Kenney v. Warner Bros. Entm't, Inc.
Case #: CIVIL ACTION NO. 13-11068-RGS
United States District Court for the District of Massachusetts
Full Text Opinion: http://www.scribd.com/doc/189377225/Kenney-v-Warner-Bros-Entertainment-Ghostman-decision
LexisNxis Link: 2013 U.S. Dist. LEXIS 169049
Westlaw Link: 2013 WL 6212593
Trademarks: Trademark promotion: The plaintiff must show that defendant has copied elements of his copyrighted work and 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 material.
OPINION (Stearns): Plaintiff, Kenney, is a screenwriter, director, and actor. In 2010, plaintiff began developing a comic book, screenplay, and franchise movie titled “Ghostman” based on a book by Hobbs. Plaintiff registered his screenplay with the Writers Guild of America in 2011, and purchased “TheGhostmanMovie.com” and promoted the move in various ways. Plaintiff then discovered that Warner Brothers, defendant, had acquired rights to Hobbs’ novel. Plaintiff then successfully applied for a Certificate of Registration from the Copyright Office and filed lawsuit seeking monetary damages and injunctive relief. To state a claim for copyright infringement, plaintiff must allege (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. A certificate of copyright, as was obtained by plaintiff, is prima facie evidence of a valid copyright. To satisfy the second element, the plaintiff must show that defendant has copied elements of his copyrighted work and 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 material. Plaintiff alleged that defendant had three separate avenues to plaintiff’s work: (1) through registration of his screenplay with the Writer’s Guild of America; (2) from his “.com” website; and (3) his promotion of the work through interviews and media outlets. Plaintiff must demonstrate that defendant had a reasonable opportunity to access plaintiff’s screenplay - evidence that only creates a bare possibility is not enough. The court held that plaintiff failed to establish that defendant had a “reasonable opportunity” to see his work. Access is often proved by (1) a particular chain of events between the plaintiff’s work and the defendant’s access to the work, or (2) the plaintiff’s work has been widely disseminated. Plaintiff’s complaint did not identify a single instance of such publication that was widely disseminated. The court held that plaintiff Failed to show that defendant had more than a bare possibility of access. For this reason, the defendant’s motion to dismiss was GRANTED.