Freeman v. Deebs-Elkenaney

• Court: District Court, S.D. New York
• Decided: January 14, 2025
• Docket: 1:22-cv-02435
• Status: Unknown

Opinion

POTINAAL dues 5, DOCUN ity UNITED STATES DISTRICT COURT ELECT NOUNICALLY FILED SOUTHERN DISTRICT OF NEW YORK □ | DOC #- a ee LYNNE FREEMAN, □□ Plaintiff, 22 Civ. 2435 (LLS) - against + ORDER

TRACY DEEBS-ELKENANEY, et al., Defendants. rae tnle honda egies oda eng aaa ie Contrary to the apparent conceptions of the parties, questions of non-infringement have

traditionally been reserved for the trier of fact. See Warner Bros. Inc. v. Am. Broad. Companies,

Inc., 720 F.2d 231, 239 (2d Cir. 1983) (the issue of substantial similarity “is frequently a fact

issue for jury resolution”); Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.

1980) (“[S]ummary judgment has traditionally been frowned upon in copyright litigation.”). Not

withstanding the fevered expectations and arguments of counsel, I find no error or omission in

Magistrate Judge Netburn’s August 1, 2024 Report and Recommendation, which is careful,

competent and thorough.

Under Federal Rule of Civil Procedure 56, the Court “shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Magistrate Judge Netburn explains

in detail (pages 7-17 of the Report & Recommendation) the genuine factual disputes in the

evidence regarding access by the defendants to Freeman’s work, either directly or through

intermediaries, which could be combined with evidence of similarities between the two authors’

works which support the conclusion of copying. In the nature of things, direct evidence of

copying is rare. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003).

This case does not meet Rule 56's basic requirement for a summary judgment, “that there

is no genuine dispute as to any material fact.” In this case there is a genuine dispute as to

whether a defendant had access to plaintiff Freeman’s writings, notes, manuscripts or drafts.

There is a genuine dispute as to whether a defendant copied parts, large or small, of Freeman’s

work. There is a genuine dispute as to similarities between Freeman’s and Wolff’s work,

particularly in a degree indicative of infringement and copying. There is a genuine dispute as to

whether defendant Kim aided Wolff write the BMR series.

These are some of the genuine disputes as to facts which are material to the direct

copyright infringement claim, which must be resolved by a jury before the Court can determine

whether Freeman is entitled to judgment as a matter of law.

Rule 56 expressly stipulates that summary judgment is granted when it shown “that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Each of those two conditions is simple; neither can be dispensed with.

In this case, one of the counsel for defendants recently colorfully proclaimed that her

client would not join any settlement. Presumably it will only accept unconditional surrender.

Trial by jury, following the steps set forth in section four of my individual rules of practice, is a

time-tested, neutral, fact-based process for resolving disputes.

At bottom, that is the choice of the parties. The Court approves it, as the proper choice

for this case.

So Ordered. Dated: New York, New York January |4, 2025

—__bewsis Lb, Stason LOUIS L. STANTON U.S.D.J.