Cameo Clips

COPYRIGHT INFRINGEMENT/
RULE 12(b)(6) DISMISSAL

The U.S. District Court for the Southern District of Texas dismissed on the pleadings a book author's copyright infringement suit over a motion picture ' a type of judicial ruling not often granted in a copyright infringement case. Randolph v. Dimension Films, H-08-1836. Copyright infringement claims usually make it at least to the summary judgment stage. In this case, Tina M. Randolph, author of the science fiction book Mystic Deja: Maze of Existence alleged that the film The Adventures of Shark Boy and Lava Girl in 3-D infringed on her work.

In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court is restricted to the pleadings and the accompanying documents referred to in the complaint. The district judge in Randolph noted: “Randolph attached to her complaint cover artwork from the book and from the allegedly infringing movie, as well as a press release for the series and part of the book. The defendants attached to their motion to dismiss a copy of Randolph's book and of their movie, which this court has read and watched. The defendants assert in their motion to dismiss that the movie and the plaintiff's book are so dissimilar as to defeat the copyright infringement claim as a matter of law.”

The district judge found: “Based on a careful review of the complaint, the motion, and response, the movie and book, and the applicable law, this court grants the motion to dismiss, without leave to amend. ' The side-by-side comparison of the plaintiff's book and the defendants' movie leads to the conclusion that there is no substantial similarity in the protectable elements of the works. The basic elements of plot, themes, dialogue, mood, setting, pace, characters, and sequence of events ' and the overall concept and feel of both works ' are very different.”

The U.S. District Court for the District of Utah decided that a letter of agreement (LOA) for options to create and arrange for a musical adaptation of a play applied to future productions of the work. Carroll v. Ludwig, 2:08CV491DAK.

In 2005, Ken Ludwig, author of the play Lend Me a Tenor, entered into a LOA that gave Peter Sham rights for a musical adaptation. The contract stated in part: “There will be two one-year options, commencing on the date hereof. During the first year, SHAM agrees to have the musical play written and developed. During the second year option (provided the musical is completed) SHAM will arrange for a premiere production of the play. An additional six-month option period may be added solely in order to accommodate the availability of a theatre or director. For each option period hereunder SHAM will pay a non-returnable advance against royalties in the amount of $5,000.00 (pro-rated for any period of less than one year).” The LOA obligated Sham to pay 30% of the adaptation's income to Ludwig for the “ life of the copyright.”

Sham worked with Brad Carroll to develop the musical, which premiered at the Utah Shakespearean Festival in 2007. Sham and Carroll began developing a New York production, but after Ludwig claimed in 2008 that the LOA had expired, Carroll and Sham filed for a declaratory judgment as to the agreement's enforceability.

The district court noted: “Ludwig could have included a clause in the LOA providing that all musical stage rights expired after 30 months or after the first production if that had been the parties' intention. He did not. Instead, the parties created an option agreement. By definition, option-holders' rights do not expire at the end of the option period, if the option is exercised. They ripen and the terms specified for the use of the rights govern.” The court added: “The advances and royalties obligations could come only from future productions of the Musical and from the licensing of subsidiary rights, such as cast albums, touring productions, stock and amateur productions, music licensing and merchandise. The LOA explicitly anticipates that Carroll and Sham will continue to earn income from the Musical, which they are obligated to share [with Ludwig] for the life of the copyright.”

COPYRIGHT INFRINGEMENT/
RULE 12(b)(6) DISMISSAL

The U.S. District Court for the Southern District of Texas dismissed on the pleadings a book author's copyright infringement suit over a motion picture ' a type of judicial ruling not often granted in a copyright infringement case. Randolph v. Dimension Films, H-08-1836. Copyright infringement claims usually make it at least to the summary judgment stage. In this case, Tina M. Randolph, author of the science fiction book Mystic Deja: Maze of Existence alleged that the film The Adventures of Shark Boy and Lava Girl in 3-D infringed on her work.

In considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a district court is restricted to the pleadings and the accompanying documents referred to in the complaint. The district judge in Randolph noted: “Randolph attached to her complaint cover artwork from the book and from the allegedly infringing movie, as well as a press release for the series and part of the book. The defendants attached to their motion to dismiss a copy of Randolph's book and of their movie, which this court has read and watched. The defendants assert in their motion to dismiss that the movie and the plaintiff's book are so dissimilar as to defeat the copyright infringement claim as a matter of law.”

The district judge found: “Based on a careful review of the complaint, the motion, and response, the movie and book, and the applicable law, this court grants the motion to dismiss, without leave to amend. ' The side-by-side comparison of the plaintiff's book and the defendants' movie leads to the conclusion that there is no substantial similarity in the protectable elements of the works. The basic elements of plot, themes, dialogue, mood, setting, pace, characters, and sequence of events ' and the overall concept and feel of both works ' are very different.”

The U.S. District Court for the District of Utah decided that a letter of agreement (LOA) for options to create and arrange for a musical adaptation of a play applied to future productions of the work. Carroll v. Ludwig, 2:08CV491DAK.

In 2005, Ken Ludwig, author of the play Lend Me a Tenor, entered into a LOA that gave Peter Sham rights for a musical adaptation. The contract stated in part: “There will be two one-year options, commencing on the date hereof. During the first year, SHAM agrees to have the musical play written and developed. During the second year option (provided the musical is completed) SHAM will arrange for a premiere production of the play. An additional six-month option period may be added solely in order to accommodate the availability of a theatre or director. For each option period hereunder SHAM will pay a non-returnable advance against royalties in the amount of $5,000.00 (pro-rated for any period of less than one year).” The LOA obligated Sham to pay 30% of the adaptation's income to Ludwig for the “ life of the copyright.”

Sham worked with Brad Carroll to develop the musical, which premiered at the Utah Shakespearean Festival in 2007. Sham and Carroll began developing a New York production, but after Ludwig claimed in 2008 that the LOA had expired, Carroll and Sham filed for a declaratory judgment as to the agreement's enforceability.

The district court noted: “Ludwig could have included a clause in the LOA providing that all musical stage rights expired after 30 months or after the first production if that had been the parties' intention. He did not. Instead, the parties created an option agreement. By definition, option-holders' rights do not expire at the end of the option period, if the option is exercised. They ripen and the terms specified for the use of the rights govern.” The court added: “The advances and royalties obligations could come only from future productions of the Musical and from the licensing of subsidiary rights, such as cast albums, touring productions, stock and amateur productions, music licensing and merchandise. The LOA explicitly anticipates that Carroll and Sham will continue to earn income from the Musical, which they are obligated to share [with Ludwig] for the life of the copyright.”