Petition for Writ of Certiorari — Fodor v. Time Warner, Inc.

Supreme Court brief1994

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Suoreme Court, U.S,

i ee oe

9 4-65 JUN 10199

No. OFFICE OF THE CLERK

IN THE SUPREME COURT OF THE

UNITED STATES

October Term, 1994

GYORGY FODOR,

Petitioner

Vv.

TIME WARNER, INC., WARNER COMMUNICATIONS

CO., WARNER BOOKS, INC., WARNER BROTHERS,

INC., JACK MEREK, DENNIS ANDERSON

Respondent

On Appeal from the

United States Court of Appeal

for the Ninth Circuit

PETITON FOR WRIT OF CERTIORARI

Richard A. Morse, Esq.

Attoney for Petitoner

LAW OFFICES OF MELVIN M. BELLI

9952 Santa Monica Boulevard

Beverly Hills California 90212

(310) 553-1849

2 > : a a io oo : os , Tags

tite . *- ies i, P *

Py te Y oe y . > > Oe od a” ren a Jim, 5

QUESTIONS PRESENTED FOR REVIEW

I. Whether the ruling of the U.S.

Ninth Circuit Court of Appeals is

violative of Article I, Section 8[8] of

the U.S. Constitution when it disregarded

the mandate of 17 U.S.C. 410(c) and 17

U.S.C. 101 in refusing to recognize that

Petitioner’s Certificate of Copyright

Registration did establish a “prima facie”

case for his priority of authorship, and

that Defendants’ Certificate of Copyright

Registration was a “prima facie” evidence

proving the falsity of their claim of

prior independent creation when

Petitioner’s Copyright Certificate issued

in October 1987 with the attendant date of

creation being 1987, and while

Defendants’ allegedly infringing work

Carries a Copyright Certificate issued in

February 1989 with the date of creation

tg ee

Wt Nl OR a ees

being 1988 and no attendant claim of prior

registration nor any other claim that the

work is derivative or a compilation

affixed within Defendants’ Copyright

Certificate?

II. Whether it is a denial of

Petitioner’s Due Process rights as

guaranteed by the Fifth Amendment of the

U.S. Constitution, and a real and

embarrassing conflict of opinion and

authority among U.S. Courts of Appeai

under 17 U.S.C. 501 in that the U.S. Ninth

Circuit Court of Appeals affirmed on “de

novo” review, the District Court’s

granting of Summary Judgment to Defendants

based upon their claim of prior

independent creation, even though

Petitioner (the non-moving party)

undisputedly established under three

different theories his “prima facie” case

of copyright infringement and,

furthermore, documented that much of

Defendants’ material evidence was back-

dated, forged, and otherwise fabricated in

order to support their claim of prior

independent creation?

III. Whether it is a denial of

Petitioner’s Due Process rights, as well

as disregard of the Public's right to an

independent Federal Judiciary under

Article III, Section 1 of the U.S.

Constitution, when the U.S. Ninth Circuit

Court of Appeals disregarded and refused

to consider overwhelming evidence which,

under the standard of “de novo” review,

proved that the District Court’s Judgment

and Orders granting Defendants' Summary

Judgment were not decided by the District

Judge, and that the Judge’s signatures on

said Judgment and Orders were forged with

the use of his rubber-stamped facsimile

Signature, and whether the Ninth Circuit

iii

1 ne Alle ll tle HR's Senn

Jc hoe

Court’s affirmance of said Judgment and

Orders, secured by fraud perpetrated upon

the U.S. District Court, will erode the

Public’s confidence in the independence of

the Federal Judiciary?

Liv

as SO ORIEL EE ACL

A al las soeeidmeinaaniil

LIST OF PARTIES

RULE 29.1 LIST

The parties to the proceedings below

were the same parties named in the caption

of this Petition. Petitioner Gyorgy Fodor

is an individual, and has neither a parent

corporation nor any nonwholly owned

subsidiaries.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .... iii

LIST OF PARTIES

is big Oe doe’ ee oot &* vil

STATEMENT OF JURISDICTION .........

| STATUTES AND CONSTITUTIONAL

; jy Pek Res Eee |’ 3) A's + 9 Rh a ere

| Saeeeeeeeee We Shem CAGE 2c ccc cece tees 1

| REASONS FOR GRANTING THE WRIT ..... 34; 10

LL Le A EF LE NE TE ER ee ae et "

CONCLUSION

APPENDIX

PR EMIS IR YD RRR RN SOE ERD IOS SF EES. 8 IEA TNR aD pT RORE

eR RE REN IIR

5 i Sin hd ONAN AE

_ iii iia ins a a Rc RS IAD ios WA SOO °

Aaitnnalaish nc gaia

at 423 (9th Cir. 1987)

TABLE OF AUTHORITIES

UNITED STATES SUPREME

COURT CASES:

477 US 242 at 255,

9. 4.86 24 202, 106 S. Ct. 2505 .... 23

Hazel-Atlas Glass Co, y.

Hartford Empire Co. (1944)

322 U.S. 238, 246, 64 S$ Ct 997,

88 L.Ed 1250

BLU O58. 326, 535,

} ea

458 US 50, 58,

73 Lb. Bd. 2d 598

Steel Co. vy, Cambria Iron Co.

22S Ct. 698, 185 U.S. 403,

ESET St ee a 32

Truax et al v. Corrigan, et al

42 Sup. Ct. 24 at 129

CASES:

Baxter v. MCA, Inc., 812 F.2d 421

| 50 L.Ed. 2d 588 (1976)

iat

$1162 (9th Cir. 1977)

California Pacific Bank. v.

poy

1977, 557 # 2a 218 Page 222

Jeweler’s Circular Pub. Co. yv.

Keystone Pub, Co. (1922)

281 F 83, cert. den.259 US 581,

66 L Ed 1074, 42 S.ct. 464

Lawrence vy. Dana (CC Mass)

F Cas No 8136

Revher v. Children’s Television

Workshop, 533 F.2d 87, 90

(2d Cir. 1976), cert. denied,

429 U.S. 980, FF SS Ct. 492,

Sid & Marty Krofft Television

Productions. Inc.,. vy.

: , 262 F.2d 1157,

Universal Athletic Sales co. Vv.

salkeld, 511 F.2d 904, 907 (3rd.

Cir.1975), cert. denied, 423 u.s.

S63, 36 §.Ct. 123, 46

L.Ed. 2d 92 (1975)

US. ,

1971 442 F 2d 517 at 522

U.S. Vv. Marino

oun ee ee BIO 28

viii

U.S. v Palow, 777 F.2d 52 (1985)

cert. den. 475 U.S. 1052 89

iomevae geo, 206 $.Ct.1277) ......- 28-29

U.S. v. Fernandez 892 F.2d 976 ..... 38

CONSTITUTIONAL PROVISIONS:

Fifth Amendment

Ck Gme U8. Comscitution .......... C.F ¥

Article I, Section 8,

Ba a ne 14

Article III of the

ee 45-47

PEDERAL STATUTES:

ee ee ye

re 5 as oe

eS os a ec ceo ce cl ceceen. 11

OO 9 ak oe es oe ee enn 10

ae 1

FRE 801(d) (2) (A) and (B) .......... 27,

Fe MN UI ne + bk dik ae oko 44

heecgh cain nah eR Oe PE ee Pen ee eee 30

Wenn” eet Ae OT ak Ss ps ca 9

) TREATISES:

2Nimmer on Copyright

G4 Oe O10 = 611 (1979) ......... 19-20

| Nimmer On Copyright, volume ae

1993, 13.01 ({B} 13-12

nh a SE CEO ae ae er ree 22

The Almanac of the Federal

Judiciary, 1992 volume aa

# Page 52

et) Le a a ee, ee lee eS ee 6 Oe eae

SP S08 Ot 6:6 b6 48's SOs SD

Bae

October Term 1994

No.

GYORGY FODOR,

Petitioner

| TIME WARNER, INC., et al.

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

SUPREME COURT OF THE UNITED STATES

To the Honorable, The Chief Justice

and Associate Justices of the Supreme

Court of the United States:

GYORGY FODOR, Petitioner herein,

respectfully prays that a Writ of

Certiorari issue to review the judgment

and orders of the United States Court of

Appeals for the Ninth Circuit, entered on

ithe above-entitled case on March 2, 1994.

OPINIONS BELOW

The unpublished opinion of the

} United States Court of Appeals for the

Ninth Circuit is reprinted in the

} Appendix hereto at Page A-1.

STATEMENT OF JURISDICTION

The unpublished Memorandum of the

;Court of Appeals was entered on March 2,

1994, a Petition for Rehearing with the

ssuggestion of appropriateness of

jrehearing en banc was denied on April 21,

41994. The jurisdiction of this Court is

x ities

invoked pursuant to 28 U.S.C. 1254(1)

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

This case involves the following

Statutory provisions:

i i at i

17 U.S.C. §101

17 U.S.C. §410

17 U.S.C. §501

These statutes are reproduced in the

|}Appendix hereto at A-38 and A-39.

Also cited herein:

Fifth Amendment, Article I, Section

8 and Article III of the United States

ah ea tc Rater WP the RN SAS AS NR gS pL GL sel ES saat pedereate

‘Constitution. Those Constitutional

iprovisions are reproduced in Appendix,

ipages A36 and A37.

semncemnntns en Rt RD IPO

mee a nae ee ee ee ee a ce me me ee ee i ee ee

STATEMENT OF THE CASE

Petitioner brought this action in

i the Central District of California on May

32, 1990, invoking federal jurisdiction

for Copyright Infringement under 28

9 U.S.C. 1338(a) and federal jurisdiction

| for the State’s Unfair Competition claim

junder 28 U.S.C. 1338(b).

Petitioner filed his First Amended

|Complaint on July 23, 1990, setting

Tforth new charges that Defendants Time

gWarner Inc., et al. had produced, during

discovery under oath, a large volume of

Iforged, fabricated, and back-dated

tdocumentary evidence and also proffered

iperjurious testimonial evidence to

pSupport their created claim of “prior +

lindependent creation.”

