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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. To satisfy the second element of an infringement claim, a plaintiff must show both that his work was actually copied and that the portion copied amounts to an improper or unlawful appropriation.
Plaintiffs alleged that defendants' production and distribution of a movie about a dodgeball competition infringed plaintiffs' copyright in a screenplay. Before the court were defendants' motion for summary judgment on the issue of striking similarity and defendants' Daubert motion to preclude the testimony of plaintiffs' expert under Fed. R. Evid. 702. Plaintiffs also challenged defendants' use of two experts as cumulative.
Under the circumstances, could the plaintiffs prevail on their copyright infringement claim?
After comparing plaintiffs' screenplay with defendants' movie, the court found that no reasonable juror could find the two works so strikingly similar as to justify an inference of copying and preclude the possibility of independent creation. In plaintiffs' screenplay, dodgeball was a major subject of rivalry since childhood between the main character and his rival, and the main character's primary motivation was to win the affection of his love interest. By contrast, in defendants' movie, the characters stumbled upon adult dodgeball through a sports magazine that highlighted obscure sports, and the main character's sole purpose was to keep his gym from being taken over by a corporation. The works' common error in referring to dodgeball's ancient roots in China was not sufficiently distinctive to overcome the differences between the works. Accordingly, to establish copying, plaintiffs had to proceed under a theory of access and probative similarities. The court held that the parties' experts could not testify as to probative similarities because the jury was capable of recognizing and understanding the similarities between the works without the help of an expert.