Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 1 of 25 PageID #: 3349
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CASE NO. 2:07CV200
`
`§§§§§
`
`§§§§§
`
`DONNA WEST,
`
`Plaintiff,
`
`vs.
`
`TYLER PERRY, INDIVIDUALLY and
`d/b/a TYLER PERRY COMPANY,
`TYLER PERRY COMPANY, INC. and
`LIONS GATE ENTERTAINMENT, INC.
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
`
`Before the Court is Plaintiff Donna West’s (“West”) Motion for New Trial (Docket No. 180).
`
`After considering the parties’ briefs, the Court DENIES West’s motion.
`
`BACKGROUND
`
`West brought an action for copyright infringement against Tyler Perry, Tyler Perry Company,
`
`and Lions Gate Entertainment, Inc. (“Defendants”). West wrote and performed the play Fantasy of
`
`a Black Woman at the Dallas Junior Black Academy in 1991. Generally, the play is about a woman
`
`who is faced with difficult domestic issues including an abusive and unfaithful husband who
`
`abandons his family for his mistress. Tyler Perry (“Perry”) performed at the Dallas Junior Black
`
`Academy in 1998/1999. In 2001, Perry began performing the play Diary of a Mad Black Woman
`
`about a woman who copes with having her prominent husband leave her for his mistress. In 2005,
`
`Lions Gate Entertainment, Inc. made Diary of a Mad Black Woman into a movie. West alleged Perry
`
`had access to her play when he was at the Dallas Junior Black Academy and he copied it in creating
`
`1
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 2 of 25 PageID #: 3350
`
`Diary of a Mad Black Woman. At trial, the main issues were whether Perry had access to West’s
`
`play such that he copied it, whether he copied it, and whether the two works are so similar that the
`
`jury could find he had copied it even without proof of access.
`
`To prove her case, West had to demonstrate factual copying and substantial similarity.
`
`Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004). Factual
`
`copying may be inferred from proof that the defendant had access to the copyrighted work prior to
`
`creation of the infringing work and probative similarity between the two works. Id. at 367-68
`
`(citations omitted). A plaintiff may also show factual copying by showing striking similarity. Id.
`
`at 368, 372 n.10. First, West contends that the factual copying element has been met because Perry
`
`had access to West’s play Fantasy of a Black Woman at the Dallas Junior Black Academy in Dallas,
`
`Texas and that Defendants copied copyrightable aspects of West’s Fantasy of a Black Woman when
`
`writing and producing the movie Diary of a Mad Black Woman. West also contends that West’s play
`
`and Perry’s movie are strikingly similar. Second, West contends that West’s play and Perry’s movie
`
`are substantially similar. The jury found that Defendants did not infringe on West’s copyright in
`
`Fantasy of a Black Woman, and the Court entered final judgment in favor of Defendants. Jury
`
`Verdict, Docket No. 171; Final J., Docket No. 176.
`
`APPLICABLE LAW
`
`Federal Rule of Civil Procedure 59 permits a party to file a motion for new trial on any of
`
`the issues. FED. R. CIV. P. 59(a)(1)(A). The district court may grant a new trial pursuant to this rule
`
`“where necessary to prevent an injustice.” United States v. Flores, 981 F.2d 231, 237 (5th Cir.1993)
`
`(quoting Delta Eng'g Corp. v. Scott, 322 F.2d 11, 15–16 (5th Cir.1963), cert. denied, 377 U.S. 905
`
`(1964)). The district court has discretion to grant a new trial under Federal Rule of Civil Procedure
`
`2
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 3 of 25 PageID #: 3351
`
`59(a). Flores, 981 F.2d at 237. The district court’s decision to grant or deny a motion for new trial
`
`will be reversed only for an abuse of discretion. Id. (citing Treadaway v. Societe Anonyme Louis-
`
`Dreyfus, 894 F.2d 161, 164 (5th Cir. 1990)). “The district court abuses its discretion by denying a
`
`new trial only when there is an ‘absolute absence of evidence to support the jury’s verdict.’” Cobb
`
`v. Rowan Cos., 919 F.2d 1089, 1090 (5th Cir. 1993) (quoting Irvan v. Frozen Food Express, Inc.,
`
`809 F.2d 1165, 1166 (5th Cir. 1987)).
`
`A party must make a proper objection to preserve error for appeal. See United States v.
