Karen C. HERZOG, an individual, Plaintiff-Appellant,
`
`v.
`
`CASTLE ROCK ENTERTAINMENT, a California partnership, et al., Defendants-Appellees.
`
`No. 98-5651.
`
`United States Court of Appeals,
`
`Eleventh Circuit.
`
`Oct. 27, 1999.
`
`Appeal from the United States District Court for the Southern District of Florida. (No. 97-505-CV-DMM),
`Donald M. Middlebrooks, Judge.
`
`Before BIRCH and MARCUS, Circuit Judges, and MILLS*, Senior District Judge.
`
`PER CURIAM:
`
`Based on the well-reasoned district court opinion, we AFFIRM. A copy of the opinion is annexed
`
`hereto.
`
`
`
`APPENDIX
`
`KAREN C. HERZOG, an individual, Plaintiff,
`
`vs.
`
`CASTLE ROCK ENTERTAINMENT, a California partnership, RIO DULCE INC., a New York
`corporation, and JOHN SAYLES, individually, Defendants.
`
`CASE NO. 97-505-CIV-MIDDLEBROOKS
`
`UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
`
`MIDDLEBROOKS, District Judge:
`
`Sept. 29, 1998.
`
`ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
`
` *Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
`designation.
`
`

`
`THIS CAUSE came before the Court upon Defendants' Motion for Summary Judgment. Plaintiff
`
`filed this action against Defendants for copyright infringement under the Copyright Act of 1976, 17 U.S.C.
`
`§§ 101 et seq., alleging that Defendants infringed her copyright in her screenplay, "Concealed." The
`
`allegedly infringing work is "Lone Star," a motion picture written and directed by Defendant John Sayles,
`
`produced by Defendant Rio Dulce Inc., and financed by Defendant Castle Rock Entertainment. Plaintiff is
`
`seeking actual or statutory damages, punitive damages, attorney's fees, costs, and equitable relief.
`
`Defendants' Motion for Summary Judgment was filed February 20, 1998, on the grounds that Plaintiff
`
`cannot raise a genuine issue of material fact as to Defendants' access to "Concealed" or substantial similarity
`
`of protected expression between "Concealed" and "Lone Star," and Defendants are therefore entitled to
`
`summary judgment as a matter of law. Plaintiff filed a response, to which Defendants replied; Plaintiff
`
`surreplied on May 19, 1998. The Court heard oral argument on September 1, 1998. Based upon the
`
`arguments of the parties and a thorough review of the record, Defendants' Motion for Summary Judgment
`
`(DE 69) is GRANTED, for the reasons fully explained below.
`
`FACTS
`
`Plaintiff Karen C. Herzog ("Herzog") is a teacher of cinematography, history of film and television
`
`production at Braddock Senior High School in Miami, Florida. In the fall of 1991, she was a student in the
`
`Master of Fine Arts (M.F.A.) program at the University of Miami in Coral Gables, Florida. To obtain a
`
`Master of Fine Arts Degree in Film from the University of Miami, Ms. Herzog was required to write a feature
`
`length screenplay under the supervision of a thesis committee comprised of three professors. Her initial thesis
`
`committee members were Janet Bohak, William Rothman and Peter Zorn.
`
`In 1992, Ms. Bohak left the University of Miami and Ms. Herzog was required to find a replacement
`
`member of the thesis committee. She approached William Cosford, an adjunct professor within the
`
`Department, gave him a copy of "Concealed" and asked him if he would serve on her committee. According
`
`to Ms. Herzog, Mr. Cosford, who was also a film critic for The Miami Herald, advised her that he did not
`
`2
`
`

`
`have time to serve on the committee, but he did not return the copy of her screenplay she had given him. Mr.
`
`Cosford died in January 1994.
`
`Ms. Herzog then approached Stephen Bowles, who agreed to serve on her committee. Professor
`
`Bowles teaches film history, theory, criticism, and script writing at the University of Miami. Ms. Herzog also
`
`alleges that she gave "Concealed" to Scott Manders, a fellow student, for his critique prior to her submission
`
`of the screenplay to the committee.
