Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO. 13-11068-RGS
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`MICHAEL P. KENNEY d/b/a MIKE O’DEA AND SHAMROCK FILMS
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`v.
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`WARNER BROS. ENTERTAINMENT INC., LANGLEY PARK PICTURES
`
`MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION
`TO DISMISS THE AMENDED COMPLAINT
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`November 29, 2013
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`STEARNS, D.J.
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`Plaintiff Michael P. Kenney brought this copyright infringement action
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`against Warner Brothers Entertainment Inc. and Langley Park Pictures
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`(collectively, Warner Brothers), alleging that Warner Brothers’ recent
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`acquisition of the rights to develop a motion picture based on Roger Hobbs’s
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`precocious debut novel “Ghostman” infringes his copyright in a “comic book,
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`screenplay and franchise movie” of the same name.1 Warner Brothers now
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`moves to dismiss Kenney’s Amended Complaint.
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`BACKGROUND
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`The facts, in the light most favorable to Kenney as the non-moving party,
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`1 Kenney’s initial Complaint also contained claims for trademark
`infringement and violations of Mass. Gen. Laws ch. 93A. The court dismissed
`these claims with prejudice and granted Kenney leave to refile his Copyright
`Act claim upon registering a copyright with the United States Copyright Office.
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 13-11068-RGS
`
`MICHAEL P. KENNEY d/b/a MIKE O’DEA AND SHAMROCK FILMS
`
`v.
`
`WARNER BROS. ENTERTAINMENT INC., LANGLEY PARK PICTURES
`
`MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION
`TO DISMISS THE AMENDED COMPLAINT
`
`November 29, 2013
`
`STEARNS, D.J.
`
`Plaintiff Michael P. Kenney brought this copyright infringement action
`
`against Warner Brothers Entertainment Inc. and Langley Park Pictures
`
`(collectively, Warner Brothers), alleging that Warner Brothers’ recent
`
`acquisition of the rights to develop a motion picture based on Roger Hobbs’s
`
`precocious debut novel “Ghostman” infringes his copyright in a “comic book,
`
`screenplay and franchise movie” of the same name.1 Warner Brothers now
`
`moves to dismiss Kenney’s Amended Complaint.
`
`BACKGROUND
`
`The facts, in the light most favorable to Kenney as the non-moving party,
`
`1 Kenney’s initial Complaint also contained claims for trademark
`infringement and violations of Mass. Gen. Laws ch. 93A. The court dismissed
`these claims with prejudice and granted Kenney leave to refile his Copyright
`Act claim upon registering a copyright with the United States Copyright Office.
`
`
`
`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 2 of 9
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`are as follows. Kenney is a self-styled screenwriter, director, and actor. In
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`2010, Kenney began developing a comic book, screenplay, and franchise movie
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`titled “Ghostman.” In essence, Ghostman is a “heist thriller about a masked
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`thief who seeks to avoid the F.B.I. by using ghost-like abilities.” After having
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`retired from a life of crime, the Ghostman is “pulled back into one final score”
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`by his former compatriots.
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`Kenney registered his Ghostman screenplay with the Writers Guild of
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`America in 2011. To publicize the anticipated motion picture, Kenney
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`purchased the web domain “TheGhostmanMovie.com” and “promoted the
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`movie through various press interviews, media outlets, and throughout the
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`movie industry.” Ghostman is now in postproduction editing and Kenney is
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`currently submitting the movie as a candidate for screening at independent
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`film festivals.
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`Shortly before filing this lawsuit, Kenney learned that Warner Brothers
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`had acquired the rights to develop a movie based on Hobbs’s novel. Kenney
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`alleges that Ghostman (the movie) will also be a “heist thriller,” in which the
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`protagonist “is a thief so nicknamed because he avoids the F.B.I. like a
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`‘ghost.’”2 After his cease and desist letter to Warner Brothers went unanswered,
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`2 Michiko Kakutani, reviewing Hobbs’s novel for the New York Times,
`described its protagonist as a “career criminal,” expert in the art of
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`2
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 3 of 9
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`Kenney successfully applied for a Certificate of Registration from the Copyright
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`Office and filed this lawsuit seeking monetary damages and injunctive relief.
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`STANDARD OF REVIEW
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`To survive a motion to dismiss, “a complaint must contain sufficient
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`factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
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`face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v.
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`Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the court’s
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`analysis. “First, the tenet that a court must accept as true all of the allegations
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`contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S.
