Tuesday, August 02, 2005

How it Should Be Done

Every now and then one reads an opinion that is so right, you think "that's how it should be done." Mowry v. Viacom International, Inc. 2005 WL 1793773, 2005 U.S. Dist. LEXIS 15189 (S.D.N.Y. July 29, 2005)(03 Civ. 3090 (AJP), an 18-page opinion issued by Judge Andrew Peck, Chief Magistrate Judge of the SDNY, is one of those opinions. (The case was decided under 28 USC sec. 636(c), for cognoscenti).

Mowry is a bread and butter dispute: someone writes an unpublished screenplay and claims that a well-known movie (here "The Truman Show") infringed. There is no evidence of access. An expert is hired and attempts to establish sufficient evidence of striking similarity through a comparison of the two works.

What makes Mowry so special is solely Judge Peck's (typical) extraordinary thoroughness, clear reasoning, and writing. His opinions are usually a precis of the relevant field, and Mowry is of a piece. If you want to find the latest (as well as many older but still relevant) cites to any issue on infringement (the discussion of "industry access" is excellent), here is your handbook.

A Judge Peck opinion usually has some sly, sardonic humor, present here in describing plaintiff's linguistics expert: "Mowry points to no case in which an expert using cladistic or phylogenetic tree analysis has been used to show striking similarity (or even substantial similarity) between literary works, and the Court's research has found no such cases. 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."

Bravo all around. I urge everyone to read and consult the opinion.


Anonymous said...

Here's the URL for the opinion itself:


Anonymous said...

Footnote 11 takes a swipe at the Plaintiff's definition of the entertainment business to include "all the unemployed actors and actresses who wait tables or park cars while waiting for their break" and also belittles the Plaintiff's testimony that he gave the script to two realtors in California hoping they would pass it on. I suppose most would break a smile at this; certainly New York sophisticates or anyone else who thinks they know how a Scott Rudin would really come by a good script - - presumably only from people of a certain quality!

I know that when I worked on similar matters at a major studio, I might have cheered on this magistrate, just on general principles.

But artists who are not knighted must do all manner of supplications to gain entry to the kingdom. Menial jobs while waiting for a "break" are in fact a part of the intimate fabric of the entertainment business - - not a joke. Casual conversations and casual acquaintances are often part of the glue that creates a network of connections for the many participants in the industry who are not part of the very inner circles, such as Scott Rudin. And Scott Rudin not only knows this to be true, he respects it as well. No decent person in the entertainment business snickers at parking attendants. They know the nerdy clerk behind the counter at 20/20 Video might one day direct not just "Kill Bill" but also "Kill Bill II."

It seems to me the result in the case was appropriate. The opinion certainly is well considered and expansive. But it’s easy in summary judgments to jump to poorly formed conclusions on the facts in the rush to establish that the law (or judge) alone can dispose of the matter.

Mike said...

I think that Mr. Patry just likes the decision because it mentions him on page 14.