To support his case, Petitioner

Mirstly relied upon the best evidence

Mvailable, the Certificates of Copyright

PE NE OSS RIES, Pa os MS Tap Ont sa OL AE

LT Re Et ee AINE 2S 2 * eR EOET ES «. Oe

RE VERNON, SEE SS IT, FE De OI

_humber of substantial similarities

Registration for his and Defendants’

work. Petitioner’s Copyright Certificate

was registered in October 1987, with the

date of creation being 1987. Defendants’

February 1989, with the date of creation

being 1988 and no indication within the

Certificate that the work so copyrighted

was “derivative” or a "compilation" of

any earlier work. Under 17 U.S.C. 410(c)

and 17 U.S.C. 101, Petitioner argued his

Certificate of Copyright mandatorily and

unconditionally sustained his priority of

authorship and the falsity of Defendants’

claim of prior independent creation.

To support his case, Petitioner also

documented Defendants’ undisputed access

to his work one year prior to Defendants’

publication of their allegedly infringing

work. He also documented a probative

between the two works, which even

included the undisputed occurrence of

common errors.

To support the allegations of false

evidence, Petitioner documented, among

numerous problems, gross inconsistencies

j in the deposition of Defendants’ putative

author, including his inability to

explain the existence of the common

errors between his alleged work and

3 Petitioner’s. Petitioner also documented

9} Defendants’ inability to resolve their

galleged date of creation (1986) with

geither their Copyright or other critical

On January 3, 1991, the U.S.

District Court denied Defendants’ Motion

for Summary Judgment which they had based

upon the argument of “prior independent

creation" . The District Court found

“substantial” Similarities and access to

Petitioner’s work one year prior to

Publication of Defendants’ work (Appendix

ae PRET OMI A, Meaty Riis sial as Aelia ibaitiblan tetas dal iabtincacie PETER, . Pitan oy x:

A-11). A few days later, the District

Court set trial for September 1991,

| Within days, Defendants moved for

i Reconsideration based on the same

argument of prior independent creation,

i based on the same ailegedly manufactured

evidence.

On July 10,1991, Defendants moved

for a second Summary Judgment, also

| based on the Same elements as before. on

July 29, 1991, Petitioner filed for

Partial Summary Judgment, seeking summary

adjudication on the matter of prior

independent creation, based on the Clear

falsity of certain banking documents

PA ESE VN) i CREST TD eae Sees Ay Sots es eae LCE St and

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aE A BEE TL, See Stk I at it te Ma eae 7 Anne? cE eds tae

which Defendants had produced to further

buttress their claim of prior independent

creation. Banking documents submitted by

defendants included a check of payment to

their putative author for over

$60,000.00. According to Defendants’ own

records, the funds were credited to the

author’s bank account the day before he

purportedly brought it in for deposit,

according to the various bank stamps. In

deposition, the bank’s Custodian of

Records testified the transaction was

impossible to explain. Petitioner’s

banking expert also so testified in

deposition.

On August 14, 1991, a Minute Order

-- unsigned by the District Judge --

continued the trial date to November

1991, in violation of Local Rule 11.1.2.

requiring such continuances be approved

in writing by the Judge. Instead, the

Minute Order was approved in writing by a

Clerk.

On October 21, 1991, an Order vacated the

November trial date, in violation of

Local Rule 11.1.2.(A-41), requiring such

Orders be approved in writing by the

Judge. This Order bore only a rubber-

stamped facsimile signature of the Judge.

On August 31, 1992, the U.S.

District Court apparently reversed

itself, granting Time Warner’s Motion for

Reconsideration and granting Summary

Judgment. The Judgment came 570 days

after the Motion for Reconsideration had

been filed, 450 days beyond the legal

time limit set by Local Rule 32.

Furthermore, the Judgment and the

| accompanying Order (Appendix Pg. A-17)

and Statement of Uncontroverted Facts and

Conclusions of Law were not hand-signed

by the Judge as required by law, and is

the Court's custom and practice. They

were all rubber-stamped with the Judge’s

facsimile signature. This is the first

time in the case at bar and in any other

case in the Central

District of California wherein a

substantive Order or Judgment is not

hand-signed by a Judge, according to

extensive research of the District Court

files by Petitioner’s attorney.

On September 14, 1992, Petitioner

filed a Notice of Appeal with the Ninth

Circuit.

On November 9, 1992, the U.S.

District Court sanctioned Petitioner,

ordering him to pay Defendants $169,

987.50 for his failure to admit the

authenticity of Defendants’ documentary

evidence. The Order was not hand-signed

by the Judge, but rubber-stamped with

his facsimile signature, with no

EE A

Opportunity to appear and be heard

allowed.

In January 1993, Petitioner filed a

Writ of Mandamus in the Ninth Circuit,

seeking to void the Judgment and Orders,

arguing Denial of Due Process based upon

a series of failures of the District

Court’s procedural Due Process

protections which allowed Defendants Time

Warner, et al., to decide the case in

their favor and further to oppress

Petitioner by attempting to extort fees

in wild excess of any monetary awards

ever granted in copyright cases (for a

discovery motion), all without benefit to

Petitioner of any appearance or hearing

in open court. The District Judge was

personally served with a copy of the Writ

in his chambers.

The Ninth Circuit Court of Appeals

denied the Writ. The District Court

remained silent.

On March 5, 1993, Petitioner filed

the Opening Brief of his Appeal, which

raised the above issues of Denial of Due

Process and Fraud upon the Court. The

District Judge was served with a copy of

the brief in his chambers.

In May 1993, Petitioner attempted

to appear before the U.S. District Judge

by filing a Rule 60(b)(3)(4) Motion,

Claiming fraud upon the Court and seeking

to void the Judgment and Orders.

On June 17, 1993, the District

Court issued an Order denying a hearing

on the Rule 60 Motion with another

rubber-stamped facsimile signature of the

Judge.

On June 23, 1993, Petitioner filed

another Petition for Writ of Mandamus

with the Ninth Circuit, seeking an Order

to direct the District Court to have an

open court hearing on the Ruie 60 Motion,

arguing it was indispensable for

Petitioner’s Due Process rights. The

District Judge was personally served with

a copy of the Petition in his chambers.

The Ninth Circuit Court of Appeals denied

the Writ. The District Court remained

silent.

On July 23, 1993, Petitioner filed

with the Ninth Circuit a Petition for

Rehearing with Suggestion of

Appropriateness of Rehearing en Banc.

The Petition for Rehearing, on Page 8,

Paragraph (d), states:

“When these tactics failed,

Time Warner apparently

conspired to impede, obstruct

and defeat lawful functions of

the District Court, delayed

the ruling on a motion for 570

days, causing the District

Court to reverse itself and

then causing an award to

themselves, for a discovery

motion, for attorneys’ fees in

the amount in excess of

$169,000.00. This violated

the Fifth and Eighth

Amendments of the Constitution

and several sections of 18

U.S.C. 371 and other criminal

offenses.”

The Petition was also personally

served on the District Judge in his

chambers. The Ninth Circuit denied the

Petition. The District Court still

remained silent.

On December 2, 1993, Petitioner was

again sanctioned, this time in the amount

of $250.00 a day for his refusal to admit

the legitimacy of the District Court’s

non=-signed Order and Judgment. The Order

to pay sanctions carried a rubber-stamped

facsimile signature of a Federal

Magistrate in the Central District and

came without any Opportunity to appear or

to be heard in open court, though

requested.

On February 2, 1994, the case was

argued before the Ninth Circuit Court of

Appeals. Many of the allegations of

judicial improprieties were reviewed,

along with the merits of the Copyright

Infringement and Unfair Competition

claims.

Petitioner’s attorney argued that

pursuant to Federal Rules of Evidence,

Rule 406, Habit, Routine and Practice,

there is highly persuasive evidence that

the above-described actions of the U.S.

District Court could not have been

executed by a Judge, but by Time Warner,

in conspiracy with his Clerk(s). One of

the Appellate Judges, in questioning

Defendants’ attorney, observed that some

of the writing within the Order granting

Defendants their Summary Judgment Motion

read as if it had been written not by a

Judge but by a lawyer, "to the Court" not

"by" the Court.

Nonetheless, on March 2, 1994,

the Ninth Circuit Court of Appeals

affirmed the District Court’s Dismissal

of Petitioner’s Copyright Infringement

and Unfair Competition claims. As to the

matter of the enormous attorneys’ fees,

the Appeals Court ruled , “Fodor appears

to have a colorable claim that he denied

the authenticity of some of the banking

documents in good faith, based upon the

opinion of his expert...” and in its

unpublished Memorandum States, “Moreover,

we remand the attorney’s fees for

reconsideration of the amount awarded.”

In essence, the Appeals Court

concedes there might be legitimacy to

Petitioner’s denial of the authenticity

of Defendants’ evidence yet rather than

the trier of fact, instead seeks to

punish Petitioner by continuing to allow

the District Court to set sanctions

against him ($250.00 per day).

Furthermore, this ruling forces

4 Petitioner back into the same courtroom

that has been seriously compromised by

Defendants and is Operating contrary to

the law regarding Due Process

protections.

Petitioner filed for Rehearing with

Suggestion of Appropriateness of

Rehearing en Banc. The Petition was

} denied by the Ninth Circuit on April 21,

3 1994.

REASONS FOR GRANTING THE WRIT

EL ERS UOTE = =OUWRIT

5 I. “TO PROMOTE THE PROGRESS OF SCIENCE

AND THE USEFUL ARTS, BY SECURING FOR

LIMITED TIMES TO AUTHORS AND

INVENTORS THE EXCLUSIVE RIGHT TO

THEIR RESPECTIVE WRITINGS AND

DISCOVERIES.” (ARTICLE I, SECTION 8,

U.S. CONSTITUTION. )

remand the case for resolution by a jury,

iV ITIR NS IK EG RP DT SRW fk gL 09 ark OS ABE RE eae rr ae

The securing of exclusive rights to

an Author is achieved by - inter alia -

the mandate embodied in 17 U.S.C. 410(c)

and 17 U.S.C. 101. The willful disregard

of the plain and mandatory language of

the above statute by the Ninth Circuit,

denied to this Author, the Petitioner,

the rightful benefits to his Writings as

guaranteed by the U.S. Constitution by

deciding the prior creation issue (a

factual issue) in Defendant’s favor.

