• The "Access" Requirement for Copyright Infringement
  • May 30, 2006 | Author: Salomon Zavala
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • A federal trial court in Los Angeles, CA recently dismissed the copyright infringement claim of an aspiring screenwriter who could not demonstrate that his screenplay reached and was read by the creators of an allegedly infringing movie. Merrill v. Paramount Pictures Corp.

    The plaintiff, Christopher Merrill, wrote a screenplay titled "Dream Alive," which featured a group of young people who traveled to Los Angeles, where one of the group members gave a successful singing audition. Merrill envisioned Britney Spears (a defendant in the case) playing the part of the singer.

    Merrill also produced a video pitching the screenplay. He allegedly sent the screenplay and the video to numerous entertainment companies, hoping to drum up interest. He even allegedly sent the screenplay to Spears's fan club.

    Merrill heard back from only MTV Networks, Inc. ("MTV"), also a defendant in the case. An MTV employee telephoned Merrill and said that MTV would not look at an unsolicited screenplay unless the author signed a release form. Merrill obtained the release form but refused to sign it.

    When the Spears film "Crossroads" was released, Merrill believed that the movie was based on his "Dream Alive" screenplay without his authorization. He sued Spears, MTV, and other defendants for copyright infringement.

    To maintain the claim, Merrill had to demonstrate that the creators of "Crossroads" had a reasonable opportunity for, or reasonable probability of, receiving the screenplay prior to creating the movie. Only if the movie and the screenplay were shockingly similar, such that the similarity itself strongly suggested copying as the only explanation, could Merrill have had to clear a lower hurdle in showing that the defendants had access to the copyrighted work. The court found that the two works were not that similar.

    Addressing the access issue, Merrill averred that MTV, which did some marketing for "Crossroads," transmitted the screenplay to the movie's creators. However, MTV proffered uncontroverted evidence that it had no creative input into "Crossroads" and did all its work on the movie after it was created.

    The court concluded that Merrill's case for access was so weak that it did not need to go to a jury for resolution and could be resolved against Merrill by the court.

    Merrill involves a situation that is repeated thousands of times per year in the entertainment industry. The case teaches that, most of the time, a plaintiff seeking to hold an entertainment company liable for copyright infringement of the plaintiff's creative work submitted unsolicited to the company will get nowhere without clearly demonstrating that the people who created the allegedly infringing work had access to the copyrighted work.