Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 1 of 10
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`NO. 07-60745-CIV-MARRA/JOHNSON
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`LEONARD AARON HILL,
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`Plaintiff,
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`v.
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`GAYLORD ENTERTAINMENT,
`NEWMARKET CAPITAL GROUP, LLC,
`TWENTIETH CENTURY FOX
`HOME ENTERTAINMENT, OKLAHOMA
`PUBLISHING COMPANY, FLOWER
`FILMS, DARKO ENTERTAINMENT,
`and ADAM FIELDS PRODUCTIONS,
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`Defendants.
`______________________________________/
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`OPINION AND ORDER
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`THIS CAUSE is before the Court on Defendant Newmarket Entertainment Group, LLC’s
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`Motion to Dismiss (DE 64), Defendant Twentieth Century Fox Home Entertainment, Inc.’s
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`Motion to Dismiss (DE 63), Defendant Oklahoma Publishing Company’s Motion to Dismiss (DE
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`42), and Defendant Adam Fields Productions’ Motion to Dismiss (DE 65). The motions are now
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`fully briefed and are ripe for review. The Court has carefully considered the motions and is fully
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`advised in the premises
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`Background
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`On October 26, with leave of this Court, Plaintiff Leonard Aaron Hill (“Plaintiff”) filed
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`his Amended Complaint (“Complaint”), alleging copyright infringement under the Copyright
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`Act, 17 U.S.C. §§ 106, 501. The facts, as alleged in the Complaint, are as follows: Plaintiff
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 2 of 10
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`applied for a copyright for his unpublished manuscript entitled “Tiny Little Virus: HIV, Death,
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`Resurrection, and the Second Coming” in 1998; the copyright was registered on October 26,
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`1998. In 2005, Plaintiff viewed the movie Donnie Darko and “knew immediately that it was
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`based on [his] manuscript.” (Compl. 2.) Plaintiff alleges that he researched the making of
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`Donnie Darko, including who wrote, produced, and financed the film. (Compl. 2.)
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`Plaintiff concluded that all of the parties to this lawsuit had infringed on his copyright,
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`and Plaintiff sent them letters with the hope of settling the case. (Compl. 2.) The parties refused.
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`(Compl. 2.)
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`Plaintiff seeks $10 million in damages because he considers himself “to be the fourth
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`party in the creation of this film” and the film earned approximately $40 million total. (Compl.
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`3.) Plaintiff further seeks production rights to the film so that he can create a sequel and all
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`future revenues from any sales, rental, or merchandising contracts. (Compl. 3.)
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`Motions to Dismiss2
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`Newmarket Capital Group, LLC and Twentieth Century Fox Home Entertaiment
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`Defendants Newmarket Capital Group, LLC (“Newmarket”) and Twentieth Century Fox
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`Home Entertainment (“Fox”) move this Court to dismiss the Complaint pursuant to Rule
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`12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for which relief can
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`be granted. These Defendants argue that Plaintiff has made no allegations of any infringing
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`activity. Newmarket and Fox agree that Plaintiff has alleged that both works express similar
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`Reg. TXu 883595.
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`Defendant Gaylord Entertainment filed an Answer to Plaintiff’s Amended Complaint on
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`November 5, 2007. (DE 60.) Defendants Flower Films and Darko Entertainment have not yet
`been served.
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 3 of 10
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`ideas but that Plaintiff has not alleged any copying of Plaintiff’s written expression or any other
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`infringing activity. As such, Newmarket and Fox ask this Court to dismiss Plaintiff’s Complaint.
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`Oklahoma Publishing Company
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`Defendant Oklahoma Publishing Company (“Oklahoma”) argues that Plaintiff’s
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`Complaint should be dismissed on two grounds. Oklahoma contends that the case should be
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`dismissed under Rule 12(b)(2) of the Federal Rules of Civil Procedure because Plaintiff has not
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`alleged any facts that this Court has personal jurisdiction over Oklahoma. Like Newmarket and
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`Fox, Oklahoma also argues that Plaintiff has not alleged any copying of his protected expression,
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`so the Complaint should also be dismissed pursuant to Rule 12(b)(6) of the Federal Rules.
