Petition for Writ of Certiorari — Maharam v. Patterson

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_ Supreme Court, U.S.

FILED

(() No.

10-357 SEP 13 2010

Jn CWOFFICE OF THE CLERK

Supreme Court of the Anited States

PATSY MAHARAM

Petitioner,

Vv.

JAMES PATTERSON, MICHAEL GARLAND,

SAKS & CO., INC., LINN TANZMAN, LITTLE, BROWN,

TIME WARNER INC. and its subsidiaries, TIME, INC,

TIME WARNER BOOK GROUP, INC. and

HACHETTE BOOK GROUP USA, INC.

Respondents

~ ON PETITION FOR WRIT OF CERTIORARI -

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

‘PETITION FOR A WRIT OF CERTIORAR

PATSY MAHARAM

229 East 89th Street, Apt. 1/'W

New York, New York 10128

(917) 279-1857

Pro Se for Petitioner

DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fan: (718) 522-4024

1-800-531-2028

QUESTION PRESENTED

The tndependent creation of an artistic work

iS Originated deep in the mind of the artist. For this

reason, can the affirmative defense of independent

creation ever be a factor for summary judgment?

LIST OF PARTIES

The Petitioner is Patsy Maharam

The Respondents are dames Patterson,

Michael Garland. Saks & Co.. Inc... Linn Tanzman

Little, Brown, Time Warner Inc. and its subsidiaries,

Time, Inc., Time Warner Book Group, Ine. and

Hachette book group USA, Inc

Lil

TABLE OF CONTENTS

Page

QUESTION PRESENTED :

LIST OF PARTIES... ii

TABLE OF AUTHORITIES \

OPINIONS BELOW

JURISDICTION. .........ccccccccc0e-

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED......... _ l

STATEMENT OF THE CASE..............0.00..:. 2

REASONS FOR GRANTING THE PETITION .... 14

I. INDEPENDENT CREATION IS A FACT

QUESTION TO BE DECIDED BY A JURY

- WHETHER DEFENDANTS COPIED

PLAINTIFFS WORK OR WHETHER

DEFENDANTS ARE PLAGARISTS. THE

SUPREME COURT MAY TAKE THIS

OPPORTUNITY TO ENACT A UNIFORM

STANDARD WHERE AN AFFIRMATIVE

DEFENSE OF INDEPENDENT

CREATION CANNOT BE DECIDED BY A

JUDGE ON A MOTION FOR SUMMARY

JUDGMENT. IT IS A TRIABLE FACT

ISSUE FOR A JURY. atta ceneereu ae

Il. INDEPENDENT CREATION IS A FACT

QUESTION THAT CANNOT BE

RESOLVED BY A JUDGE IN A

TO ATRIAL BY JURY A JUDGE

CANNOT RESOLVE GENUINE ISSUES

OF FACT, CANNOT MAKE

CREDIBILITY DETERMINATIONS, AND

CANNOT ACCEPT EVIDENCE FROM

“INTERESTED PARTIES.” 4

CONCLUSION 10

TABLE OF AUTHORITIES

Pr ILE

Cases

Arenas uv. United States, 322 U.S. 418, 434.

64S. Ct. 1990, 881.1 kd. 1363 . 34

Arnstein v. Porter, 154 F.2d (2d Cir. 1946) 34

Associated Press v. Untted States,

326 U.S. 1, 6, 7, 65S. Ct. 1416) . 7 .. 34

Backus v. Gould, 7 How. 798, 802.

EZ by, Bel. BUS CABG) onc cccccccccccccccsccs: sieveuss eee

Berkic v. Crichton, 761 F. 2d 1289.

RNR a SEE ce sa usdcdecussedoessécueks on

Burrow-Giles Lithographic Co. v. Sarony,

111 U.S. 53, 4S8.Ct. 279, 28 L.Ed. 349 (1884)... 40

Celotex Corp. v. Catrett,

aT, We ON 1g ee UR ivinavtednnstoccrsstersuecsnne ae

Chivalry Film Prods. No. 05 Civ. 5627,

BO FF sy 0 TOO ncn cdcncecevadessssavceses ee)

Clonus Assocs.v. Dreamworks, LLC,

457 F. Supp. 2d 482, 441 (S.D.N.Y. 2006) 24

Corey Glover, eta al. vs. Dallas L. Auston, et. al.

CURE Bh) BOI ovvisice sncssecapcisens

Cox v. Abrams No.98 Civ. 6899,

1997 WL 2515382, at *7,

1997 U.S. Dist. LEXIS 6687... 24, |

Dwight v. Appleton,

8 F. Cas. 183, 185 (C.D.N-Y.1843)

El Deeb v. Univ. of Minnesota, 60 F. 3d, 423,

428 (8th Cir. 19985) ........

