Case 1:04-cv-09569-KMW Document 99 Filed 09/17/07 Page 1 of 9
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`Plaintiff,
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` 04 CV 9569 (KMW)
` MEMORANDUM OPINION
` AND ORDER
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`------------------------------------X
`PATSY MAHARAM,
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`-against-
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`JAMES PATTERSON, MICHAEL GARLAND,
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`TIME WARNER, INC., TIME INC., TIME |
`WARNER BOOK GROUP INC., LITTLE,
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`BROWN AND COMPANY, LINN TANZMAN,
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`and SAKS INC.,
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`Defendants.
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`------------------------------------X
`KIMBA M. WOOD, U.S.D.J.:
`In this copyright action, Plaintiff Patsy Maharam
`(“Plaintiff”) argues that Defendant
`s James Patterson (“Patterson”), Michael Garland (“Garland”),
`Little Brown & Co., Saks Inc. (“Saks”), Linn Tanzman, and Time
`Warner, Inc., and its subsidiaries, Time Inc. and Time Warner
`Book Group, Inc., (collectively “Defendants”), infringed her
`copyright in “‘Kid’ Santa Claus,” and its central character,
`Holly Nicole. Plaintiff contends that Defendants’ children’s
`book “santaKid” and window displays based thereon “actually copy”
`and “unlawfully misappropriate” her work. Defendants move for
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` The Court set forth the background of this case and
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`engaged in a detailed analysis and comparison of “‘Kid’ Santa
`Claus” and “santaKid” in its January 2006 Order denying
`Defendants’ motion for judgment on the pleadings and Plaintiff’s
`motion for a preliminary injunction (the “January 2006 Order”).
`Familiarity with the January 2006 Order is assumed.
`The Fourth Affidavit of Elizabeth A. McNamara attaches as
`exhibits the deposition testimony of Patsy Maharam, James
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`Case 1:04-cv-09569-KMW Document 99 Filed 09/17/07 Page 2 of 9
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`summary judgment pursuant to Federal Rule of Civil Procedure
`56(b). For the reasons stated below, Defendants’ motion for
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`summary judgment is granted.
`To establish copyright infringement, Plaintiff must prove:
`(1) ownership of a valid copyright; and (2) unauthorized copying
`of constituent elements that are original. E.g., Jorgensen v.
`Epic/Sony Records, 351 F.3d 46, 51 (2d Cir. 2003); Repp v.
`Webber, 132 F.3d 882, 889 (2d Cir. 1997). Only the second
`element is in issue here.
`“To satisfy the second element of an infringement claim --
`the ‘unauthorized copying’ element -- a plaintiff must show both
`that his work was ‘actually copied’ and that the portion copied
`amounts to an ‘improper or unlawful appropriation.’” Jorgensen,
`351 F.3d at 51 (citing Castle Rock Entm’t, Inc. v. Carol Publ’g
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`Patterson, Michael Garland, Linn Tanzman, Andrea Spooner,
`Jennifer Walsh, and Mary Jordan and are referred to herein as
`“[X] Dep. [X].” All exhibits attached to the Second Declaration
`of Michael Garland are referred to herein as “Second Garland Ex.
`[X].” All exhibits attached to the Second Declaration of James
`Patterson are referred to as “Second Patterson Decl. Ex. [X].”
`All exhibits attached to Patsy Maharam’s Declaration are referred
`to as “Maharam Decl. Ex. [X].” When the same document is
`included as an exhibit by both Plaintiff and Defendant, only one
`of those exhibits is cited.
` Defendants’ motion for summary judgment was fully briefed
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`on June 21, 2006. On July 20, 2006, Plaintiff sent a letter to
`the Court purporting to “correct[] the record on which
`defendants’ motion for summary judgment rests.” Letter from
`Andrew Berger to Court (July 26, 2006); Letter from Andrew Berger
`to Court (July 20, 2006). This letter simply repeats the
`arguments that Plaintiff made in her opposition papers.