`
`In April 1993, Plaintiff deposited and registered her screenplay entitled "Concealed" with the Writer's
`
`Guild of America ("WGA"). "Concealed" was also deposited and registered with the United States Copyright
`
`Office. Certificate of Registration No. Pau-2-113-247 was obtained on September 6, 1996.
`
`Plaintiff does not allege that she ever submitted "Concealed" to Mr. Sayles or to any other Defendant.
`
`Instead, she alleges that Mr. Sayles gained access to "Concealed" through the late William Cosford, Scott
`
`Manders, and/or the members of her thesis committee, Stephen Bowles, William Rothman, and Peter Zorn.
`
`Defendant John Sayles ("Sayles") is a critically acclaimed screenwriter and director. In late
`
`1994/early 1995, Mr. Sayles wrote the screenplay for "Lone Star"1; he also directed the motion picture, which
`
`was released in 1996. The "Lone Star" screenplay was nominated for an Academy Award in 1996.
`
`In February 1993, Mr. Sayles came to Miami for the screening of his film "Passion Fish" at the Miami
`
`Film Festival ("Festival"). Plaintiff alleges that while Mr. Sayles was in Miami for the Festival, he socialized
`
`with Mr. Cosford, Mr. Manders and/or members of her thesis committee, specifically, Mr. Bowles, and
`
`thereby gained access to "Concealed."
`
`In his Affidavit, Mr. Sayles states that prior to the commencement of this lawsuit, he had never met
`
`nor heard of Karen Herzog or Scott Manders; that he has never seen any screenplay entitled "Concealed,"
`
` 1On March 7, 1995, Rio Dulce was granted Certificate of Registration No. Pau-965-443 for "Lone Star."
`This registration names Mr. Sayles as the author of the screenplay for which federal copyright protection was
`sought and recites that Mr. Sayles wrote the screenplay. In June 1995, Rio Dulce assigned its rights to Castle
`Rock. In June 1996, Castle Rock released and distributed "Lone Star," the film, throughout the United States.
`Plaintiff asserts that Castle Rock has filed a federal copyright application for the film "Lone Star," based upon
`the "Lone Star" screenplay, which identifies Mr. Sayles as the author.
`
`3
`
`

`
`nor has he ever seen any work purporting to have been authored by Ms. Herzog. He states that Mr. Cosford
`
`never had any creative input to any of his works. Mr. Sayles believes the last time he saw Mr. Cosford was
`
`in 1991 in New Jersey; that although he had visited with Mr. Cosford a few times in Miami, he does not
`
`recall seeing him at the 1993 Miami Film Festival; that if he socialized with Mr. Cosford at that time, Mr.
`
`Cosford did not deliver any screenplays to him, nor did he review any screenplays. Mr. Sayles states that he
`
`was solely responsible for the conception, creation and development of "Lone Star."2
`
`At deposition, Mr. Bowles stated that he never saw Mr. Sayles during the 1993 Miami Film Festival.
`
`According to Ms. Herzog's own testimony at deposition, Mr. Manders also denies seeing Mr. Sayles during
`
`the Festival.
`
`Plaintiff describes "Concealed" as follows:
`
`"Concealed" tells the story of a small, rural Southern town and the hidden interrelationships and
`long-buried secrets of its residents. It begins as Marty, a former big-city police detective, returns to
`her hometown after sustaining emotional and physical injuries and is coerced into joining the sheriff's
`department. Marty begins an inquiry into the apparently natural death of a prominent citizen. Her
`investigation develops into a multiple murder investigation in which she uncovers the town's
`murderous past and her own family's part therein. In the course of the investigation, Marty is forced
`to deal with her town's history of simmering racial and ethnic tension and must confront the legacy
`of her own father's actions as sheriff. She discovers painful secrets from her own past, as well as that
`of some of the town's other residents—including the descendants of the area's black Seminole
`Indians—all of which have continuing repercussions in the present. The investigation is the thread
`that weaves these narratives together.
