Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA583743
`ESTTA Tracking number:
`01/24/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92058387
`Defendant
`Warner Bros Entertainment Inc.
`WARNER BROS ENTERTAINMENT INC
`4000 WARNER BOULEVARD
`BURBANK, CA 91522
`UNITED STATES
`Motion to Dismiss - Rule 12(b)
`James D. Weinberger
`jweinberger@frosszelnick.com, eweiss@frosszelnick.com
`/s/ James D. Weinberger
`01/24/2014
`F1383382.pdf(4123825 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

`
`IN THE TRADEMARK TRIAL AND APPEAL BOARD
`OF THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`SOPHIA STEWART,
`
`
`
` Petitioner,
`
` v.
`
`WARNER BROS. ENTERTAINMENT INC.,
`
` Registrant.
`
`Cancellation No. 92058387
`
`MOTION TO DISMISS CANCELLATION
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`
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`Registrant, Warner Bros. Entertainment Inc. (“Registrant”), by its attorneys, Fross
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`Zelnick Lehrman & Zissu, P.C., moves to dismiss the petition to cancel Registrant’s ENTER
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`THE MATRIX mark under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The petition
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`fails to state a claim on which relief may be granted because Petitioner Sophia Stewart lacks
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`standing to bring this cancellation proceeding, and she has failed to state a claim for both
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`deceptiveness and fraud, the two grounds on which she seeks to cancel the ENTER THE
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`MATRIX mark. Therefore, this cancellation proceeding should be dismissed. Furthermore,
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`Petitioner has a long history of harassing Registrant with legal proceedings, and thus Registrant
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`requests that the cancellation proceeding be dismissed with prejudice.
`
`FACTS
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`
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`Registrant is a global leader in the creation, production, distribution, and marketing of
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`motion pictures. In 1999, Registrant released The Matrix, the first movie in what became one of
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`Registrant’s most successful science-fiction franchises. The Matrix depicts the world as a
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`simulated reality called the “matrix,” whose discovery by the main character, a computer hacker,
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`draws him into an ongoing rebellion against the machines that control this simulated reality. The
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`{F1379682.2 }
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`Matrix was critically praised and won four Academy Awards. In 2003, following up on the
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`success of The Matrix, Registrant released The Matrix Reloaded and The Matrix Revolutions
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`(together with The Matrix, “The Matrix Movies”).
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`
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`In connection with The Matrix Movies, Registrant owns a registration for the mark
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`ENTER THE MATRIX, U.S. Reg. No. 3,408,950, for use in connection with, inter alia, various
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`motion picture films, audio-video tapes and discs, and various types of video and computer
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`games, all featuring the fictional characters and elements from The Matrix Movies, in
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`International Class 9. This registration issued to Registrant on April 8, 2008.
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`
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`On December 16, 2013, Petitioner filed the petition to cancel the ENTER THE MATRIX
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`mark. She asserted as her grounds for cancellation that the mark is deceptive under Section 2(a)
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`of the Lanham Act, 15 U.S.C. § 1052(a), and that the mark was procured by fraud. Petitioner
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`provided no factual allegations in support of her deceptiveness claim and only four conclusory
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`sentences in support of her fraud claim.
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`
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`This is not the first time that Petitioner has sought legal relief based on her perceived, but
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`nonexistent, intellectual property rights in The Matrix Movies. In 2003, Petitioner filed a lawsuit
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`in the U.S. District Court for the Central District of California against, inter alia, Registrant and
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`Andy and Larry Wachowski, the creators of The Matrix Movies, alleging copyright infringement
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`and violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). See
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`Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1078 (C.D. Cal. 2005), a true and correct copy of
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`which is attached as Exhibit A to the Declaration of James D. Weinberger (“Weinberger Dec.”)
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`submitted herewith. Petitioner claimed that The Matrix Movies infringed her rights in a screen
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`treatment and a manuscript that she had authored, both of which were entitled “The Third Eye.”