Feist Publications, Inc. v. Rural Tel. Service Co..,

499 U.S. 340, 361...... aus Zi,

Feltner v. Columbia Pictures Television, Inc..,

523 U.S. 340, 351-53 (1998) .......... 15,

Gemint Industries v. Labtec Enterprises, Inc

and Fred Meyer, Inc. No. C92-53841T/C

(Sept. 23, 1993) oo.ccccccccccceceeseeeee.

Hein v Harris, 175 F. 875 (S.D.N.Y)

183 F. 2d 107 (2d Cir. 1910)..

Hudson v. Patten, 1 Root 133, 134

(Conn. Super. 1789) ...................000 , 18,

Jada Toys, Inc., a California corporation vs.

Mattel Inc., a Delaware Corporation Us Court

of Appeals for the ninth circuit 518 F. 3d

628,2008 US App LEXUS 3627 ...............

Kamar International, Inc. vs. Russ Berrie and

Co., 657 F. 2d 1059 (9th Cir, 1981) .....

Langman Fabrics v. Graff Californiawear, In

160 F.3d 106, 117 (2d Cir. 1998) 24

Laureyessens, 964 F. 2d at 142

Levine v. United States, 362 U.S. 610, 80S. Ct

1038 (1960)

Liberty us. Lobby, 477 US supra, at 25 14, 31, :

Lord Townshend v. Hughes, 2 Mod. 150, 15]

86Eng. Rep. 994, 994-995 (C.P. 1677)

Lytle v. Household Mfg., Inc. 494 U.S. 545-55

(1990)

McClenachan v. McCarty, 1 Dall. 375, 378,

LL.Ed. 183 (1788)

Meta Film Associates, Inc., 586 F. Supp at 1355

Millar v. Taylor, 4 Burr. 2303, 2398,

98 Eng. Rep. 201, 252 (K.B.1769) 16

Millett v. Snowden, 17 F. Cas. 374, 375

(S.D.N.Y.1844) ... LY,

Offutt vu Uniied States, 348 US 11

14/75 8S. Ct. 11, 138 1954

Patsy Maharam v. James Patterson, et. al

(Order dated January 9, 2006) S.D.N.Y

04-cv-O9569 .

VAG)

Vill

Peel & Company, Inc. us. The Rug Market. Us

Court of Appeals, Fifth Circuit, No. 99-31051,

January 24, 200] repnsivanccalies 27

Peter Pan Fabrics, Inc. v. Martin Weiner Corp..,

274 F. 2d, 487, 489 (2d. 1960 ) | 9

Reeb v. Ohio Deptt of Rehab. And Corr., 435 F.3d

639, 644 (6th Cir. 2006)..... .29

Reed v. Carusi, 20 F. Cas. 431, 432, No. 11,642

(D.Md.18450 (CCMd. 1845) 19. 20

Reeves v. Sanderson Plumbing Products, Inc. 530

US 133 (2000), 197 F.3d 688 ...... jsakakceanacuce eee

Repp v. Webber, 892 KF. Supp, 552, 56 (S.D.N.Y

1995)... eee .. 12, 33

Rogers, 960 F. 2d at 307 .... 12, 33, 39

Ronald Mayotte & Assoc. v. Mgc Bldg. Co. (Not

reported in f. Supplement. 1995 WL 681269)

36 U.S.P.Q. 2D 1793, E.D. Mich. Sept. 6, 1995. 28

Sartor v. Arkansas Natural Gas Corp., 321 U.S

ed, Ge Bs er Os UE ven cvccdncccecee 34

Sell v. Jordan, No. 99-16580 US Court of Appeal

for the 9th Circuit. 2001 .................0..0000 ee. 28

Silberstein, No. 02 Civ. 1131, 2004 WL 1620895,

at *8, 2004 U.S. Dist. LEXIS lat *27

(S.D.N.Y.July 19, 2004)...... laws 24

Smith v. Little Brown, 245 F. Supp 451, 459

(S.D.N.Y.) 1966 .......... 1]

Stationers Co. v. Patentees, Carter's Rep. 89, 124

Eng. Rep. 842(C.P.1666) 1G

Three Boys Music v. Michael Bolton, 212 F. 3dd

477 (9th Cir. 2000)....

T'Peg Inc. v. Vermont Timber Works, Inc. 1st Ci

No. 05-'2866, 8/18/06 26

Union Carbide & Carbon Corp., 70 U.S. 690, 696

oO ek | ae |

United States v. Sciuto, 521 F. 2d, 842, 845 (7th

6°30.) as G

Wright & Miller 299 9

Other Authorities

Article I, s 8, cl. 8, of the Constitution 10

Connecticut copyright statute 18, 19

vopyright Act of 1831 16-20

U.S. Copyright Office, Copyright ...Enactments

Laws Passed in the United States Since 1783

Relating to Copyright, Bulletin No. 3, p. 1 (rev

ed.1963) ...........