Petitioner secured his Copyright

Registration Certificate in October 1987

which affixes the date of creation in

1987.

Defendants Time Warner Inc. et al.

secured their Copyright Registration

Certificate in 1989, affixing the date of

creation in 1988 with no indication of

any prior registration nor any indication

that the work was a derivative or a

PORE NGI REO IR MASEL EDTA S SESE METRE ERE IR GEN EEL

ARE Rie

compilation of any other, earlier work.

Given the myriad of questions about the

authenticity of most of Defendants’

evidence, it should be noted that the two

the United States Library of Congress

well before the onset of litigation and,

hence, are among the most probative,

independently verifiable pieces of

evidence in existence.

“In any judicial proceedings, the

certificate of a registration made

before or within five years after

first publication of the work shall

constitute prima facie evidence of

the validity of the copyright and

of the facts stated in the

certificate.” (17 U.S.C. 410(c))

“A work is ‘created’ when it is

fixed in a copy or phonorecord for

the first time; where a work is

prepared over a period of time, the

portion of it that has been fixed at

any particular time constitutes the

work as of that time, and where the

work has been prepared in different

versions, each version constitutes

a separate work.” (17 U.S.C. 101)

“A work is ‘fixed’ in a tangible

medium of expression when its

embodiment in a copy or

phonorecord, by or under the

authority of the author, is

sufficiently permanent or

stable to permit it to be perceived,

reproduced or otherwise communicated

for a period of more than transitory

duration.” (17 U.S.C. 101)

The language of the statute is plain

and mandatory. The Ninth Circuit’s

finding that Defendants’ Certificate of

Registration is consistent with their

claim of creation one year prior to

Petitioner’s is a blatant and willful

disregard of the mandate of the law.

Petitioner’s Certificate of

evidence of the priority of his

authorship while Defendants’ Certificate

attests the prima facie evidence that

their claim of earlier independent

creation, purportedly predating

Petitioner’s by one year, is a fraud.

The specificity of the Copyright

Law is of crucial importance to the

public interest. The U.S. Constitution

guarantees authors the right to their

works exclusively but for a limited time,

after which the public can freely benefit

from the works of authors and inventors,

and the progression of Science and the

Arts. However, if during the limited

time of exclusive rights, an Author

cannot Claim the protection of Law, then

plagiarists, infringers and thieves can

freely take whatever they please. Authors

will be forced into other occupations,

unable to earn any living with their

writings. Ultimately, the public will

pay the price and society will suffer.

II. THE NINTH CIRCUIT HAS DENIED

PETITIONER DUE PROCESS AND IN SO

DOING HAS CREATED AN EMBARRASSING

CONFLICT OF OPINION AND AUTHORITY

NOT ONLY WITHIN THE CIRCUIT ITSELF,

BUT ALSO BETWEEN THE CIRCUIT AND

OTHER COURTS OF APPEAL.

Petitioner established a prima facie

case for his claims based not only on the

undisputed ownership of a valid

undisputed access, substantial similarity

and the undisputed occurrence of common

errors (two) between his work and

Defendants’. The U.S. District Judge in

denying Defendants’ First Motion for

Summary Judgment so ruled based on

findings of both access and substantial

Similarity (Appendix Pg.A-11).

Circuit Judge Tang, who authored

the Memorandum in this Appeal (Appendix,

™ Pg. A-1), also understands the mandate of

the law as amply demonstrated in an

@ Opinion he authored in 1987. “To

establish a successful claim for

must prove (1) ownership of the

protectible expression by defendant".

See Sid & Marty Krofft Television

Productions, Inc., vy. McDonald’s Corp.,

562 F.2d 1157, 1162 (9th Cir. 1977)

citing Reyher_ v. Children’s Television

Workshop, 533 F.2d 87, 90 (2d Cir. 1976),

cert. denied, 429 u.s. 980, 97S. Ct.

492, 50 L.Ed. 2d 588 (1976); Universal

Athletic Sales Co. vy. Salkeld, 511 F.2d

904, 907 (3rd. Cir.1975), cert. denied,

423 U.S. 863, 96 S.Ct. 122, 46 L.Ed. 2d

92 (1975); 2 M. Nimmer, Nimmer on

Because direct evidence of copying is

rarely available, a plaintiff may

establish copying by circumstantial

evidence of (1) defendant’s access to the

copyrighted work prior to the creation of

defendant’s work, and (2) substantial

Similarity of both general ideas and

expression between the copyrighted work

and the defendant’s work. See Krofft,

562 F.2d 1156 at 1162.” Baxter v,. MCA,

inc., 812 F.2d 421 at 423 (9th cir.

1987)

Thus for Judge Tang to have denied

Petitioner’s right to a jury trial based

, On Petitioner’s successful proof of

; copyright infringement according to law

is not a simple error or a matter of

chance. It is a willful disregard of

Petitioner’s Constitutional rights.

j Wich regard to Summary Judgment,

Petitioner met all the requisites of a

successful copyright infringement claim

for which he has the burden of producing

evidence at trial. Nowhere within the

OG Bac a tC

: Standards of Summary Judgment is

Petitioner required to produce evidence

regarding any defense claim. Defendants’

claims about prior independent creation

mmm a ne

are wholly improper for Summary Judgment

considerations. Indeed, the law requires

that Petitioner’s prima facie case is to

be believed and referred to the trier of

SS OSELNE Tanne, Ch ceria ae cs ee

fact. Yet nowhere in the Appellate

ruling on this case, was the importance

of this fundamental principle taken into

consideration. Petitioner’s case of

undisputed access and substantial

Similarity is Simply ignored by the Ninth

Circuit, in denial of Due Process.

Also ignored by the Ninth Circuit

is the crucial issue of undisputed common

errors between the two works. The dictate

of the Law is Clearly spelled out by

Professor Nimmer.

“Therefore copying is ordinarily

established indirectly by the

Plaintiff’s proof of access and

‘substantial’ similarity... Professor

Latman wisely counsels that, in the

previous formulation, the term

‘substantial Similarity’ be

discarded in favor of ‘probative

Similarity.’ In other words, when

rset tbapmrdaarg iain: nampa oh atti Rage

Seize Bias wei dec anit di aca siege thao ie an

the question is copying as a factual

matter, then similarities that, in

the normal course of events, would

not be expected to arise

independently in the two works are

probative of defendant’s having

copied as a factual matter from

Plaintiff’s work. At 31.2 infra:

One such example is common

errors...Otherwise stated, such

Similarities negate defendant’s

Claim of independent creation.”

(Nimmer On Copyright, volume 3,

1993, 13.01 {B} 13-12 and 13- 13).

(Appendix Pg. A-40)

By granting Defendants their

argument of prior independent creation,

the Ninth Circuit:

(a) disregards Petitioner’s

conclusive evidence under “de novo

review” based on copyright priority,

undisputed common errors and undisputed

access combined with substantial

Similarities,

(b) sustains an erroneous ruling by

the District Court and, in so doing

determination that must be left to the

trier of fact, i.e. a jury.

“Credibility determinations, the

weighing of the evidence, and the drawing

of legitimate inferences from the facts

are jury functions, not those of a judge,

whether the judge is ruling on a motion

for summary judgment or on a motion for A

directed verdict.” (Anderson v. Liberty

Lobby. Inc., 477 US 242 at 255, 91 L.Ed

2d 202, 106 S. Ct. 2505.) “The standards

of ‘de novo' review are similar to that

of the standards of summary judgment".

(Baxter v. MCA, Inc., 812 F. 2d 421 at

423. 9th Cir. [1987])

Not only is the Ninth Circuit in

conflict with its own rulings in earlier

cases, it is in conflict with other

Appellate Courts:

“Proof of common errors and blunders

common to plaintiff’s work and their

reproduction in defendant’s

production creates prima facie case

of infringement.” Jeweler’s Circular

Pub, Co, v. Keystone Pub. Co.

({1922]) 281 F 83, cert. den.259 us

581, 66 L Ed 1074, 42 S.ct. 464.)

“Similarity of errors and

peculiarities is strong proof of

copying; reproduction of clerical

and typographical errors proves

piracy.” Lawrence v. Dana (CC Mass)

F Cas No 8136.

Significantly, Defendants copied a

typographical error and one glaring

factual error from Petitioner’s work, and

never have, nor could explain the

occurrence of these common errors between

the two works.

Therefore under the circumstances

of the matter at bar, the issue of

independent creation , as a matter of law

is for a jury, the trier of fact.

In further denial of Petitioner’s

Due Process rights, the Ninth Circuit

disregarded and refused to consider

perjurious testimony by the two key

wh ety Wake

eGR RE MMe y WIE TY

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defense witnesses wherein Petitioner

flagged material statements made under

oath so inconsistent that each witness

had to be lying at one point or another

within his deposition. The putative

author stated under oath that in his

alleged work, an airplane which is the

central plot device, can only fly at

subsonic speeds. Yet in the allegedly

infringing work, the same plane flies at

Supersonic speeds (i.e. over MACH 1).

Without such high speeds, the storyline

does not work. The putative author

cannot, in fact, be the real author not

knowing what the central plot device is

within the infringing work.

The other key defense witness --

Petitioner’s contact (and one of two

points of “access") at Warner Bros. --

testified in deposition that he had never

met Petitioner years earlier (early

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1980's) in Paris, France. Yet, during

discovery, the studio produced documents

generated by this executive proving he

had a confidential, working relationship

with Petitioner which began in Paris in

1983. Furthermore, the deposition of a

former, high-ranking Warner Bros.

employee confirmed the above executive

was Petitioner’s contact and “point man"

for his film project in Paris.

