Case: 2:18-cv-00205-DLB-CJS Doc #: 168 Filed: 01/19/24 Page: 1 of 35 - Page ID#:
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF KENTUCKY
`NORTHERN DIVISION
`AT COVINGTON
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`
`CIVIL ACTION NO. 18-205-DLB-CJS
`
`JOHN ANTONY
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`
`v.
`
`
`BUENA VISTA BOOKS, INC.
`
`
`PLAINTIFF
`
`MEMORANDUM OPINION AND ORDER
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`
`
`
`
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`
`
` DEFENDANT
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`*** *** *** ***
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`This matter is before the Court upon six Motions filed by Defendant Buena Vista
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`Books, Inc.: (1) the Motion to Exclude Testimony of Proffered Expert Cedar Boschan
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`(“Motion to Exclude”) (Doc. # 129); (2) the Motion for Summary Judgment (Doc. # 130);
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`(3) the Request for Judicial Notice in Support of Motion of Summary Judgment (“Motion
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`for Judicial Notice”) (Doc. # 131); and (4) three Motions to Continue Under Seal Certain
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`Documents (“Motions to Continue Under Seal”) (Docs. # 142, 153, and 161). The Motions
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`have either been fully briefed or the deadline for filing responses has expired. They are
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`therefore ripe for review.1 For the following reasons, the Motions for Judicial Notice, for
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`Summary Judgment, and to Continue Under Seal are each granted, and the Motion to
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`Exclude is denied as moot.
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`I.
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`
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`FACTUAL AND PROCEDURAL BACKGROUND
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`This is a copyright infringement action brought by Plaintiff John Antony against
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`Defendant Buena Vista Books, Inc., stemming from Disney Book Group, LLC’s (“DBG”)
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`Although Defendant has requested oral argument on its Motion for Summary Judgment,
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`because the current record is sufficient to decide the Motion, the Court concludes oral argument
`is not warranted.
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`publication of The Zodiac Legacy, a series of young adult novels that Plaintiff alleges are
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`based on his original works. (See Doc. # 130-1 at 6).2 Plaintiff is an individual and
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`resident of Campbell County, Kentucky. (Doc. # 48 ¶ 10). Defendant is a California
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`corporation that produces, acquires, licenses, and distributes novels, motion pictures, and
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`other works. (Id. ¶ 11). Effective January 31, 2020, DBG assigned and transferred all of
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`its rights and interests in The Zodiac Legacy to Defendant. (Doc. # 45 at 2).
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`
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`Central to this action is a 91-page screenplay and accompanying handwritten
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`character biographies that Plaintiff began working on in 2000 and allegedly finished in
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`2005 (the “Works”). (See Doc. # 130-1 at 14-16). Broadly speaking, the screenplay,
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`entitled Zodiac Regiment Twelve, tells the story of twelve children from countries across
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`the world who are bestowed with superpowers aligned with the animal symbols of the
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`Chinese zodiac. (See Doc. # 48 ¶ 20). Plaintiff was first inspired to write the Works after
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`seeing a placemat in a Chinese restaurant featuring information on the Chinese zodiac,
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`and he drew inspiration from his past martial arts experience and interest in Bruce Lee.
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`(Doc. # 130-1 at 13-14).
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`
`
` In October 2006, Plaintiff traveled to Los Angeles, California to attend an event
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`called Screenwriting Expo 5 (the “Event”), which was described as a “pitchfest for aspiring
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`writers.” (Doc. # 130-1 at 15) (internal quotation marks omitted). Plaintiff aimed to pitch
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`the Works to individuals in the entertainment industry with the hope that he would be hired
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`as a screenwriter, the Works would be licensed by one the companies, and/or the Works
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`would ultimately be produced into a film. (See Doc. # 154 at 2). Although Plaintiff met
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`The parties largely agree on the basic facts of the case. For brevity and clarity, the Court
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`will primarily refer to the Motion for Summary Judgment and/or the Second Amended Complaint
`(Doc. # 48) for the facts, except where necessary to elaborate on disagreements.
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`with representatives from several companies, he testified at his deposition that the “whole
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`reason” he attended the Event was to meet with a representative from The Walt Disney
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`Company (“Disney”), DBG’s parent company. (Doc. # 132-1 at 65, 75). He also testified
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`that he brought approximately 20 typewritten copies of the Works with him to distribute at
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`the Event. (Doc. # 132-1 at 72).
