.. the love you take is equal to the love you make. In the end, Pro se plaintiff (and lawyer) Marie Flaherty, who, has been litigating a claim of copyright infringement for four years, will have to end her quest. The allegedly infringing work, is the film "Bringing Down the House," which is alleged to have infringed plaintiff's screenplay. In the latest of a series of opinions in the case, Judge Swain of the SDNY addressed a recurring question of interest, Flaherty v. Filardi et al., No. 03 Civ. 2167 (S.D.N .Y. Sept. 17, 2007): which version of defendant's work does one look at to determine the ultimate question of substantial similarity? Do we look at the final product, or also at preliminary drafts? The issue is a recurring one in the film industry due to the large number of drafts that screenplays and movies go through, and because plaintiffs frequently make meritless and invasive discovery claims in a desperate effort to get to a jury (the latest opinion was decided on summary judgment, it should be noted).
The correct answer is the final version, as Judge Swain wrote:
As other courts in this district have held, "[s]ince the ultimate test of infringement must be the film as produced and broadcast, we do not consider the preliminary scripts." Davis v. United Artists, 547 f. Supp. 722, 724 n.9 (S.D.N.Y. 1982). "In determining copyright infringement,... [t]he Court considers the works as they were presented to the public." Walker v. Time Life Films, 615 F. Supp. 430, 434 (S.D.N.Y. 1985).
In the motion picture cases, preserving this principle is important since plaintiffs are attempting to create inferences based on nothing, e.g., the presence once of a passage which allegedly is strikingly similar; its deletion is then used to "prove" access and to permit the case to go to a jury. But the principle exists at the other end of the spectrum too: courts have held that one is permitted to start with a copyrighted work and make sufficient changes so long as the end product is not substantially similar. This approach makes sense both because the harm from infringement is from the reaction of the ordinary observer who might buy the work, and because intermediate copying should not be infringement at all.
(HT to Jeff Conciatori).