`
`Berry, 977 F.2d 915, 918 (5th Cir. 1992). “An objection which fails to present the trial court with
`
`a sufficient basis to identify and correct the purported infirmity will not preserve error for appeal.”
`
`Id. “Error may not be predicated upon a ruling which admits or excludes evidence unless a
`
`substantial right of the party is affected, and . . . [i]n case the ruling is one admitting evidence, a
`
`timely objection or motion to strike appears of record, stating the specific ground of objection, if the
`
`specific ground was not apparent from the context; or . . . [i]n case the ruling is one excluding
`
`evidence, the substance of the evidence was made known to the court by offer or was apparent from
`
`the context within which questions were asked.” FED. R. EVID. 103(a). Where a party does not
`
`preserve error for appeal, “only plain error, defined as error which would affect the fairness,
`
`integrity, or public reputation of the judiciary were it left uncorrected, will warrant relief on appeal.”
`
`Berry, 977 F.2d at 918.
`
`GROUNDS THAT WEST DID NOT PRESERVE THROUGH OBJECTION
`
`West argues various grounds in her motion for new trial that she did not preserve through
`
`objection at trial or otherwise. West asserted the following grounds in her new trial motion but did
`
`3
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 4 of 25 PageID #: 3352
`
`not preserve her objections on these grounds: improper appeals to emotions, Defendants
`1
`
`misrepresented L.D. Dabney’s testimony regarding a copy of West’s play Fantasy of a Black Woman
`
`that was allegedly located at the Dallas Junior Black Academy in 1998, prejudice by unfair surprise
`2
`
`created by Defendants’ argument that Perry first came to Dallas in 1999, Defendants misrepresented
`3
`
`the existence of the original Diary of a Mad Black Woman script, evidence of Perry’s post-1998
`4
`
`work, the Court’s ruling regarding the admissibility of West’s copyright registration that is reflected
`5
`
`in the Court’s ruling on West’s motion in limine, and the charge misled the jury.
`
`West holds a copyright registration for the asserted work Fantasy of a Black Woman. West
`
`1
`West argues that Defendants made improper appeals to emotion at trial to elicit the jury to favor
`Defendants’ case. For instance, West points to Perry’s testimony stating “I’ve been through so many emotions in this
`trial. It’s just been unreal. Because this is – this is my name, the thing that I’ve worked my entire life for, the thing
`that I was homeless for, the thing that I went through to – I suffered so much.” Pl.’s Br. 8. West also points to
`Perry’s counsel’s references to Perry’s work as “Christian work.” However, West never asserted an objection at trial
`on the grounds of improper appeal to emotions. Thus, West did not preserve any error on this ground.
`
`2
`West asserts that L.D. Dabney established at trial that Perry had a reasonable chance to view West’s play,
`which was allegedly located at the Dallas Junior Black Academy during the same time that Perry was at the Dallas
`Junior Black Academy. Such information would aid West in proving the “access” and thus “factual copying” aspects
`of her case. West argues that Defendants misrepresented L.D. Dabney’s testimony when Defendants’ counsel stated
`during closing arguments that L.D. Dabney only obtained information via hearsay. However, West did not object to
`this at trial. Thus, West did not preserve any error on this ground.
`
`3
`West sought to show that West’s play was located at the Dallas Junior Black Academy during the same
`time that Perry was at the Dallas Junior Black Academy in 1998 in order to prove “access.” West argues that Perry
`testified that he was at the Dallas Black Academy in 1998, but Defendants’ counsel argued in closing arguments that
`Perry was not at the Dallas Black Academy in 1998. West argues that Defendants’ argument unfairly surprised her.
`However, West never asserted an objection at trial on the grounds of unfair surprise. Thus, West did not preserve
`any error on this ground. Furthermore, Defendants assert that the evidence showed that Perry was not in Dallas until
`March of 1999. West was free to respond on rebuttal.
`
`4
`The existence of an original script would help support Perry’s argument that Perry independently created
`Diary of a Mad Black Woman without copying West’s Fantasy of a Black Woman. West argues that Defendants
`misrepresented that Perry’s original Diary of a Mad Black Woman script was in the courtroom and thus created a
`false appearance that Perry had an original script. However, West never objected at trial on this ground and thus did
`not preserve error on this ground.
