Case 0:07-cv-60745-KAM Document 82 Entered on FLSD Docket 03/20/2008 Page 1 of 6
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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,
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`Defendant.
`______________________________________/
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`OPINION AND ORDER
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`THIS CAUSE is before the Court on Defendant Gaylord Entertainment’s Motion for
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`Judgment on the Pleadings (DE 79). To date, Plaintiff has not responded to the motion or to the
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`Court’s Order to Show Cause Why Defendant’s Motion Should Not Be Granted (DE 81). The
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`motion is now ripe for review. The Court has carefully considered the motion 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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`applied for a copyright for his unpublished manuscript entitled “Tiny Little Virus: HIV, Death,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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`Reg. TXu 883595.
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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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`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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`. . . does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of
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`his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of
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`the elements of a cause of action will not do. Factual allegations must be enough to raise a right
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`to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-65
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`(2007) (internal citations omitted).
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`Rule 12(c) of the Federal Rules of Civil Procedure allows a court to enter judgment on
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`the pleadings after the pleadings are closed “when there are no material facts in dispute, and
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`Pleadings are considered “closed” when all defendants have filed answers to the
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`complaint. See, e.g., Signature Combs, Inc. v. U.S., 253 F. Supp. 2d 1028, 1030 (W.D. Tenn
`2003). Here, Plaintiff filed his Amended Complaint (DE 59) on October 23, 2007, and
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`judgment may be rendered by considering the substance of the pleadings and any judicially
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`noticed facts.” Horsley v. Rivera, 292 F.3d 695, 700 (11 Cir. 2002). The Court must accept all
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`of the facts in the complaint as true and view them in the light most favorable to the nonmoving
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`party. Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11 Cir. 1998). The complaint
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`can only be dismissed if it “appears beyond doubt that the plaintiff can prove no set of facts in
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`support of his claim which would entitle him to relief.” Slagle v. ITT Hartford, 102 F.3d 494,
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`497 (11 Cir. 1996).
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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
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`their pleadings. See Brown v. Crawford, 906 F.2d 667, 670 (11 Cir. 1990).
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`Discussion
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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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`Defendant filed its Answer (DE 60) on November 5, 2007. The Court granted Plaintiff leave to
`amend his Amended Complaint on January 9, 2008 in the Order dismissing Defendants
`Newmarket Capital Group, LLC, Twentieth Century Fox, Oklahoma Publishing Company, and
`Adam Fields Productions from the case (DE 77). However, Plaintiff elected not to amend his
`complaint. Thus, the pleadings are “closed” for purposes of Fed. R. Civ. P. 12(c).
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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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`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).
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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 Defendant. Instead, Plaintiff only
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`indicates a strong similarity between the plot of his written work and the plot of the movie
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`Donnie Darko. The Complaint does state that Plaintiff sent his work to “publishers and literary
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`agents for possible publication,” but Plaintiff does not allege any other facts suggesting that
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`Defendant would have had access to Plaintiff’s manuscript. Without additional facts suggesting
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`that Defendant had a “reasonable opportunity” to view the unpublished manuscript, Plaintiff has
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`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. Basing one’s creative idea on
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`someone else’s creative idea is not a basis for liability under the Copyright Act. Nevertheless,
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`copyright protection extends beyond word-for-word copying of a protected text. See Sid & Marty
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`Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1167 (9 Cir. 1977)
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`(“Duplication or 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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`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. Thus, the Court cannot determine whether Plaintiff’s
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`protected expression was copied nor whether the copying was “substantial.” Without these
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`factual allegations, the Court concludes that Plaintiff has not asserted a valid cause of action for
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`copyright infringement. To withstand a motion for judgment on the pleadings, Plaintiff would
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`have had to allege specifically what aspects of the movie Donnie Darko encompass his particular
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`expression, that Defendant had access to Plaintiff’s copyrighted work, and that what Defendant
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`copied was “substantial.” Based on the Complaint, the Court can only conclude that Plaintiff
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`seeks protection for the ideas in his manuscript, and 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 motion for judgment on the pleadings.
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`Conclusion
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`It is hereby ORDERED AND ADJUDGED that Defendant Gaylord Entertainment’s
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`Motion for Judgment on the Pleadings (DE 79) is GRANTED.
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`DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
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`Florida, this 19 day of March, 2008..
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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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