Due Process Clause of the U.S. Constitution

Kederal Rule 56 (c)

Kederal Rule 56 (e)

forms of Action at Common Law, 357 (1929)

17 U.S.C. § 102 |

Seventh Amendment to the U.S

16, 20

(Clon citucion

Statute of Anne

Miscellaneous

Chafee Reflections on the

503.

Law of Copyright, 4

Columbia Law Rev 513 (1945)

1 J. Chitty, Treatise on Pleading and Parties to

Actions, at 164 (1892)

1 W. Patry, Copyright Law and Practice 3 (1994)

Moore's Federal Practice 438.11[5] (2d ed. 1996)

Nimmer at 13.03 [A][1} 13-39 1]

Nimmer on Copyright 13.01 [B] at 13-1:

Nimmer at 13.03 [A] {1}13-36. (15)

Nimmer on Copynight, 13.02

[A] at 13-1]

The Trade-Mark Cases,

»\

1OO U.S. 82. 25 L. ltd

(187!

1()

APPENDIX INDEX

j 4

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT SUMMARY

ORDER DATED MARCH 11. 2010 la

UNTTED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MEMORANDUM OPINION AND ORDER

DATED SEPTIEMBEER 14, 2007 Ga-l4a

AMENDED COMPLAINT AND DEMAND

FOR JURY TRIAL DATED DECEMBER 9

2004 bpba-40a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ORDER

DENYING REHEARING DATED APRIL 15

ZOiO tla 12a

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT ORDER

DENYING MOTION TO UNSEAL DATED

MARCH 15, 2010 13a-444a

OPINIONS BELOW

Pats, Maharam { Jaume Patter

(SDN _Y.) 04-cv-09569

Patsy Maharam | James Patterson. et. al (Court

\ppeals for the Second Circuit) 07-471

JURISDICTION

he District Court had exclusive copyright

jurisdiction pursuant to 28 U.S.C. § 1338. This Court

has jurisdiction under 28 U.S.C. §& 1254. The Court of

\ppeals for the Second Circuit entered its decision

on March 11, 2010

The Court of Appeals for the Second Circuit

Denied Petition for Re-Hearing on April 15, 2010

Circuit Justice Ruth B. Ginsburg extended the time

to file a Petition for Writ of Certiorari to September

1.3, ZO10

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Art. 1, § 8, cl. &

The Conger hall have Powe! Lo promot

the Progress of Science and useful Arts, by securing

for limited Time to Author and Inventor: the

exclusive Right to their respective Writing ind

Discoverie

17 U.S.C. § 102

(a) Copyright protection subsists . . . in

original works of authorship fixed in any tangible

medium of expression .... Works of authorship

include the following categories:

(1) literary works...

U.S. CONSTITUTION, SEVENTH

AMENDMENT

«s

(ijn suits at common law, where the value in

controversy shall exceed twenty dollars, the right of

trial by jury shall be reserved ...”

STATEMENT OF THE CASE

COMES NOW, PATSY MAHARAM, pro se,

before this Court to make this Petition. I respectfully

request an impartial judiciary for an even handle

reading of the law. In support of same, I state as

follows:

There was a great injustice in my case and |]

lioped it would be remedied on appeal. However, the

Decision of the Court of Appeals, Second Circuit

(app. la) was riddled with errors in fact, laws and

logic. Even down to their Decision turning on two

affidavits that don’t exist.

Unfortunately, the Second Circuit abused its

discretion in rendering an unjust Decision in conflict

to the bedrock Copyright, Constitutional, Federal

and Supreme Court Laws of the United States of

America.

Accordingly, this Court should enforce

uniform summary judgment standards to be followed

in copyright cases, when Defendants come forth with

the affirmative defense of independent creation,

which is an issue of fact. Especially, when Plaintiff,

as in my case, establishes genuine issues of material

fact on access and substantial similarities which

deserve a trial by jury.

Which, in fact, had been originally ordered by

the District Court when Judge Wood found and

identified what she called “definite” and

“substantial” similarities. That my work, “Kid

Santa” and the Defendants’ so-called“Santa Kad”

were “akin.” (see quotes from Decision in this

section)

The lower courts have been taunting at

windmills and snubbing bedrock laws of the

land. There are important Copyright, Federal,

Constitutional and Supreme Court laws in support

of my petition that prove summary judgment should

not be granted on an affirmative defense of so-called

independent creation.

Protection is warranted. Historically, | am

the creator and author of the first daughter of Santa

Claus (my first of 13 copyrights for my character

registered in 1982). My original character has a

special secret, a distinct personality, drives Santa’s

sleigh led by reindeer donned with hats, speaks 1n a

modern-vernacular language and has a mission to

save Christmas. Her name is Holly Nicole and |

chose to specifically adorn and identify Santa’s

precocious offspring with a nickname: “Kid Santa.”