The Ninth Circuit reconciled these

perjurious and material inconsistencies

even though, “where the different parts

of a witness’s testimony are

inconsistent, it is for the jury to

reconcile the conflicting statements and

determine which shall prevail.” (U.S, v.

Barbarra, 1971 442 F 2d 517 at 324.)

The Ninth Circuit further erred

and refused to follow the law when it

ruled that a newspaper article which

Oe ee i a a

Defendants submitted into evidence under

oath, was not an admission by a party-

opponent but inadmissible hearsay. In

fact, it is an admission by a party-

opponent under 801 FRE (d) (2) (A) and(B)

when the putative author submitted said

newspaper article into evidence in his

deposition to prove a material fact --

that he is the author of the allegedly

infringing work. The article goes on to

quote the author as stating that he found

the premise of his work in effect in

November 1988. This statement given to

the newspaper in 1989, prior to the

initiation of the lawsuit at bar, is

contrary to Defendants’ claim that

their work was “created” (i.e. the

premise) in 1986, a claim first asserted

after the filing of Petitioner’s lawsuit

in an obvious attempt to defeat it.

Indeed it is hard to reconcile Defendant

Time Warner’s claim that they purchased a

fully completed and final version of the

allegedly infringing work in March 1987,

when the author of the same work did not

find the premise of it until one and a

half year later in 1988.

“Just as silence in face of

accusation may constitute admission

to its truth, possession of written

Statement becomes adoption of its

contents and such statements are

not hearsay and may be admitted

into evidence. .

(1981) 658 F.2d 1120, 1125, Fed

Rules Evid. Sec. 1386.

“The requirement of 801(d) (2) (A),

that admission be offered against

party is designed to exclude

introduction of self- serving

Statements by the party who made

them, simply requires that admission

at issue be contrary to party’s

position at trial (U.S, vy

Palow,. 777 F. 2d 52 , 18 Fed,

cert. den.

1052 89 L.Ed.2d 585, 106

. 1277)

Accordingly, the Ninth Circuit

denied Petitioner’s right to the

protection and the benefit of the general

law.

The Ninth Circuit also disregarded

and refused to consider Petitioner’s

evidence showing Defendants had

fabricated documentary evidence to shore

up their claim of prior independent

creation. Petitioner flagged the

impossible nature of a banking

transaction in which the putative author

received a check of payment for over

$60,000.00 which, according to

Defendants’ own records, was credited

into his checking account the day before

he showed up to deposit it (as the

banking stamps confirmed). In a second

transaction, the putative author

allegedly cashed a one-month Certificate

of Deposit purchased with income from the

infringing work one vear before he even

purchased the Certificate! In

depositions, the Custodian of Records for

the bank and Petitioner’s own banking

expert both testified that such banking

transactions could not have occurred.

Under Rule 1008, Federal Rules of

“When an issue is raised (a)whether an

asserted writing ever existed...the issue

is for the trier of fact to determine as

in the cases of other issues of fact.”

(Emphasis added. )

The Ninth Circuit also failed to

refer this question to a jury, when

Petitioner properly raised the issue as

to whether the disputed banking documents

had even existed at the date claimed,

thus further denying Petitioner his Due

Process rights.

The Ninth Circuit attempted to

justify its actions by ruling: “However,

Fodor stipulated to the admission of

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these documents (the checks and

certificate of deposit) and agreed that

he would not challenge their

authenticity.” (Appendix Pg. A-1)

Petitioner never agreed nor

Stipulated that the checks were

authentic. That is Simply not written

into the stipulation. The stipulation

was for the convenience of both Sides,

who each wished to avoid foundation

issues and costs and who each wished to

use said documents offensively.

Furthermore, the stipulation specifically

Only related to documents received

directly from Morgan Guarantee. All the

banking documents questioned on appeal

were from First Interstate Bank. But

even if arguendo one reads into it what

the Ninth Circuit sees, use of a

Stipulation for furtherance or

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perpetration of fraud is not permitted

under the governing Law.

“Counsel, who has entered into a

Stipulation of facts to save delay,

may, upon giving notice in

sufficient time to prevent prejudice

to the opposite party, repudiate any

fact therein with respect to which

the facts subsequently developed

show that it was inadvertently

Signed.” Steel Co, y. Cambria Iron

Ca. 22S Ct. 698, 714, 185 U.s.

403. 46 L.Ed 968.

Petitioner’s Counsel gave written

notice to Defendants’ Counsel within days

of signing the stipulation that it was

not Petitioner’s intent to admit the

authenticity of the banking documents but

tO Save cost and delay by simply

foundationaly Stipulating that

Defendants’ banking documents were sent

to Petitioner by Defendants’ New York

bank (Morgan Guarantee). In fact, from

the time the banking documents were first

introduced as evidence, Petitioner has

always’ alleged that they are

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fabrications for the purposes of this

litigation.

Nothing on the banking documents

themselves specifies that they have any

real connection to the infringing work

whatsoever. Nonetheless, Defendants

attempted to link these bogus banking

documents to the allegedly infringing

work by submitting a number of other

back-dated, manufactured corporate

documents into evidence. One of these

other fabrications is a “Request for

Payment” to show that Defendants had

collected royalties for the allegedly

infringing work on April 23, 1987, almost

[wo vears before the work was first

published -- February 1989! The list of

Dlunders in the fabrication of

Defendants’ documentary evidence, is too

icng to list herein. However, the

960,000 check which cleared before it was

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42). Disregard of the law as shown here

is not the habit of this Judge.

Furthermore, Petitioner directed the

Ninth Circuit’s attention to Rule 406

with regard to the Judge’s handwritten

Signature. Extensive research of the

files by Petitioner’s attorney could not

find any other case where substantive

orders and judgments were not hand-signed

by this District Judge nor any other in

the Central District . The fact that all

substantive rulings in this case, after

the 570-day delay, carry only rubber-

stamped, facsimile signatures is, again,

not in the routine, habit or practice of

the District Judge or his Court.

Petitioner also directed the Ninth

circuit's attention to the Due Process

Clause of the Fifth Amendment which

mandates the judiciary give opportunity

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to appear and be heard to any party

about

to lose substantial property interests.

Yet in the case at bar, wherein a rubber-

stamped Order dictated Petitioner pay

Defendants over $169,000.00, additional

rubber-stamped Orders subsequently and

persistently denied Petitioner access to

an open court hearing. Petitioner has no

evidence to support a claim that the

District Judge routinely denies litigants

their constitutionally guaranteed rights.

It is more prudent to observe that his

routine, habit and practice are to uphold

the Constitution.

Petitioner further directed the

Ninth Circuit's attention to the fact

that it is not in the routine, habit or

practice of a District Judge first to

correctly identify triable issues of

material fact and set the case for a jury

trial, then to reverse himself (on the

same issues and evidence) and in so

doing, decide the issues which are wholly

improper under the standards of Summary

Judgment.

Furthermore, Petitioner pointed out

to the Ninth Circuit that the substance

and style of language within the Judgment

granting Defendants Summary Judgment was

radically different from the Judge's

previous writings in this case. Indeed,

during oral argument before the Ninth

Circuit, one of the Circuit Judges

observed to Defendants’ attorney that

the language granting them Summary

Judgment appeared to have been authored

by a lawyer, not by a judge, commenting

they were written "to the Court" not "by"

the Court. The Court then asked Defense

Counsel to admit whether he authored it.

As aoe

Taken together, Petitioner’s

arguments regarding the procedural

problems within the District Court,

affirmatively showed, Pursuant to Rule

406 and Rule 901(b) (4) of the Federal

Rules of Evidence, that the District

Court’s Judgment and Orders are not

authentic, in respect to the "de novo"

review standards.

“The Authentication requirement of

Rule 901 is not met where a report

offered in evidence is not Signed, author

is unknown, and no accompanying affidavit

attests to its validity.” (California

Pacific Bank, v. Small Business

Adminstration, 1977, 557 F.2d 218, at

222). This is the exact case at bar. The

Judgment and Orders are unsigned by the

Judge, the Author is unknown, and there

is no affidavit of any sort in support of

the authenticity of these documents. Nor

has the Court corrected this in its many

opportunities to do so.

For the Ninth Circuit to have

ruled, “Fodor provided no evidence that

the District Court orders are not

authentic” is in deliberate disregard of

the evidence and the governing law. By

so ruling, it has tolerated fraud upon

the District Court which is wholly

inconsistent with “the good order of

society.”

“Furthermore, tampering with the

administration of justice in the manner

indisputably shown here involves far more

than an injury to a single litigant. It

ls a wrong against the institutions set

up to protect and safeguard the public,

institutions in which fraud cannot

complacently be tolerated consistently

with the good order of society.” (Hazel-

Atlas Glass Co. v. Hartford Empire

Co. (1966) 322 0.S. 238, 246, 64S ct

397, 88 L.Ed 1250)

Under the standards of “de novo’

review, the Ninth Circuit should have

referred Petitioner’s evidence of

inauthenticity to the trier of fact.

“And certainly an issue of such

importance affecting the validity of a

judgment should never be tried on

affidavits.“ (Hazel-Ztlas Glass Co. vy,

Hartford Empire Co., supra, at 2/0).

“The Federal Judiciary was. .designed

by the framers to stand independent

.tO maintain the checks and

balances of the constitutional

structure, and also to guarantee the

process of adjudication itself

remained impartial. (Northern _

NT a eon

Cai... ée0 US SO, $8, 73 &. « aa

598)

Article III of the U.S. Constitution

benefits the Public with an independent

Federal Judiciary so as to protect that

Public from the potential “tyranny of

government.” But if the extent of some

Federal Judges‘ independence is’ such

that they are unable or unwilling to

protect even one individual from the

tyranny Of a corrupt and powerful

litigant -- Time Warner-- which

successfully used federal judicial power

for denial of due Process, obstruction of

justice and extortion of its opponent,

then the benefit of their independence

is lost, for all practical purposes, to

the Public. To let tne foregoing be the

final outcome of the instant matter will

erode the Public's confidence in the

independence and integrity of the Federal

Judiciary.