`
`5
`During trial, the Court warned Defendants’ counsel to refrain from arguing that Perry’s post-1998 success
`meant that Perry did not copy West’s play. West argues that Defendants continued to argue that Perry’s post-1998
`success indicated that Perry did not copy West’s play. However, West never objected to any mention of Perry’s
`post-1998 success. Thus, West waived any error as to Defendants’ use of Perry’s post-1998 success.
`
`4
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 5 of 25 PageID #: 3353
`
`complains that the Court ruled against admitting the registration as evidence. However, West’s
`
`complaints are based on untrue facts. The Court never ruled against the admissibility of West’s
`
`registration. Instead, the Court only ruled that if West offered her copyright registration into
`
`evidence, then it would be admitted in its entirety, including its registration date. Docket No. 146
`6
`
`at 4. In light of this order, West never offered her copyright registration into evidence. Thus, West
`
`voluntarily chose to omit her registration from evidence. Also, even if the Court excluded West’s
`
`registration, West did not make an offer of proof of her registration and thus waived her objection
`
`on the admissibility of the registration. Accordingly, West does not have a basis for asserting error
`
`as to the admissibility of her copyright registration.
`
`As to whether the Court’s ruling itself was prejudicial, the ruling was required for fairness.
`
`The Court ruled that if West offered her copyright registration into evidence, then it would be
`
`admitted in its entirety, including its registration date. Docket No. 146 at 4. “To do otherwise would
`
`allow West to argue the benefits of a registration certificate without allowing Perry/Lyons Gate to
`
`argue the negative implications of the registration date.” Docket No. 146 at 4. The registration date
`
`did in fact carry negative implications. West performed her play in 1991. Pl.’s Resp. to Defs.’ Mot.
`
`for Summ. J. 5. Perry claimed he wrote Diary of a Mad Black Woman in or about 2000. Pl.’s Resp.
`
`to Defs.’ Mot. for Summ. J. 6. West claimed Perry potentially had access to her play during 1991
`
`to the time Perry claimed he wrote Diary of a Mad Black Woman. Pl.’s Resp. to Defs.’ Mot. for
`
`Summ. J. 5-6, 14-19. Thus, any copying that occurred took place well before West registered her
`
`6
`The Court asserted that the contents of its order on motions in limine regarding West’s and Perry’s
`copyright registrations applied as a ruling at trial. TT Dec. 2 2008 19:16-20:3; see Docket No. 146. Thus, the
`Court’s ruling on these motions in limine became rulings at trial.
`
`5
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 6 of 25 PageID #: 3354
`
`play on March 20, 2006. Also, the date of registration raised issues of timeliness of the registration.7
`
`Defendants had the right to argue these points if West contended that her registration supported her
`
`case. Accordingly, if West introduced her registration, the Court had to allow the registration date
`
`into evidence.
`
`Given that West did not preserve error on the grounds discussed above, plain-error review
`
`applies. However, West did not argue that the Court committed plain-error on any of these grounds;
`
`thus, West does not substantiate her request for a new trial. Accordingly, these grounds do not
`
`warrant a new trial.
`
`GROUNDS THAT WEST PRESERVED THROUGH OBJECTION
`
`“Golden Rule” Argument
`
`During opening statements, Perry’s counsel, Ms. Veronica Lewis, stated:
`
`It is a very important matter for Mr. Perry. But it is really a matter that has broader
`implications because what Ms. West is doing is she is saying that Mr. Perry stole
`from her. Her allegation is Tyler Perry stole my play and copied it and passed it off
`as his own. Imagine yourself being in that situation. Imagine that kind of allegation
`being thrown about, about you.
`
`Trial Transcript (“TT”) 12/2/08 a.m. 57:11-17. West’s counsel, Mr. Aubrey Pittman, objected to
`
`Perry’s counsel’s statement, “Imagine yourself being in that situation. Imagine that kind of
`
`allegation being thrown about, about you,” as a “golden rule” argument. The Court sustained the
`
`objection. West now contends this warrants a new trial notwithstanding the Court’s ruling sustaining
`
`7
`Registration must be timely to establish prima facie evidence. Gen. Universal Sys., Inc. v. Lee, 379 F.3d
`131, 141 (5th Cir. 2004). A registration is timely if made “within five years of [a] work’s first publication. If the
`copyright is registered after the five-year period, the court may give as much weight to the copyright registration as it
`desires.” Berg v. Symons, 393 F. Supp. 2d 525, 539 (S.D. Tex. 2005); see 17 U.S.C. § 410. Registration may also
`allow for statutory remedies and attorneys’ fees if it is timely. See 17 U.S.C. § 412. Registration can only be timely
`in this regard if a copyright “has an effective date of registration not later than the earlier of 3 months after the first
`publication of the work or 1 month after the copyright owner has learned of the infringement.” 17 U.S.C. § 412.