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`Case 1:04-cv-09569-KMW Document 99 Filed 09/17/07 Page 3 of 9
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`Group, Inc. et al., 150 F.3d 132, 137 (2d Cir. 1998)). “Actual
`copying may be established ‘either by direct evidence of copying
`or by indirect evidence, including access to the copyrighted
`work, similarities that are probative of copying between the
`works, and expert testimony.’” Castle Rock Entm’t, Inc., 150
`F.3d at 137 (citing Laureyssens v. Idea Group, Inc., 964 F.2d
`131, 140 (2d Cir. 1992)). There is no infringement, however, if
`the evidence supports the conclusion that a defendant created his
`or her work independently. E.g., Folio Impressions, Inc. v. Byer
`Calif., 937 F.2d 759, 765 (2d Cir. 1991); Cox v. Abrams, No. 93
`Civ. 6899, 1997 WL 251532, at *7, 1997 U.S. Dist. LEXIS 6687, at
`*19-20 (S.D.N.Y. May 14, 1997).
`The Court assumes, arguendo, that Plaintiff has made a prima
`facie case of infringement and turns to Defendants’ evidence that
`Patterson created “santaKid” independent of Plaintiff’s work. 3
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` The Court emphasizes that it assumes, arguendo, that
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`Plaintiff has made a prima facie case. Plaintiff has set forth
`an attenuated argument that Defendant might have encountered her
`work because it was widely disseminated. To presume, however,
`that Defendants had access to Plaintiff’s work because it was
`widely disseminated, Plaintiff must show that Defendants had a
`reasonable opportunity to hear or see the work, not simply a
`“bare possibility.” Jorgensen, 351 F.3d at 51.
`Here, Plaintiff has produced evidence that radio stations
`played her songs during the Christmas holiday season, which
`received attention in the print media, and that she appeared on a
`number of radio and television shows primarily during the 1980s
`to promote her work. Maharam Decl. ¶¶ 41-106, 110. During these
`appearances, she typically summarized the plot of “‘Kid’ Santa
`Claus” and sometimes read from her storybooks. Maharam Decl. ¶¶
`54-62, 73, 81-83, 94, 96, 100-01, 105, 110, 111, 126-27. Two
`hotels and a record store in New York City promoted her work,
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`“Even where a plaintiff is successful in creating a triable issue
`of fact with respect to actual copying, a defendant may defeat a
`copyright infringement claim by demonstrating independent
`creation of the allegedly infringing work.” Silberstein v. Fox
`Entm’t Group, Inc., 424 F. Supp. 2d 616, 628 (S.D.N.Y. 2004).
`“Summary judgment is appropriate where a plaintiff fails to offer
`evidence sufficient to raise a factual question about a
`defendant’s proof of independent creation.” Chivalry Film Prods.
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`Maharam Decl. ¶¶ 107-08, 128-35, and she performed her musical
`play at the Russian Tea Room in New York City (for which she
`received media attention), a Long Island school, and at the Plaza
`Hotel in New York City. Maharam Decl. ¶¶ 112-21, 124, 125. This
`dissemination is not as extensive as the broadcasting that has
`taken place in cases where courts have found a work to be widely
`disseminated. E.g., Acuff-Rose Music, Inc. v. Jostens, Inc., 988
`F. Supp. 289, 293 (S.D.N.Y. 1997), aff’d, 155 F.3d 140, 141 (2d
`Cir. 1998) (finding widespread dissemination where plaintiff’s
`song had a “top five ranking as a country hit at the time” that
`defendant allegedly infringed plaintiff’s copyright); ABKCO
`Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 997-98 (2d
`Cir. 1983) (finding widespread dissemination where a song was
`“Number One on the Billboard Charts” for five weeks in the United
`States and one of the “Top Thirty Hits” for seven weeks in
`England); see also Silberstein, 424 F. Supp. at 627 (collecting
`cases). Here, by contrast, Defendants created “santaKid”
`approximately 20 years after the bulk of Plaintiff’s
`dissemination of her work. Even if this evidence were sufficient
`to establish that Plaintiff’s work was widely disseminated,
`Defendants have produced volumes of evidence to establish that
`Defendants were not exposed to it. Cf. Three Boys Music Corp. v.
