Whitehead v. Cbs/Viacom, Inc.

• Decision Date: 11 February 2004
• Docket Number: No. CIV.A.01-1192(RWR).,CIV.A.01-1192(RWR).
• Citation: 315 F.Supp.2d 1
• Parties: David L. WHITEHEAD, Plaintiff, v. CBS/VIACOM, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

315 F.Supp.2d 1

David L. WHITEHEAD, Plaintiff, v. CBS/VIACOM, INC., et al., Defendants.

No. CIV.A.01-1192(RWR).

United States District Court, District of Columbia.

February 11, 2004.

COPYRIGHT MATERIAL OMITTED

David L. Whitehead, pro se.

Paul R. Taskier, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Jason Christopher Chipman, Jonathan Lynwood Abram, Hogan & Hartson, L.L.P., Washington, DC, for Defendants.

MEMORANDUM OPINION

ROBERTS, District Judge.

Plaintiff David L. Whitehead brought this action against defendant CBS/Viacom and others for allegedly infringing his original copyrighted works in writing the 2000 screenplay and in producing the 2001 CBS miniseries, "Blonde." Defendant CBS/Viacom moves for summary judgment on the remaining counts in the amended complaint¹ alleging copyright infringement and unfair competition in violation of the Copyright Act, 17 U.S.C. §§ 101 et seq. (2000), and the Lanham Act, 15 U.S.C. § 1125(a). Because no reasonable jury could find substantial similarity between the protectable elements of plaintiff's plays and defendant's work, defendant's motion for summary judgment will be granted.

BACKGROUND

Plaintiff contends that defendant's "Blonde" is "strikingly similar" to his short plays "Marilyn Dances: Happy Birthday Mr. President" and "My Aretha." (Am. Compl. at ¶ 10.) Plaintiff specifically points to the "characterization, phrases, lines, sequences of events, expression of ideas, mood, interplay between characters and dialogue," in addition to the central theme with "easily identifiable characters," allegedly shared between defendant's work and plaintiff's copyrighted plays. (Id.) According to plaintiff, "defendant's work retells the original work of Mr. Whitehead in an elongated version from the same perspective of the main character, Marilyn Monroe. In essence, defendants merely encapsulate the same story while adding new twists." (Pl.'s Resp. at 21.) While plaintiff lists 25 alleged similarities between "Marilyn Dances: Happy Birthday Mr. President" and "Blonde" (Pl.'s Resp. to Def.'s Mot. for Summ. J. ("Pl.'s Resp.") at 12, Ex. B ("Whitehead Aff.") at 3-8), he makes only passing reference to the similarity between "My Aretha" and the defendant's work. ("Whitehead Aff." at ¶ 24.) In the motion for summary judgment, defendant claims that there is no substantial similarity between plaintiff's plays and defendant's screenplay and that the only commonality among the works is the "wholly unprotectable use of American film icon Marilyn Monroe ... and a few equally unprotectable historical references appurtenant." (Def.'s Mot. for Summ. J. at 1.)

I. MARILYN DANCES: HAPPY BIRTHDAY MR. PRESIDENT

Plaintiff's short play features lead character Marilyn Monroe as she travels from Los Angeles to Rome to New York. It begins with a dedication to Monroe and dance scenes featuring music by the artist Prince. (Am. Compl., Ex. C. at 1.) In the first scene, Monroe enters wearing a red dress and speaks to the audience, telling everyone "I'm back" and that she has just received an invitation from President Kennedy to sing for his 45th birthday party. She announces as her special guest Elizabeth Taylor who then greets Monroe and engages her in conversation about Monroe's experiences in heaven. It is at this moment that the reader realizes that Monroe's appearance is posthumous — she is going back into time to revisit her life's events. (Id. at 2.) The two engage in comical banter and Monroe exits as Taylor describes the world's events since Monroe's death, particularly the phenomenon of Michael Jackson. Monroe reenters the scene to travel with Taylor to Rome to visit Taylor's love interest, Richard. Director Cukor enters and orders Monroe to finish shooting a film. (Id. at 3.) The conversations are short.

Scene Two begins after Monroe and Taylor arrive on the set of "Cleopatra" in Rome as Taylor and Richard exchange loving vows. Monroe claims that she is bored and leaves in a huff to go back to Los Angeles. (Id. at 4-5.) In the next scene, Monroe and character Henry Weinstein continue the characteristic light-hearted dialogue by discussing fashion, bodies, and hair before Weinstein leaves to allow Monroe time to speak with a reporter from the "LA Sun." The reporter eagerly asks Monroe to describe her life story and Monroe obliges after asking him "[d]o you have any pills?" (Id. at 7.) Monroe starts to talk in rap genre about her life as Norma Jeane and describes how her mother told her that she "was only a dream, and not the real thing." Monroe continues the soliloquy by describing her transformation from "Norma Jeane" into the movie star and her struggles to be accepted as an artist and as "perfect." She laments that she is sometimes "on the verge of craziness" and that she finds herself "doing an imitation" of herself. (Id. at 8.) Adding to the sophomoric atmosphere, the reporter wiggles his tongue at Monroe. When Monroe finishes her rap, the reporter begs that she answer one more question about her undergarments and her future goals. The two end the scene dancing to more music by Prince. (Id.)