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`Id. at 1079, 1080-82. The Court granted the defendants’ motion for summary judgment on the
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`copyright infringement claim, finding that the uncontroverted evidence demonstrated that the
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`{F1379682.2 }
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`2
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`

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`defendants had not had access to Petitioner’s works. See id. at 1098. The Court also held that
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`Petitioner could not prove access through a showing of “striking similarity” because it was her
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`burden to prove such striking similarity and she had failed to provide the Court with The Matrix
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`Movies, and therefore the court could not engage in the side-by-side comparison required for a
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`“striking similarity” analysis. Id. at 1103. Furthermore, in any event, Petitioner had admitted
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`that the parties’ respective works were not similar. See id. at 1106-07. The Court also granted
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`summary judgment on the RICO claim because uncontroverted evidence showed that the alleged
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`predicate acts had not occurred. See id. at 1110.
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`
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`Despite the dismissal of her entire case in California, Petitioner did not stop there. In
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`December 2012, she again filed a complaint against Registrant and the Wachowskis, but this
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`time in the U.S. District Court for the District of Nevada. Petitioner alleged that the defendants,
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`who were the creators and distributors of the movie Cloud Atlas, falsely claimed during
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`advertisements for Cloud Atlas that the movie was “from the creators of the Matrix Trilogy.”
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`See Order at 1, Stewart v. Warner Bros. Entm’t, Inc., 12-CV-1875 (PMP)(GWF), ECF No. 4 (D.
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`Nev. Dec. 10, 2012) (Weinberger Dec. Ex. B). Petitioner claimed that she was the creator of The
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`Matrix Movies and asserted that these advertisements constituted copyright infringement,
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`trademark infringement, and unfair trade practices in violation of the Federal Trade Commission
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`Act. Id.
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`
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`In this Nevada action, Petitioner had applied with the Court to proceed in forma pauperis,
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`which meant that the Court screened her complaint before requiring Registrant to file a
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`responsive pleading or motion. See id. at 2. In screening Petitioner’s complaint, the Court
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`dismissed her trademark claim with prejudice because Petitioner did not allege that she owned
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`any trademark relevant to the action and such a deficiency could not be cured. See id. at 3. The
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`court also dismissed the unfair practices claim with prejudice, but provided Petitioner an
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`{F1379682.2 }
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`3
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`

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`opportunity to replead her copyright infringement claim. See id. at 5. Petitioner’s second
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`complaint disregarded the Court’s instructions and included claims for trademark infringement
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`and unfair trade practices, in addition to copyright infringement and a claim for unlawful
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`restraint of trade in violation of the Sherman Act. See Order at 1, Stewart v. Warner Bros.
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`Entm’t, Inc., ECF No. 12 (D. Nev. Mar. 4, 2013) (Weinberger Dec. Ex. C). Again, the Court
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`screened the complaint and dismissed the trademark infringement and unfair trade practices
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`claims outright based on its prior decision. Id. at 3. The Court then dismissed the copyright
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`infringement claim with prejudice because Petitioner had still not alleged any facts in support of
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`such a claim. Id. The Court dismissed the Sherman Act claim without prejudice, but instructed
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`Petitioner that she would be given only one more opportunity to file a complaint and the
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`complaint was to be limited to her Sherman Act claim. Id. at 4-5. Petitioner ignored the Court’s
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`instructions and filed an amended complaint alleging various claims, including those that the
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`Court had previously dismissed with prejudice. See Second Amended Complaint, Stewart v.
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`Warner Bros. Entm’t, Inc., ECF No. 14 (D. Nev. Mar. 21, 2013) (Weinberger Dec. Ex. D).
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`However, less than a month later, Petitioner moved to withdraw and dismiss her complaint,
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`which the Court granted. See Order at 1, Stewart v. Warner Bros. Entm’t, Inc., ECF No. 19 (D.
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`Nev. Apr. 11, 2013) (Weinberger Dec. Ex. E).
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`
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`Like Petitioner’s other legal proceedings against Registrant based on her claimed rights in
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`The Matrix Movies, which have never been supported by any allegations or actual evidence, her
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`petition to cancel the ENTER THE MATRIX mark is wholly without merit and thus should be
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`dismissed.