`
`6
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 7 of 25 PageID #: 3355
`
`her objection. Defendants counter that Defendants’ counsel did not make a “golden rule” argument,
`
`that the “golden rule” argument objection only applies to arguments that go to the issue of damages
`
`and Defendants’ counsel only argued liability in the statements at issue, and that West failed to
`
`preserve her argument because she did not request a curative instruction.
`
`The “golden rule” argument objection does not apply to Defendants’ counsel’s statement
`
`cited above because such argument applies only to issues of damages and not liability. Stokes v.
`
`Decambre, 710 F.2d 1120, 1128 (5th Cir. 1983) (“The use of the Golden Rule argument is improper
`
`only in relation to damages. It is not improper when urged on the issue of ultimate liability.”). Ms.
`
`Lewis asked the jury to place themselves in the position of Perry, stating “imagine yourself being
`
`in that situation. Imagine that kind of allegation being thrown about, about you.” TT 12/2/08 a.m.
`
`57:14-17. While this is akin to a “golden rule” argument, Defendants used this argument on the
`
`issue of liability and not damages. See Whitehead v. Food Max of Miss., Inc., 163 F.3d at 265, 278
`
`(5th Cir. 1998). Immediately preceding the alleged “golden rule” argument, Defendants’ counsel
`
`stated, “It is a very important matter for Mr. Perry. But it is really a matter that has broader
`
`implications because what Ms. West is doing is she is saying that Mr. Perry stole from her. Her
`
`allegation is Tyler Perry stole my play and copied it and passed it off as his own.” TT 12/2/08 a.m.
`
`57:11-15. In this excerpt, Defendants’ counsel is describing West’s allegations regarding liability
`
`and never mentions damages. Because the “golden rule” argument objection does not apply to
`
`argument on the issue of liability, Defendants’ counsel did not make an improper argument. Also,
`
`the Court sustained West’s objection, and West did not request further relief in the way of a curative
`
`instruction or otherwise. See TT 12/2/08 a.m. 57:11-15. Thus, West’s “golden rule” argument does
`
`not support granting a new trial.
`
`7
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 8 of 25 PageID #: 3356
`
`Perry’s Counsel’s Comment on West’s Counsel’s Omission of Language
`
`During trial, Perry’s counsel included material from Perry’s deposition testimony for optional
`
`completeness. See TT 12/02/08 97:14-98:14; see TT 12/04/08 115-18. In her closing statement,
`8
`
`Ms. Lewis advised the jury “And you ought to always be suspicious when somebody shows you an
`
`answer without the question. Because you’ll remember we forced them to show the question.” Mr.
`
`Pittman objected, explaining that “[t]he answer was shown without the question because of an order
`
`by this Court and Ms. Lewis is implying that there was another reason why the question won’t wasn’t
`
`[sic] there. The question was taken out simply to comply with the Court’s order.” TT 12/9/08
`
`130:14-19. The Court overruled Mr. Pittman’s objection. TT 12/9/08 130:20. West argues that Ms.
`
`Lewis’s comment to the jury was improper because Mr. Pittman had a sound reason for omitting the
`
`question referred to by Ms. Lewis from the jury—namely, to adhere to the Court’s order that
`
`prohibited the mention of Perry’s copyrights. Defendants respond that Ms. Lewis’s statements were
`
`not improper because Mr. Pittman made references to demonstrative exhibits without preceding
`
`questions, leaving the answer to be mischaracterized by Mr. Pittman, and Ms. Lewis was merely
`
`correcting that mischaracterization. The parties dispute whether during her closing statement, Ms.
`
`Lewis could properly assess the reason why Mr. Pittman omitted a question from Perry’s deposition
`
`testimony.