In the half-page text comprising Scene Four, Joe, the "dumb baseball player," and Arthur, "the playwright," fight over the affections of Monroe. Arthur vows that Monroe will marry him because he is "her true love" and has the intellectual edge. Monroe tells the two to stop fighting and that she is off to New York. Joe tells Monroe that she should forget about singing for JFK and that she is too fat to wear the dress. Arthur begs Monroe to stay and she fancifully exits yelling "Natasha." (Id. at 9.)

Scene Five features Monroe and Director Cukor arguing over her trip to New York City. Jean, the seamstress, enters to tell Cukor about the dress that he designed for Monroe and goes into an extended discussion of the beading, fit, and design of the dress with his assistant Marge. Jean asks Monroe to try on the dress before leaving and Monroe emerges to pose for the camera as music by Prince accompanies her movements. (Id. at 10-13.) Scene Six shows Monroe talking to the President on the phone and then proclaiming that she "[is] the luckiest girl" and that "Jackie [is] out." She states that she is nervous about going to NYC and asks "[s]omeone give me some pills" as a pilot salutes and she leaves.

After the intermission, Scene Seven begins with Marilyn singing "Happy Birthday" to the President. President Kennedy, looking over his shoulder, admires Monroe, musing "[w]hat an ass, Gene, what an ass." He then thanks the audience for attending and particularly thanks Monroe for singing. (Id. at 14.) He tells Bobby and Monroe to meet backstage where they take pictures and discuss the President's ability to dance. (Id. at 14-15.)

Scene Eight is entitled "Sexy MF" and showcases a dance by Monroe and President Kennedy to Prince's "Adore." In Scene Nine, Jackie asks Kennedy to tell Monroe to stop calling the White House, and the two lightly argue over undergarments found in Kennedy's bed. Kennedy claims that "J. Edgar" may have planted them to destroy the marriage. After Jackie tells Kennedy that she loves him, she takes a phone call from Monroe and tells her to leave Kennedy alone. (Id. at 16-17.) Next, Bobby is seen consoling an upset Monroe in Scene Ten and the two dance to music by Prince.

In Scene Eleven, the audience is introduced to Dr. Greenspan, Monroe's psychoanalyst. He tells the audience about his credentials and his belief in drug therapy. He describes Monroe as a person in need of love and calls himself "Dr. Feelgood" as he gives Marilyn some pills. (Id. at 18.) Scene Twelve shows Bobby and Monroe as Monroe begs him not to leave. In Scene Thirteen, titled "Thieves in the Temple," Taylor reappears and tells the audience that she is confused about her relationship with Richard. As the lights go out, Dr. Greenspan is heard on the phone with an operator asking for police to deal with Monroe's suicide. (Id. at 20.) The police arrive on the scene and declare that Monroe's was "the most obviously staged death scene." (Id. at 21.) The scene ends with the police sergeant declaring that "Marilyn Monroe didn't commit suicide, she was murdered." The last scene shows a reporter lamenting Monroe's death and ends with Taylor seeking Monroe as lights fade with Prince's "When Doves Cry" providing the musical finale.

II. MY ARETHA

According to plaintiff, the offending portions of "Blonde" incorporate dialogue from "My Aretha" in which a Young Aretha fears the loss of her father. (Whitehead Aff. at ¶ 24.) In the opening scene, Aretha grabs her father's pant leg and tells him "Daddy, daddy, you know that I love you so much." She implores him to "[p]romise me, daddy; don't leave me" and her father assures Aretha that he will never leave. The ensuing scenes show an adult Aretha singing with a church choir and watching her father deliver a sermon to his congregation. The penultimate scene shows a Young Aretha searching for her father. The nine page play ends with Aretha singing.

III. BLONDE

Defendant's screenplay, as adapted by Joyce Eliason for television from Joyce Carol Oates's book Blonde, chronicles the trials and tribulations of Marilyn Monroe's career and personal development. The 183-page script was used to film a four-hour, two-part miniseries which took "an intimate approach to [Marilyn Monroe], explaining her genesis as an actress, her insecurities and neuroses, and her failed love affairs and marriages through a virtual psychoanalysis of Marilyn, complete with periodic intimate revelations of the inner thoughts of Marilyn and the other characters, told straight to the camera as if it (or the audience) were the therapist." (Def.'s Mot. for Summ. J. at 10.) The play begins with a vision of Monroe singing "I wanna be loved by you" and cuts to Monroe lying on the sand, hallucinating about her past. It was a "dream. A memory." Joyce Eliason, "Blonde" 1-2 (2000). The scene fades to "Norma...