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`ARGUMENT
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`Under Rule 12(b)(6) of the Federal Rules of Civil Procedure and Trademark Trial and
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`Appeal Board Manual of Procedure (“TBMP”) § 503, a registrant may move to dismiss a petition
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`{F1379682.2 }
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`4
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`for cancellation for “failure to state a claim upon which relief can be granted.” To withstand
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`such a motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a
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`claim to relief that is plausible on its face.’” Corporacion Habanos, S.A. v. Rodriguez,
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`Cancellation No. 92052146, 2011 WL 3871952, at *1 (T.T.A.B. Aug. 1, 2011) (quoting Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009)). In the context of a cancellation proceeding before the
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`Trademark Trial and Appeal Board (the “Board”), “a claim is plausible on its face when the
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`petitioner pleads factual content that if proved, would allow the Board to conclude, or draw a
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`reasonable inference that, the petitioner has standing and that a valid ground for cancellation
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`exists.” Id.; see also TBMP § 503.02. Factual allegations must not only be well-pleaded, but
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`they also must be more than “‘[t]hreadbare recitals of the elements of a cause of action,
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`supported by mere conclusory statements.” Doyle v. Al Johnson’s Swedish Rest. & Butik, Inc.,
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`101 U.S.P.Q.2d 1780, 1782 (T.T.A.B. 2012) (quoting Iqbal, 556 U.S. at 678). Such threadbare
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`statements “do not suffice and are not accepted as true.” Id. (internal quotation marks omitted).
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`The four sentences that Petitioner submits in support of her petition to cancel the ENTER
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`THE MATRIX mark do not come close to meeting this standard, and therefore this cancellation
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`proceeding should be dismissed. Furthermore, given Petitioner’s history in bringing baseless
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`suits against Registrant in connection with The Matrix Movies, Registrant requests that the Board
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`grant its motion with prejudice.
`
`A.
`
`Petitioner Lacks Standing
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`Petitioner has the burden of establishing that she has standing to bring this cancellation
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`proceeding, and she has not satisfied this burden. At the pleading stage, Petitioner must “allege
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`facts sufficient to show a ‘real interest’ in the proceeding and a ‘reasonable basis’ for [her] belief
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`that [she] would suffer some kind of damage if the mark is registered.” TBMP § 309.03(b). To
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`plead a “real interest,” Petitioner must allege a “direct and personal stake” in the outcome of the
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`{F1379682.2 }
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`5
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`

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`proceeding. Ritchie v. Simpson, 50 U.S.P.Q.2d 1023, 1026 (Fed. Cir. 1999). In addition, the
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`allegations in support of Petitioner’s claim of damage must have a “reasonable basis in fact.” Id.
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`at 1027 (explaining that more than a “subjective belief” is required) (citation omitted).
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`The only allegation that is remotely related to whether Petitioner has standing to bring
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`this cancellation proceeding is her assertion that the alleged “false registration is providing an
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`unlawful monopoly under 15 USC 1 and 15, which harms me because it’s a wrongful restraint of
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`trade.” This statement does not demonstrate that Petitioner has any real interest in this
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`proceeding or that she has suffered or will suffer any damage. Petitioner has not alleged any
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`ownership in the ENTER THE MATRIX mark or any similar mark, and has not alleged any
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`other interest that could possibly be affected by this cancellation proceeding. In addition,
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`Petitioner’s claim that she is harmed lacks any basis in fact and is entirely conclusory. Petitioner
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`never alleges how and why she is possibly harmed by the ENTER THE MATRIX mark. Given
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`the lack of allegations regarding any real interest or possible harm, this cancellation proceeding
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`should be dismissed on account of Petitioner’s lack of standing.
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`Furthermore, a district court already has decided that Petitioner does not own any
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`trademark rights in any mark containing the term MATRIX, which is further proof that Petitioner
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`has no real interest in this cancellation proceeding. As explained above, this is the third legal
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`proceeding that Petitioner has brought against Registrant in connection with The Matrix Movies.
