Often the highest hurdle to clear when an author sues someone for copyright infringement is proving that the defendant had access the the plaintiff's work. The following is a summary of the court's op

Often the highest hurdle to clear when an author sues someone for copyright infringement is proving that the defendant had access to the plaintiff's work. This is necessary to show that the defendant copied the plaintiff's work. A work independently created does not infringe anyone else's work even if substantially similar.

In an infringement case brought in New York, plaintiff Craig Mowry claimed that the screenplay for the motion picture "The Truman Show" was stolen from his screenplay, treatment and character profiles for "The Crew." He sued Viacom International; producers Paramount Pictures, Scott Rudin and his company Scott Rudin Productions; and screenwriter Andrew Niccol.

Since evidence of direct access is often difficult to prove, Mowry hired Dr. Carole Chaski as an expert witness. She attempted to use her linguistic analysis to prove that the defendants had access to the Crew. Her report revealed that the language and expression used by the defendants exhibited such striking similarities within certain aspects of the Crew that is was impossible the Truman Show was created without the defendants having seen -- and having been influenced by -- the Crew.

The U.S. District Court for the Southern District of New York on July 25 refused to allow the report to be used as evidence in the case. As a result, the court granted summary judgment to the defendants.

The following is a summary of the court's opinion.

Proving Actual Copying and Access: It is well-settled in copyright law that in order to establish copyright infringement, a plaintiff must show: (1) the defendant actually copied the plaintiff's work, and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protective elements of the plaintiff's work.

Yet this court noted that "probative" similarity, rather than "substantial" similarity, is the correct term to refer to the plaintiff's burden of proof. This means that the facts must not only show similarities, but they must establish similarities that, in the normal course of events, would not be expected to arise independently in the two works. This would then indicate that the defendant copied the plaintiff's work.

Proof of actual copying normally requires circumstantial evidence since direct evidence is rarely available. Circumstantial proof is often established by showing that the defendant had access to the plaintiff's work and that there is a probative similarity between the two works.

Proving that the defendant had access to the plaintiff's work means that an alleged infringer had a reasonable possibility -- not simply a bare possibility -- of hearing or seeing the plaintiff's work. Access cannot be proven by providing mere speculation or conjecture. It must be shown with significant, affirmative and probative evidence that the defendant had a reasonable opportunity to hear or see the plaintiff's work and had a reasonable opportunity to copy it.

Attempts to establish an inference of access through intermediaries such as agents, while theoretically possible, are seldom successful in practice. To attempt to prove such a case, the plaintiff must establish probative evidence that the individuals who actually created the allegedly infringing work had a reasonable opportunity to see, hear or read the plaintiff's work.

If the infringed work was not widely disseminated, the plaintiff can prove access to it by showing a particular chain of events or link by which the alleged infringer might have gained access to the work.

Mowry's Evidence of Access: Mowry's screenplay was not widely disseminated -- it was unpublished -- and he attempted to prove access through intermediaries.

He claimed that the defendants had access to the Crew because he circulated it to various individuals in the entertainment and advertising industry. Yet none of these recipients were shown to have worked for the defendants or to have passed it on to any of the defendants or the defendants' employees.

To overcome the motion for summary judgment, "at a bare minimum, Mowry needed to show that someone to whom he gave the Crew was connected to a defendant." The plaintiff's "industry access" theory "has been rejected by the courts in this District and elsewhere in prior cases."

Yet the summary judgment motion on the issue of access could have been defeated if Mowry could have shown "striking similarities" between the two works, thus inferring access.

Striking Similarity: The Second Circuit has held that if two works are so strikingly similar as to preclude the possibility of independent creation, copying may be proven without a showing of access. This requires evidence that the infringing work could not possibly have been the result of independent creation.

Striking similarity exists when two works are so nearly alike that the only reasonable explanation for such a great degree of similarity is that the later work was copied from the earlier work.

After reading the Crew and the Truman show, the judge believed that the common idea of a television program based on secret recording of a person's life is not strikingly similar. The two works differed in plot, theme, character, mood, setting as well as the total concept and feel.

Expert Witness Evidence: Yet Mowry argued that the report of expert witness Dr. Chaski should be sufficient evidence to defeat the motion for summary judgment.

Dr. Chaski applied a five-step linguistic, cladistic -- or phylogenetic tree -- method to determine that the second work was derived from the first work. It was her opinion that specific language and expressions used by the Truman Show exhibited such similarities with certain properties that is was impossible that the work was created without having seen -- and being influenced by -- the Crew.

The expert report did not change the court's conclusion, however.

First, there is no case precedent for permitting an expert to use cladistic or phylogenetic-tree analysis to show striking -- or even substantial/probative -- similarity between literary works. "While it is true that there must be a first time for an expert methodology to be accepted by the courts, this is not the case."

Second, specialized knowledge of an expert is used to assist the tier of fact in understanding the evidence or in determining a fact in issue. Unlike specialized areas like music, the trier of fact can compare the works without expert assistance. The court noted that it read the Crew, read and viewed versions of the Truman Show and found the expert's cladistic analysis "more confusing than helpful."

Third, there was a "major defect" in the expert's report because her comparisons were not based on the screenplays; they were based on her charts, in which she summarized or paraphrased aspects of the two works. Preparing summaries and then comparing summaries created subjective distortions.

Moreover, the expert did not test to see if any of the claimed common schemata were "scenes a faire or common across a multitude of scripts. In fact, the expert's five-part method for determining plagiarism has not been subject t o peer review nor otherwise tested." The report created too great a risk of jury confusion, which would have been improperly prejudicial to the defendants.

Fourth, the report did not show that the Truman Show could not possibly have been the result of independent creation, which is the appropriate test to establish striking similarity.

The court concluded that the expert report could not defeat a motion for summary judgment by creating an issue of fact that a jury must determine. "An expert cannot create an issue of fact by rendering an opinion on similarity as to works that no rational jury could find to be strikingly similar."

CASE: Mowry v. Viacom International Inc. f/k/a Paramount Communications Inc., Scott Rudin, Scott Rudin Productions Inc., Andrew M. Niccol & Paramount Pictures Corp.
COURT: U.S. District Court for the Southern District of New York, U.S. Chief Magistrate Judge Andrew J. Peck*, case 03 Civ. 3090 (AJP), July 29, 2005
COUNSEL FOR MOWRY: Alan A. Heller with Heller, Horowitz & Feit in New York
COUNSEL FOR DEFENDANTS: Alexandra N. DeNeve and Jonathan Zavin with Loeb & Loeb in New York

* The parties consented to decision of the case by a magistrate judge.