`
`Complaint at 3, ¶ 10.
`
`Defendants describe "Lone Star" as follows:
`
`"Lone Star" is the story of Sam Deeds, the sheriff of Rio County, a sleepy Texas/Mexico border
`community, who investigates the forty year old murder of Charley Wade, a corrupt and bigoted
`sheriff of Rio County. Sam comes to believe his late father, Buddy Deeds, himself a former Rio
`County sheriff, killed Wade. Those who honor Buddy's memory think that Sam's suspicions are
`groundless and find Sam too ready to suspect Buddy because of Sam's long simmering resentment
`of Buddy's interference in young Sam's courtship of Pilar. Sam, a man of honor, cannot let the matter
`rest. He presses his investigation, finding evidence that suggests Buddy was not above profiting from
`his post and may have had good reason to kill Wade—until Hollis, a former sheriff's deputy, finally
`
` 2Affidavit of John Sayles at 1-2, attached as Exhibit A to Defendants' Motion for Summary Judgment and
`Incorporated Memorandum of Law.
`
`4
`
`

`
`confesses to killing Wade. Convinced that the homicide was justified, Sam agrees to let the matter
`rest without making public what he has learned.
`
`Against this backdrop, "Lone Star" develops several subplots. Sam's investigation brings him into
`contact with Pilar and they finally consummate their affair. Afterwards, Sam learns that Pilar is his
`half-sister, the result of a sexual encounter between Buddy and Pilar's mother. Sam shares this
`stunning information with Pilar in the film's final scenes, and their decision to continue the
`relationship despite this knowledge constitutes the film's ultimate resolution. In addition, Sam's
`investigation reintegrates three generations of black men into a family whole: Otis, an older black
`man who witnessed Wade's murder and participated in the ensuing coverup; his estranged son,
`Delmore Payne, the new commander of the nearby Army training installation where Wade's body
`was found; and Chet, Del's young son. Finally, the film deals with Anglo/African-American/Latino
`relations as it portrays the sociological forces at work in Rio County, which sits on the border with
`Mexico, and which houses an Army base with a number of black recruits in residence.
`
`APPENDIX—Continued
`
`Defendants' Motion for Summary Judgment at 2-3.
`
`STANDARD OF REVIEW
`
`The standard to be applied in reviewing summary judgment motions is stated in Rule 56(c) of the
`
`Federal Rules of Civil Procedure:
`
`The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to
`interrogatories and admissions on file, together with the affidavits, if any, show that there is no
`genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.
`
`Summary judgment may be entered only where there is no genuine issue of material fact. The moving party
`
`bears the burden of meeting this standard. Adickes v. S.H. Kress & Company, 398 U.S. 144, 90 S.Ct. 1598,
`
`26 L.Ed.2d 142 (1970).
`
`In applying this standard, the Eleventh Circuit has explained:
`
`In assessing whether the movant has met this burden, the courts should view the evidence
`and all factual inferences therefrom in the light most favorable to the party opposing the motion.
`Adickes, 398 U.S. at 157, 90 S.Ct. at 1608; Environmental Defense Fund v. Marsh, 651 F.2d 983,
`991 (5th Cir.1981). All reasonable doubts about the facts should be resolved in favor of the
`non-movant. Casey Enterprises v. Am. Hardware Mutual Ins. Co., 655 F.2d 598, 602 (5th Cir.1981).
`If the record presents factual issues, the court must not decide them; it must deny the motion and
`proceed to trial. Marsh, 651 F.2d at 991; Lighting Fixture & Elec. Supply Co. v. Continental Ins.
`Co., 420 F.2d 1211, 1213 (5th Cir.1969). Summary judgment may be inappropriate even where the
`parties agree on the basic facts, but disagree about the inferences that should be drawn from these
`
`5
`
`

`
`facts. Id. at 1213. If reasonable minds might differ on the inferences arising from undisputed facts,
`then the court should deny summary judgment. Impossible Elect. Tech. v. Wackenhut Prot. Systems,
`669 F.2d 1026, 1031 (5th Cir.1982); Croley v. Matson Navigation Co., 434 F.2d 73, 75 (5th
`Cir.1970).
