Kenney v. Warner Bros. Entertainment

984 F. Supp. 2d 9, 2013 WL 6212593, 2013 U.S. Dist. LEXIS 169049
CourtDistrict Court, D. Massachusetts
DecidedNovember 29, 2013
DocketCivil Action No. 13-11068-RGS
StatusPublished
Cited by4 cases

This text of 984 F. Supp. 2d 9 (Kenney v. Warner Bros. Entertainment) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenney v. Warner Bros. Entertainment, 984 F. Supp. 2d 9, 2013 WL 6212593, 2013 U.S. Dist. LEXIS 169049 (D. Mass. 2013).

Opinion

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT

STEARNS, District Judge.

Plaintiff Michael P. Kenney brought this copyright infringement action against Warner Brothers Entertainment Inc. and Langley Park Pictures (collectively, Warner Brothers), alleging that Warner Brothers’ recent acquisition of the rights to develop a motion picture based on Roger Hobbs’s precocious debut novel “Ghost-man” infringes his copyright in a “comic book, screenplay and franchise movie” of the same name.1 Warner Brothers now moves to dismiss Kenney’s Amended Complaint.

BACKGROUND

The facts, in the light most favorable to Kenney as the non-moving party, are as follows. Kenney is a self-styled screenwriter, director, and actor. In 2010, Kenney began developing a comicbook, screenplay, and franchise movie titled “Ghostman.” In essence, Ghostman is a “heist thriller about a masked thief who seeks to avoid the F.B.I. by using ghost-like abilities.” After having retired from a life of crime, the Ghostman is “pulled back into one final score” by his former compatriots.

Kenney registered his Ghostman screenplay with the Writers Guild of America in 2011. To publicize the anticipated motion picture, Kenney purchased the web domain “TheGhostmanMovie.com” and “promoted the movie through various press interviews, media outlets, and throughout the movie industry.” Ghost-man is now in postproduction editing and Kenney is currently submitting the movie as a candidate for screening at independent film festivals.

Shortly before filing this lawsuit, Kenney learned that Warner Brothers had acquired the rights to develop a movie based on Hobbs’s novel. Kenney alleges that Ghostman (the movie) will also be a “heist thriller,” in which the protagonist “is a thief so nicknamed because he avoids the F.B.I. like a ‘ghost.’ ”2 After his cease and desist letter to Warner Brothers went unanswered, Kenney successfully applied for a Certificate of Registration from the [12]*12Copyright Office and filed this lawsuit seeking monetary damages and injunctive relief.

STANDARD OF REVIEW

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Two basic principles guide the court’s analysis. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Second, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679, 129 S.Ct. 1937. A claim is facially plausible if its factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” S.E.C. v. Tambone, 597 F.3d 436, 442 (1st Cir.2010).

DISCUSSION

To state a claim for copyright infringement, Kenney must plausibly allege “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). A certificate of copyright, which Kenney has obtained, is prima facie evidence of ownership of a valid copyright. Thus, the first element of the infringement test is not in dispute. See Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir.2005). To satisfy the second element of the test, Kenney must make two showings. First, that Warner Brothers, as a factual matter, has copied elements of his copyrighted work. Id. at 18. Second, he must establish that the copying is actionable by “proving that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works ‘substantially similar.’ ” Id. (internal quotations and citation omitted).

Because Kenney has no direct knowledge of any copying by Warner Brothers, he must satisfy his first-prong burden indirectly by showing that Warner Brothers “enjoyed access to the copyrighted work and that a sufficient degree of similarity exists between the copyrighted work and the allegedly infringing work to give rise to an inference of actual copying.” Id. This “probative similarity” inquiry is distinct from the substantial similarity requirement that emerges in the second prong, which demands “proof that the copying was so extensive that it rendered the works so similar that the later work represented a wrongful appropriation of expression.” Id.

Access

Kenney theorizes three separate avenues by which Warner Brothers could have gained access to his work: (1) through registration of his screenplay with the Writer’s Guild of America; (2) from his “TheGhostmanMovie.com” website; and (3) his promotion of the work through “press interviews” and “media outlets.” To succeed on the access prong, Kenney must demonstrate that Warner Brothers had a “reasonable opportunity” to access his Ghostman screenplay — “[e]vidence that only creates a ‘bare possibility’ ” that Warner Brothers had access to the work is [13]*13not enough. Grubb v. KMS Patriots, L.P., 88 F.3d 1, 3 (1st Cir.1996).

As an initial matter, registration of a screenplay with the Writer’s Guild does not as a matter of law establish access to a copyrighted work. See Webb v. Stallone, 910 F.Supp.2d 681, 686-687 (S.D.N.Y.2012) (finding alleged infringer did not have access to screenplay despite its registration with the Writer’s Guild of America); Gable v. Natl Broad. Co., 727 F.Supp.2d 815, 826-829 (C.D.Cal.2010) (same); Tomasini v. Walt Disney Co., 84 F.Supp.2d 516, 521 (S.D.N.Y.2000) (same). The simple reason for this is that registration does not place a work in the public arena — “only the registrant or listed author(s) may request access to records or information pertaining to registered material.” Writers Guild of Am. (West), Frequently Asked Questions, Question 23.3

Kenney’s alleged publication of his Ghostman screenplay and movie through media interviews also fails to establish that Warner Brothers had a “reasonable opportunity” to see his work. “Access is often proved through circumstantial evidence in one of two ways: (1) a particular chain of events is established between the plaintiffs work and the defendant’s access to that work or (2) the plaintiffs work has been widely disseminated.” Gable, 727 F.Supp.2d at 824 (internal quotations, citation, and alterations omitted).

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984 F. Supp. 2d 9, 2013 WL 6212593, 2013 U.S. Dist. LEXIS 169049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenney-v-warner-bros-entertainment-mad-2013.