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`
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`According to Plaintiff, no representative from Disney was initially available to meet
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`with him. (Id. at 65). However, Plaintiff kept “checking back” to see if a Disney
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`representative was available, and eventually, “lo and behold, Disney was available[.]” (Id.
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`at 65-66). Plaintiff testified that he met with a woman who was a Disney representative
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`but could not recall her name. (Id. at 63). Plaintiff testified that he left copies of the Works
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`with the Disney representative. (Id. at 73). Plaintiff also testified that he left copies of the
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`Works with representatives of other entertainment companies. (Id. at 74). Plaintiff
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`acknowledged that he did not retain a copy of the version of the Works that he brought
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`with him to the Event. (Id. at 85).
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`
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`In early 2016, Plaintiff discovered that DBG had published The Zodiac Legacy.
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`(Doc. # 48 ¶ 31). After purchasing and reading the first book in the series, entitled The
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`Zodiac Legacy: Convergence, Plaintiff allegedly “discovered that [Defendant] had copied
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`his work.” (Id.). According to Plaintiff, “The Zodiac Legacy series not only copies the
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`concept of [the Works], but it also employs a majority of the same key plot elements,
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`character devices, and story arc, cover to cover.” (Id. ¶ 32).
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`On October 3, 2018, Plaintiff registered copyrights for the Works with the United
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`States Copyright Office (the “Copyright Office”). (See Doc. # 48-1). On December 17,
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`2018, Plaintiff initiated this action by filing his Complaint, which asserted one count of
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`copyright infringement against Disney Enterprises, Inc. (“DEI”), a subsidiary of Disney.
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`(See Doc. # 1 ¶¶ 50-66). On October 28, 2019, the Court issued an agreed order
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`substituting DBG as the defendant in this action. (Doc. # 38). On June 8, 2020, the Court
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`issued another agreed order substituting Defendant as the defendant in this action. (Doc.
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`# 46). On June 19, 2020, Plaintiff filed a Second Amended Complaint which reflected the
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`party changes. (Doc. # 48).
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`
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`On October 22, 2020, Defendant filed the Motion to Dismiss Pursuant to Rule
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`12(b)(6) (“Motion to Dismiss”). (Doc. # 52). After a full round of briefing (Docs. # 56 and
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`61), the Court issued a Memorandum Opinion and Order denying the Motion to Dismiss.
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`(See Doc. # 65). In so doing, the Court determined that Plaintiff had stated a plausible
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`claim of copyright infringement, which is all that was required at that procedural posture.
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`(See id.). The Court implicitly acknowledged, however, that Plaintiff’s claim might fail
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`under the “more scrutinous factual evaluation” appropriate at the summary judgment
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`stage. (See id. at 5). Defendant then filed its Answer (Doc. # 66), and the case proceeded
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`through discovery. (See Docs. # 69 and 104).
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`On September 28, 2023, Defendant filed the Motion to Exclude, the Motion for
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`Summary Judgment, and the Motion for Judicial Notice. (Docs. # 129, 130, and 131).
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`Defendant respectively filed the Motions to Continue Under Seal on October 10, 2023,
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`November 3, 2023, and November 22, 2023. Plaintiff filed Responses to the Motion to
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`Exclude and the Motion for Summary Judgment (Docs. # 149 and 154) but did not
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`respond to the Motion for Judicial Notice or the Motions to Continue Under Seal.
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`Defendant filed Replies as appropriate (Docs. # 157 and 166).
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`II.
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`ANALYSIS
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`A.
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`Standard of Review
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`Defendant has moved for summary judgment on Plaintiff’s sole claim of copyright
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`infringement. (Doc. # 130). Summary judgment is appropriate “if the movant shows that
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`there is no genuine dispute as to any material fact and the movant is entitled to judgment
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`as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment,
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`the court must view the evidence and draw all reasonable inferences in favor of the
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`nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
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`(1986).