`
`Moreover, the party opposing a motion for summary judgment need not respond to it with
`any affidavits or other evidence unless and until the movant has properly supported the motion with
`sufficient evidence. Adickes, 398 U.S. at 160, 90 S.Ct. at 1609-10; Marsh, 651 F.2d at 991. The
`moving party must demonstrate that the facts underlying all the relevant legal questions raised by the
`pleadings or otherwise are not in dispute, or else summary judgment will be denied notwithstanding
`that the non-moving party has introduced no evidence whatsoever. Brunswick Corp. v. Vineberg,
`370 F.2d 605, 611-12 (5th Cir.1967). See Dalke v. Upjohn Co., 555 F.2d 245, 248-49 (9th Cir.1977).
`
`Clemons v. Dougherty County, 684 F.2d 1365, 1368-69 (11th Cir.1982); see also Amey, Inc. v. Gulf Abstract
`
`& Title, Inc., 758 F.2d 1486, 1502 (11th Cir.1985), cert. denied, 475 U.S. 1107, 106 S.Ct. 1513, 89 L.Ed.2d
`
`912 (1986).
`
`The Supreme Court provided significant additional guidance as to the evidentiary standard which trial
`
`courts should apply in ruling on a motion for summary judgment:
`
`[The summary judgment] standard mirrors the standard for a directed verdict under Federal Rule of
`Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law,
`there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476,
`479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).
`
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court in
`
`Anderson further stated that "[t]he mere existence of a scintilla of evidence in support of the position will be
`
`insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at
`
`252, 106 S.Ct. 2505. In determining whether this evidentiary threshold has been met, the trial court "must
`
`view the evidence presented through the prism of the substantive evidentiary burden" applicable to the
`
`particular cause of action before it. Id. at 253, 106 S.Ct. 2505. If the non-movant in a summary judgment
`
`action fails to adduce evidence which would be sufficient, when viewed in a light most favorable to the
`
`non-movant, to support a jury finding for the non-movant, summary judgment may be granted. Id. at 254-55,
`
`106 S.Ct. 2505.
`
`6
`
`

`
`In another case, the Supreme Court has declared that a non-moving party's failure to prove an
`
`essential element of a claim renders all factual disputes as to that claim immaterial and requires the granting
`
`of summary judgment:
`
`In our view, the plain language of Rule 56(c) mandates the entry of summary judgment ...
`against a party who fails to make a showing sufficient to establish the existence of an element
`essential to that party's case, and on which that party will bear the burden of proof at trial. In such
`a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof
`concerning an essential element of the nonmoving party's case necessarily renders all other facts
`immaterial. The moving party is "entitled to judgment as a matter of law" because the nonmoving
`party has failed to make a sufficient showing on an essential element of her case with respect to
`which she has the burden of proof.
`
`Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
`
` Summary judgment historically has been withheld in copyright cases because courts have been
`
`reluctant to make subjective determinations regarding the similarity between two works. See Hoehling v.
`
`Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.) (citing Arnstein v. Porter, 154 F.2d 464, 474 (2d
`
`Cir.1946)), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 L.Ed.2d 49 (1980). However, non-infringement
`
`may be determined as a matter of law on a motion for summary judgment, either because the similarity
`
`between two works concerns only non-copyrightable elements of the plaintiff's work, or because no
`
`reasonable jury, properly instructed, could find that the two works are substantially similar. Beal v.
`
`Paramount Pictures Corp., 20 F.3d 454 (11th Cir.1994), cert. denied, 513 U.S. 1062, 115 S.Ct. 675, 130
`
`L.Ed.2d 607 (1994); Warner Bros., Inc. v. Am. Broadcasting Cos., 720 F.2d 231, 240 (2d Cir.1983) (quoting
`
`Hoehling, 618 F.2d at 977) (emphasis in original) (citation omitted), aff'd 530 F.Supp. 1187 (S.D.N.Y.1982),
`
`after remand, 654 F.2d 204 (2d Cir.), aff'g and remanding, 523 F.Supp. 611 (S.D.N.Y.1981).