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`In both of the prior proceedings, the district courts rejected Petitioner’s various claims regarding
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`her alleged rights in The Matrix Movies. In particular, Petitioner alleged in the action before the
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`District Court for the District of Nevada that Registrant and others had infringed her trademark
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`rights in a work entitled “Third Eye” and another work entitled “Matrix 4: The Evolution—
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`Cracking the Genetic Codes.” The court dismissed Petitioner’s trademark infringement claim
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`because she had not alleged that she had registered either title as a trademark. Indeed, from the
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`{F1379682.2 }
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`6
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`available filings, it appears that Petitioner did not allege any type of trademark ownership. The
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`court further decided to dismiss the trademark infringement claim with prejudice because
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`Petitioner’s alleged “Matrix 4” work postdated the defendants’ use of the MATRIX name.
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`Therefore, the deficiencies in Petitioner’s trademark infringement claim could not be cured.
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`The court’s holding that Petitioner had no prior trademark rights is binding on Petitioner
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`in this proceeding under the doctrine of issue preclusion or collateral estoppel. The doctrine of
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`issue preclusion “protects the finality of judgments by precluding relitigation in a second suit of
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`issues actually litigated and determined in the first suit.” Stephen Slesinger, Inc. v. Disney
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`Enters., Inc., 105 U.S.P.Q.2d 1472, 1474 (Fed. Cir. 2012) (citation and internal quotation marks
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`omitted). The doctrine extends to relitigation in the Board of issues that a court already has
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`decided. See, e.g., Domino’s Pizza Inc. v. Little Caesar Enters. Inc., 7 U.S.P.Q.2d 1359, 1363
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`(T.T.A.B. 1988) (holding that applicant was barred from asserting that mark was inherently
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`distinctive or had acquired secondary meaning under doctrine of collateral estoppel because
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`court already had decided same issue). Issue preclusion requires four elements: (1) a prior
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`action presents an identical issue; (2) the prior action actually litigated and adjudged that issue;
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`(3) the judgment in that prior action necessarily required determination of the identical issue; and
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`(4) the prior action featured full representation of the estopped party. See id.
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`These elements are met here. The issues are identical, namely whether Petitioner owns
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`any trademarks used or registered prior to Registrant’s ENTER THE MATRIX mark.
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`Furthermore, the ownership issue was actually litigated because Petitioner alleged a claim for
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`trademark infringement, which requires proof of ownership, and the district court’s dismissal of
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`this claim with prejudice required a determination that Petitioner could not prove such
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`ownership. Finally, the prior action featured full representation of the estopped party as
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`Petitioner was the plaintiff in the district court action and had the opportunity to allege any facts
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`{F1379682.2 }
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`7
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`relevant to her trademark ownership.
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`As such, Petitioner should be estopped from asserting any trademark ownership in this
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`proceeding, and the lack of any other allegations regarding a real interest demonstrates that
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`Petitioner in fact has no actual interest in this cancellation proceeding. Therefore, the petition for
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`cancellation should be dismissed because Petitioner lacks standing.
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`B.
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`Petitioner Has Made No Allegations in Support of the Deceptiveness Claim
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`Even if Petitioner had standing to bring this cancellation proceeding, she has failed to
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`state a claim upon which relief can be granted. Petitioner’s first claim (identified on the cover
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`sheet accompanied by her ESTTA filing) alleges that the ENTER THE MATRIX mark is
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`deceptive under Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), yet Petitioner does not
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`provide a single factual allegation in support of her claim. A mark is deceptive under Section
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`2(a) if (1) the mark consists of or contains a term that misdescribes the character, quality,
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`function, composition, or use of the goods and/or services, (2) prospective purchasers are likely
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`to believe that the misdescription actually describes the goods and/or services, and (3) the
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`misdescription is likely to affect a significant portion of the relevant consumers’ decision to
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`purchase the goods and/or services. In re Budge Mfg. Co., 8 U.S.P.Q.2d 1259, 1260 (Fed. Cir.
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`1988); see also In re Alp of S. Beach Inc., 79 U.S.P.Q.2d 1009 (T.T.A.B. 2006).