`
`8
`During direct examination of West, Mr. Pittman stated: “Let me show you an exhibit that we showed the
`jury during the opening statement, and this is a — when Mr. Perry was asked under oath to describe his play, the
`‘Diary of a Mad Black Woman,’ this is a description he gave it. And I want to ask you to take a look at it. Again,
`this is Mr. Perry’s description of his work. And tell me whether this reminds you of anything.” TT 12/02/08 96:23-
`97:4. Ms. Lewis objected stating that Mr. Pittman mischaracterized Perry’s deposition testimony. Ms. Lewis stated
`for optional completeness that Mr. Pittman asked Perry in the deposition “I mean, and that is what I am asking you. I
`want the specifics that are atypical that make it copyrightable.” Ms. Lewis then stated that this question preceded
`what Mr. Pittman presented to West. TT 12/02/08 97:5-98:12. Also, during cross-examination, Ms. Lewis played
`Perry’s deposition testimony that showed that during the deposition, Mr. Pittman asked Perry about what is
`copyrightable about Perry’s Diary of a Mad Black Woman.
`
`8
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 9 of 25 PageID #: 3357
`
`Ms. Lewis properly gave her interpretation of Mr. Pittman’s omission. “The sole purpose
`
`of closing argument is to assist the jury in analyzing, evaluating and applying the evidence.” United
`
`States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008) (citation omitted). Ms. Lewis explained to the
`
`jury the possibility that they should be suspicious when answers are presented without their
`
`corresponding questions and explained that Defendants had to show questions from deposition
`
`testimony when West did not. Ms. Lewis referred to occurrences and evidence presented at trial and
`
`gave her interpretation of the evidence. This is in line with the purpose of closing statements, which
`
`is to help the jury analyze the evidence. Accordingly, Ms. Lewis did not improperly comment on
`
`Mr. Pittman’s omissions from deposition testimony. Also, Mr. Pittman could have addressed Ms.
`
`Lewis’s interpretation in rebuttal and explained why he left out the question at issue. Instead, Mr.
`
`Pittman decided against this approach. Thus, even if Ms. Lewis made an improper argument, Mr.
`
`Pittman declined to remedy any prejudice created by Ms. Lewis’s argument. Accordingly, Ms.
`
`Lewis’s interpretation of Mr. Pittman’s omission of a question from an answer does not warrant a
`
`new trial.
`
`Expert Witness Michael Gale
`
`Michael Gale testified as Defendants’ expert on whether Perry copied West’s Fantasy of a
`
`Black Woman. West contends that Gale is not qualified and that his testimony is neither relevant nor
`
`reliable. West argues that Gale’s testimony is unreliable because Gale relied on the expertise of
`
`another person that Gale had never met, relied upon newspaper articles by authors he did not know,
`
`and did not perform a side-by-side comparison of all of the protectable and nonprotectable elements
`
`of the asserted and the accused work. Additionally, West contends that Gale improperly submitted
`
`additional opinions in his charts that extended beyond Gale’s expert report.
`
`9
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 10 of 25 PageID #: 3358
`
`Defendants respond that Gale’s omission of a side-by-side comparison test is irrelevant.
`
`Defendants argue that a side-by-side comparison is relevant only to the substantial similarity issue,
`
`and Gale only testified to the issue of “factual copying,” which may be found where there is
`
`“probative similarity” or “striking similarity.” Defendants also respond that Gale is qualified and
`
`list Gale’s education and various experiences in the film industry. Additionally, Defendants respond
`
`that Gale did not submit any additional opinions beyond his expert report and asserts that the Court
`
`sustained West’s objections as to Gale’s charts that West now complains of. The parties thus dispute
`
`whether Gale is qualified, whether Gale’s methodology is reliable, and whether Gale improperly
`
`introduced opinions not found in his report.
`
`West argues that Gale is not qualified to testify as an expert. In evaluating an expert’s
`
`qualifications, “As long as some reasonable indication of qualification is adduced, the court may
`
`admit the evidence without abdicating its gate-keeping function.” Rushing v. Kansas City S. Ry. Co.,
`
`185 F.3d 496, 507 (5th Cir. 1999) (superceded on other grounds). Gale has his degree in film and
`
`has decades of experience in the film industry. Gale has been an accomplished screenwriter since
`
`1973, was an Academy Award nominee for co-writing the “Back to the Future” screenplay, is
`
`familiar with thousands of films, and worked as an expert witness on prior copying cases, a judge
`
`of screenwriters contests, and a screen credit arbitrator of Writer’s Guild of America arbitrations.
`
`This level of education, experience, and accomplishments are more than a reasonable indication of
`
`qualifications that permit Gale to testify as an expert witness in the area of screenwriting and film.