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`at 678. “Second, only a complaint that states a plausible claim for relief
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`survives a motion to dismiss.” Id. at 679. A claim is facially plausible if its
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`factual content “allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. at 678. “If the factual
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`allegations in the complaint are too meager, vague, or conclusory to remove the
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`possibility of relief from the realm of mere conjecture, the complaint is open
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`to dismissal.” S.E.C. v. Tambone, 597 F.3d 436,442 (1st Cir. 2010).
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`DISCUSSION
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`disappearing, “who’s helped maybe a hundred bank robbers escape over the
`years” and who is called upon by a drug lord to whom he owes a debt “to clean
`up a casino heist that’s gone south.” Michiko Kakutani, A Crook with a Big
`Debt to Pay, N.Y. Times, Feb. 10, 2013.
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`3
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`
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 4 of 9
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`To state a claim for copyright infringement, Kenney must plausibly allege
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`“(1) ownership of a valid copyright, and (2) copying of constituent elements of
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`the work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
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`340, 361 (1991). A certificate of copyright, which Kenney has obtained , is
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`prima facie evidence of ownership of a valid copyright. Thus, the first element
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`of the infringement test is not in dispute. See Johnson v. Gordon, 409 F.3d 12,
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`17 (1st Cir. 2005). To satisfy the second element of the test, Kenney must make
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`two showings. First, that Warner Brothers, as a factual matter, has copied
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`elements of his copyrighted work. Id. at 18. Second, he must establish that the
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`copying is actionable by “proving that the copying of the copyrighted material
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`was so extensive that it rendered the infringing and copyrighted works
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`‘substantially similar.’” Id. (internal quotations and citation omitted).
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`Because Kenney has no direct knowledge of any copying by Warner
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`Brothers, he must satisfy his first-prong burden indirectly by showing that
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`Warner Brothers “enjoyed access to the copyrighted work and that a sufficient
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`degree of similarity exists between the copyrighted work and the allegedly
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`infringing work to give rise to an inference of actual copying.” Id. This
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`“probative similarity” inquiry is distinct from the substantial similarity
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`requirement that emerges in the second prong, which demands“proof that the
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`copying was so extensive that it rendered the works so similar that the later
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`4
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`
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 5 of 9
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`work represented a wrongful appropriation of expression.” Id.
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`Access
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`Kenney theorizes three separate avenues by which Warner Brothers
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`could have gained access to his work: (1) through registration of his screenplay
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`with the Writer’s Guild of America; (2) from his “TheGhostmanMovie.com”
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`website; and (3) his promotion of the work through “press interviews” and
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`“media outlets.” To succeed on the access prong, Kenney must demonstrate
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`that Warner Brothers had a “reasonable opportunity” to access his Ghostman
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`screenplay – “[e]vidence that only creates a ‘bare possibility’” that Warner
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`Brothers had access to the work is not enough. Grubb v. KMS Patriots, L.P.,
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`88 F.3d 1, 3 (1st Cir. 1996).
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`As an initial matter, registration of a screenplay with the Writer’s Guild
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`does not as a matter of law establish access to a copyrighted work. See Webb
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`v. Stalone, 910 F. Supp. 2d 681, 686-687 (S.D.N.Y. 2012) (finding alleged
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`infringer did not have access to screenplay despite its registration with the
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`Writer’s Guild of America); Gable v. Nat’l Broad. Co., 727 F. Supp. 2d 815,
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`826-829 (C.D. Cal. 2010) (same); Tomasini v. Walt Disney Co., 84 F. Supp. 2d
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`516, 521 (S.D.N.Y. 2000) (same). The simple reason for this is that registration
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`does not place a work in the public arena – “only the registrant or listed
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`author(s) may request access to records or information pertaining to registered
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`5
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 6 of 9
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`material.” Writers Guild of Am. (West), Frequently Asked Questions, Question
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`23.3
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`Kenney’s alleged publication of his Ghostman screenplay and movie
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`through media interviews also fails to establish that Warner Brothers had a
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`“reasonable opportunity” to see his work. “Access is often proved through
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`circumstantial evidence in one of two ways: (1) a particular chain of events is
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`established between the plaintiff’s work and the defendant’s access to that work
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`or (2) the plaintiff’s work has been widely disseminated.” Gable, 727 F. Supp.