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`“The moving party bears the burden of showing the absence of any genuine issues
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`of material fact.” Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). The
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`movant may do so by “citing to particular parts or materials in the record, including
`
`depositions, documents, electronically stored information, affidavits or declarations,
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`stipulations (including those made for purposes of the motion only), admissions,
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`interrogatory answers, or other materials[.]” Fed. R. Civ. P. 56(c)(1)(A). Once the movant
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`has satisfied its burden, the nonmoving party must “do more than simply show that there
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`is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. It
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`must produce evidence showing that a genuine factual issue remains. Plant v. Morton
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`Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000). If, after reviewing the record as a whole, a
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`rational fact finder could not find for the nonmoving party, summary judgment should be
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`granted. Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 349 (6th Cir. 1998).
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`Moreover, the trial court is not required to “search the entire record to establish
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`that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886
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`F.2d 1472, 1479-80 (6th Cir. 1989). Rather, the “nonmoving party has an affirmative duty
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`to direct the court’s attention to those specific portions of the record upon which it seeks
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`to rely to create a genuine issue of material fact.” In re Morris, 260 F.3d 654, 665 (6th
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`Cir. 2001).
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`B.
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`Analysis
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`The Court will address the Motion for Judicial Notice, the Motion for Summary
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`Judgment, the Motion to Exclude, and the Motions to Continue Under Seal in turn.
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`1. Motion for Judicial Notice
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`Defendant requests that the Court take judicial notice of certain dictionary entries
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`as well as “common or generic literary, cultural, or creative elements” referenced in the
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`Motion for Summary Judgment. (Doc. # 131 at 1). The dictionary entries, which
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`Defendant attaches as Exhibits A through G to the Motion for Judicial Notice, come from
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`the Third Edition of the Oxford English Dictionary and contain the definitions of words
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`such as “horse,” “horsepower,” and “ox.” (See id.). The literary, cultural, and creative
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`elements include: (a) common tropes in the superhero and science fiction genres (e.g., a
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`battle between good and evil) and (b) the plots, characters, and themes of well-known
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`books, films, and television shows such as X-Men, Teenage Mutant Ninja Turtles, Star
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`Wars, and the Harry Potter series. (See Doc. # 130-1 at 29-36).
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`Rule 201 of the Federal Rules of Evidence authorizes courts to take judicial notice
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`of facts that are “not subject to reasonable dispute because” they are “generally known
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`within the trial court’s territorial jurisdiction” or “can be accurately and readily determined
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`from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
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`Courts routinely take judicial notice of dictionary entries as they “are not subject to
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`reasonable dispute.” LSC, LLC v. Fitness & Sports Clubs, LLC, Civil Case No. 5:15-cv-
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`134-JMH, 2015 WL 5194581, at *2 n.2 (E.D. Ky. Sept. 4, 2015) (citing Comerica Bank v.
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`Lexington Ins. Co., 3 F.3d 939, 944 (6th Cir. 1993)). Courts may also take judicial notice
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`of “the generic elements of creative works.” Davis v. Am. Broad. Cos., Inc., No. 1:10-CV-
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`167, 2010 WL 2998476, at *5 (W.D. Mich. July 28, 2010). This includes the plots,
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`characters, and themes of well-known books, films, and other mass media properties.
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`See, e.g., id. at 8 (Referencing Spiderman, Batman, Superman, Luke Skywalker, Hobbits,
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`and Buffy the Vampire Slayer).
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`Upon review, the Court grants the Motion for Judicial Notice. The Exhibits that
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`Defendant attaches thereto appear to be true and correct copies of the relevant definitions
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`from the Third Edition of the Oxford English Dictionary and are thus not subject to
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`reasonable dispute. And the literary, cultural, and creative elements cited by Defendant
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`appear to accurately reflect common media tropes and the plots and characters of well-
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`known media properties. Moreover, the Court notes that Plaintiff did not file any response
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`to the Motion for Judicial Notice, which constitutes a separate reason for granting it. See
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`L.R. 7.1(c) (“Failure to timely respond to a motion may be grounds for granting the
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`motion.”). Based on the above, the Motion for Judicial Notice (Doc. # 131) is granted.
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`2. Motion for Summary Judgment
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`Defendant moves for entry of summary judgment on Plaintiff’s sole claim of
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`copyright infringement. (Doc. # 130). In support, Defendant argues that (i) Plaintiff failed
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`to obtain a valid copyright registration for the version of the Works that Defendant
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`allegedly accessed and copied; (ii) Plaintiff failed to show that the creators of The Zodiac
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`Legacy had access to the Works; (iii) the Works and The Zodiac Legacy are not
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`substantially similar in protected expression; and (iv) The Zodiac Legacy was
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`independently created. (See id.). As discussed above, the parties appear to largely agree
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`on the basic facts of the case. But even considering the parties’ apparent disagreements
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`about the facts, the Court concludes that entry of summary judgment in Defendant’s favor
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`is appropriate. Indeed, for the reasons stated below, Defendant is entitled to judgment
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`as a matter of law even assuming the truth of Plaintiff’s version of the facts. The Court
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`will address each of Defendant’s arguments in turn.