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`Petitioner has not alleged any facts to demonstrate that these elements are satisfied. She
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`has not alleged how the ENTER THE MATRIX mark misdescribes the character, quality,
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`function, composition, or use of the goods described in the registration, she does not allege that
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`any prospective purchasers are likely to believe the supposed misdescription, and she does not
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`allege that any such misdescription will affect the purchasing decision of a significant portion of
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`the relevant consumers’ decision to purchase the goods. Registrant is thus left without any
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`notice of the underlying factual bases of this claim. As such, Petitioner’s deceptiveness claim
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`{F1379682.2 }
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`8
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`

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`should be dismissed. See Fair Indigo L.L.C. v. Style Conscience, 85 U.S.P.Q.2d 1536, 1539
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`(T.T.A.B. 2007) (stating that claims must “include enough detail to give the defendant fair
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`notice”).
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`C.
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`Petitioner Has Not Pleaded Facts Sufficient To Support a Claim For Fraud
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`The other claim in Petitioner’s petition to cancel the ENTER THE MATRIX mark is that
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`the mark was procured by fraud. “Fraud in procuring a trademark registration or renewal occurs
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`when an applicant knowingly makes false, material representations of fact in connection with his
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`application.” Torres v. Cantine Torresella S.r.l., 1 U.S.P.Q.2d 1483, 1484 (Fed. Cir. 1986). In
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`petitioning to cancel on the ground of fraud, a petitioner must allege the elements of fraud with
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`particularity in accordance with Rule 9(b) of the Federal Rules of Civil Procedure. See Asian &
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`W. Classics B.V. v. Selkow, Cancellation No. 92048821, 2009 WL 4081699, at *1 (T.T.A.B. Oct.
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`22, 2009). Rule 9(b) provides that, “[i]n alleging fraud or mistake, a party must state with
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`particularity the circumstances constituting fraud or mistake.” This “requires that the pleadings
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`contain explicit rather than implied expression of the circumstances constituting fraud.” King
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`Auto., Inc. v. Speedy Muffler King, Inc., 212 U.S.P.Q. 801, 803 (C.C.P.A. 1981). In addition,
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`pleadings of fraud made “on information and belief” are not permissible unless they are
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`“accompanied by a statement of facts upon which the belief is founded.” Asian & W. Classics,
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`2009 WL 4081699, at *1 (citing Exergen Corp. v. Wal-Mart Stores, Inc., 91 U.S.P.Q.2d 1656,
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`1670 & n.7 (Fed. Cir. 2009)).
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`
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`Petitioner’s scant allegations regarding fraud do not satisfy the standard in Rule 9(b).
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`Petitioner, in the first sentence of four sentences of allegations, alleges that Registrant committed
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`fraud in obtaining the registration of the ENTER THE MATRIX mark “because they knew that
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`the representation on the application was false.” This statement does not allege what
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`representation was false, why it was false, or how that representation was material, all of which
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`{F1379682.2 }
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`9
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`

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`are required elements of a fraud claim. See Torres, 1 U.S.P.Q.2d at 1484. Further, Petitioner’s
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`allegation that Registrant “knew” that the representation was false is devoid of any factual
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`context and is nothing more than a conclusory statement.
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`Petitioner then alleges in the second sentence that the “Register intentionally committed
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`fraud on the USPTO in connection with the trademark registration.” The statement that the
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`“Register” intentionally committed fraud is nonsensical, and, in any event, Petitioner does not
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`provide any factual allegations regarding this alleged intent. The remaining two sentences
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`provide general statements on the law of fraud, which again are devoid of any factual support for
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`Petitioner’s fraud claim.
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`These allegations are nothing more than “threadbare recitals” of the elements of fraud,
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`and therefore are not sufficient under Rule 9(b). Without particularized allegations concerning
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`the alleged fraud, Registrant cannot answer the petition because it has no way of knowing what
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`Petitioner accuses it of doing. Such a pleading is not proper, and accordingly, this claim should
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`be dismissed. See Wolverine Outdoors, Inc. v. Marker Volkl (Int’l) GmbH, Opposition No.
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`91161363, 2010 WL 9597362, at *3 (T.T.A.B. June 21, 2010) (dismissing fraud counterclaim
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`where it did not set forth with sufficient specificity the alleged misrepresentation underlying the
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`fraud claim).
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`D.