(Note: Defendants’ “Santa Kid” claims to be the first

daughter of Santa Claus, with the same special

secret, a distinct personality, drives Santa’s sleigh

and also has a reindeer wearing a hat. She speaks in

a modern vernacular and has a mission to save

Christmas. Defendants’ character is called Chrissie

and likewise has a nickname, “Santa Kid.”)

My character, along with explicit expressions

of my idea, began during my childhood, when I took

on the persona at holiday time, signing my presents

and greeting cards as Santa’s daughter. In 1982, I

filed my first copyright for the expression of my idea,

which was ultimately followed by a= stack of

copyrights making a total of 13 for “KidSanta’”

copyrights in the Library of Congress. My registered

works included illustrations, descriptions, stories,

poems, music, songs, recipes, ongoing adventures,

other members of the Claus family and characters,

scripts, audio/visual materials, marketing &

advertising materials, storyboards and_ other

expressions, including descriptive elements that

identified the uniqueness of my original creations.

Krom 1982 through the present I have

developed the expression of my idea and ensured its

exposure through the media, distribution, product,

airlines, radio, television, books, performances,

schools, and so much more...

With my “KidSanta”, I was on the cover of

Billboard Magazine, on the nominating ballot with

my book and record for the Grammy Awards, in Liz

Smith’s column (who shares the same agent as

James Patterson) and was called a “girl wonder” in a

full page story in “The Daily News’ . The headline of

the article about my “Kid Santa” creation was an

attention getter as it proclaimed: “Santa's Kid Will

Sleigh You.”

“Kid Santa” was not my first venture into the

entertainment field. During College I began a career

in radio where I| hosted a children’s radio show called

“Patsytime.” I also worked for WLIR-FM_ radio

utilizing my ICC License. Upon College graduation,

I divided my time as Commercial Director, writing

and producing commercials at WHLI-AM/WKJY-FM

Radio Stations and pursing my musical writing

career.

My career expanded into recordings and by

the time the late70s rolled around, my songs were

published by Bourne Co. Ultimately, by the early 80s

I had a_ successful dance hit called “Joggin;’,

appeared at top hotspots including “The Limelight”

and “The Copacabana” and released an album that

included songs which were winners in_ the

professional division of “The American Song

Festival” . A single cut from the album, “Just A

Little Imagination” landed on the national Billboard

Adult Contemporary Chart which propelled me into

television appearances.

I had confidence in the copyright system of the

United States and continued copyrighting my works.

In 1983, having already copyrighted my first

daughter of Santa Claus in 1982, I felt well protected

and secure to let Santa’s offspring out of the closet.

In 1983, the release of “Kid” Santa Claus via a title

record made history and gained public recognition

when the song broke the national pop charts. The

record was acknowledged in the media as being the

first time a new Christmas character song had broke

the national pop charts since “Rudolph”.

“Kad Santa” has a_=e solid foundation. A

voyeuristic interest grew and thoroughout the 1980s

and 1990s to the present I have continued my sleigh

ride and appeared with my Kid Santa projects at

multiple venues, including but not limited to “The

Russian Tea Room” and “The Plaza Hotel” as well as

exposure and appearances in the media and on TV

and radio, among other outlets.

While promoting my “Kid Santa” 1 also

worked for the famous Earl Blackwell of Celebrity

Service, International and wrote several published

books; including his life story and “The Celebrity

where I have played at leading hotels and venues.

Therefore, one can imagine my surprise when

on an ordinary Monday morning, November 15,

2004, I was seated on an M50 cross-town bus in

Manhattan. As the bus approached Fifth Avenue at

50th Street, [ experienced a mind-blower. I saw the

front windows of Saks Fifth Avenue covered with

huge banner-like shades featuring the words:

“Santa Kid Santa Kid Santa Kid Santa Kid Santa

Kid”

Later that day I learned that Defendant,

James Patterson had allegedly written his first

children’s book with that title. What became even

more shocking, was that I subsequently learned that

my former press agent, Linn Tanzman, was in

charge of promoting Patterson's project for the Saks

windows. Further, James Patterson was surfacing

on TV morning shows utilizing press expressions

and statements that were allegedly from my original

press sheets and statements that were utilized by

my press agent Linn Tanzman when she represented

me.

After noting distinct similarities in the name

of Defendants’ project, the character, illustrations,

press and_ storylines, among other = significant

likenesses my Amended Complaint was filed on or

about December 9, 2004 against the Defendants in

the Southern District Federal Court of New York.

Shortly thereafter, opposing counsel threatened a 12

my materials were sent to the court and opposing

counsel, and a conference was held in front of Judge

Kimba Wood in February 2005. At that conference

(two months after my case was opened and material

had been sent to opposing counsel and the court),

Defendants’ counsel Elizabeth McNamara revealed

that Judge Wood failed to disclose that she was a

former neighbor of Defendant, James Patterson:

having lived on the same floor in the same

apartment building in Manhattan.!