`
`It is against this standard that we measure the Defendants' Motion for Summary Judgment.
`
`DISCUSSION
`
` To state a claim for copyright infringement, "two elements must be proven: (1) ownership of a valid
`
`copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v.
`
`Rural Tel.Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991); Beal, 20 F.3d at 459;
`
`7
`
`

`
`BellSouth Advertising & Publishing Corp. v. Donnelley Info. Publishing, Inc., 999 F.2d 1436, 1440 (11th
`
`Cir.1993) (en banc ). If the plaintiff does not have direct proof of copying, the plaintiff may show copying
`
`by demonstrating that the defendants had access to the copyrighted work and that the works are "substantially
`
`similar." Benson v. Coca-Cola Co., 795 F.2d 973, 974 (11th Cir.1986), reh'g denied, 801 F.2d 404 (11th
`
`Cir.1986) (en banc ). If the plaintiff cannot show access, the plaintiff may still prevail by demonstrating that
`
`the works are "strikingly similar." Ferguson v. National Broadcasting Co., 584 F.2d 111, 113 (5th
`
`Cir.1978).3
`
` To show substantial similarity, the plaintiff must establish that "an average lay observer would
`
`recognize the alleged copy as having been appropriated from the copyrighted work." Original Appalachian
`
`Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982).
`
` The protection afforded by copyright, however, does not extend to all aspects of an author's work.
`
`"It is an axiom of copyright law that the protection granted to a copyrightable work extends only to the
`
`particular expression of an idea and never to the idea itself." Reyher v. Children's Television Workshop, 533
`
`F.2d 87, 91 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976); see also 17 U.S.C.
`
`§ 102(b); Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1880). The codification of the distinction between
`
`idea and expression evinces congressional intent to strike a balance between the competing societal interests
`
`of rewarding an individual's creativity and effort while at the same time permitting the nation to enjoy the
`
`benefits and progress from the use of the same subject matter. Sid & Marty Krofft Television Productions,
`
`Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977).
`
` Similarly, scenes a faire, "sequences of events which necessarily follow from a common theme," are
`
`not protectible. Reyher, 533 F.2d at 91. Incidents, characters, or settings that are indispensable or standard
`
`in the treatment of a given topic are not copyrightable. See, e.g., Walker v. Time Life Films, Inc., 784 F.2d
`
`44, 50 (2d Cir.) (no protection for common elements in police fiction, such as "drunks, prostitutes, vermin
`
` 3Fifth Circuit decisions prior to September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner
`v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ).
`
`8
`
`

`
`and derelict cars" and "foot chases and the morale problems of policemen, not to mention the familiar figure
`
`of the Irish cop"), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986); Evans v. Wallace
`
`Berrie & Co., 681 F.Supp. 813, 817 (S.D.Fla.1988) ("Such similarities as using a sand dollar as currency,
`
`foods made of seaweed, seahorses for transportation and places made of oysters or mother of pearl are not
`
`protected similarities of expression, but are more accurately characterizations that naturally follow from the
`
`common theme of an underwater civilization").
`
`Thus, in an action for infringement, it must be determined both whether the similarities between the
`
`works are substantial from the point of view of the lay reader and whether those similarities involve
`
`copyrightable material. In Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.1930), cert. denied,
`
`282 U.S. 902, 51 S.Ct. 216, 75 L.Ed. 795 (1931), Judge Learned Hand articulated what has become a guiding
`
`principle in this elusive inquiry:
`
`Upon any work, and especially upon a play, a great number of patterns of increasing generality will
`fit equally well, as more and more of the incident is left out. The last may perhaps be no more than
`the general statement of what the play is about, and at times consist of only its title; but there is a
`point in this series of abstractions where they are no longer protected, since otherwise the playwright
`could prevent the use of his "ideas," to which apart from their expression, his property is never
`extended.