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`a. The Court will not determine whether Plaintiff’s alleged
` failure to obtain copyright registrations over the version
` of the Works brought to the Event warrants entry of
` summary judgment
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`Defendant first argues that Plaintiff did not secure a valid copyright registration for
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`the version of the Works that he brought to the Event, which is “the sole version [of the
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`Works] that he alleges The Zodiac Legacy’s creators accessed.” (Doc. # 130-1 at 13).
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`According to Defendant, Plaintiff’s failure to obtain these copyright registrations “dooms
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`his claim, entitling [Defendant] to summary judgment.” (Id.).
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`The Copyright Act provides, in pertinent part, that “no civil action for infringement
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`of [a] copyright in any United States work shall be instituted until preregistration or
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`registration of the copyright claim has been made” with the Copyright Office. 17 U.S.C.
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`§ 411(a). To obtain copyright registration in the case of an unpublished work, an applicant
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`must deposit with the Copyright Office “one complete copy” of the work. 17 U.S.C. §
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`408(b)(1). “[Section] 408 permits the deposit of bona fide copies of the original only[,]”
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`meaning that the copy deposited “must be virtually identical to the original and must have
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`been produced by directly referring to the original.” Coles v. Wonder, 283 F.3d 798, 802
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`(6th Cir. 2002) (quoting Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212 (9th Cir.
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`1998)) (internal quotation marks omitted). The Sixth Circuit recently affirmed a district
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`court’s granting of summary judgment to a defendant where the plaintiff “failed to establish
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`the prerequisites to suit—copyright registration and deposit[.]” Parker v. Hinton, No. 22-
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`5348, 2023 WL 370910, at *1 (6th Cir. Jan. 24, 2023).
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`Although Plaintiff allegedly finished the relevant version of the Works sometime in
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`2005, he waited until October 3, 2018 to register them with the Copyright Office. (See
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`Doc.48-1). According to Plaintiff, the version that he brought to the Event was “a typed,
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`copyedited, and generally cleaned up version” of that which he deposited with the
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`Copyright Office. (Doc. # 56-1 ¶ 5). He also admits that he no longer has “an exact copy”
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`of the version of the Works he brought to the Event. (Doc. # 56-1 ¶ 6). However, Plaintiff
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`submits that the version he brought to the Event was “wholly derived” from the version he
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`deposited with the Copyright Office. (Id. ¶ 5).
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`Based on Plaintiff’s submissions, the Court doubts whether the version of the
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`Works Plaintiff deposited with the Copyright Office was a “bona fide” copy of the version
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`that Defendant allegedly accessed. Indeed, Plaintiff expressly acknowledges that the
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`versions were not identical to one another. However, the Court need not decide this issue
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`to resolve the Motion for Summary Judgment. This is because, as stated below,
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`Defendant is entitled to summary judgment for reasons unrelated to Plaintiff’s depositing
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`of the Works with the Copyright Office.
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`b. Plaintiff fails to show legally sufficient evidence that the
` The Zodiac Legacy’s creators had access to the Works
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`Defendant next argues that Plaintiff has no evidence that The Zodiac Legacy’s
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`creators had access to the Works. (Doc. # 130-1 at 22-25). Before addressing this
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`argument, the Court must first outline the basic elements of copyright infringement.
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`A “plaintiff must prove two things in order to establish a copyright infringement
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`claim: first, that he had ownership of a valid copyright; second, that another person copied
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`a protected interest in the work.” Coles, 283 F.3d at 801. Because “[d]irect evidence of
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`copying is rare,” plaintiffs frequently “will attempt to establish an inference of copying by
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`showing (1) access to the allegedly-infringed work by the defendant(s) and (2) a
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`substantial similarity between the two works at issue.” Ellis v. Diffie, 177 F.3d 503, 506
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`(6th Cir. 1999). The Sixth Circuit has acknowledged that “in some cases[,] the relationship
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`between the degree of proof required for similarity and access may be inversely
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`proportional: where the similarity between the two works is strong, less compelling proof
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`of access may suffice, and vice-versa.” Stromback v. New Line Cinema, 384 F.3d 283,
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`293 (6th Cir. 2004). With this framework in mind, the Court will address Defendant’s
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`substantive arguments.