CONCLUSION

It is respectfully prayed that the

Supreme Court recognize the special and

important reasons set forth above to

grant this Petition for Writ of

deposited and the certificate of deposit

that was cashed in one year before it was

even in existence, are more than enough

to create a triable issue of fact here.

In granting Defendants their

argument of prior independent creation,

the Ninth Circuit Court of Appeals has

consistently denied Petitioner any Due

Process. Petitioner has produced a

strong case of Copyright Infringement

based on a valid Copyright, undisputed

access, substantial similarities,

undisputed common errors, and a myriad of

proof of fraudulent documentary and

testimonial evidence generated by

Defendants to support a false claim of

prior independent creation. Yet the

Ninth Circuit has failed to follow the

Law, disregarding almost all of

Petitioner’s argument and law and failing

to grant him the jury trial guaranteed by

the Fifth Amendment of the U.S.

Constitution and so sorely needed to

resolve the many serious questions raised

in this litigation.

“Interest in copyright is a

property right protected by this

clause (Due Process) and the just

compensation for property clause of

this amendment (Fifth Amendment) .”

(Roth v. Pritikin [1983] 710 F 2d.

934, 939).

“The due process clause requires

that every man shall have the

protection of his day in court, and

the benefit of the general law, a

law which hears before it condemns,

which proceeds not arbitrarily or

Capriciously, but upon inquiry and

renders judgment only after trial so

that every citizen shall hold his

life, liberty, and property and

immunities under the protection of

the general rules which govern

society.” Truax et al vy. Corrigan.

etal. 42 Sup. Ct. 124 at 129.

Citing Hurtado v. California, 110

U.S. 316, 535, 4 Sup Ct. 1111, 28

L.Ed. 232.

“Our whole system of law is

predicated on the general f

undamental principle of equality of

application of the law.” Jd.

Segoe

SESE

By its rulings in this case, the

Ninth Circuit Court of Appeals has

refused to follow this fundamental

principle.

In so denying Petitioner, The Ninth

Circuit has also created numerous

conflicts of opinion and authorities

within its own jurisdiction and between

the Circuit and other Courts of Appeal.

Such conflicts can only be resolved by

this Court.

III. PETITIONER CLAIMS THAT IT IS DENIAL

OF DUE PROCESS TO AFFIRM A DISTRICT

COURT’S JUDGMENT AND ORDERS WHICH HE

HAS SHOWN TO BE THE PRODUCT OF FRAUD

UPON THE COURT BY DEFENDANTS TIME

WARNER ET AL. PETITIONER ALSO

CLAIMS THAT IN AFFIRMING SUCH BOGUS

RULINGS, THE NINTH CIRCUIT COURT OF

APPEALS HAS GREATLY ERODED THE

PUBLIC’S CONFIDENCE IN THE

INDEPENDENCE OF THE FEDERAL

JUDICIARY.

In rejecting Petitioner’s arguments,

the Ninth Circuit astonishingly ruled, in

its unpublished Memorandum: “Fodor

provided no evidence that the District

Court orders are not authentic.”

(Appendix Pg. A-1)

Yet, Petitioner’s Opening Brief

filed with the Ninth Circuit and his

evidence reviewed during oral argument

before the Appellate Court proved, under

the standard of “de novo” review wherein

Petitioner’s evidence is to be believed

and taken in the light most favorable to

him, that the Judgment and Orders

appealed were not decided by the District

Judge. The required attestation and

authentication of said documents were

apparently secured by the fraudulent use

of the District Judge’s rubber-stamped,

facsimile handwritten signature in

conspiracy between Defendants and the

Judge’s Clerk(s). The argument set forth

by Petitioner is as follows:

“Proof that a party knew that he

could not alone accomplish an

unlawful object permits the

inference of a conspiracy between

the party and those persons

foreseeably required to affect the

object whether or not the party

knows the identity or specific

activities of the others". oe.

Fernandez 892 F.2d 976, at 988.

Cert. Dism.; Reckarey v. U.S, 495

U.S. 944)

In January 1991, Defendants Time

Warner Inc. et al. sustained a serious

setback when the District Judge denied

their first Motion for Summary Judgment,

finding both access and substantial

Similarities along with the ownership of

a valid copyright which had been

Stipulated to. The District Judge set

trial for September 1991.

At that time, Defendants apparently

knew they could not obtain a lawful

dismissal of the case before trial. They

also knew that to obtain an unlawful

dismissal of the case, they could not act

alone. Thus it is permissible to presume

a conspiracy ensued between Defendants

and the District Judge’s Clerk(s) who

control the Judge’s facsimile rubber

stamp Signature, and are also ina

position to file Orders and Judgments

into the Court’s record that are not

decided by a Judge. Taking advantage of

the Clerk’s/ Clerks’ position,

Defendants -- over a two-year period --

apparently not only authored decisions

favorable to themselves but also

attempted to authenticate them with use

of a forged signature, obtaining Summary

Judgment (Appendix pg. A-17) plus

maSSive attorneys’ fees (Appendix pg. A-

31 ) and also successfully blocking

Petitioner from any Opportunity to appear

and be heard in open court.

Petitioner directed the Ninth

Clircuit’s attention to Rule 406 of The

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Federal Rules of Evidence: Habit.

Routine, and Practice to compare the

overall record of the District Judge with

some of the specific anomalies in the

case at bar which showed, with highly

probative evidence, fraud upon the

District Court.

According to The Almanac of the

,1992 Volume I, page

52, the District Judge’s work habits are

described as follows: “There’s no wasted

motion. His rulings are quick"; “He’s

able to handle a large number of cases

expeditiously.” Yet in this case,

Defendants moved for Reconsideration of

the Summary Judgment on January 9, 1991,

with Granting of Summary Judgment reached

August 31, 1992, some 570 days after

Submission of the Motion. The law

requires the judge to decide a motion

within 120 days (Local Rule 3, Appen.

Certiorari pursuant to Rule 10 of the

| Supreme Court Rules.

Petitioner showed that the decision

| of the Ninth Circuit Court of Appeals is

: in embarrassing conflict of opinion and

authority with other U.S. Courts of

Appeal on the same matters, that this

case involves principles the settlement

of which is important to the public

interest, and that the District Court as

well as the Ninth Circuit Court of

Appeals has departed so far from the

accepted and usual course of judicial

proceeding that their actions constitute

denial of Due Process for Petitioner as

guaranteed by the Fifth Amendment. All

the above call for the exercise of the

Supreme Court’s power of supervision.

For the foregoing reasons, the

Petitioner respectfully prays that his

Petition for a Writ of Certiorari be

granted.

Respectfully submitted,

LAW OFFICES OF MELVIN M. BELLI

hb pu duke

Richard A. rse

State Bar No. 96599

Counsel of Record for

Petitioner Gyrogy Fodor

9952 Santa Monica Boulevard

Beverly Hills, California 90212

(310) 553-1849

By:

APPENDIX

LIST OF APPENDIX

Page

Memorandum of the Ninth Circuit

ae ioe Mn

District Court’s Order

Denying Defendant’s Motion

for Summary Judgment ............ A20

District Court’s Order Granting

Defendant’s Motion for

summary Judgment ................ A26

District Court’s Order Granting

I A40

Order of the Ninth Circuit

court of Appeals Denying

Petition for Rehearing and

Rejection of Rehearing

ESE GTS A43

Constitutional Provisions ....... A45

United States Statutes .......... A47

SEE ES a a A50

Local Rules of the Central

Dastrict of California .......... A52

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GYORGY FODOR, FILED 3-2-94

Plaintiff-Appellant,

vs.

TIME WARNER, INC.; WARNER

COMMUNICATIONS CO.; WARNER BOOKS

INC.; DENNIS ANDERSON; WARNER

BROS., INC.

Defendants-Appellees.

NO. 92-56169, 92-56454

D.C. NO. CV-90-2203-JMI

MEMORANDUM

Appeal From The United States District

Court For The Central District Of

California James M. Ideman, District

Judge, Presiding

Argued And Submitted February 2, 1994

Pasadena, California

BEFORE: TANG, PREGERSON, and NOONAN,

Circuit Judges.

Plaintiff Gyorgy Fodor filed a

defendants Dennis Anderson, Warner Books,

Inc., Time Warner Inc., and Warner

communications Inc. (collectively,

"Warner"), infringed his copyright in a

screenplay entitled Stealth by writing and

publishing the book Target Stealth. The

district court also granted substantial

attorney's fees to Warner for Fodor's bad

faith denial of the authenticity of

jocuments proving prior independent

creation. Fodor appeals both the summary

Judgment and the award of attorney's fees.

BACKGROUND

Gyorgy Fodor wrote a screenplay about

the Stealth bomber entitled Stealth, The

screenplay was copyrighted on October Af,

1987. On February 22, 1988, Fodor

submitted the screenplay to Wayne Duband,

President of Warner Bros., with whom he

had previously done business. ae

undisputed that Warner did not have

access to the screenplay prior to this

date. Warner apparently did not respond

to the submission, and Fodor's attempts to

finance the project elsewhere were

unsuccessful due to the recent publication

of the book Target stealth, which appeared

fo be the novelization of Fodor's

screenplay.

Fodor filed his copyright

infringement action in May 1990. Warner's

first motion for Summary judgment was

denied on the basis that there was a

genuine issue of materia] fact whether the

screenplay Stealth and the book Target

Stealth were substantially similar. While

the district court recognized that Warner

contended that it had no access to the

screenplay until the book was already

written, the court did not resolve this

issue.

Warner thus moved for reconsideration

of the denial of summary judgment, urging

the district court to consider the prior

independent creation issue. Warner

presented evidence that Dennis Anderson

wrote Taraqet stealth in 1986, and in

January and February 1987, submitted the

manuscript to James O'Shea Wade at Crown

Publisher's, Patricia Soliman at Simon and

Schuster, and Nansey Neiman at Warner

Books. On February 24, 1987, Warner

agreed to publish the book and prepared a

-ontract Deal Memo" in which Anderson

tld be paid a $150,000 advance (one-half

upon signing the contract and one-half

upon delivery and acceptance of the

revised manuscript). Another check for

$75,000, minus expenses and commission,

was sent to Anderson on January 14, 1988.