' It was also learned that Judge Wood failed to disclose other

alleged financial and social ties. When it was requested that

she recuse herself, she did not do so, and instead solicited

Defendant, James Patterson to write an affidavit to support her

contention that they were just neighbors. By doing so, Judge

Wood caused an uncomfortable situation to Plaintiff, by

making it appear that Defendant was credible and had some

sort of sovereign immunity that he could become the court's

Judge Wood declined Defendants’ (12 c)

Motion to Dismiss. Defendants’ attempted te

knock out my case at the get-go. They couldn't do it,

because Judge Wood recognized the likeness of the

two characters.

With these words, Judge Kimba Wood of the

S.D.N.Y. acknowledged my due _ diligence in

establishing originality and copyrights in_ her

January 9, 2006 Decision in my case, declining

Defendants’ 12 (c ) Motion

“Protection is warranted... by Plaintiffs

storyline and the manner in which the themes

and incidents are employed in Plaintiffs

narrative. There are numerous storylines that

could be developed which involve Santa’s

daughter delivering Christmas presents, and

even more ways in which the theme of ‘saving

Christmas’ could be exploited; the character of

Santa’s daughter could be drawn quite

differently. Plaintiff chose to express her

themes and ideas in a particular storyline,

which finds numerous parallels tn Defendants’

works."(S.D.N.Y. January 9, 2006 Decision;

pg .27)

A detailed comparison. In denying

Defendants’ 12 (c) motion to dismiss on _ the

pleadings, the court relied on the: ‘ordinary observer

test,’ that is, whether the ordinary observer, unless

witness. Further, Judge Wood solicited opposing counsel and

Time Warner counsel to make affidavits regarding her

allegedly unusually large financial stakes in Wal-Mart who is a

prime supplier of Patterson and Defendants’ products.

he set out to detect the disparities, would be

disposed to overlook them, and regard their aesthetic

appeal as the same.” Peter Pan Fabrics, Inc. v.

Martin Weiner Corp., 274F. 2d, 487, 489 (2d. 1960).

and the ‘more discerning ordinary observer test.’ See

Laureyessens, 964 F. 2d at 142. (pg. 12) The Court

confirmed “Central to this comparison is_ the

fundamental principle of copyright law, that

an idea, not the idea itself’ (pg. 14)

Comparison of Plaintiff's and

Defendants’ Works. In Judge Wood’s decision, the

court affirmed the plentiful amount of “definite”

“significant” “substantial” similarities and parallels

requiring a trial by jury. According to the docket

record, the court set a trial date.

Some examples of the _ substantial

similarities that the Court recognized in

its January 9, 2006 Order, warranting a

trial by jury

Total Concept and Feel: “Both Plaintiffs

“Kid” Santa Claus works and Defendants’ santaKid

works are holiday stories, aimed at young children

and are told in a modern, childlike vernacular.’

... Both are set in the North Pole at Christmastime

and aim to capture the spirit and magic of

Christmas.”...”Both sets of works have as their

protagonist a young heroine — Santa’s daughter

who takes on the _ responsibility of delivering

presents when Santa cannot, and Saves

Christmas’”...."-The fly leaf of Defendants’ book

describes the story as “a humorous, heartwarming

adventure — with an unforgettable heroine whose

message will be shared for generations. to

come...”...” This description would readily apply to

both sets of works, in which the message to the child

reader is to believe in Christmas and also to believe

in yourself.” (Pg. 24)

Analogous Character Traits arise from

the plot.“In this case also, the Court recognizes that

certain of the character traits that Holly Nicole [Kid

Santa] and Chrissie [Santa Kid] share, such as their

willingness to step up to a challenge and their

bravery arise from the plot, which, as discussed

below, ts similar in both books...” (pg. 24)

Both works are akin. “ within the context of

the respective stories, Holly {Kid Santa] and

Chrissie [Santa Kid] share definite similarities and

relate in like ways to the reader or listener. In

summary, despite differences in visual appearance,

the protagonists who engage the child reader or

listener in both works are akin.” (pg. 24-25)

“Quite Similar” Plot, Structure and

Sequence of Events. “Turning next to the plot,

structure and the sequence of events in the works,

the stories in both Plaintiffs and Defendants’ works

are quite similar...’(pg. 25)

Given similar names as a result of their

adventure. “Both heroines are given their similar

names, “Kid” Santa Claus and SantaKid — the titles

of the works — as a result of their exploits, toward

the end of the story. ..”"pg. 25-27)

Entitled to Copyright Protection “Courts

in the Second Circuit have noted that the sequence

that forms the plot or pattern of a work is an

important element in finding that a work is entitled

to copyright protection. See e.g. Smith v. Little

Brown, 245 F. Supp 451, 459 (S.D.N.Y.) 1965).....(see

also: Nimmer at 13.03 [A][1} 13-39 . The District

Court added in my case that I “developed her themes

of believing in the magic of Christmas, of a young

person overcoming doubts and being able to do a

grown-up job, and of saving Christmas, through the

simple story of Santa’s daughter stepping in to

deliver the Christmas presents one year when Santa

cannot. Similar themes are expressed through a

similar story and sequence of events in Defendants’

book.”