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`Registrant’s Motion to Dismiss Should be Granted With Prejudice
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`While Registrant recognizes that the Board may be inclined to allow Petitioner to file an
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`amended petition to cancel, Registrant submits that the circumstances here merit dismissing this
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`cancellation proceeding with prejudice. As explained above, Petitioner has brought two prior
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`actions in U.S. district courts in connection with her perceived rights in The Matrix Movies, both
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`of which were dismissed. Petitioner was given ample opportunity in those lawsuits to allege
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`facts or submit evidence in support of her claims, but she never did. To avoid more costly and
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`{F1379682.2 }
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`10
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`unnecessary proceedings, the Board should dismiss this cancellation proceeding with prejudice.
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`CONCLUSION
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`
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`For the reasons stated above, the petition to cancel the ENTER THE MATRIX mark
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`should be dismissed. Furthermore, because this is Petitioner’s third time bringing a baseless
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`legal proceeding against Registrant in connection with The Matrix Movies, Registrant requests
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`that the Board grant its motion to dismiss with prejudice so that Petitioner does not harass
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`Registrant with further legal proceedings.
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`Dated: January 24, 2013
`
`
`
`
`
`FROSS ZELNICK LEHRMAN & ZISSU, P.C.
`
`
`
`
`
`
`
`
`By: ___________________________________
`
`James D. Weinberger
`
`Emily Weiss
`866 United Nations Plaza
`New York, New York 10017
`(212) 813-5900
`
`Attorneys for Registrant
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`{F1379682.2 }
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`11
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`

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`DECLARATION OF JAMES D. WEINBERGER
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`1.
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`I am a member of the law firm of Fross Zelnick Lehrman & Zissu, P.C., counsel
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`for Registrant Warner Bros. Entertainment, Inc. (“Registrant”). I submit this declaration in
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`support of Registrant’s Motion to Dismiss.
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`2.
`
`A true and correct copy of Stewart v. Wachowski, 574 F. Supp. 2d 1074 (C.D.
`
`Cal. 2005) is attached as Exhibit A.
`
`3.
`
`A true and correct copy of the Order, Stewart v. Warner Bros. Entm’t, Inc., 12-
`
`CV-1875 (PMP)(GWF), ECF No. 4 (D. Nev. Dec. 12, 2012) is attached as Exhibit B.
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`4.
`
`A true and correct copy of the Order, Stewart v. Warner Bros Entm’t, Inc., 12-
`
`CV-1875 (PMP)(GWF), ECF No. 12 (D. Nev. Mar. 4, 2013) is attached as Exhibit C.
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`5.
`
`A true and correct copy of the Second Amended Complaint, Stewart v. Warner
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`Bros Entm’t, Inc., 12-CV-01875 (PMP)(GWF), ECF No. 14 (D. Nev. Mar. 21, 2013) is attached
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`as Exhibit D.
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`6.
`
`A true and correct copy of the Order, Stewart v. Warner Bros. Entm’t, Inc., 12-
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`CV-1875 (PMP)(GWF), ECF No. 19 (D. Nev. Apr. 11, 2013) is attached as Exhibit E.
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`I declare under penalty of perjury that the foregoing is true and correct. Executed in New
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`York, New York on January 24, 2014.
`
`_______________________________
` James D. Weinberger
`
`{F1379682.2 }
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`12
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`

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`}
`
`EXHIBIT A
`EXHIBIT A
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`

`
`Stewart v. Wachowski, 574 F.Supp.2d 1074 (2005)
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` 
`

 
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`!"#$%! &
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`+,    
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`- . /0 1/ 222 3.4+56
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` 7 * (9
`% 2  :
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`Synopsis
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`Background: Author brought action against film production
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`companies and producers, alleging infringement of copyright
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`and violation of Racketeer
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`Influenced and Corrupt
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`Organizations Act (RICO), and seeking declaratory relief.
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`Defendants moved for summary judgment.
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`Holdings: The District Court, Margaret M. Morrow, J., held
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`that:
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`[1] defendants did not have access to author's works;
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`[2] court could not determine whether striking similarities
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`existed between works; and
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`[3] on motion for reconsideration, author was not entitled to
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`relief from judgment.