`
`See also Z. Chaffee, Reflections on the Law of Copyright, 45 Col.L.Rev. 503, 513 (1945) ("protection covers
`
`the 'pattern' of the work ... the sequence of events and the development of the interplay of characters"). These
`
`controlling principles guide our analysis of the Plaintiff's claims.
`
`A.
`
`Ownership of a Valid Copyright
`
`Plaintiff has submitted a copy of her certificate of copyright registration for "Concealed" as proof of
`
`her ownership of a valid copyright for "Concealed";4 Defendants have not contested, for summary judgment
`
`purposes, Plaintiff's ownership of such a copyright.
`
`B.
`
`Copying
`
` 4Complaint, Exhibit B.
`
`9
`
`

`
` Since it is virtually impossible to prove copying directly, this element is usually established
`
`circumstantially, by demonstrating that the person who composed the defendant's work had access to the
`
`copyrighted material and that there is substantial similarity between the two works. Beal, 20 F.3d at 459;
`
`Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert. denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372
`
`(1987) (these two types of circumstantial evidence of infringement are accepted because direct evidence of
`
`copying is rarely available); see 3 Nimmer § 13.01[B], at 13-10 to -11. Once the plaintiff has made this
`
`showing, the burden shifts to the defendant to prove that his/her work was not a copy, but rather was an
`
`independent creation. Kamar International, Inc. v. Russ Berrie and Co., 657 F.2d 1059, 1062 (9th Cir. 1981).
`
`If the plaintiff cannot show access, the plaintiff may still prevail by demonstrating that the works are so
`
`strikingly similar as to preclude the possibility of independent creation. See 3 Nimmer § Cir.1997). In the
`
`case at hand, Plaintiff does not claim, nor would we find, that "Concealed" and "Lone Star" are strikingly
`
`similar. Since Plaintiff admittedly has no direct evidence of copying, she must first show that the Defendants
`
`had access to "Concealed" and substantial similarity between the two works. Beal, 20 F.3d at 459.
`
`1.
`
`Access
`
`Just as it is virtually impossible to offer direct proof of copying, so is it often impossible for a plaintiff
`
`to offer direct evidence that defendant actually viewed or had knowledge of plaintiff's work. Nonetheless,
`
`some courts have defined access as the actual viewing and knowledge of plaintiff's work by the defendant.5
`
`This circuit, however, regards a "reasonable opportunity to view" as access. Ferguson, 584 F.2d at 113.
`
` Plaintiff attempts to establish that Mr. Sayles had a reasonable opportunity to view "Concealed"
`
`based on two facts: (1) that she delivered a copy of "Concealed" to Mr. Cosford, Mr. Manders, and her thesis
`
` 5Schwarz v. Universal Pictures Co., 85 F.Supp. 270 (S.D.Cal.1945); Christie v. Harris, 47 F.Supp. 39
`(S.D.N.Y.1942), aff'd, 154 F.2d 827 (2d Cir.1946), cert denied. 329 U.S. 734, 67 S.Ct. 97, 91 L.Ed. 634
`(1946); Cantor v. Mankiewicz, 203 N.Y.S.2d 626 (Sup.Ct. N.Y.Court 1960); Bradbury v. Columbia
`Broadcasting Sys., Inc., 287 F.2d 478 (9th Cir.1961) (this definition was apparently stipulated by both parties
`in Bradbury ), cert. dismissed, 368 U.S. 801, 82 S.Ct. 19, 7 L.Ed.2d 15 (1961); Roberts v. Dahl, 168
`U.S.P.Q. 428, 1971 WL 16617 (Ill.Cir.Ct.1971), aff'd, 6 Ill.App.3d 395, 286 N.E.2d 51, 174 U.S.P.Q. 517
`(1972).
`
`10
`
`

`
`committee and (2) that Mr. Cosford, Mr. Manders, members of her committee and Mr. Sayles attended the
`
`1993 Miami Film Festival. Plaintiff contends that based on these facts, these individuals could have given
`
`Mr. Sayles access to "Concealed."
