Recall that copying involves the factual issue of whether the defendant actually used the plaintiff’s work in order to create the work. Lacking direct evidence, copying can be proved by circumstantial evidence establishing (1) access to the plaintiff’s work and (2) similarities between the works.
Once a project is completed and released, it’s easier to compare the final work (the one being alleged to be infringing) with the plaintiff’s work (what someone feels has been “ripped off”). But if for whatever reason one wanted to file a lawsuit before a project is released – and thus in development, the formal filing of a lawsuit brings with it discovery rights.
In that process, you can then seek access to information to compare the works; but this only makes sense if a plaintiff can establish that the defendant had 1) access to the plaintiff’s work. The deposition process then allows the plaintiff to further ask questions of the defendant under sworn testimony and crack open the pandora’s box whereby one can, for example, then access
- Any communications that would show duplicity, bad faith, or efforts to circumvent the plaintiff;
- Materials including but not limited to treatments, bibles, scripts.
Remember “The Last Samurai” lawsuit which John Marder was litigating in the 2000s? The movie came out in 2003, the lawsuit was filed subsequently and by 2012:
“In the course of discovery, an anonymous source produced documents incriminating to Warner Bros.“
By then, Marder was at the Marder Zink & Karlzen. As mentioned, when there is smoke, there’s oftentimes fire. Even though the Benay’s did not prevail, the reasons had to do with the plaintiffs failing to demonstrate that the defendants had access to the plaintiff’s work. The Benays claimed that their script was submitted in 2000 by their agent to the production company run by producers Marshall Herskovitz and Ed Zwick (and was later used as a basis for the 2003 film).
In February 2012, Judge Philip Gutierrez determined that the plaintiffs had not established sufficient “privity” to show that the studio shared knowledge of the writers’ screenplay.
Then in April 2012, after a seven-day trial in U.S. District Court in Los Angeles, a jury ruled that the script never was submitted in the first place. All other issues in the case, including whether an “implied” contract existed between Bedford Falls and the Benay brothers, were thus rendered moot, giving Herskovitz and Zwick a victory.
For what it’s worth, when Viacom unsuccessfully sued YouTube for copyright infringement, it failed to reach the desired outcome partly because during discovery, Viacom employees revealed that they had willingly uploaded videos from Comedy Central to YouTube.
Destruction of Evidence
When you send a complaint to a counterparty, there’s a risk that evidence could be tampered with, deleted, and so on. This is why sometimes companies seek Anton Piller orders. But, the reality is that generally speaking, in these matters, the coverup is worse than the crime.
Next up: Ethical vs Legal, more. Meanwhile, if you want to share your experience or contact me, you can do so using this form.