`
`West argues that Gale’s use of information provided by other experts and authors without
`
`knowing who the experts and authors are first-hand render Gale’s opinion unreliable. “The existence
`
`of . . . a reliable methodology is in all instances mandatory.” Hathaway v. Bazany, 507 F.3d 312 (5th
`
`10
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 11 of 25 PageID #: 3359
`
`Cir. 2007) (citation omitted). The issue of reliability is “not a question that can be answered by some
`
`generic test. The variability of type and purpose of the particular testimony at issue requires
`
`flexibility.” Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir. 2002). Using the opinions of others
`
`is not inconsistent with a reliable methodology. Experts often refer to other experts and authors
`
`whom they have never met. Given the abundance of written information that exists on any given
`
`subject, it would be impractical to require experts to have met all those who they use in a
`
`methodology. Furthermore, West does not offer any reasons or cite to any case law indicating that
`
`first-hand knowledge of an author/expert is a prerequisite to using information provided from that
`
`author/expert. West does not even specify which experts and authors Gale should not have relied
`
`upon. Accordingly, Gale applied a reliable methodology.
`
`West also argues that Gale did not perform a side-by-side comparison of all of the protectable
`
`and nonprotectable elements of the asserted and the accused works. To establish a claim for
`
`copyright infringement, a plaintiff must prove both factual copying and substantial similarity.
`
`Positive Black Talk, 394 F.3d at 367. To prove factual copying, a plaintiff may show access with
`
`probative similarity or may show striking similarity. Id. at 368, 371 n.10. To satisfy the substantial
`
`similarity element, a side-by-side comparison must be made between the original and the copy to
`
`determine whether a layperson would view the two works as substantially similar. Id. at 374 (citing
`
`Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997)). Thus, the side-by-side
`
`comparison requirement is for showing substantial similarity but is not a stated requirement for
`
`showing probative similarity or striking similarity. Defendants’ attorneys did not ask Gale to address
`
`substantial similarity; rather, his analysis focused on probative similarity. TT 12/08/08 206:2-10.
`
`Gale could show lack of probative similarity or striking similarity without using a side-by-side
`
`11
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 12 of 25 PageID #: 3360
`
`comparison of all of the protectable and nonprotectable elements of the asserted and the accused
`
`works. Accordingly, Gale did not give unreliable testimony.
`
`Finally, West argues that Gale improperly introduced several charts containing Gale’s new
`
`opinions. However, the Court sustained West’s objections as to Gale’s charts and excluded them.
`
`TT at 12/08/08 at 136-39. Although West attached excerpts from approximately twenty-five trial
`
`transcript pages “which details some of the discussion that ensued regarding Gale’s new opinions,”
`
`see Pl.’s Br. 21, West does not specifically cite to any objections as to new information introduced
`
`by Gale during his testimony or specifically identify what new information was introduced. Thus,
`
`West’s argument regarding the chart is moot and does not warrant a new trial.
`
`Impact that the Litigation Had on Perry
`
`Perry testified that the litigation has caused him to lay off his employees so that he could fight
`
`this case and clear his name. TT at 12/03/08 299:1-6. West objected to this testimony indicating
`
`that there are other reasons why Perry had to lay off employees. TT at 12/03/08 299:7-19. The
`
`Court responded that West could cross-examine Perry on West’s concerns. TT at 12/03/08 299:20-
`
`21. The Court later prohibited the parties from raising the issue of Perry’s business and why Perry
`
`had to lay off employees. TT at 12/04/08 15:12-14. The Court instructed the jury “what’s happened
`
`with [Perry’s] business for whatever reasons is not relevant to any issue in this lawsuit.” TT at
`
`12/04/08 15:8-12. West did not object to the Court’s curative instruction. West complains that
`
`Perry’s statements regarding laying off employees prejudiced West and that West did not have a
`
`chance to cross-examine Perry on the reasons for Perry laying off his employees. Defendants
`
`respond that the Court cured any prejudice caused by Perry’s statements regarding Perry’s business.
`
`The Court’s curative instruction adequately cured any harm caused by Perry’s testimony
`
`12
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 13 of 25 PageID #: 3361
`
`regarding his business. A curative instruction may render the prejudicial effect of error harmless.