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`2d at 824 (internal quotations, citation, and alterations omitted). Although
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`Kenney makes a conclusory claim of having widely disseminated his work
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`through print and broadcast media, his Amended Complaint does not identify
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`even a single instance of such publication.4 Conclusory allegations will not
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`carry a plaintiff’s burden of showing a defendant’s reasonable opportunity of
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`access even under the permissive Rule 12(b)(6) standard. See Mag Jewelry
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`Co., Inc. v. Cherokee, Inc., 496 F.3d 108, 117 (1st Cir. 2007).
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`3 Available at http://www.wgawregistry.org/webrss/regfaqs.html.
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`4 In his initial Complaint, Kenney identified a single press interview with
`a local Stoneham, MA community newspaper. This reference is omitted from
`the Amended Complaint, but even so, “evidence of small circulation or local air
`time without other proof of access is generally not enough to demonstrate a
`reasonable possibility of access.” Feldman v. Twentieth Century Fox Film
`Corp., 723 F. Supp. 2d 357, 365 (D. Mass. 2010).
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`6
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 7 of 9
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`Insofar as Kenney relies on his website to support his claim of access, he
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`does not allege that the site included the screenplay, full-length film, or any
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`significant amount of material that Warner Brothers could have substantially
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`(and successfully) plagiarized. See Johnson, 409 F.3d at 18 (copying must be
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`“extensive”). See also Feldman, 723 F. Supp. 2d at 366 (plaintiff’s allegations
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`that television studio had obtained access to her published novels through her
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`participation in a late-night radio show and a website that promoted her works
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`was insufficient to show that studio had a reasonable opportunity of access to
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`her copyrighted material). In sum, Kenney has failed to plead sufficient facts
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`to show that Warner Brothers had anything more than a bare possibility of
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`access (if even that) to his Ghostman screenplay.
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`Substantial Similarity
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`Although Kenney’s failure to plausibly allege that Warner Brothers had
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`a reasonable opportunity to access his work is fatal to his Amended Complaint,
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`he has also failed to satisfy his second-prong burden of demonstrating
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`substantial similarity (or probative similarity) between his original work and
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`any work produced by Warner Brothers. The only allegations of substantial
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`similarity in the Amended Complaint relate to the similar themes of the works
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`and their “Ghostman” lead characters and titles. Indeed, because Kenney has
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`not seen Warner Brothers’ purportedly infringing screenplay or movie (there
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`7
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 8 of 9
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`is no indication that either yet exists), there are no sustainable allegations of
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`plagiarism.
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`The substantial similarity assessment “focuses not on every aspect of the
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`copyrighted work, but on those aspects of the plaintiff’s work that are
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`protectible under copyright laws and whether whatever copying took place
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`appropriated those protected elements.” T-Peg, Inc. v. Vermont Timber
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`Works, Inc., 459 F.3d 97, 112 (1st Cir. 2006) (internal quotations, citation, and
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`alterations omitted). Copyright law, however, does not protect concepts and
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`ideas, 17 U.S.C. § 102(b), or stock scenes and characters, Feldman, 723 F.Supp.
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`2d at 366. See also CMM Cable Rep, Inc. v. Ocean Coast Props., Inc., 97 F.3d
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`1504, 1520 (1st Cir. 1996) (“It is axiomatic that copyright law denies protection
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`to fragmentary words and phrases” (internal quotations omitted)); 37 C.F.R.
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`§ 202.1(a) (excluding from copyright protection “[w]ords and short phrases
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`such as names, titles, and slogans”). In short, “copyright [does]not protect
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`plots, subplots or themes.” McGee v. Benjamin, 2012 WL 959377, at *7 (D.
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`Mass. Mar. 20, 2012), quoting Franklin v. Ciroli, 865 F. Supp. 947, 950 (D.
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`Mass. 1994). Thus, Kenney’s allegation that both works are premised on the
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`concept of a thief who seeks to avoid detection by spectral means does not
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`satisfy the substantial similarity test (even assuming the existence of a Warner
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`Brothers’ work).
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`8
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`Case 1:13-cv-11068-RGS Document 19 Filed 11/29/13 Page 9 of 9
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`ORDER
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`For the foregoing reasons, defendants’ motion to dismiss the Amended
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`Complaint is ALLOWED with prejudice. The Clerk will enter judgment for
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`defendants and close the case.
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`SO ORDERED.
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`/s/ Richard G. Stearns
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`__________________________
`UNITED STATES DISTRICT JUDGE
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`
`
`9
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