ROBERT G. JAMES, Chief Judge.
Pending before the Court are a Motion for Summary Judgment [Doc. No. 46] filed by Defendant John Dufresne ("Dufresne") and a Cross Motion for Partial Summary Judgment [Doc. No. 50] filed by Plaintiff Frances Parker ("Parker"). For the following reasons, Dufresne's motion is GRANTED, and Parker's motion is DENIED.
This case arises out of the alleged copying of a manuscript detailing the murders of Brenda Spicer ("Spicer") and Joel Tillis ("Tillis") by Irvin Bolden, Jr. ("Bolden"). The background of the murders was described by the Louisiana Supreme Court in 1994:
State v. Bolden, 639 So.2d 721, 722 (La. 1994).
Some time in the early 1990s, Parker wrote a 743-page manuscript ("the manuscript") about the murders.
In 2000, Parker approached Dufresne about her manuscript. Parker and Dufresne allegedly entered into an agreement regarding Dufresne's role in writing a screenplay based on the manuscript.
Parker alleges that, in 2005, Dufresne published an unauthorized 9-page short story titled "Based on a True Story" ("the short story") that was substantially similar to the manuscript and dedicated it to Parker in a 245-page anthology called "Johnny Too Bad." Dufresne used the fictional names Miss Doe, Laquiesha, and Curtis for Spicer, Tillis, and Bolden respectively. At issue are 38 passages, each consisting of one or two sentences.
On October 30, 2009, Parker filed suit against Dufresne, John Philbin ("Philbin"), John Otterbacher, and Grand Valley State University alleging claims based on copyright infringement, breach of contract, and tort theories. The Court subsequently dismissed all claims against Defendants except for a copyright infringement claim against Dufresne related to the publishing of the short story. Parker alleges that Dufresne infringed her copyright by copying fictional material and by his selection and arrangement of facts in the manuscript.
On December 13, 2010, Dufresne filed a Motion for Summary Judgment. [Doc. No. 46]. On January 3, 2011, Parker filed a Cross Motion for Partial Summary Judgment. [Doc. No. 50]. The parties filed responses and replies to both motions. [Doc. Nos. 50, 54, 56, & 57].
A bench trial in this matter is set for June 14, 2011.
Summary judgment should be granted "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). The moving party bears the initial burden of informing the court of the basis for its motion by identifying portions of the record which highlight the absence of genuine issues of material fact. Topalian v. Ehrman, 954 F.2d 1125, 1132 (5th Cir.1992). A fact is "material" if proof of its existence or nonexistence would affect the outcome of the lawsuit under applicable law in the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence is such that a reasonable fact finder could render a verdict for the nonmoving party. Id.
If the moving party can meet the initial burden, the burden then shifts to the nonmoving party to establish the existence of a genuine issue of material fact for trial. Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.1994). The nonmoving party must show more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In evaluating the evidence tendered by the parties, the Court must accept the evidence of the nonmovant as credible and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
"If [a] decision is to be reached by the court, and there are no issues of witness credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations before it, that there are no genuine issues of material fact, even though decision may depend on inferences to be drawn from what has been incontrovertibly proved." Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir.1978). "Thus, where ... the evidentiary facts are not disputed, a court in a non-jury case may grant summary judgment if trial would not enhance its ability to draw inferences and conclusions." Id. at 1124.
Parker and Dufresne both seek summary judgment on the issue of whether the short story infringes Parker's copyright in the manuscript. While it is undisputed that Parker owns a copyright in the manuscript, the parties dispute whether Dufresne copied constituent elements of the manuscript that are original, including the manuscript's "(1) fictional material and (2) the selection or arrangement of factual matters." [Doc. No. 50-1, p. 7].
Section 102 of the Copyright Act provides that:
17 U.S.C. § 102. A copyright owner "has the exclusive rights to ... prepare derivative works based upon the copyrighted work." 17 U.S.C. § 106. A "`derivative work' is a work based upon one or more preexisting works, such as a[n] ... abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. § 101. "To constitute a derivative work, the infringing work must incorporate in some form a portion of the copyrighted work." Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 267 (5th Cir.1988).
"To establish a claim for copyright infringement, a plaintiff must prove that: (1) he owns a valid copyright and (2) the defendant copied constituent elements of plaintiff's work that are original." Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 251 (5th Cir.2010) (internal quotation marks and citations omitted).
As to the second element of a claim for copyright infringement, "[t]wo separate inquiries must be made." Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir.2003). "The first question is whether the alleged infringer copied, or actually used the copyrighted material in his own work." Id. (internal quotation marks and citation omitted). "Circumstantial evidence may support an inference of copying if the defendant had access to the copyrighted work and there is `probative similarity' between the copyrighted work and the allegedly infringing work." Id. (citation omitted).
"The second question is whether `substantial similarity' exists between the copyrighted work and the allegedly infringing work."
As to the first question, the Court finds no genuine issue of material fact that Dufresne copied or used material from the manuscript in his short story. The parties do not dispute that Dufresne had access to the manuscript prior to writing the short story, and Dufresne admits that he was "inspired" by the manuscript. There are also numerous probative similarities between the short story and the manuscript that no reasonable fact-finder would attribute to chance. For example, both works mention Oprah, Elvis Presley's Graceland estate, and crumb-carrying ants.
