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Price v. Fox Entm't Grp., Inc. - 2007 U.S. Dist. LEXIS 6083 (S.D.N.Y. Jan. 26, 2007)


To prevail on a claim of copyright infringement, a plaintiff must establish (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

A certificate of registration made before or within five years of publication of a work is prima facie evidence of ownership of a valid copyright.  Because direct evidence is seldom available to prove actual copying, a plaintiff may fulfill the requirement with indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.

It is only after actual copying is established that one claiming infringement can proceed to demonstrate that the copying was improper or unlawful by showing that the second work bears substantial similarity to protected expression in the earlier work.


Beginning in January through late February or early March 2001, plaintiffs Ernando Ashoka Thomas and his co-author, David Price, wrote a screenplay about dodgeball entitled Dodgeball: The Movie. Thomas registered the screenplay, which involved a dodgeball competition in which a team of misfits or underdogs were pitted against a stronger team of bullies, with the Writers Guild of America on March 28, 2001. On the other hand, by April 26, 2001, defendant Rawson Thurber had completed his first full-length draft of his screenplay, then-titled Underdogs.  Defendant Red Hour Films, a film production company, decided to develop Underdogs into a motion picture.  In June 2003, the Fox defendants acquired the rights to Underdogs and hired Thurber to direct the movie. The movie, re-titled as Dodgeball: A True Underdog Story, was released in theaters worldwide on June 18, 2004. It was found that the characters that appeared in defendants' movie and certain characteristics in plaintiffs' screenplay were the same. Thus, the plaintiffs filed a suit alleging that defendant filmmakers infringed the copyright of their screenplay through production and distribution of a movie released by defendants. Defendants thereafter moved for summary judgment. Plaintiffs also moved for summary judgment on defendants' affirmative defenses.


Were defendant filmmakers entitled to summary judgment as to whether they had infringed upon a registered copyright of plaintiff screenwriters?




After examining both works, the court first held that a jury could reasonably conclude that the two works contained similarities that were probative of copying. Specifically, characters that appeared in defendants' movie and certain characteristics in plaintiffs' screenplay were the same. The progression of the teams in each work was also similar. Thus, the degree of similarity between the works was clearly an issue for the trier of fact. Plaintiffs also raised genuine issues of material fact regarding defendants' access to plaintiffs' work, including the reasonable possibility that there was access through a third party intermediary. The court held that plaintiffs' burden was only to show a reasonable possibility of access, not actual access. Finally, the court ruled that is was up to a jury to decide whether the similarities between the two works were substantial, and therefore actionable.

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