lanham Act claim, and found the pendent state law claims barred for failure to state a cause of action and preempted by the copyright laws. Accordingly, the judge dismissed the entire complaint on the merits in a well-reasoned opinion, reported at 615 F.Supp. 430. This appeal followed.

II.

It is undisputed that appellant Walker has a valid copyright in his book. To prove infringement, he must also show copying by defendants. Warner Brothers v. American Broadcasting Co., 654 F.2d 204, 207 (2d Cir.1981) (Warner I). Copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that substantial similarities exist as to protectible material in the two works. Reyher v. Children's...