# Petition for Writ of Certiorari — Fodor v. Time Warner, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0022%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 513 U.S. 869 ## Text 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 i 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, ii 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 re 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, © Sep wee eeeay 26 .L:84. 232 ....... 35 } 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 20 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 16 re 5 as oe 16 eS os a ec ceo ce cl ceceen. 11 1 OO 9 ak oe es oe ee enn 10 ae 1 i 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 Ve | 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 4 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’ Copyright Certificate was registered in 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 eS ei % 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 13 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 7 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 Copyright Registrations were on file with 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 Copyright attests the prima facie 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 copyright, but also on issues of 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 copyright infringement, the plaintiff must prove (1) ownership of the copyright and (2) ‘copying' 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 Copyright 141 at 610 - 611 2.) 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 i ey Bs x, % 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 (c) takes unto itself a 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 RE RSG AL HE HEAT AIT DILGER RMON AON a4 Bi % $ 4 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 set EERE ISA DE RET AS ONS BUNGE ARM 8 9 Lien 2, MARIAN NBO Me La OLE Gy eee ; i ‘ : i : PRY ahlisteecar 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 ee 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 31 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 Reisg ie Math ahaa CaaS Sel aiai Ne a aa hi pat oe aslo Aiea ac 8 a Chae Cg Ci ae Ne sth oe ai dan Seid ry Comin te eee Abe a a 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 35 ete, ae a RRS FG AE Pe As SOU nee 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 MA tA RATE TC AEA yrabeqhiani: seyvkawisren Soke ences wit hag i Mianinws OO PES A EIR ELAR aS TORE REEL P IM PBT SARE pte ane uence 4 , RF f s% re: ee ae er ree baie we LR neE RE am Beas SPHERE Pe ag ey rg aan i strc aos Maes areas ave 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 37 r] 7 ae ee ee Oye 5 a OR ROE arg gyn * wig ay Or meta yd Oh Oe Re guw wing: : 58 g\7 49S e - And. rg (34 Wert ee et Py E bud Be WS 2'p wi) @ 5% (patel. & te vs in . : Z fw oy i ‘ is ° 4 A% iP » ti rit by" ‘eh pe ‘ ayy sd eee seme, Alba “2 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 *4 ow y See oak) prey pitas La | ler Sex. Chis nts Ryo ““—% e 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 AG 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. 47 ay 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 48 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 50 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 Cc 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 a 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. 39 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 40 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: 41 “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 42 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 43 Ak Ri aah ok inlet v 5 eek ee, os Cat dela, “ifn las VAY fe at cant Re ‘ iat ei fy EY BEA eR 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: 53 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 Al BEFORE: TANG, PREGERSON, and NOONAN, Circuit Judges. Plaintiff Gyorgy Fodor filed a copyright action contending that 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 A2 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 A3 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 A4 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 A5 "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 Copyright. § 13.01B, at 13-13 (1993). 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 copyright on the screenplay Stealth. Indeed, a copyright registration certificate creates a wcama facie presumption that the copyright is valid. gee Nimmer on Copyright. » 44-22 [Ri, at 12-161 (1993). A6 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 m7 a Flexibles. Inc. y. Stuart Radiator, Inc., ie 777 F.2d 485, 492 (9th Cir. 1985) ("courts nave regarded the existence of common