`
`United States v. Lucas, 516 F.3d 316, 345 (5th Cir. 2008). The Court clearly expressed its
`
`disapproval of matters that are collateral to the lawsuit. After Perry testified to laying off various
`
`employees of his company, the Court stated “Excuse me, Mr. Perry, I’m going to instruct the jury
`
`that what’s happened with his business or doesn’t happen with his business for whatever reasons is
`
`not relevant to any issue in this lawsuit. And I’m going to instruct counsel not to go into anymore
`
`– both counsel not to go into anymore matters that are collateral to this lawsuit.” TT at 12/04/08
`
`14:20-15:14. Thus, the jury was aware that matters regarding Perry’s business are not relevant. As
`
`a result, the Court cured any prejudice caused by statements regarding the impact that the litigation
`
`had on Perry’s business.
`
`Even if the instruction was not curative, allowing Perry to testify to his business and laying
`
`off his workers and not allowing cross examination on the issue would nevertheless be harmless
`
`error. A new trial is required “only when, after a review of the entire record, it appears that there is
`
`a significant possibility that the prejudicial evidence had a substantial impact on the jury verdict.”
`
`Lucas, 516 F.3d at 345. Perry’s testimony on laying off his employees to fight this litigation is
`
`largely innocuous. To establish copyright infringement, West must own a valid copyright and prove
`
`factual copying and substantial similarity. Positive Black Talk Inc., 394 F.3d 367-68 (citations
`
`omitted). Perry’s statements regarding his business are irrelevant and did not have a substantial
`
`impact on these substantive issues. Thus, these statements were not prejudicial. Also, West does
`
`not present any evidence showing that Perry’s statements had a substantial impact on any of the
`
`jury’s substantive determinations or that the jury was emotionally swayed by Perry’s business
`
`situation. Accordingly, if there was error, it was harmless.
`
`13
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 14 of 25 PageID #: 3362
`
`Given the Court’s express curative instruction and the low probative value of Perry’s
`
`statement regarding Perry’s business, any error was harmless and does not warrant a new trial.9
`
`Court’s Charge and Verdict Form
`
`Request for “any of the protectable elements” in Issue No. 1 of Verdict Form
`
`The final verdict form asked as the first issue “Do you find that the movie of Diary of a Mad
`
`Black Woman infringed Plaintiff’s copyright, if any, in Fantasy of a Black Woman?” Verdict Form,
`
`Docket No. 171 at 1. At the charge conference, West argued that the first issue should ask whether
`
`Diary of a Mad Black Woman infringed “any of the protectable elements” in Fantasy of a Black
`
`Woman. TT 12/09/08 44:24-45:8; 47:14-15. The Court ruled against adding the phrase “any of the
`
`protectable elements.” See TT 12/09/08 48:16-19. West contends this prejudiced her because
`
`omitting this phrase deemphasized the copyrightable aspects of West’s work and favored
`
`Defendants, who focused on the noncopyrightable elements of West’s work. Defendants did not
`
`address West’s arguments.
`
`West argues that the verdict form should have specified that the jury should look to
`
`protectable elements when considering infringement. However, the charge included a “copyrightable
`
`subject matter” section that detailed the law on the originality requirement and the difference
`
`between noncopyrightable ideas and copyrightable expression. Charge of the Court, Docket No. 170
`
`at 5-6. These instructions clarified to the jury that only original forms of expression are protected
`
`by West’s copyright. Id. Thus, the jury had sufficient information in the charge on how to
`
`9
`West preserved error on Perry’s testimony regarding laying off his workers, but did not preserve error on
`the Court’s instruction. Thus, plain error review applies. Berry, 977 F.2d at 918. However, West does not argue
`that the Court committed plain error and thus does not support an argument regarding the Court’s curative instruction
`that prevented West from cross-examining Perry as to why Perry laid off workers.
`
`14
`
`

`
`Case 2:07-cv-00200-LED-JDL Document 186 Filed 07/23/09 Page 15 of 25 PageID #: 3363
`
`distinguish copyrightable subject matter from non-copyrightable subject matter so that the jury could
`
`properly consider West’s infringement allegations based only on copyrightable aspects of West’s
`
`work. Accordingly, the verdict form did not unduly emphasize noncopyrightable subject matter.
`
`Furthermore, asking whether Diary of a Mad Black Woman infringed “any of the protectable
`
`elements” in Fantasy of a Black Woman would be misstating copyright law. To establish a claim
`
`for copyright infringement, a plaintiff must demonstrate “substantial similarity.”