Entitled to Trial by Jury. In its January 9,

2006 Decision, the District Court concluded with a

strong and loud message that my copyright case

deserved and was at liberty for a trial by jury.

“On the basis of the foregoing analysis, the

Court finds that Plaintiff has created a story

in which she has described her character,

expressed her themes, and developed her plot

in a manner sufficiently concrete to warrant

protection, and that the same themes and plot

are developed in Defendants’ works, with

certain common elements, and with a

character and sequence of events sufficiently

similar to Plaintiffs to raise issues of material

fact, warranting submission to a jury on the

issue of copyright infringement.” (pg. 33)

] )

When the question of substantial similarity is

one on which reasonable minds could differ,

summary disposition will be denied. See

Rogers, 960 F. 2d at 307. Rep v. Webber, 892

I. Supp, 552, 56 (S.D.N.Y. 1995). Such is the

case here. (pg. 34)

During the colored circles of discovery

further issues of fact surfaced that could be

cross-examined at trial. Deposition testimony was

conflicting and documents didn’t match. Genuine

issues of material fact surfaced concerning the roles

of people that worked for Patterson, as well as

ghostwriters who wrote books for him. “Ghostwrite1

agreements’ were sealed and important evidence

was not allowed to be seen by anyone. Evidence was

suppressed by the Court when there was information

which magnified Patterson’s pattern was _ not

independent.

Defendants’ motion for summary

judgment was over burdensome and should

never have been considered by the District

Court. In order to create a huge paper chase and

prejudice plaintiffs ability to fight a Goliath defense

team, the motion raised issues that should be

handled for trial by jury with cross-examination

Judge Wood ignored the sealed evidence and

other evidence that should have directly impacted on

her Decision. Instead of identifying facts and

following through with her original January 2006

Decision where she ordered a trial by jury

recognizing the likeness between Plaintiff and

Defendant's characters Judge Wood displayed a

| 4

lack of objectivity with an abuse of discretion by

abusing her position to grant summary judgment

based on the factual question of “independent

creation.” A factual question should not be decided

by a Judge on a motion for summary judgiment

In her analysis on this decision, Judge Wood

changed illusions and mischaracterized “interested

parties’ and called them “disinterested.” Nothing

could be further from the truth when these people

allegedly receive monetary gains, commissions and

salaries from Patterson and the Defendant:

“Interested Parties” are not to be weighed on

motions for summary judgment, as a matter of law

Similarly, the Second Circuit of the Court of

Appeals did not serve justice. | was shortchanged for

a proper size panel. When I asked the Court of

Appeals to see evidence that was under seal in an

order to balance the scales of justice and give

appropriate argument, I was denied and not allowed

to view the documents under seal. (app. 43a). When

! asked to correct major factual and legal errors in

the decision and an en banc panel in my Petition for

re-hearing, 1t was denied too. (app. 41a)

[ respectfully pray that this court can

establish an enforcement of summary judgment

standards, whereby a copyright case cannot be

dismissed by a Judge when defendants raise the fact

issue of independent creation; warranting a trial by

jury

consideration a {

Many VOC! wo ‘Bat New Yor}

answered a question about Santa Claus for a young

gir]

lam asking the Supreme Court

answer my petition and say “Yes” for m

constitutional right for a trial by jur'

yf the land ¢

to have in

REASONS FOR GRANTING THE PETITION

The Penests for (Lil Cxpre Lori oO] cli Ldea lie

deep within the core of the

brain *) the

inherently, the

affirmative defense of independent

creatton 18 a fact question and not to he re olved hy

ingle Judge on a motion for

’

ummary judgment

A tnabl issul

established when

defendant come:

forth with evidenc

creation See ;

independent > Nimmer

» (1999)

Credibility determination the

weighing of

the evidence, and

the drawing olf

legitimat

inferences from the fact

are jury function

not tho ¢ of a judge Libert, Lobb

Vy ipra )

‘>t

VAOTS)

‘The court must review all of the evidence in

the record but make no credibility

; or weigh any evidence. Reeve

Sanderson Plumbing Products, In 30 |

determination

In 1998. t]

Le Huprem«é (Court Vite)

» the nistory I

being tmed by jure oncluded ain freltnes

Columbia Picture Feleviston. Ine 23 US 40)

