In Kenney v. Warner Bros. Entertainment Inc., No. 13-11068, 2013 WL 6212593 (D. Mass. Nov. 29, 2013), Judge Richard G. Stearns dismissed an action for copyright infringement brought by Michael P. Kenney (d/b/a Mike O’Dea and Shamrock Films) against the film studio Warner Brothers.
According to the decision, Kenney is a screenwriter, director, and actor, who began developing a Ghostman comic book and film in 2010. Kenney conceived his Ghostman character as a masked thief with “ghost-like abilities” who returns from retirement for “one final score.” Kenney registered his Ghostman screenplay with the Writers Guild of America and promoted the film (now in post-production) through a website and press interviews. See the trailer here.
Kenney soon learned that Warner Brothers had acquired rights to produce a film based on Roger Hobbs’s novel Ghostman, which also features a thief of the same name who “avoids the FBI like a ghost.” See the book’s promotional video here.
In 2013, Kenney sued Warner Brothers for copyright infringement. To avoid dismissal, he was required to allege three things: (1) that he owned a copyright in his version of Ghostman, (2) that Warner Brothers actually copied his work, and (3) that the copying was so extensive that Warner Brothers’s Ghostman was “substantially similar” to his own. Unfortunately for Kenney, Judge Stearns ruled that he failed to adequately allege both actual copying and substantial similarity.
To allege that Warner Brothers actually copied his version of Ghostman, Kenney of course had to show that Warner Brothers had access to his work. Kenney asserted that he created access when he registered his Ghostman with the Writer’s Guild, but Judge Stearns concluded that mere registration could not make the work publicly available. Kenney also alleged that he distributed information about his Ghostman through media interviews, but Judge Stearns found these allegations insufficiently specific. Judge Stearns also held that the information available on Kenney’s website was too limited to permit significant copying. Because Kenney did not establish that Warner Brothers had access to his work, his claim could not succeed.
Judge Stearns also ruled in the alternative that any similarity between the two works was not substantial. The main obstacle here was that Kenney had evidently never seen Warner Brothers’s infringing film or screenplay (which may not even exist yet). Consequently, the alleged similarities between the Kenney Ghostman and the Warner Brothers Ghostman were necessarily limited to general thematic elements. But copyright law protects the expression of a theme, not the theme itself. Kenney could not show the necessary substantial similarity without more.
Judge Stearns dismissed Kenney’s claim with prejudice, possibly because Kenney had already amended his complaint once before. This outcome leaves Kenney set for appeal, if he chooses. It appears, however, that Kenney faces an uphill battle to reverse the decision, if he cannot point to a mechanism of access or to copying of specific content (as opposed to general themes). Post-Twombley, the bar is higher for potential plaintiffs. Claims that might once have survived dismissal and gone into discovery now vanish like… a ghost.