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`Summary judgment motion granted.
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`Motion for reconsideration denied.
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`Attorneys and Law Firms
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`*1078 Michael Thomas Stoller, Michael T. Stoller Law
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`Offices, Beverly Hills, CA, for Plaintiff.
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`Robert A. Wyman, Bruce Isaacs, David H. Boren, Janna
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`Smith, Wyman & Isaacs, Beverly Hills, CA, for Defendants.
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`Opinion
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`JUDGMENT AND THE MATRIX DEFENDANTS'
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`MOTION FOR SUMMARY JUDGMENT
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`MARGARET M. MORROW, District Judge.
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`Plaintiff Sophia Stewart alleges that defendants Twentieth
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`Century Fox Film Corporation, James Cameron and Gale
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`Anne Hurd (collectively, the “Terminator Defendants”)
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`willfully infringed her copyrighted literary works by
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`making and distributing The Terminator (“Terminator
`
`1”), Terminator 2: Judgment Day (“Terminator 2”) and
`Terminator 3: Rise of the Machines (“Terminator 3”). 1
`Stewart similarly alleges that defendants Warner Bros.
`
`Entertainment, Inc., Andy Wachowski, Larry Wachowski,
`
`Joel Silver, and Thea Bloom (collectively, the “Matrix
`
`Defendants”) willfully infringed her copyrighted literary
`
`works by making and distributing The Matrix (“Matrix
`
`1”), The Matrix Reloaded (“Matrix 2”), and The Matrix
`Revolutions (“Matrix 3”). 2 Stewart asserts claims for
`copyright infringement, declaratory relief, and violation of
`
`the Racketeer Influenced and Corrupt Organization Act
`(“RICO”), 18 U.S.C. §§ 1961, et seq. 3 In separately
`filed motions, the Terminator Defendants and the Matrix
`
`Defendants have moved for summary judgment pursuant to
`
`Rule 56 of the Federal Rules of Civil Procedure. The court
`
`addresses both motions in this order.
`
`*1079 I. FACTUAL AND
`
`PROCEDURAL BACKGROUND
`
`A. Stewart's Copyrighted Works
`
`Virtually every fact in this action is disputed. Plaintiff Sophia
`
`Stewart is a screenwriter who works under the pseudonyms
`Zenia Kavala 4 and Sonya Stewart. 5 Stewart's complaint
`alleges that, on or about May 1, 1981, she created a six-
`
`page screen treatment titled “The Third Eye,” which was
`a “scientific account of futuristic life.” 6 It further alleges
`that, on or about November 1, 1983, Stewart created a “45–
`page instrument” titled “The Third Eye.” 7 The complaint
`identifies the title of both works as “The Third Eye” rather
`
`than “Third Eye.” Stewart registered a copyright in the six-
`
`page treatment on February 2, 1983, and a copyright in the
`45–page instrument on February 6, 1984. 8
`
`ORDER GRANTING THE TERMINATOR
`
`DEFENDANTS' MOTION FOR SUMMARY
`
`B. Allegations Against The Terminator Defendants
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`Stewart v. Wachowski, 574 F.Supp.2d 1074 (2005)
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`Stewart asserts that, in May 1981, she mailed the six-page
`
`In March 1999, the Wachowskis, allegedly “acting in
`
`treatment to Susan Merzback, Vice–President of Creative
`Affairs for Twentieth Century Fox Film Corporation. 9 She
`also contends that, in response to an October 1983 telephone
`
`call from Fox seeking submission of the completed work, she
`mailed the completed manuscript to Fox's David Madden. 10
`For the next year and a half, Stewart and her agent, Ester
`
`Duffie, purportedly communicated with Fox employees, and
`
`made several attempts to submit the manuscript for the
`
`studio's consideration. Fox allegedly advised Stewart by mail
`
`that it could not accept the manuscript unless it was submitted
`by an agent registered with the Writer's Guild of America. 11
`
`Stewart contends that James Cameron and Gale Ann Hurd