Thereafter, Anderson's manuscript was

edited by Charles Conrad at Warner Books.

In response, Anderson twice revised his

manuscript and sent revisions to Conrad on

August 17, 1987 and October ar; ase,

after which Warner contends the book was

essentially complete. The editing

process continued into 1988, and Target

2etealth was typeset and page proofs

printed in May 1988. The hard cover

version was published in February, 1989.

DISCUSSION

"To establish infringement, two

elements must be proven: (1) Ownership of

a valid copyright,! and (2) copying of

constituent elements of the work that are

original." Feist Publications, inc. v.

Rural Tel. Serv. Co., 499 U.S. 340, 111

S. Ct. 1282, . 1296 © 419901) (citation

omitted). Because there is rarely direct

evidence of copying, a finding of copying

‘typically depends on proof of access and

probative similarity." Nimmer on

Even if two works are substantially

Slmilar, however, there is no infringement

liability if the Challenged work was

independently created. ai,

‘ Warner did not dispute for purposes of the

summary judgment motion that Fodor owns a valid

wcama facie presumption that the copyright is

valid. gee Nimmer on Copyright. » 44-22 [Ri, at

12-161 (1993).

It is undisputed that Warner had

accesS to Fodor's screenplay in February,

1988. Fodor raises a number of issues

which he claims create a genuine issue of

material fact regarding whether Target

Stealth was in fact created prior to

Warner's access to his screenplay.

Fodor first argues that common errors

in the two works establish a —-brima facie

case Of copying: See Cooling systems and

Flexibles. Inc. y. Stuart Radiator, Inc.,

777 F.2d 485, 492 (9th Cir. 1985) ("courts

nave regarded the existence of common

<rrors...as the strongest evidence of

piracy, but proof of common errors does

not obviate the need for proving

ubstantial Similarity."); Nimmer, § 13-01

}, @¢ 13-12413-13. However, if Warner

did not have access to the screenplay

Prior to the writing of Parget Stealth,

even striking similarities between the two

works must be deemed fortuitous. wee

Feist, 111 S. Ct. at 1287 ("a work may be

original even though it closely resembles

other works so long as the Similarity is

fortuitous, not the result of copying.")

Fodor next argues that Target Stealth

waS not created prior to his screenplay

because its copyright registration form,

dated February 7, 1989, states that

"creation...was completed" in 1988. The

instructions on completing the copyright

registration form, explains that the form

means by “creation” under the statute:

(A] work is "created" when it is

fixed in a copy or phonorecord for

the first time . Where a work has

been prepared over period of time ;

the part of the work existing in

fixed form on a particular date

constitutes the created work on that

date . The date you Give here should

be the year in which the author

completed the particular version for

which registration is now being

sought, even if other versions exist

or if further changes or auditions

are planned.

Nimmer, § 21.02, at 21-6 (emphasis added).

The version of Target Stealth for

which Anderson Sought registration was

completed in 1988, and the copyright

registration date is consistent with

Warner's other evidence.

Fodor additionally argues that Dennis

Anderson gave a statement to the press

that he received the premise for his book

in November 1988. However, there is no

evidence that Anderson manifested his

agreement with the article, and it

therefore does not qualify as a party-

Ypponent admission under Fed. R. Evid. 801

(a) ie The article is otherwise

inadmissible hearsay.

Fodor next turns to Anderson's

alleged admission at deposition that he

relied on 1988 reference material in

preparing his manuscript. This deposition

testimony reveals that the reference book

had an original copyright date of 1975; it

waS not clarified in the deposition

whether Anderson used OQnly the 1988

version or had possessed the 1975 version

as well. Further, the 1988 "completion"

date on the copyright registration is

consistent with Anderson's testimony that

ne used the 1988 version for reference.

Fodor also Challenged the

authenticity of certain banking documents

Produced by Warner to establish that

Anderson had been paid for Target Stealth

Prior to the date of access to Fodor's

screenplay. However, Fodor Stipulated to

A10

the admission of these documents, and

agreed that he would not challenge their

authenticity. Although Fodor argues that

the stipulation was entered into “for the

convenience of counsel" to allow Morgan

Guarantee documents to be admitted without

the testimony of a custodian of records,

the stipulation is clearly not so limited

in scope.

More importantly, while there may

have been some grounds on which to

Challenge the authenticity of these

documents’ , Warner produced other,

Fodor claims that a check dated January 14,

1988, in the amount of $63,694.06, has altered

dates of deposit. The deposit slip bears the

handwritten deposit date of "1/20/88", as does

the mechanical notation on the slip from the bank

machine. On the back of the check and deposit

slip, however, there is a "Pay any Bank" stamp

dated January 19, 1988, which is affixed after

deposit. Fodor thus claims the date of deposit

must have been altered because it is impossible

that the check could have been cleared the day

before the deposit.

Fodor also points to a Certificate of

Deposit issued to Anderson and his wife, dated

April 28, 1987 with a maturity date of May 29,

1987. The CD is stamped “Paid May 29, 1986."

Fodor also claims that a second CD for $24,000

All

unchallenged, documents establishing prior

independent creation, including the

"Request for Payment" for the first

installment of the advance, dated April

16, 1987, tax documentation reflecting the

April transaction, and contracts and

agreements memorializing the negotiations

and revisions of the book. The

inconsistencies in the banking documents,

produced directly by the banks, are better

explained by mistakes made by the banks.

In view of the other unchallenged evidence

lntroduced by Warner, these

inconsistencies, alone, do not defeat

Summary judgment

Warner also introduced affidavits

from other publishers Stating that they

had reviewed Target Stealth in 198

Fodor witnesses were interested parties.

stamped “June 30" was altered by hand to date

“June 29" and then marked “Pais" in handwriting.

A12

This argument was not raised in the

district court, and will not be considered

by this court.

Moreover, Fodor's argument that the

testimony of Wayne Duband and Dennis

Anderson produce a “consistent pattern of

perjury," is not supported by the record.

Although credibility determinations and

ne drawing of inferences are for the

Y, Anderson v. Liberty Lobby, 477

986), the substance of the

and the extensive documentary

dence was otherwise undisputed by

Or cannot create an issue of

erlal fact merely by casting aspersions

()

)

ey)

posing a motion for summary judgment may

C rest upon the allegations or denials

in the pleadings, but must “set forth

pecific facts showing that there is a

b bo

A13

genuine issue for trial." A court “must

resolve any factual issues of controversy

in favor of the non-moving party only in

the sense that, where the facts

specifically averred by the movant, the

motion must be denied." Lujan v. National

Wildlife Federation, 497 U.S. 871, 888

(190).

In granting summary judgment for

Warner, the district court held that

“undisputed and Overwhelming" evidence

Supported the independent creation of

Target Stealth. Fodor has not introduced

facts which contradict the substantial

evidence introduced by Warner to establish

prior independent creation. The district

court's summary judgment is affirmed:

A district court's grant of summary judgment is

reviewed de novo, Baxter vy. MCA. Zoe., 812 F. 2a

421, 423 (9th Cir.), cert. denied 484 U.s. 954

(1987).

A14

As there is no issue of material fact

Duband had access to Fodor's screenplay

prior to the writing and essential

completion of Target Stealth, there is no

basis on which to find that Duband

violated a confidential relationship with

Fodor nor that Warner engaged in unfair

competition. The district court's

dismissal of Fodor's state law claims is

affirmed.

Fodor urges this court to reverse

unsigned orders citing Daniels v. stover,

060 FP, Supe. 301, °363-06 4: oe. Tex.

1987), in which the district court held

that a state judge was not shielded in a §

1983 case by judicial immunity where the

challenged acts (mental health warrants)

A15

were rubber stamped by a clerk outside of

the presence of the judge, and Zenith

Radio Corp, v. Matsushita Elec. Indus.

Co., 505 F. Supp. 1190, 1224 (E.pD. Pa.

1980), which holds that a Signature

affixed by rubber Stamp which corresponds

to usual practice may authenticate a

document. Neither case helps Fodor.

Fodor provided no evidence that the

district court orders are not authentic.

This claim is rejected.

Warner served Requests for Admission,

requesting Fodor to admit the truth of

certain facts and the authenticity of

locuments which established that Target

stealth was written in 1986 and sold to

Warner in 1987. Fodor denied the

uthenticity of all the documents offered

by Warner, on the basis that the alleged

non-authentic documents raised an issue

that all of the documents had been altered

or manufactured.

The district court found that Fodor

had denied Warner's requests in bad faith

in violation of Fed. R. Civ. Pe 2e hey,

and ordered to pay Warner $169,587.50 in

attorney's fees for Warner's "costs of

Proving the truth of the facts and

genuineness of documents Pursuant to

Fead.R. Civ. PB °37(e).* (ER 19-20.] The

district court's award of attorney's fees

1s reviewed for an abuse of discretion.

Holmgren vy. State Farm Mut. Auto Ins.,. 976

F. 2d 573, 581 (9th Cir. 1992).

Upon review, Fodor appears to have

nad a colorable claim that he denied the

authenticity of some of the banking

documents in good faith, based on the

oPinion of his expert, Dr. Crown. Because

A17

the district court did not make any

findings to support its conclusion of bad

faith, we must vacate the award and remand

for reconsideration. "In order to

facilitate appellate review, the district

court must clearly articulate sound

reasons in support of its fee award."

intel Corp. v., Terabvte intern... Inc... 6

F.3d 614, 622 (9th Cir.1993). As Intel,

the district court in this case "merely

awarded the fees without elaboration.

Such a procedure is inadequate." Jd.

Moreover, we remand the attorney's

fees award for reconsideration of the

amount awarded. "Although the district

court has wide discretion to fix the

amount Of a Rule 37 award" on remand, “the

rule provides that such an award must be

‘'reasonable',." Holmgren, 976 F. 2d at

581. The attorney's fees awarded under

A18

hed

Rule 37 must be related to proving the

authenticity of documents.