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`Access means having a reasonable opportunity to view the Works “and thus
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`having the opportunity to copy.” See Ellis, 177 F.3d at 506. Neither “[a] mere assertion
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`of access, unsupported by probative evidence[,]” nor “a bare possibility of access [is]
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`sufficient.” Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312,
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`316 (6th Cir. 2004). “Several Circuit Courts, including the Sixth, have rejected bare
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`corporate receipt as sufficient proof of access, requiring plaintiffs to introduce some
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`evidence that it was reasonably possible that the paths of the infringer and the infringed
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`work crossed.” Design Basics, LLC v. Forrester Wehrle Homes, Inc., Case No.
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`3:15CV00666, 2018 WL 1583103, at *18 (N.D. Ohio Mar. 30, 2018) (quoting Jones v.
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`Blige, 558 F.3d 485, 493 (6th Cir. 2009)) (internal quotation marks omitted). That said,
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`access generally “is intended to be easily established in light of the inherent difficulty of
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`proving actual copying.” Frank Betz Assocs., Inc. v. J.O. Clark Constr., L.L.C., Civil Action
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`No. 3:08-cv-00159, 2010 WL 2253541, at *14 (M.D. Tenn. May 30, 2010).
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`Plaintiff’s main theory of access in this case is as follows. During his deposition,
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`Plaintiff testified that he met with a Disney representative at the Event but could not recall
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`her name. (Doc. # 132-1 at 63). According to Plaintiff, the Disney representative with
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`whom he met was “rude,” “leaned toward Asian[,] . . . [had] dark brown hair[, and] . . . [a]
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`[d]arker complexion.” (Id. at 63-64). Plaintiff further testified that the woman had a
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`medium height and build. (Id. at 64). At an earlier stage in this case, Plaintiff submitted
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`that he “believe[d]” that the Disney representative was named Kathie Fong Yoneda. (Doc.
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`# 48 ¶ 28). Plaintiff came across this name after searching the internet for websites
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`“associated with PitchFests,” one of which included an image of Ms. Yoneda. (Doc. #
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`132-1 at 69). At his deposition, Plaintiff answered in the affirmative a question regarding
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`whether “the look of the photo [he] saw of [Ms. Yoneda] seemed vaguely familiar.” (Id. at
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`70-71). However, Ms. Yoneda submitted a declaration stating that she had not been an
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`employee of Disney or any affiliated company since 1993 (Doc. # 39-2 ¶ 4), and Plaintiff
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`stated in a declaration that he was “not certain that [Ms. Yoneda] was the woman with
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`whom [he] met.” (Doc. # 28-1 ¶ 3). Plaintiff testified that he left copies of the Works with
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`the Disney representative as well as with representatives of other entertainment
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`companies. (Id. at 73-74).
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`In support of a separate theory of access, Plaintiff flags certain deposition
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`testimony offered by Gill Champion of POW! Entertainment (“POW!”). (See Doc. # 156
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`at 7). As discussed in more detail below, POW! is the entity which first pitched Disney on
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`the idea of a superhero story based on the Chinese zodiac. (See Doc. # 136-4 at 15-16).
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`Champion testified that it was POW!’s agent at Creative Artists Agency (“CAA”) who first
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`suggested the idea to Champion.3 (Doc. # 136-5 at 15). According to Plaintiff, “[i]t is not
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`unreasonable to infer that [the] agent had obtained a copy of [the Works].” (Doc. # 154
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`at 7).
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`At the outset, the Court notes the general weaknesses of Plaintiff’s access
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`evidence. Plaintiff does not identify the name or title of the Disney representative with
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`whom he supposedly met at the Event. Indeed, Plaintiff provides no information to identify
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`the person beyond a vague physical description of her. And Plaintiff provides no
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`corroborating evidence that the woman he met was actually a Disney representative.