`
`Except for inadmissible hearsay, which is addressed below, Plaintiff has no evidence Mr. Sayles and
`
`Mr. Cosford even saw each other during the time period in question—February of 1993—much less that Mr.
`
`Sayles had a reasonable opportunity to view her screenplay. She likewise has no evidence to refute Mr.
`
`Sayles's affidavit testimony that he'd never heard of Mr. Manders prior to this lawsuit. Plaintiff's specific
`
`allegation as to Mr. Manders is that both he and Mr. Sayles attended a dinner party at the home of Professor
`
`James Lane and therefore Mr. Manders could have given Mr. Sayles a copy of "Concealed." However, Ms.
`
`Herzog was not at the alleged dinner at Professor Lane's home. Moreover, she testified at deposition that Mr.
`
`Manders denied having dinner with Mr. Sayles. Plaintiff further admits that Professor Lane told her he did
`
`not see Mr. Sayles during the 1993 Miami Film Festival.
`
`As to the members of her committee, Plaintiff cannot identify any specific incident wherein these
`
`individuals were actually in Mr. Sayles's presence. At deposition, she stated that Mr. Bowles could have
`
`given "Concealed" to Mr. Sayles when Mr. Bowles introduced him at the "Passion Fish" screening, but Mr.
`
`Bowles did not introduce Mr. Sayles at the Festival. He testified that he never saw Mr. Sayles during that
`
`time. His deposition testimony is collaborated by that of Natalio R. Chediak, Director of the Miami Film
`
`Festival. Ms. Chediak testified that she presented Mr. Sayles at the screening of his film "Passion Fish" and
`
`that while the film was being shown, she and Mr. Sayles, who was accompanied by Maggie Renzi, went to
`
`a South Beach restaurant, possibly The Strand, for a quick dinner. At dinner, Ms. Chediak said she
`
`mentioned to Mr. Sayles that she'd left a message for Mr. Cosford but had never heard back from him. (Ms.
`
`Chediak said that either Mr. Sayles or Ms. Renzi commented that they'd done the same thing and hadn't
`
`reached him.) After dinner, they rushed back to the theater for the question and answer period that followed
`
`the screening.
`
`11
`
`

`
` Plaintiff has established nothing more than the fact that Mr. Sayles, Mr. Cosford, Mr. Manders, and
`
`Mr. Bowles were in the same city during the 1993 Miami Film Festival. Indeed, as to Mr. Cosford, there is
`
`no admissible evidence that Mr. Cosford was actually in Miami during that time, beyond the fact that he lived
`
`here and, as a film critic, presumably would have attended the Festival. The mere fact that Ms. Herzog's
`
`screenplay was physically in the same city in which Mr. Sayles visited did not give him an opportunity to
`
`view the manuscript so as to constitute access, notwithstanding the bare physical possibility of such a view.
`
`As stated above, "Reasonable opportunity does not encompass any bare possibility in the sense that anything
`
`is possible," 4 Nimmer, § 13.02[A] at 13-19; "Access may not be inferred through mere speculation or
`
`conjecture." Id., Nimmer ; Ferguson, 584 F.2d at 113; "There must be a reasonable possibility of viewing
`
`plaintiff's work—not a bare possibility." Id., Nimmer ; Ferguson.
`
`The Plaintiff cites certain cases to show that the evidence she has offered is sufficient to establish that
`
`Mr. Sayles had access to "Concealed." Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp.,
`
`supra ; Kamar International, Inc. v. Russ Berrie and Co., supra ; and Towler v. Sayles, 76 F.3d 579, 582
`
`(4th Cir.1996).
`
`The plaintiff cites Krofft, a Ninth Circuit case, to illustrate that "all that is required to establish the
`
`element of access is evidence that the Defendant 'had an opportunity to view or copy' the plaintiff's work."