651-53 (1998) (Seventh Amendment right to jus

trial even on tatutory damav )

that Lh Seventh \mendment

Con litution] pl vidi i night to a jury trial

where the copyright Owner ¢ leg top ore Ver

tatutory d image

nin sult at common law wh} re at Villu

controversy hall exceed twenty dolla Bit

right of trial by jury shall be preserved

Constitution. Amendment

Ihe heltne Cais cl pict a | COIL hie I} ivi le

it copyright law the Seventh Amendment and thi

consistency of copyright cases where there 1 cleat

ind direct historical evidence’ for copyright cases t

be tried by juries in order ‘to preserve the

ubstance of the common-law right of trial by yur

lad it 426. 107 S. Ct... at 1840

W hile feline focused on tatutory damave

n copyright case ymilar historical reasoning can

be apphed for thie Supreme CCourt |

Petition That walk down copyright lane land

| ( irt id tal I that om ded pola

Api boa | ificall ' erted m right lor a trial for pur if

i! isked for Latutor damagpe he right ¢t i pur ry

Include the right to have i yury determine tlhe woul

tatutory damage ! any warded t thie pymunht owner

has long been recognized that “by the law the ry are pudyr

the damage Lord Townshend v. Hf he Mod. 150. 15]

Ing. Rep. 994 994.995 (' P Te

us in the same territory that copyright cases should

be tried by juries.

“Before the adoption of the Seventh

Amendment, the common law and statutes in

England and this country granted copyright

owners causes of action for infringement.

More importantly, copyright suits for

monetary damages were tried in courts of law,

and thus before juries. There is no evidence

that the first federal copyright law, the

and damages actions under the Copyright Act

of 1831 were consistently tried before juries.”

By the middle of the 17th century, the

common law recognized an author's right to

prevent the unauthorized publication of his

manuscript. See, e.g., Stationers Co. vu.

Patentees, Carter's Rep. 89, 124 Eng. Rep. 842

(C.P.1666). This protection derived from the

principle that the manuscript was the product

of inteiiectual labor and was as much the

author's property as the material on which it

was written. See Millar v. Taylor, 4 Burr.

2308, 2398, 98 Eng. Rep. 201, 252 (K.B.1769)

(Mansfield, J.) (common-law copyright derived

from principle that "it is just, that an Author

should reap the pecuniary Profits of his own

ingenuity and Labour"); 1 W. Patry, Copyright

Law and Practice 3 (1994). Actions seeking

damages for infringement of common-law

invasions of other property rights, were tried

in courts of law in actions on the case. See

Millar v. Taylor, supra, 2396-2397, 98 Eng.

Rep., at 251. Actions on the case, like other

actions at law, were tried before juries. See

McClenachan v. McCarty, 1 Dall. 375, 378, 1

L.Ed. 183 (1788; 5 J. Moore, Moore's Federal

Practice §38.11[5] (2d ed.1996; 1 J. Chitty,

Treatise on Pleading and Parties to Actions, at

164 (1892).

The practice of trying copyright damages

actions at law before juries was followed in

this country, where statutory copyright

protections were enacted even before adoption

of the Constitution. In 1783, the Continental

Congress passed a resolution recommending

that the States secure copyright protections

for authors. See U.S. Copyright Office,

United States Since 1783 Relating to

(hereinafter Copyright Enactments Twelve

States (all except Delaware) responded by

enacting copyright statutes, each of which

provided a cause of action for damages, and

none of which made any reference to equity

jurisdiction. At least three of these state

statutes expressly stated that damages were

to be recovered through actions at law, see id.,

at 2 (in Connecticut, damages for double the

value of the infringed copy "to be recovered .. .

in any court of law in this State"); rd., at 17 Gin

Georgia, similar damages enforceable "in due

course of law"); id., at 19 Gn New York,

similar damages enforceable in "any court of

law"), while four others’ provided that

damages would be recovered in an "action of

debt," a prototypical action brought in a court

of law before a jury. See F. Maitland, The

Forms of Action at Common Law, 357 (1929)

(hereinafter Maitland); see Copyright

Enactments 4-9 (in Massachusetts, New

Hampshire, and Rhode Island, damages

enforceable by "action of debt"); 1d., at 12 (in

South Carolina, damages of one shilling per

sheet enforceable by "debt, bill, plaint or

information"). Although these statutes were

short-lived, and hence few courts had occasion

to interpret them, the available evidence

suggests that the practice was for copyright

actions seeking damages to be tried to a jury.

See Hudson v. Patten, 1 Root 133, 134 (Conn.

Super.1789) Gury awarded copyright owner

£100 under Connecticut copyright statute).

In 1790, Congress passed the first federal

which similarly authorized the awarding of

damages for copyright infringements. Act of

May 31, 1790, Ch. 15, §§2, 6, 1 Stat. 124, 125.