`
`“act[ed] in concert with Twentieth Century [Fox]” in
`
`releasing Terminator 1, Terminator 2, and Terminator 3. She
`
`alleges that Fox was an investor in each of the Terminator
`
`films, and that it had a role in writing, producing and
`distributing them. 12 She further asserts that each infringes
`her copyrighted works. 13
`
`The Terminator Defendants counter that no person connected
`
`with
`
`the creative process
`
`that
`
`led
`
`to production of
`
`the Terminator films—including Cameron and Hurd—
`had access to Stewart's “Third Eye” literary materials. 14
`Although they concede that Fox had access to the Third
`
`Eye materials in the 1980's, defendants assert that Fox was
`
`not involved in creating or producing Terminator 1, 2, and
`3. 15 Defendants also contend that neither Cameron nor
`Hurd had any relationship with Fox until after the release of
`Terminator 1, 16 and that Cameron completed the Terminator
`1 screenplay in October 1982, 17 *1080 before Stewart
`finished the Third Eye manuscript. Finally, defendants assert
`
`that Stewart's claims fail because she cannot establish that her
`
`works are substantially or strikingly similar to Terminator 1,
`2, and 3. 18
`
`C. Allegations Against The Matrix Defendants
`
`As respects the Matrix Defendants, Stewart alleges that,
`
`in the summer of 1986, she sent her six-page treatment
`
`and 45–page instrument to Andy and Larry Wachowski in
`
`response to an advertisement in a national magazine seeking
`works of science fiction. 19 Stewart asserts that, although the
`Wachowskis received the submission, they did not contact her
`or return the copyrighted works. 20
`
`concert with Silver, Warner Bothers and Bloom,” produced
`
`and distributed a film and comic book series titled “The
`Matrix.” 21 That same month, Stewart allegedly discovered
`that the film and comic book series infringed her copyrights in
`the treatment and the 45–page instrument. 22 As a result, she
`communicated with Warner Brothers and the Wachowskis,
`demanding that they cease their infringing activities. 23
`Stewart asserts that she continued to correspond with Warner
`Brothers about her claim through February 2001. 24 She
`contends that the Wachowskis, “acting in concert with
`
`Silver, Warner Brothers and Bloom,” released Matrix 2
`
`and Matrix 3 as sequels, and that each was based on her
`copyrighted works. 25 On June 10, 1999, Stewart filed a
`written complaint with the Federal Bureau of Investigation,
`
`charging that the Wachowskis, Silver, Warner Brothers, and
`others had infringed her copyrights. 26 Apparently, she at
`some point also charged that Terminator 1, 2 and 3 infringed
`her copyrights. 27
`
`The Matrix defendants contend that the Wachowskis
`independently created Matrix 1, 2, and 3, 28 and that none of
`them had access to Stewart's Third Eye literary materials. 29
`Defendants dispute Stewart's allegation that the Wachowskis
`
`placed an advertisement soliciting works of science fiction in
`
`a magazine in 1986, and further dispute that Stewart mailed
`her literary works to the Wachowskis. 30 Defendants assert
`that the purported similarities between the Third Eye literary
`
`materials *1081 and the Matrix films do not rise to the level
`of protectable expression. 31 They also contend that the Third
`Eye literary materials are neither substantially nor strikingly
`similar to the Matrix films. 32
`
`D. Identifying Stewart's Protected Materials
`
`As a threshold matter, the court must determine which
`
`works constitute Stewart's copyrighted “Third Eye” literary
`
`materials. The operative complaint alleges:
`
`“Stewart is the legal and beneficial federal copyright
`
`claimant, owner, and author of the following intellectual
`
`property: (1) ‘The Third Eye,’ United States Copyright
`
`Office Registration Number Txu 117–610, effective date
`
`of registration, 2 February 1983, attached hereto and
`
`incorporated herein as Exhibit 1; (2) ‘The Third Eye,’
`
`which ... work was completed 1 May 1981, attached
`
`hereto and incorporated herein as Exhibit 2 (the work
`
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`Stewart v. Wachowski, 574 F.Supp.2d 1074 (2005)
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`for the created epic manuscript was completed in 1983,
`
`title page, table of contents, forward, preface and
`
`and includes