`
`562 F.2d at 1162. In the Krofft case, however, where defendants' "McDonaldland" TV commercials were
`
`charged with infringing plaintiffs' copyrighted children's TV show, there was no dispute as to defendants'
`
`access to plaintiffs' work because defendants had visited plaintiffs' headquarters to discuss the engineering
`
`and design work necessary to produce the McDonaldland commercials and did so after they had been
`
`awarded the contract by McDonald's and with no intention of working with the plaintiffs. In this case, access
`
`is disputed precisely because there is no such nexus between Defendant Sayles and Plaintiff sufficiently
`
`strong to raise a reasonable possibility of access by Defendant Sayles to the Plaintiff's screenplay.
`
`12
`
`

`
`The Plaintiff cites Kamar to illustrate that that "evidence that a third party with whom both the
`
`plaintiff and the defendant were dealing had possession of plaintiff's work is sufficient to establish access by
`
`the defendant." 657 F.2d at 1062. In Kamar, the Ninth Circuit vacated the district court's finding that
`
`plaintiff had no access to any of defendant's stuffed toys because the Court had found that plaintiff did
`
`business with the same Korean stuffed animal manufacturers employed by defendant to make defendant's
`
`stuffed animals and that this evidence alone demonstrated access. Here, neither Plaintiff nor Defendants were
`
`doing business with Mr. Cosford, Mr. Manders, or the members of Ms. Herzog's committee, and the
`
`non-party individuals played no role in "Lone Star." Indeed, Mr. Cosford was a respected film critic, not a
`
`conduit for the film industry. He did not solicit Ms. Herzog's screenplay, and he declined her request to serve
`
`on her committee. As discussed above, the allegations as to Mr. Manders and Mr. Bowles have been refuted
`
`by the record evidence; but even if those allegations could be taken as true, they are too speculative and
`
`attenuated to establish access.
`
`Interestingly, given the decision in favor of Mr. Sayles on stronger circumstantial evidence of access
`
`than submitted here, Plaintiff cites Towler for the premise that "[a] court may infer that the alleged infringer
`
`had a reasonable possibility of access if the author sent the copyrighted work to a third party intermediary
`
`who has a close relationship with the infringer." 76 F.3d at 582. In Towler, the plaintiff submitted her
`
`screenplay to an individual, Tracy Strain, employed by a film company Ms. Towler believed had ties to Mr.
`
`Sayles. Ms. Towler alleged that Mr. Strain agreed to forward the screenplay to Mr. Sayles; however, Ms.
`
`Towler proffered no evidence that Mr. Strain actually provided the screenplay to Mr. Sayles and his unrefuted
`
`testimony was that he never received Ms. Towler's screenplay. The district court entered judgment for Mr.
`
`Sayles as a matter of law. The Fourth Circuit affirmed, holding that "[a] mere possibility that an opportunity
`
`for Sayles to view or copy plaintiff's work could have arisen will not suffice. Rather, it must be reasonably
`
`possible that the paths of the infringer and infringed work crossed." In this case, the third party, Mr. Cosford,
`
`was not employed by and had no ties with Castle Rock; again, the allegation here is that he was given a copy
`
`13
`
`

`
`of "Concealed" in the hopes that he would serve on Plaintiff's committee, not pass it along to Mr. Sayles.
`
`There is no evidence that Mr. Cosford actually provided a copy of the screenplay to Mr. Sayles, and Mr.
`
`Sayles's unrefuted testimony is that he never received Ms. Herzog's screenplay. In stating that "[a] court may
`
`infer that the alleged infringer had a reasonable possibility of access if the author sent the copyrighted work
`
`to a third party intermediary who has a close relationship with the infringer," the Towler court went on to say
`
`"[A]n intermediary will fall within this category, for example, if she supervises or works in the same
`
`department as the infringer or contributes creative ideas to him." Id. at 583. Neither Mr. Cosford, Mr.
`
`Manders, or the members of Ms. Herzog's thesis committee satisfy the definition of an intermediary, thereby
`
`permitting an inference of access.
`
`A careful study of the cases Plaintiff relies on from other circuits shows a nexus between plaintiff
`
`and defendant that does not