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`Although Plaintiff kept contemporaneous notes and records of his meetings at the Event
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`(and the business cards of certain individuals he met there), these notes, records, and
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`business cards do not substantiate any meeting with Disney or any of its affiliates. (See
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`Docs. # 132-4 and 132-5). Moreover, Plaintiff provides no evidence that POW!’s CAA
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`agent even attended the Event or had access to the Works beyond mere speculation.
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`But even if Plaintiff did meet with a Disney representative at the Event and gave
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`her a copy of the Works, this would still be legally insufficient to prove access. As
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`discussed above, federal appellate courts including the Sixth Circuit “have rejected bare
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`corporate receipt as sufficient proof of access.” Jones, 558 F.3d at 493 (internal quotation
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`marks omitted). Indeed, courts typically require some proof of a nexus between the
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`Defendant redacted some references to Champion’s deposition testimony it in the version
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`of the Motion for Summary Judgment filed on the public docket. (See Doc. # 130-1 at 8). After
`Plaintiff raised his second theory of access in his Response (see Doc. # 154 at 7), however,
`Defendant filed its Reply which expressly references Champion’s testimony without redactions.
`(See Doc. # 166 at 14-15). Because Defendant has referenced Champion’s testimony on the
`public docket, the Court shall do the same—but only to the extent necessary to address Plaintiff’s
`second theory of access.
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`recipients of a work and the alleged infringers for access to be a triable issue. Id. (quoting
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`Jorgensen v. Epic/Sony Records, 351 F.3d 46, 48 (2d Cir. 2003)). Here, Plaintiff offers
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`nothing beyond mere speculation that the supposed Disney representative he met with
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`had any connection to the creators of The Zodiac Legacy. Even more speculative is
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`Plaintiff’s claim that the CAA agent somehow had access to the Works and transmitted
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`them to The Zodiac Legacy’s creators. In the absence of any other evidence of access,
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`the Court concludes that Plaintiff has failed to meet his burden on this issue. See Dean
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`v. Burrows, 732 F.Supp. 816, 827 (E.D. Tenn. 1989) (noting that a plaintiff alleging
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`copyright infringement bears the burden of proving access).
`
`
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`Moreover, comparing the evidence of access in this case with that at issue in other
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`Sixth Circuit cases provides additional support for the Court’s access determination. In
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`Jones v. Blige, the plaintiffs’ suit stemmed from a song that was recorded by a non-party
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`artist managed by James E. White, one of the plaintiffs. 558 F.3d at 488. After White
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`“pitched” the song to Andy McKaie, Senior Vice President of Artists and Repertoire for
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`Universal Music Enterprises, McKaie allegedly asked White to “send the product in.” Id.
`
`White then “hand-delivered a sealed package containing a demo CD [of the song]” to the
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`building where McKaie’s office was located. Id. at 489. White later spoke on the
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`telephone with JoAnn Frederick, McKaie’s secretary, who told White that the CD was still
`
`on McKaie’s desk but that he would listen to it eventually. Id. White called Frederick
`
`again who “allegedly told him that their department had decided to pass on the CD.” Id.
`
`(internal quotation marks and bracketing omitted). At White’s request, Frederick returned
`
`the materials White had submitted but did not include the original envelope and cover
`
`letter, which demonstrated that the package containing the CD had been opened. Id.
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`Later, White heard a song on the radio performed and written by defendants Mary J. Blige
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`and Andre “Dr. Dre” Young which he believed infringed upon the song he submitted to
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`Universal, the company which “publish[ed] Blige’s records.” Id.
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`In determining that this evidence was insufficient to prove access, the Sixth Circuit
`
`opined that—
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`[the] [p]laintiffs in this case have set forth no evidence tending to show a
`reasonable probability that their work made its way from McKaie to the
`creators of [the allegedly infringing song]. There is no evidence that Blige,
`Young, or the other artists knew McKaie or worked with him, even indirectly.
`There is no evidence of the nature of Blige’s and Young’s relationships with
`Universal employees that would support an inference that McKaie
`transferred [the] [p]laintiffs’ song to Blige or Young through other
`intermediaries at Universal. As far as the record shows, Blige and Young
`were affiliated with McKaie only
`through an attenuated corporate
`connection, and to find a reasonable possibility of access, a jury would be
`required to make an implausible leap, unsupported by evidence other than
`bare corporate receipt.
`
`Id. at 493.
