WRITING STYLE AND METHOD OF EXPRESSION ALONE ARE NOT COPYRIGHTABLE, COURTS RULE

December 29, 2004

In this newsletter:

WRITING STYLE AND METHOD OF EXPRESSION ALONE ARE NOT COPYRIGHTABLE, COURTS RULE

An author of two short plays about Marilyn Monroe sued CBS & Viacom for copyright infringement. The author, David Whitehead, claimed that the CBS television miniseries “Blonde”, infringed his exclusive rights of reproduction and adaptation. The Plaintiff based his infringement claim on a similar style between the two works and on individual elements of the Defendants work that he claimed were strikingly similar to elements of his plays. The Defendants claimed that there was no basis for the suit and asked that the case be thrown out of court.

Judge Richard Roberts of the U.S. District Court for the District of Columbia sided with CBS, granting Defendants’ motion for summary judgment. In granting summary judgment Judge Roberts acknowledged that questions of substantial similarity in copyright claims are often very close questions of fact, but that “summary judgment is proper if evidence of substantial similarity is merely colorable or not significantly probative.”

The court granted summary judgment on the basis that no reasonable jury could find that a substantial similarity in the “total concept and feel” of the two works existed. The plot of one the Plaintiff’s plays involved a posthumous visit from Marilyn Monroe in which she revisits her life’s events. The play is set to the music of Prince and it quickly makes “the audience. …aware that the play requires a suspension of literal belief for Monroe comes back from the dead,” the court wrote. The Defendants’ work on the other hand was “a drama without any of the fantastic qualities of plaintiff’s plays.”

The court quickly did away with Plaintiff’s claim based on similarities in style by stating, “a particular writing style or method of expression standing alone is not protected by the Copyright Act.” The court then proceeded to consider the individual elements that Plaintiff claimed were infringed by the Defendants work. Many of the supposed similarities were not protectable elements at all; rather they were facts of Marilyn Monroe’s life. These factual events were detailed in the various sources Plaintiff cited in the bibliography of his own works, an irony that did not go unnoticed by the court.

Whitehead v CBS/Viacom Inc., 315 F. Supp. 2d 1, 9 (D.D.C. 2004.)

PHIL NIBBELINK FEATURED IN ANIMATION MAGAZINE

Our client, animator Phil Nibbelink, and his project, “Romeo + Juliet, Sealed With A Kiss” are featured in “Skwigly,” a UK-based animation magazine available on the web. The article is available at www.biganimation.com/magazine/news/article.asp?articleid=412&zoneid=3