`Bolton, 212 F.3d 477, 483-84 (9th Cir. 2000) (finding sufficient
`evidence of access where defendant “confessed to being a huge
`fan” of plaintiffs and “a collector of their music”).
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`Case 1:04-cv-09569-KMW Document 99 Filed 09/17/07 Page 5 of 9
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`v. NBC Universal, Inc., No. 05 Civ. 5627, 2006 WL 3780900, at *2,
`2006 U.S. Dist. LEXIS 92956, at *9, (S.D.N.Y. Dec. 22, 2006).4
`Here, Defendants have produced a vast amount of evidence, in
`the form of sworn testimony, and contemporaneous drafts, e-mails,
`letters, memos, and sketches, to demonstrate that Patterson (the
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`author) and Garland (the illustrator) created “santaKid”
`independent of any knowledge of Plaintiff’s work. Specifically,
`Defendants have produced copies of Patterson’s original
`handwritten manuscript and ten subsequent re-drafts, along with
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` Courts in this district have taken differing positions
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`regarding whether a district court may grant summary judgment on
`the basis of independent creation. Compare, e.g., Clonus Assocs.
`v. Dreamworks, LLC, 457 F. Supp. 2d 432, 441 (S.D.N.Y. 2006) (“No
`matter how credible [] a claim [of independent creation] is, and
`even absent any contrary evidence, a court should not grant
`summary judgment on that basis.”) with, e.g., Chivalry Film
`Prods., No. 05 Civ. 5627, 2006 WL 3780900, at *2, 2006 U.S. Dist.
`LEXIS 92956, at *9; Silberstein, No. 02 Civ. 1131, 2004 WL
`1620895, at *8, 2004 U.S. Dist. LEXIS 13554, at *27 (S.D.N.Y.
`July 19, 2004) (“Evidence of independent creation is an
`established ground for granting summary judgment.”); Cox, No. 93
`Civ. 6899, 1997 WL 251532, at *7, 1997 U.S. Dist. LEXIS 6687, at
`*19-20. See also, Langman Fabrics v. Graff Californiawear, Inc.,
`160 F.3d 106, 117 (2d Cir. 1998) (Jacobs, J., dissenting) (“The
`majority opinion (in my view) arrives at the wrong result, but it
`should not be read to raise the bar for granting summary judgment
`on the defense of independent prior creation.”).
` The Court emphasizes that evidence from disinterested
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`third parties supports Defendants’ argument that they created
`“santaKid” independent of Plaintiff’s work. This case is
`different from Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), in
`which the Second Circuit reversed a district court’s entry of
`summary judgment where “the district court accepted only the
`version of interested witnesses on the question of separate
`creation.” Id. at 891; see also, Scholastic v. Speirs, 28 F.
`Supp. 2d 862, 869 (S.D.N.Y. 1998) aff’d, 199 F.3d 1323 (2d Cir.
`1999).
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`correspondence between Patterson and his secretary, and between
`Patterson and his editors, which includes detailed editorial
`comments. Second Patterson Decl. Exs. A-E, H-X. Defendants
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`also produced Garland’s initial black-and-white sketches and
`subsequent drafts, many of which contain editorial comments.
`Second Garland Dec. ¶¶ 15-16, Exs. A-F. Defendants corroborate
`the authenticity of these drafts with affidavits and declarations
`supporting that Defendants independently created and developed
`the “santaKid” story and its illustrations. Second Patterson
`Decl. Ex. A-C; Jennifer Rudolph Walsh Dep. 15:5-20 (stating that
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`Patterson spoke with her about “an idea for a book about a little
`boy who was Santa’s child . . . and this little boy basically has
`to save Christmas.”;) Second Patterson Decl. Ex. O (attaching a
`letter from Andrea Spooner, Patterson’s editor, which states:
`“The idea of a super-kid that saves Christmas from evil forces
`has wide and timeless appeal. And, I honestly think it’s the
`first time I’ve seen a story told from the point of view of
`Santa’s own progeny -- a fantastic premise.”).
