Infringement of Copyright – ‘Access’ and Probative Similarity

Kelly Wilson filed a lawsuit against Disney in March 2014 claiming that a marketing trailer for “Frozen” directly infringed her copyrighted short film, The Snowman. Wilson’s complaint states that she created The Snowman between 2008 and 2010 and that the short was screened at eight film festivals. One of those screenings was at the San Francisco International Film Festival in 2011, where she shared the stage with an employee of Disney’s Pixar Animation Studios, which was also screening a film in the same session.

In our August 14, 2014 edition of  SGR’s Intellectual Property Brain Trust, we reported that United States District Judge Vince Chhabria of the Northern District of California had denied the Walt Disney Company’s motion to dismiss the claim that the Frozen teaser trailer infringes upon Kelly Wilson’s copyright in her animated short film. As reported in one of the stories that we bring to you this week, ‘Frozen’: Disney at Risk of Jury Trial over Copyright Infringement,  Judge Chhabria has now stated that he has a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Judge Chhabria stated that he will issue an opinion on the two party’s summary judgment motions, but he seemed to indicate to suit was headed for a jury trial.

Disney’s lawyers claimed that no one involved in the conception or development of the trailer had access to Wilson’s film and only the chief creative officer, John Lasseter, of both Walt Disney Animation Studios and Pixar, was involved in the creation of the trailer. But Judge Chhabria asked at the hearing if people who worked with Lasseter had seen the film at the festival, why that was not sufficient to establish “access.”

“Copying” involves the factual issue of whether the defendant actually used the plaintiff work in order to create his work. Lacking direct evidence, copying can be proved by circumstantial evidence establishing (1) access to the plaintiff’s work and (2) probative similarities between the works.

For more information on copyright infringement, contact your Intellectual Property counsel at Smith, Gambrell & Russell.

By: Joyce Klemmer

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