By Curtis L. Harrington
Since copyright protects an expression embodied in a specific work, rather than the underlying idea, the protection against anything more than rote copying is difficult. Although "substantial similarity" is quoted as the bench mark for determining how alike are the accused infringing work and the original from which it is copied, much attention is paid to the acts of the accused copier and the ability of the plaintiff to prove it.
The ability to prove the acts of the accused copier are further complicated by the natural tendencies present in offering the work for sale or licensing, and trying to get it accepted for publication. Although established authors with inside connections can carefully control the transmission and tracking of their manuscripts, authors attempting to break in to the business will send out as many copies of their written works as they can afford to maximize their chances of sale or licensing.
The recent case of McGaughey v. Twentieth Century Fox Television, 29 USPQ2d 1552 (CA 5th Cir.) and previous related cases illustrates just how difficult it is for writers to prevail, even when a fairly positive connection can be established between the writer's submission of his script and its aquisition by an accused infringer.
The writer McGaughey, through his agent, sent portions of his novel, The Saurian to Fox in April, 1981. A letter, on behalf of Fox's vice president of "Movies and Mini Series for Television" was sent on May 13, 1981 declining interest in the book. Also in 1981, Loughery, an employee of Fox at the time the McGaughey novel portions were received, wrote a movie script which was filmed between February and May 1993 entitled Dreamscape, and which McGaughey claimed was similar to The Saurian.
After McGaughey sued, and before his suit was heard in full, the district court granted summary judgement in favor of Fox, based not upon similarity, but upon access.
Generally, copying of a copyrighted work is proved in one of two ways. Direct evidence of copying is always the best, but is usually never available to "outsider" authors. The second way is to show access, followed by substantial similarity. Since access will be established before similarity is considered, a series of fine points on access have been established in such lawsuits. On appeal, McGaughey argued that the court had improperly relied upon Ferguson v. National Broadcasting Co. 584 F.2d 111 (5th Cir. 1978) where the alleged copier in that case was not an employee of NBC, and thus a weaker case. This argument was rejected. McGaughey also argued a doctrine known as "corporate receipt" in which the receipt of a manuscript at the defendant's corporate offices has been held to raise a triable issue, even though a connection cannot be made within the corporate organization to the alleged copier. Although mentioned in the appeal, this issue was not dealt with directly, nor even denied directly. With a logical left turn, the court recited the facts which "prove" that Fox could not have infringed the copyright because Fox's employee Loughery had already completed Fox's script.
The evidence of Loughery's completion of the Fox script was his registration of the script with the Writer's Guild of America on February 1981. "However, because the Writer's Guild of America destroys registered material after five years from the registration date, and Loughery did not renew his registration, the Writer's Guild of America cannot verify that Loughery actually registered a script". Despite the inherent weakness in this evidence, the court used it as "proof" that from a time perspective no infringement could have occurred and that the corporate receipt doctrine was not logically deserving of further treatment. With the summary judgment at trial court, and an affirmance on appeal, McGaughey never had a chance at showing any similarities.
In other cases, where the corporate receipt doctrine has carried some weight, it has been further dissected to a state of powerlessness. In Moore v. Columbia Pictures Industries, Inc. 23 USPQ2d (CA FC 1992) an additional requirement of a "reasonable probability of access" was imposed upon the already beleaguered corporate receipt doctrine. Moore, through his agent, delivered an early version song entitled She can't stand it to Dickerson, a Director of Artists and Repertoire at MCA Records, on the same day a pair of composers Reid and Edmonds, also associated with MCA Records, began working on the music for On Our Own, the title track Ghostbusters II.
Although holding for Moore with regard to access, the case emphasized that corporate access hinges upon "the close relationship linking the intermediary (corporate employee who receives the copyrighted submission) and the alleged copier. The case stressed the importance of personal and work relationships and rejected corporate receipt based upon any implausible intra-company "transmittals." After such penurious generosity with the corporate receipt doctrine, the court then rejected Moore's claim based upon lack of substantial similarity.
In other instances where the "access" is public, the courts have gone straight to the substantial similarity test in defeating the earlier author's rights. In Bevan et al. v. Columbia Broadcasting, 171 USPQ 339 (DC NY 1971) the earlier work was Stalag 17 and the later, allegedly infringing work was television's Hogan's Heroes. A finding of access was granted based upon the popularity and breadth of public knowledge about Stalag 17. The two works were similar in time, setting, characters, and general plot. In finding no infringement based upon the dissimilarity, the courts stressed the slapstick, absurd story lines of Hogan's Heroes, with the somber, seriousness of the story line in Stalag 17. A comparison of the two formats, television versus motion pictures, was omitted from the analysis. Such a comparison would have led to the conclusion that somber, serious drama could not have been portrayed in a 30- minute weekly television series, and would of necessity have lapsed into a comedy. A replay of the serious plot of Stalag 17 would have involved a different informant for each episode. This would be impossible without being ridiculous, and the ridiculous would have led to either the slapstick comedy of Hogan, or to the series' early demise.
In reviewing the cases, the threshold level of "substantial similarity" seems lower where direct evidence of copying is available. In actual practice, such direct evidence will rarely be positively identifiable. Copyright holders who attempt to rely on the corporate receipt doctrine will be taking a big chance in their case, particularly since such evidence will probably hinge on testimony of the corporate employee.
In addition to the above factors, the district court regularly awards attorney's fees to the losing party. A passage cited in McGaughey states: "Although attorney's fees are awarded in the trial court's discretion [in copyright cases], they are the rule rather than the exception and should be awarded routinely." Thus, even though it is difficult enough for authors and script writers to mount a lawsuit against a corporate giant (particularly those struggling to achieve the sale of their first work), if such a lawsuit is initiated and lost, a bill for the defendant's attorneys' fees will be expected to follow.
To insure that the maximum chance exists for prevailing in a copyright suit, writers might consider following the procedures which many inventor's follow in initially approaching the market with their inventions. First, attempt to submit works in person, and to someone with a fairly high level of responsibility, in exchange for a signed acknowledgement. Consider including the non-disclosure agreement as the first page in the script, so that each person who receives the script will see the agreement, or notice a missing page number. Try for some non-disclosure agreement language in the acknowledgement regarding the general idea of the script or book, to help reduce the tendency of the corporate contact to tell others about the general idea.
Although expensive, consider having the written work delivered directly to a higher-level named person having responsibility for evaluating such works. This may require the services of a "process server"-type as opposed to a "delivery"- type service. The writer should balance the additional protection available with personal delivery (preferably by a third person) with the possibility that such "bothersome" tactics may annoy the person receiving the delivery.
Consider marking each page with a proprietary legend stating that it is considered copyrighted, or even a trade secret. If you have filed for and received a copyright registration, stamp the registration number on each page either in or along with the proprietary legend. Number and keep track of the copies which are delivered to potential buyers with a written log. If possible, the legend should identify the number of the copy, and other pertinent information. Such a legend can be easily added during printout using small text in a format such as is available in a word processor. Make every attempt to have the manuscript returned after it has been reviewed.
The marking and control of copies, as a regular matter will establish the exact parameters under which the author has granted access to the corporate individual. If done regularly in the course of business, your policy will become much stronger evidence that your records are correct. Further, if the work is properly marked, the chances will be much higher that anyone who came into contact with your manuscript will subsequently remember it.
These steps may be costly, and your overt insistence on your rights may cause the more unscrupulous companies to reject your work outright. It is better to have no success than to create a success for which another will take undeserved credit.
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