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`Adam Fields Productions
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`Defendant Adam Fields Productions (“Adam Fields”) moves this Court to dismiss the
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`claims against it based only on Rule 12(b)(2). Like Oklahoma, Adam Fields argues that Plaintiff
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`has alleged no facts that would give this Court personal jurisdiction over Adam Fields. As such,
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`Adam Fields argues that the claim should be dismissed.
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`Standard of Review
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`Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of
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`the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground
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`upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[w]hile a complaint
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`attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
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`plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
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`labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
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`Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
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`Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007) (internal citations omitted). When
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`considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in
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`determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v.
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`King & Spalding, 467 U.S. 69, 73 (1984).
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`Plaintiff also bears the burden of establishing a prima facie case of personal jurisdiction
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`over a nonresident defendant. Madara v. Hall, 916 F.2d 1510, 1514 (11 Cir. 1990). A prima
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`facie case is established if the plaintiff presents enough evidence to withstand a motion for a
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`directed verdict. The Court must accept the facts alleged in the complaint as true, to the extent
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`that they are uncontroverted by the defendant’s affidavits. Where the complaint conflicts with
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`the affidavits, the Court must construe all reasonable inferences in favor of the plaintiff. Id.
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`The Supreme Court has established that a court should afford a pro se litigant wide
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`leeway in pleadings. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam) (holding
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`allegations of a pro se complaint to a less stringent standard than formal pleadings drafted by
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`lawyers). However, this leniency does not give the court license to rewrite an otherwise deficient
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`pleading in order to sustain an action. GJR Investments, Inc., v. County of Escambia, 132 F.3d
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`1359, 1369 (11 Cir. 1998). Pro se litigants are required to meet certain essential burdens in
`th
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`their pleadings. See Brown v. Crawford, 906 F.2d 667, 670 (11 Cir. 1990).
`th
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`Discussion
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`Motions to Dismiss Pursuant to Rule 12(b)(2)
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`Oklahoma and Adam Fields both move to dismiss, arguing that Plaintiff has not alleged
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 5 of 10
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`sufficient facts giving this Court personal jurisdiction over either of those Defendants. The
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`determination of personal jurisdiction over a nonresident defendant requires a two-part analysis.
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`When jurisdiction is based on a federal question under a statute that is silent regarding service of
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`process, Rule 4(e) of the Federal Rules of Civil Procedure requires that assertion of jurisdiction
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`be determined by the state long-arm statute. See Cable/Home Communication Corp. v. Network
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`Productions, Inc., 902 F.2d 829, 855 (11 Cir. 1990). If there is a basis for the assertion of
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`personal jurisdiction under the state long-arm statute, the Court must next determine whether: (1)
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`sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth
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`Amendment and (2) maintenance of the suit does not offend “traditional notions of fair play and
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`substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). Only if
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`both prongs of the Due Process analysis are satisfied may this Court exercise personal
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`jurisdiction over a nonresident defendant. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 256
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`(11 Cir. 1996) (citing Madara, 916 F.2d at 1514); see also International Shoe, 326 U.S. at 316.
`th
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`Turning to Oklahoma and Adam Fields’ argument that there is no basis for personal
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`jurisdiction over either of those Defendants, the Court notes that Plaintiff has pled no facts to
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`Adam Fields has submitted an affidavit along with its motion, which Plaintiff has not
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`rebutted, attesting to its lack of contacts with the State of Florida. Oklahoma did not submit an
`affidavit in support of its motion, but merely asserted that it is a Delaware corporation with its
`principal place of business in Oklahoma. (DE 42 at 2, 3.) In his reply, Plaintiff does not refute
`Oklahoma’s assertion regarding its citizenship. Moreover, an Internet search of the records of
`the State of Delaware indicates that Oklahoma is incorporated in that state. See State of
`Delaware, Department of State, Division of Corporations Online Services,
`https://sos-res.state.de.us/tin/GINameSearch.jsp.