As to the second question
Parker cites examples of fictional material in the short story that she alleges are substantially similar to the manuscript. On page 35 of the short story, Dufresne wrote that Laquiesha is an "Oprah wannabe;" that "no trashy white girl was going to ruin [Curtis'] life;" that "[Curtis] sat [Miss Doe's] naked body in the passenger seat of his Chevette, secured it with the lap and shoulder belts, and drove back to school;" and that, while Miss Doe's dead body was in the passenger seat, "[Curtis] lowered the volume so he could talk without shouting" because "[h]e felt he needed to explain himself, tell her why he'd done what he'd done." [Doc. No. 46-7]. In comparison, on pages 64, 67 and 612 of the manuscript, Parker wrote that "[o]ne of [Tillis'] dreams was to meet Oprah Winfrey; if she could only meet her, Oprah would let her be co-host;" that a dumpster was "the appropriate place for white trash;" that "[Bolden] propped [Spicer] in the front seat" of Tillis' Chevette; and that Bolden "convers[ed] with [Spicer] gleefully"
Parker cites other examples of fictional material in the short story that are allegedly substantially similar to the manuscript. On pages 36, 37, and 39 of the short story, Dufresne wrote that the custodian exclaimed "Sweet Mother of Jesus!" upon finding Miss Doe in the dumpster; that Miss Doe's "blue eyes [were] opened, blood ha[d] dried around her mouth and nose, [and] sugar ants [were] carry[ing] crumbs up her leg;" that Curtis' "charming, gifted, and handsome attorney [was] struck by lightning and killed. (Truth is stranger than fiction.);" and that "Curtis and Laquiesha move[d] to Memphis (He works as a security guard at Graceland, but you wouldn't believe that.)." [Doc. No. 46-7]. In comparison, on pages 1, 2, 304, 527, and 528 of the manuscript, Parker wrote that the custodian whispered "Sweet Jesus" upon finding Spicer in the dumpster; that Spicer's "eyes [were] starin at nothin," that "blood [was] draining out her nose [and] ants [were] carrying food crumbs down her leg;" that Bolden's attorney was killed by a lightning strike which was "a twist usually found only in fiction;" and that Bolden's "job assignment to guard Graceland ... seemed as predictable as blood in a Stephen King Novel." [Doc. Nos. 46-3, 46-4, & 46-5].
The term "Sweet Jesus" is an exclamation that is used when someone is surprised. Such expressions are generally not subject to copyright protection. See Alexander v. Haley, 460 F.Supp. 40, 46 (S.D.N.Y.1978) (citing Reyher v. Children's Television Workshop, 533 F.2d 87, 91 (2d Cir.1976); Richards v. Columbia Broad. Sys., Inc., 161 F.Supp. 516, 518 (D.D.C. 1958)); Peel & Co., Inc., 238 F.3d at 398 ("[N]ot all copying is legally actionable."). Even assuming the phrase is subject to copyright protection, the Court finds that the phrase does not cause the short story to be substantially similar to the manuscript. Additionally, both works use the word "fiction," but use the word to convey opposite ideas. The manuscript's use of the word fiction implies that fiction is stranger than truth, while the short story's use of the word fiction states the opposite. Both works also refer to Curtis' (Bolden's) employment at Graceland, but convey different ideas. Dufresne writes that Curtis' (Bolden's) employment as a security guard at Graceland is unbelievable, while Parker writes that it is predictable. Finally, the although Dufresne's use of crumb-carrying ants in describing Miss Doe's body in the dumpster is similar to the manuscript, the Court is not persuaded and this makes the short story
Parker also alleges that the short story is substantially similar to the manuscript in the short story's selection and arrangement of facts. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) ("Notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in another's publication to aid in preparing a competing work, so long as the competing work does not feature
Parker argues that this case is like Harper, where the Supreme Court found, among other things, that 300 words copied word-for-word from a 450-page book constituted copyright infringement. 471 U.S. at 565, 105 S.Ct. 2218. The Court disagrees. In this case, unlike the infringer in Harper, Dufresne did not copy a portion of the manuscript word-for-word. Rather, Dufresne copied a few words and ideas from passages in the manuscript to create his own passages in the short story. Additionally, Dufresne's copying of the manuscript is quantitatively small and qualitatively unimportant. See Baxter v. MCA, Inc., 812 F.2d 421, 425 (9th Cir.1987) (citations omitted) ("Even if a copied portion be relatively small in proportion to the entire work, if qualitatively important, the finder of fact may properly find substantial similarity."). Therefore, this case is distinguishable from Harper and other cases Parker cites. [Doc. No. 50-1 (citing Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65 (2d Cir.1999) (copying 20 articles out of 90,000 articles while "often employ[ing] identical phraseology and word choice" was not de minimis); Meeropol v. Nizer, 560 F.2d 1061, 1070-71 (2d Cir.1977) (reprinting verbatim "less than one percent" of a book could constitute copyright infringement))].
Parker also argues that Dufresne paraphrased the manuscript and that "in copyright law paraphrasing is equivalent to outright copying." [Doc. No. 50-1, p. 7 (citing Donald v. Zack Meyer's T.V. Sales and Serv., 426 F.2d 1027, 1030 (5th Cir. 1970); Triangle Publ'ns Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171, 1179 (5th Cir.1980) (Brown, J., concurring in part and dissenting in part))]. However, many of the passages Dufresne paraphrased are based on facts, which are not copyrightable. Further, and as previously discussed, the passages Dufresne paraphrased that are based on fictional material were either quantitatively small and qualitatively unimportant or used in a way
Because the Court finds the short story is not substantially similar to the manuscript, the Court need not decide whether Parker is estopped from alleging her claim for copyright infringement related to the publishing of the short story.
Dufresne's Motion for Summary Judgment is GRANTED, and Parker's Cross Motion for Partial Summary Judgment is DENIED.
For the foregoing reasons, Dufresne's Motion for Summary Judgment [Doc. No. 46] is GRANTED, Parker's Cross Motion for Partial Summary Judgment [Doc. No. 50] is DENIED, and Parker's copyright infringement claim related to the publishing of the short story is DISMISSED WITH PREJUDICE.
Ringgold, 126 F.3d at 75 (citations omitted).