JUDGMENT AFFIRMED (No. 92-

56169); ATTORNEY'S FEES AWARD VACATED

AND REMANDED FOR RECONSIDERATION (No.

92-56454). EACH PARTY SHALL BEAR Its

OWN COSTS ON APPEAL.

A19

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GYORGY FODOR, FILED 1-3-91

Plaintiff(s),

vs.

TIME WARNER, INC., et al.,

Defendant(s).

CV-90-2203-JMI (Kx)

ORDER DENYING DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

IT IS HEREBY ORDERED:

: ee Defendant's motion for summary

Judgment is hereby DENIED.

"a Defendant contends that they had

no access to Plaintiff's play until

"TARGET STEALTH" was already written.

Defendant further contends that the two

works are not substantially similar.

A20

~ ¥ Rule 56 of the Federal Rules of

Civil Procedure permits summary judgment

to be granted if “there is no genuine

issue as to any material fact and that the

moving party is entitled to a judgment as

a matter of law." Anderson vy. Liberty

Lobby, Inc,, 477 U.S. 242, 248 (1986). To

withstand a motion for summary judgment,

the non-moving party must show the

existence of genuine factual issues which

can be properly resolved only by a finder

of fact because the issue may be

reasonably resolved in favor of either

party.» id.

4. Summary judgment is “not highly

favored on questions of substantial

Similarity in copyright cases ..." Narell

2d. 907, 909-910 (9th

Cir. 1989). However, “Summary judgment is

appropriate if the court can conclude,

after viewing the evidence and drawing

A21

inference in a manner most favorable to

the non-moving Party, that no reasonable

juror could find substantial Similarity of

ideas and expression. " Ibid,

5. The Ninth Circuit uses a two-

part test to determine if works are

Substantially similar: an extrinsic and

intrinsic test. “The extrinsic test

determines whether the two works are

Substantially similar in general ideas and

compares the individual features of the

works to find specific Similarities

between the plot, theme, dialogue, mood

setting, pace, characters, and sequence of

events." Narell. supra, at 912.

6. The intrinsic test determines

"whether the forms of expression of the

two works are Substantially similar; it is

subjective, depending on the response of

an ordinary, reasonable reader...To

constitute infringment, the total concept

A22

and feel of the works must be

substantially similar." Narell. supra, at

913 (citations omitted).

The Court DENIES the motion for

summary judgment. Although there are

differences in the two works, there are

also enough substantial Similarities to

withstand a summary judgment motion.

The general ideas of the two works

resemble each other greatly. For example,

the heroes in both works are ace pilots

who singlehandedly save the world from

destruction. The mood of the two works is

one of action and thrills, even though

there is more violence in "Stealth" than

“Target Stealth". The basic features of

the two works are that Iranian terrorists

steal the Stealth bomber, hoping to set

an international incident between the

and the U.S.S.R. In both works, the

hero has a friend who turns traitor

A23

because his family is threatened by the

Iranian terrorists. Both friends die,

after having redeemed himself in the fray.

However, the hero saves the day and all is

well.

Further, the concept and feel of the

works is substantially similar. "Target

Stealth" is a finished book, not a first

draft play, as is "Stealth", and has more

developed characters and subplots.

However, the basic concept of the two

works seems similar enough that this Court

is not be prepared to state as a matter of

law tthat no two jurors could reasonably

conclude that the two works were not

substantially similar in concept and feel.

Therefore, this Court DENIES the

motion for summary judgment.

IT IS SO ORDERED.

A24

DATED:

JAMES M. IDEMAN

United States District Judge

A25

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GYORGY FODOR, FILED 8-31-92

Plaintiff(s),

vs.

TIME WARNER, INC., et al.,

Defendant(s).

CV-90-2203-JMI (Kx)

ORDER GRANTING DEFENDANTS' MOTION FOR

RECONS IDERATION

ORDER GRANTING DEFENDANTS' MOTION FOR

SUMMARY JUDGMENT

IT IS HEREBY ORDERED:

4 Defendants TIME WARNER, INC., et

al's (hereinafter "“Defendants") motion for

reconsideration or, in the alternative

clarification of the Court's January 2,

1991 Order denying Defendants’ motion for

summary judgment is hereby GRANTED. For

the reasons set forth below, Defendants'

A26

motion for summary judgment is also

GRANTED.

y Before the Court is Defendants'

motion for reconsideration/clarification

of this Court's Order denying Defendants’

motion for summary judgment. This lawsuit

involves Defendants' alleged infringment

of PLAINTIFF GYORGY FODOR'S (hereinafter

"PLAINTIFF") copyrighted play "Stealth".

In its earlier Order, this Court held that

numerous issues of material fact existed

regarding whether Defendants' novel

"Target Stealth" was “substantially

Similar" to Plaintiff's work.

2 By their motion, Defendants seek

Clarification of three arguments: (1)

whether a genuine issue of material fact

exists regarding Defendants' prior

creation; (2) ahether a genuine issue of

material fact exists regarding the lack of

a confidential relationship between

Plaintiff and Defendants; and (3) whether

a genuine issue of material fact exists

regarding Defendants Warner Bros. and Time

Warner's involvment--or lack thereof--with

Plaintiff.

4. Plaintiff GYORGY FODOR alleges

he sent a manuscript for his play,

Stealth, to Defendant TIME WARNER in

February 1988. Plaintiff copyrighted his

play in October 1987. Plaintiff aleeges

that the Defendant copyrighted a book,

Target Stealth, in February 1988, written

by Jack Merek (a pseudonym for Dennis

Anderson), which is substantially similar

to his own play and thereby an infringment

of Plaintiff's copyright.

a As stated in this Court's

earlier Order, summary judgment under Fed.

R. Civ. P. 56 is appropriate only if all

the evidence in the case indicates that

“there in no genuine issue as to any

A28

material fact and that the moving party is

entitled to summary judgment as a matter

of law". Anderson v. Liberty Lobby, Inc...

477 U.S. 242, 254 (1986). This Court's

duty is “to determine whether the

‘specific facts' set forth by the

nonmoving party, coupled with undisputed

background or contextual facts, are such

that a rational or reasonable jury might

return a verdict in its favor based on

that evidence." T.W, Elec, Serv., Inc, vy.

Pacific Elec, Contractors Ass'n, 809 F. 2d

626, 631 (9th Cir. 1987) (citation)

(affirming summary judgment for

defendants).

A. Prior Creation,

Defendants first assert that no

genuine issue of material fact exists

regarding the independant creation of the

work "Target: Stealth." See Meta-Film

Associates, Inc. v. Mca, Inc., 586 F.

A29

Supp. 1346, 1359 (C.D. Cal. 1984) (where

defendant's work was written before

plaintiff's, there was no opportunity to

copy). Specifically, defendants argue

that defendant/author Dennis Anderson

wrote the allegedly infringing work,

“Target Stealth" in 1986 and, following

its purchase by Defendant Warner Books,

Inc. (“Warner Books"), revised it during

the course of 1987. Plaintiff, by his own

admission, did not submit his work until

February 1988, by which time only minor

changes were being made in “Target

Stealth." This undisputed chain of

events, Defendants argue, entitles them to

summary judgment.

This Court's review of record shows

that the evidence supporting the

independent creation of "Target Stealth"

is both undisputed and overwhelming. The

uncontradicted testimony shows that

A360

Defendant/author Dennis Anderson wrote

"Target:Stealth" during 1986 and then

mailed it to Clyde Taylor, an agent at

Curtis-Brown, Ltd. (“Curtis-Brown"), in

December of that year. The uncontradicted

testimony further indicates that on

January 28, 1987, a Memorandum of

Agreement was signed by Anderson and

Curtis, Brown for the marketing of that

novel and that in February 1987, the novel

was purchased by Warner Books for

$15uU,000.! The $150,000 purchase price

was payable half on signing of the

contract and half on delivery and

acceptance of the revised manuscript.

In terms of revisions, the

uncontradicted testimony indicates that

the novel was first revised between May

1987 and August 1987, with another

Defendants have also submitted undisputed

declarations from cther publishers, all of whom

recieved copies of “Target: Stealth” in January

987.

A31

revision occurring between September and

October of that year.- Minor copy-editing

changes were made in early 1988, with the

final page-proofs being approved in June

1988. All of the individuals involved in

this process have testified that at no

time were they even aware of Plaintiff's

work.

The physical documents accompanying

Defendants' undisputed testimony-although

Surplusage in the Court's view--are

equally compelling. In its motion for

summary judgment, Defendants have

submitted the initial check representing

the $75,000 advance from Warner Books, as

well as subsequent tax documentation

reflecting this transaction. Defendants

have also submitted the varicus contracts

entered into between the parties

- The Court's review of these revisions indicate

that while substantial, none of them altered the

central premise or major chapters of the book.

See Exhibits 26, 34, 45-6, 52, and 55.

A32

reflecting the title of the book,

lines, etc.” Finally, every stage of the

negotiations and revisions of the book

"Target: Stealth" was memorialized by the

parties.’ All of these documents reflect

that "Target: Stealth" was marketed and

purchased over a year before Plaintiff

submitted his work to Warner Books.

In response to this overwhelming

evidence, Plaintiff raises a number of

feeble arguments, none of which create a

genuine issue of material fact. First

All of these documents are admissible under the

Business Records exception to the hearsay rule.

See Fed. R. Evid. 803 (6). The Court also

believes that this evidence is admissible under

the so-called “catch-all” exception to the

hearsay rule. See Fed. R. Civ. P. 803(24).

+ These documents are admissible under a variety

of theories. First, they all establish the state

of mind of the various parties (i.e. what they

were doing and why they did it). Second, the

Court also believes that the business

correspondence, particularly those involving

revisions, qualify as business records since they

were developed in the ordinary course of Curtis,

Brown's and Warner Books' respective operations.