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`While subject matter jurisdiction exists in this Court for cases brought under the
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`Copyright Act, the Act does not specify how process should be served. Cable/Home
`Communication Corp. V. Network Prod., Inc., 902 F.2d 829, 856 (11 Cir. 1990); 28 U.S.C. §
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`1338..
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 6 of 10
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`suggest that this Court has jurisdiction under Florida’s long-arm statute. In fact, Plaintiff has not
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`alleged any facts suggesting any Defendant has any connection with Florida whatsoever. The
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`only apparent connection between the Defendants, the events in question, and Florida appears to
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`be the fact that Plaintiff lives within the state.
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`In response to the Motion to Dismiss, Plaintiff argues that personal jurisdiction exists
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`because Donnie Darko has been broadcast on cable and satellite television within the state of
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`Florida. (Pl. Resp. Oklahoma 2.) Plaintiff, however, did not allege this fact in the Complaint.
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`Even if he had alleged this fact in the Complaint, it is not clear which prong of Florida’s long-
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`arm statute this allegation would satisfy. Without factual assertions bringing his claim against
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`these Defendants within one of the prongs of Florida’s long-arm statute, Fla. Stat. § 48.193,
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`Plaintiff cannot establish a prima facie case of personal jurisdiction. The fact that “Plaintiff is
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`ignorant of the law and has no concept of ‘jurisdiction’” does not relieve Plaintiff of his burden
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`of demonstrating that this Court has proper jurisdiction over these Defendants. As such,
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`Defendants Oklahoma and Adam Fields’ Motions to Dismiss pursuant to Rule 12(b)(2) must be
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`granted.
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`Motions to Dismiss Pursuant to Rule 12(b)(6)
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`To state a claim for copyright infringement pursuant to the Copyright Act, 17 U.S.C. §§
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`106 and 501, a plaintiff must demonstrate 1.) ownership of a valid copyright and 2.) copying by
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`defendant of elements of the work that are original. See Corwin v. Walt Disney World Co., 475
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`F.3d 1239, 1253 (11 Cir. 2007); 4 Nimmer on Copyright § 13.01 (2007). A certificate of
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`registration made before or within five years of the first publication of a particular work is prima
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`facie evidence of ownership and validity of a particular copyright. 17 U.S.C. 410(c). Plaintiff
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 7 of 10
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`has alleged ownership of a valid copyright in his work, “Tiny Little Virus: HIV, Death,
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`Resurrection, and the Second Coming.” Therefore, the first element has been met in this case.
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`The second element, copying original elements of a plaintiff’s work, is more complex.
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`Proof of “copying” alone is insufficient; “copyright protection may extend only to those
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`components of a work that are original to the author.” Feist Publications, Inc. v. Rural
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`Telephone Service Co., 499 U.S. 340, 348 (1991). To prevail on this element, a plaintiff must
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`show both copying and that the specific material copied was the author’s original “expression.”
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`Id. The facts or ideas contained within the plaintiff’s work, however, are not afforded any
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`protection – one cannot claim originality as to facts. Id. at 347; see also Reyher v. Children’s
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`Television Workshop, 533 F.2d 87, 90 (2d Cir. 1976) (“It is an axiom of copyright law that the
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`protection granted to a copyrightable work extends only to the particular expression of an idea
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`and never to the idea itself.”) The copying must also be “substantial.” Kustoff v. Chaplin, 120
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`F.2d 551, 560 (9 Cir. 1941).
`th
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`Copying need not be proved by direct evidence. Instead, a plaintiff can simply show that
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`1.) defendant had access to the copyrighted material and 2.) that there is “substantial similarity”
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`between the two works. Corwin, 475 F.3d at 1253. Proof of access is satisfied by showing that
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`defendant had a “reasonable opportunity” to view the work in question. Id.
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`In this case, Plaintiff has not alleged any copying by any of the Defendants. Instead,
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`Plaintiff only indicates a strong similarity between the plot of his written work and the plot of the
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`movie Donnie Darko. The Complaint does state that Plaintiff sent his work to “publishers and
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`literary agents for possible publication,” but Plaintiff does not allege any other facts suggesting
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`that Newmarket, Fox, or Oklahoma would have had access to Plaintiff’s manuscript. Without
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 8 of 10
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`additional facts suggesting that those Defendants had both the ability to read Plaintiff’s
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`manuscript as well as a definable “reasonable opportunity” to view the unpublished manuscript,
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`Plaintiff has not properly alleged copying.