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` Patterson’s secretary is not a party to this action.
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`Patterson’s editors work for Defendant Little, Brown & Co.
` Jennifer Rudolph Walsh worked as Patterson’s agent from
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`about October 2002 through February 2005. Walsh Dep. 8:9-18.
`Neither Walsh nor her employer, the William Morris Agency
`(“William Morris”), represents Patterson. Neither Walsh nor
`William Morris is a party to this lawsuit.
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`Plaintiff fails to offer evidence sufficient to raise a
`factual question about Defendants’ proof of independent creation.
`Instead of rebutting Defendants’ evidence, Plaintiff makes
`generalized assertions that Defendants’ evidence is unconvincing
`and even falsified. For example, Plaintiff uses Patterson’s
`deposition testimony, in which he states that he cannot remember
`the precise date that he conceived of the “santaKid” story, to
`argue that Patterson must have infringed Plaintiff’s work. Pl.’s
`Mem. of Law in Opp’n to Defs.’ Motion for Summ. J. 45 (stating
`that Defendants’ documentation of independent creation is “pure
`fiction” because: (1) Patterson did not know when he conceived of
`the idea for “santaKid”; (2) Patterson has no documents
`indicating the date of conception; (3) Patterson offers no
`testimony from anyone who saw him write “santaKid”; (4) Patterson
`has no notes of his initial thoughts about “santaKid”; (5)
`Patterson “is a compulsive outliner” but has no outline for
`“santaKid” and is not sure if he created one; (6) Patterson never
`told his secretary that his son was the inspiration for
`“santaKid”; and (7) Patterson does not explain why he “allegedly”
`created two early drafts of “santaKid” in early 2003 with a male
`protagonist “when he agreed with his former agent in March 2002
`that the central character should be a girl”). Plaintiff
`attempts to argue that Patterson could not have created
`“santaKid” independent of “‘Kid’ Santa Claus,” because, although
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`it is Patterson’s usual practice to use idea folders and outlines
`to write his novels, he has produced no idea folders or outlines
`for “santaKid.” Pl.’s Mem. of Law in Opp’n to Defs.’ Motion for
`Summ. J. 45 (“Although [Patterson] has 3,000 folders of ideas for
`new books, he never had a folder for santaKid.”) She suggests,
`with no evidence to back the suggestion, that the correspondence
`and drafts that Patterson relies upon were created after
`Plaintiff filed this lawsuit to manufacture a defense. Pl.’s
`Mem. of Law in Opp’n to Defs.’ Motion for Summ. J. 47 (stating
`only that Patterson had “a few initial drafts that seem
`suspiciously prepared for this litigation”). Plaintiff argues
`that Garland failed to demonstrate that he created his
`illustrations independent of Plaintiff’s work because “[h]is
`declaration says nothing about how he was selected to create the
`illustrations, who selected him, when he was selected and what
`instructions he was given at the outset with respect to the
`illustrations he created.” Pl.’s Mem. of Law in Opp’n to Defs.’
`Motion for Summ. J. 48. Because these generalized, speculative
`arguments fail to rebut Defendants’ showing of independent
`creation, there is no genuine issue of material fact for trial.
`Jorgensen, 351 F.3d at 51 (“[Plaintiff] to avoid summary
`judgment, ‘may not reply simply on conclusory allegations or
`speculation . . . but instead must offer evidence to show that
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`[her] version of the events is not wholly fanciful.’”)
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`(citing
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`Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999)).
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`Thus, even assuming, arguendo,
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`that Defendants had access to
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`Plaintiff's work,
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`they have defeated her copyright
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`infringement
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`claim by producing substantial, uncontradicted evidence that the
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`“santaKid” works were created independent of her work.8
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`The
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`Court therefore grants Defendants’ Motion for Summary Judgment
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`[#73].
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`The Clerk of Court is directed to close this case. Any
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`pending motions are moot.
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`Dated:
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`SO ORDERED.
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`New York, New York
`September Efi, 2007