Third, and finally, the Court believes that all

of these documents are admissible under the

Catch-all exception to the hearsay rule. See

Fed. R. Civ. P. 803 (24).

its plot

Plaintiff asserts that the copyright

registration for “Target:Stealth" states

that the book was completed in 1988 and

that this contradicts Defendants' sworn

declarations. In fact, the oppostie is

true: Defendants all testified that the

minor revisions of the work were not

compieted until June 1988. As such, the

registration form is entirely consistent

with the testimony before the Court?

Plaintiff next points to two isolated

pages of defendants' draft copy which have

the word “Gambit" in the upper left-hand

corner. Based upon these two pages (of a

multi-hundred page book), Plaintiff

speculates that the “real” title of

“Target:Stealth" was "“Gambit".'

Moreover, this is also consistent with

Anderson's testimony that he used a book which

was revised in 1988 as a reference work.

° It is worth noting the word “Gambit” in both

instances was neither underlined, bolded, or

placed at the top, centermost portion of the

page. The draft copy also indicates that it was

deleted.

A34

Accordingly, Plaintiff argues, these two

pages create an inference that all of the

evidence referring to the work as “Target:

Stealth" is fraudulent.

This fanciful construction is simply

not a reasonable inference to be drawn

from the evidence: all of the evidence in

this case, including the contract signed

between the parties and the title page of

the draft itself, show the title-of

Anderson's work has always been

"Target:Stealth". Two deleted words on

two pages will not suffice to create a

genuine issue of material fact here.

Plaintiff next contends that since

Anderson refers to the Stealth bomber as a

"subsonic" plane and later describes it as

flying at Mach 2 (two statements which are

inconsistent), Anderson clearly did not

write the book and is lying. Again, this

A35

is not a reasonable inference and the

Court should reject it.

Finally, plaintiff contests the

various documentation before the Court.

As first order matter, the Court notes

that even were this evidence not

considered, the undisputed testimony alone

in this action mandates the granting of

summary judgment. Turning to Plaintiff's

specific claims, Plaintiff's attorneys

contend that their review of the various

documents reflecting the 1987 purchase of

"Target: Stealth" are non-authentic. The

Court rejects their observations for three

reasons. First, on ther face, the

proferred arguments are frivolous.

Second, neither of Plaintiff's attorneys

is qualified as an expert to testify

regarding authentification. Third, as to

the bank documents at issue here,

Plaintiff specifically stipulated to their

A36

)

;

i oe emir paseciatgnens

admittance.’ The best argument Plaintiff

could raise, which he does not, is that

“Target: Syealth" was substantially

rewritten following the submission of his

novel. This claim, however, is totally

belied by the undisputed testimony before

the Court. It is also belied by the

February, 1987 purchase contract between

Warner Books and Curtis, Brown. That

document describes in detail the plot of

the book "Target: Stealth" and clearly

shows that the bock as purchased in early

1987 was essentially identical to the

allegedly infringing work published in

February 1989. See Exhibit 144.

For all these reasons, Defendants'

motion as to this issue is hereby GRANTED,

Plaintiff also proferred the unsworn testimony

of a purported “expert,” Paul Weast, raising

these same issues. The Court rejects this

testimony on two grounds. First, the absence of

a declaration under oath precludes this Court

from considering it. See Fed. R. Civ. P. 56 (c).

Second, even were this Court to consider it, Mr.

Weast is not qualified as an expert to testify.

See. Fed. R. Civ. P. 7902.

A37

as Defendants' motion for summary

judgment. This claim is therefore

DISMISSED WITH PREJUDICE.

B. Fig ia] , hi

In light of a ruling that “Target:

Stealth" was created independently, no

claim for breach of confidential

See Donahue v.

Ziv Television Programs, Inc,, 245 Cal.

relationship can stand.

Age. 24 $93, 34 Cal. Retr. 130. i324

(1966). Accordingly, this claim is also

DISMISSED WITH PREJUDICE.

For the foregoing reasons,

Defendants' motion for reconsideration is

GRANTED, as is Defendants' motion for

summary judgment. Accordingly,

Plaintiff's Complaint is DISMISSED WITH

PREJUDICE.

IT IS SO ORDERED.

A38

JAMES M. IDEMAN

United States District Judge

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

GYORGY FODOR, FILED 11-9-92

Plaintiff(s),

vs.

TIME WARNER, INC., et al.,

Defendant(s).

CV-90-2203-JMI (Kx)

ORDER GRANTING ATTORNEYS' FEES

IT IS ORDERED:

1. The motion of Warner Bros. -Inc.,

Time Warner Inc., Warner Communications

Inc., Warner Books, Inc. and Dennis

Anderson (“defendants”) for attorneys’

fees came on for hearing before this Court

on October 26, 1992 at 10:00 a.m. The

Court having read and considered

defendants' motion, plaintiff's opposition

thereto, defendants' reply, and all

A4O

a ee

supporting documents submitted therewith

hereby GRANTS defendants' motion on the

following grounds:

mi The Court finds that defendants

made and served requests for admissions of

facts and genuineness of documents

pursuant to Fed. R. Civ. P. 36. Plaintiff

denied defendants' requests and such

denial was not made in good faith.

Accordingly, this Court orders that

plaintiff Gyorgy Fodor pay to defendants

their attorneys' fees in the amount of

$169,587.50 as defendants' costs of

proving the truth of the facts and

genuineness of documents pursuant to Fed.

a: Cle: Bete.

IT IS SO ORDERED.

JAMES M. IDEMAN

United States District Judge

GYORGY FODOR

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED: 64-21-94

Plaintiff-Appellant,

vs.

TIME WARNER,

COMMUNICATIONS CO.;

2 Sa

WARNER

WARNER BOOKS

INC.; DENNIS ANDERSON; WARNER BROS.,

so eee

Defendants-Appellees.

NOS. 92-56169, 92-56454

D.C. No. CV-90-2203-JMI

ORDER

BEFORE: TANG, PREGERSON, and NOONAN,

Circuit Judges.

The panel as constituted above has

voted to deny the petition for rehearing

and to reject the suggestion for rehearing

en banc.

The full court has been advised of

the suggestion for rehearing en banc,

and

no judge of the court has requested a vote

on the suggestion for rehearing en banc.

Feo. BR. Age. PB. 33. (2).

The petition for rehearing is denied

and the suggestion for rehearing en banc

is rejected.

CONSTITUTION PROVISIONS

Articl i

Sec. 8 [Powers of Congress.]

{[8.] To promote the Progress of Science

and useful Arts, by securing for limited

Times to Authors and Inventors the

exclusive Right to their respective

Writings and Discoveries.

Article IIT

Section 1. Supreme Court and inferior

courts--Judges and compensation.

The judicial Power of the United States,

shall be vested in one supreme Court, and

in such inferior Courts as the Congress

may from time to time ordain and

establish. The Judges, both of the

supreme and inferior Courts, shall hold

their Offices during good Behavior, and

shall, at stated’'Times, receive for their

Services, a Compensation, which shall not

A45

be diminished during their Continuance in

Office.

Amendment V

Criminal actions--Provisions

concerning--Due process of law and

just compensation clauses.

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentement or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

person be subject for the same offence to

be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself, nor

be deprived of life, liberty, or property,

without due process of law; nor shall

private property be taken for public use,

without just compensation.

A46

U.S STATUTES

§ 101. Definitions

17 usc 101

A work is “created” when it is fixed in a

copy or phonorecord for the first time;

where a work is prepared over a period of

time, the portion of it that has been

fixed at any particular time constitutes

the work as of that time, and where the

work has been prepared in different

versions, each version ccnstitutes a

separate work.

A work is “fixed" in a tangible medium of

expression when its embodiment in a copy

or phonorecord, by or under the authority

of the author, is sufficiently permanent

or stable to permit it to be perceived,

reproduced, or otherwise communicated for

a period of more than transitory duration.

A47

A work consisting of scunds, images, or

both, that are being transmitted, is

"fixed" for purposes of this title [17

USCS §§ 101 et seq.] if a fixation of the

work is being made simultaneously with its

transmission.

§ 410. Registration of claim and

issuance of certificate

17 usc 410

certificate of a registration made before

or within five years after first

publication of the work shall constitute

prima facie evidence of the validity of

the copyright and of the facts stated in

the certificate. The evidentiary weight

to be accorded the certificate of a

registration made thereafter shall be

within the discretion of the court.

§ 501. Infringement of copyright

A48

17 usc 501

(a) Anyone who violates any of the

exclusive rights of the copyright owner as

provided by sections 106 through 118 [17

USCS §§ 106-118], or who imports copies or

phonorecords into the United States in

violation of section 602 [17 USCS § 602],

is an infringer of the copyright.

NIMMER

THE LAW OF THE COPYRIGHT

Vol. 3, 1993 Edition

§13 .01[B]

Therefore copying is ordinarily

established indirectly by the plaintiff's

proof of access and “substantial"

Similarity. The nature of these elements

is considered in subsequent sections.

Professor Latman wisely counsels that, in

the previous formulation, the term

“substantial similaricy" be discarded in

favor of “probative similarity". In other

words, when the question is copying as a

factual matter, then similarities that, in

the normal course of events, would not be

expected to arise independently in the two

works are probative of defendant's having

copied as a factual matter from

plaintiff's work.-!-- Otherwise stated,

31-2 Qne such example is common errors.

See§13.03(C]infra.

such similarities negative defendant's

claim of independent creation.?3!-3

31-3 Latman, op cit. N. 31.1 supra, at 1189

(*"Thus, ‘copying’ in the first instance is the

obverse of independent creation")

A51

LOCAL CIVIL RULES

11.1.2 Application for Cont inuance-

Approval of the Court. No continuance

(whether stipulated to by counsel or not)

Shall be effective unless announced in

open court or approved in writing by the

judge.

A52

RULE 32. TIME LIMITS FOR

DECISIONS BY COURT

If the Court shall not:

(1) as to any motion as defined in Rule

1.3 or Rule 7 hereof, render its decision

within one-hundred and twenty (120) days

after the matter has been submitted to the

Court, of

A53

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.