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`In addition, Plaintiff has not alleged that any of his “expression” has been copied.
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`Plaintiff says that the movie was “based upon” his manuscript. For instance, Plaintiff states in
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`his response to Fox’s motion to dismiss that “Plaintiff can explain ‘Donnie Darko’ and ‘Donnie
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`Darko The Directors Cut’ from the very first scene to the very last scene because they are
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`Plaintiff’s memories.” (Pl. Resp. Fox 2.) Basing one’s creative idea on someone else’s creative
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`idea is not a basis for liability under the Copyright Act. Nevertheless, copyright protection
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`extends beyond word-for-word copying of a protected text. See Sid & Marty Krofft Television
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`Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1167 (9 Cir. 1977) (“Duplication or
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`near identity is not necessary to establish infringement.”).
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`The line between expression and idea when nonliteral copying is alleged is difficult to
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`draw. In an oft quoted passage, Judge Learned Hand explained the line courts must draw as
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`follows:
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`Upon any work . . . a great number of patters of increasing generality will
`fit equally well, as more and more of the incident is left out. The last may
`perhaps be no more than the most general statement of what the [work] is
`about, and at times might consist only of its title; but there is a point in this
`series of abstractions where they are no longer protected, since otherwise
`the [author] could prevent the use of his ‘ideas,’ to which, apart from their
`expression, his property is never extended. Nichols v. Universal Pictures
`Corp., 45 F.2d 119, 121 (2d Cir. 1930).
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`Courts have generally struggled to draw this line. See 4 Nimmer on Copyright § 13.03[1] (2007).
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`However, it is clear that the Court must be able to distinguish the reproduction of ideas, which
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 9 of 10
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`cannot be protected, from the reproduction of expression, which can be protected under the
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`Copyright Act.
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`Here, Plaintiff has only alleged that the two works are similar. Plaintiff has not alleged
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`which aspects of the works are similar. Since the Plaintiff has not alleged how the works are
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`similar, the Court cannot conclude that Plaintiff has asserted a valid cause of action. To
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`withstand a motion to dismiss, Plaintiff would have to allege specifically what aspects of the
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`movie Donnie Darko encompass his particular expression. As the Complaint reads at present,
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`the Court can only conclude that Plaintiff seeks protection for the ideas in his manuscript, and
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`not for Plaintiff’s original expression.
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`Accordingly, because Plaintiff’s Complaint does not contain any factual allegations of
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`“copying” of original expression nor any allegations that the copying was “substantial,” the Court
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`must grant the motions to dismiss under Rule 12(b)(6).
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`Conclusion
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`It is hereby ORDERED AND ADJUDGED as follows:
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`1. Defendants Newmarket Capital Group, LLC and Twentieth Century Fox’s Motions to
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`Dismiss (DE 63, 64) under Rule 12(b)(6) are GRANTED. The Complaint is DISMISSED
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`WITHOUT PREJUDICE as to these Defendants.
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`2. Defendant Oklahoma Publishing Company’s Motion to Dismiss (DE 42) under Rules 12(b)(2)
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`and 12(b)(6) is GRANTED. The Complaint is DISMISSED WITHOUT PREJUDICE as to
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`Oklahoma Publishing Company.
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`3. Defendant Adam Fields Productions’ Motion to Dismiss (DE 65) under Rule 12(b)(2) is
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`GRANTED. The Complaint is DISMISSED WITHOUT PREJUDICE as to Adam Fields
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`Case 0:07-cv-60745-KAM Document 77 Entered on FLSD Docket 01/09/2008 Page 10 of 10
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`Productions.
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`4. Plaintiff shall have twenty (20) days from the date of this Order to amend the Complaint.
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`DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
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`Florida, this 8 day of January, 2008.
`th
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`_________________________________
`KENNETH A. MARRA
`United States District Judge
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`Copies furnished to:
`Leonard Aaron Hill, pro se
`All counsel of record
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