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`Here, Plaintiff’s evidence of access is even more attenuated than in Jones. In
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`Jones, the plaintiffs identified a particular and identifiable person who allegedly accessed
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`their works and was an employee of the same company that published the allegedly
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`infringing song. Plaintiff, on the other hand, can only claim that an unidentified individual
`
`who allegedly worked for Disney either directly or indirectly provided a copy of the Works
`
`to the creators of The Zodiac Legacy. And Plaintiff provides no evidence that POW!’s
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`CAA agent ever had access to the Works in the first place, much less that the agent
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`distributed them to The Zodiac Legacy’s creators.
`
`Based on the above, the Court concludes that Plaintiff has failed to show legally
`
`sufficient evidence of access.
`
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`c. The Zodiac Legacy is not substantially or strikingly similar
` to the Works to support an inference of copying
`
`Defendant next argues that the Works and The Zodiac Legacy are not substantially
`
`
`
`similar to one another to support an inference of copying. (Doc. # 130-1 at 25-40). “In
`
`the usual infringement case, access can be shown” and the plaintiff must submit evidence
`
`that the works at issue are “substantially similar” to one another. Murray Hill Publ’ns, 361
`
`F.3d at 317. In this case, however, Plaintiff failed to present legally sufficient evidence of
`
`access. “Where the plaintiff cannot prove access, the copyright infringement claim can
`
`still succeed, but only by proof of a higher level of similarity than the merely substantial.”
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`Id. In such cases, a plaintiff must show “striking similarity” between the works—that is,
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`similarity which “preclude[s] the possibility of independent creation.” Id. (quoting
`
`Glanzmann v. King, No. 88-CV-70491-DT, 1988 WL 212507, at *1 (E.D. Mich. Aug. 29,
`
`1988)). Plaintiff has failed to meet this burden. Indeed, Plaintiff’s claim fails even under
`
`the less onerous substantial similarity criteria.
`
`
`
`Courts in the Sixth Circuit “use a two-step approach to determine whether disputed
`
`works are substantially similar.” Enchant Christmas Light Maze & Mkt. Ltd. v. Glowco,
`
`LLC, 958 F.3d 532, 537 (6th Cir. 2020). First, a court must filter “out the unoriginal,
`
`unprotectible elements—elements that were not independently created by the inventor,
`
`and that possess no minimal degree of creativity.” Id. (quoting Kohus v. Mariol, 328 F.3d
`
`848, 855 (6th Cir. 2020)). These unprotectible elements include: (i) ideas, “because
`
`copyright protection extends only to expression of ideas and not ideas themselves;” (ii)
`
`scenes a faire, “that is, incidents, characters[,] or settings which are as a practical matter
`
`indispensable, or at least standard, in the treatment of a given topic;” and (iii) any other
`
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`common or stock themes and usages. Brainard v. Vassar, 625 F.Supp.2d 608, 617 (M.D.
`
`Tenn. 2009) (quoting Stromback, 384 F.3d at 294).
`
`After filtering out any unprotectible elements, a court must evaluate whether the
`
`disputed works are substantially similar—that is, whether they are “so alike that the later
`
`(unprotected) work can fairly be regarded as appropriating the original expression of the
`
`earlier (protected) work.” Glowco, 958 F.3d at 539 (quoting Coquico, Inc. v. Rodriguez-
`
`Miranda, 562 F.3d 62, 68 (1st Cir. 2009)). When making this evaluation, “it is appropriate
`
`[for a court] to examine the theme, characters, plot, sequence, pace, and setting for
`
`similarities.” Stromback, 384 F.3d at 297. “However, random similarities scattered
`
`throughout the works may be discounted.” Id. (quoting Murray Hill Publ’ns, 361 F.3d at
`
`320) (internal quotation marks omitted). And any alleged similarities should be assessed
`
`“[a]t the level of actual expression[.]” Murray Hill Publ’ns, 361 F.3d at 325. As the Sixth
`
`Circuit has noted, federal appellate courts “have frequently affirmed summary judgment
`
`in favor of copyright defendants on the issue of substantial similarity” because the issue
`
`“can usually be decided on the basis of the works themselves and rarely, if ever, involves
`
`questions of credibility, the peculiar province of the jury.” Id. at 321.
`
`Before addressing the alleged similarities between the works, the Court will
`
`generally describe them. The Works comprise a 91-page screenplay and accompanying
`
`handwritten character biographies. The screenplay opens on a Himalayan mountaintop