The Copyright Act of 1790 provided that

damages for copyright infringement of

published works would be "the sum of fifty

cents for every sheet which shall be found in

{the infringer's}] possession, .. . to be recovered

by action of debt in any court of record in the

United States, wherein the same is

cognizable." §2. Like the Statute of Anne, the

moiety") of such damages were to go to the

For infringement of an unpublished

manuscript, the statute entitled a copyright

owner to "all damages occasioned by such

injury, to be recovered by a special action on

the case founded upon this act, in any court

having cognizance thereof." §6.

... There is no evidence that the Copyright Act

of 1790 changed the practice of trying

before juries. ...Moreover, actions to recover

damages under the Copyright Act of 1831-

which differed from the Copyright Act of 1790

only in the amount (increased to $1 from 50

cents) authorized to be recovered for certain

infringing sheets-were consistently tried to

juries. See, e.g., Backus v. Gould, 7 How. 798,

802, 12 L. Ed. 919 (1849) Gury awarded

damages of $2,069.75); Reed v. Carust, 20 F.

Cas. 431, 4382, No. 11,642 (D.Md.1845)

(CCMd.1845) Gury awarded damages of $200);

Millett v. Snowden, 17 F. Cas. 374, 375

(S.D.N.Y.1844) Gury awarded damages of

$625); Dwight v. Appleton, 8 F. Cas. 183, 185

(C.D.N.Y.1843) (Qury awarded damages of

$2,000).

More specifically, this was the consistent

practice in copyright cases. In Hudson ov.

Patten, 1 Root, at 134, for example, a jury

awarded a copyright owner £100 under the

Connecticut copyright statute, which

permitted damages in an amount double the

value of the infringed copy. In addition, juries

assessed the amount of damages under the

States

U.S. ¢

statute, like the Copyright Act of 1790, fixed

damages at a set amount per infringing sheet.

See Backus v. Gould, supra, at 802 Gury

awarded damages of $2,069.75); Reed v.

Carusi, supra, at 432 (same, but $200);

Dwight v. Appleton, supra, at 185 (same, but

$2,000); Millett v. Snowden, supra, at 375

(same, but $625).

“...For the foregoing reasons, we hold that the

Seventh Amendment provides a right to a jury

trial .”

Feltner vs. Columbia Pictures Televiston Inc

523 U.S. 340 (1998)

The intent of the Constitution of the United

is to protect the original works of writers.

onstitution, Art. I, § 8, cl. 8:

The Congress shall have Power .. . 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...”

17 U.S.C. § 102:

where

(a) Copyright protection subsists ... in original

of authorship fixed in any tangible medium of

expression...

Within some circuits there are instances

Summary judgment was granted on a

defendant’s affirmative defense of independent

creation. However, these cases send a wrong

message and present double standards. On one

hand, they are sideswiping a copyright owner's

constitutional right to a trial by jury and on the

other hand a dismissal based on a_ so-cailed

independent creation is masquerading genuine

issues of fact, depending oon _— superfluous

Overpowering paper chase motions to change

illusions at any cost to avoid trial.

I. INDEPENDENT CREATION IS A

FACT QUESTION TO BE DECIDED

BY A JURY - WHETHER

DEFENDANTS COPIED PLAINTIFF'S

WORK OR WHETHER DEFENDANTS

ARE PLAGARISTS. THE SUPREME

COURT MAY TAKE THIS

OPPORTUNITY TO ENACT A

UNIFORM STANDARD WHERE AN

AFFIRMATIVE DEFENSE OF

INDEPENDENT CREATION CANNOT

BE DECIDED BY A JUDGE ON A

MOTION FOR SUMMARY

JUDGMENT. IT IS A TRIABLE FACT

ISSUE FOR A JURY.

The Second Circuit shows a “reluctance”

to grant summary judgment. Justice Rosemary

Pooler, who had been assigned to my Second Circuit

Appeal recused herself. However, Justice Pooler

expresses a view in a Second Circuit Decision that

there is a “reluctance” to grant summary judgment

based on an affirmative defense of independent

creation.

Justice Rosemary Pooler of the Second Circuit

was on a panel in 2008 which reversed a decision on

summary judgment. In that Decision, the Second

Circuit expressed their “...usual reluctance to grant

summary judgment based on the defendant’s claim

of independent creation.” (Corey Glover, eta al. us.

Dallas L. Auston, et. al. (July 24, 2008)

The Court should be aware that Justice

Rosemary Pooler was scheduled to hear my Appeal

at the Second Circuit. Her recusal left an incomplete

panel.

There was only one Circuit Judge and one

District Judge assigned to hear my appeal. When |

asked for an en banc re-hearing or a full panel, I was

denied. Simply said, I was shortchanged. I went to

the Supreme Court for Justice and Justice was not

served.

Unfortunately, the two Judges that were left

on the panel rendered a decision riddled with errors

in fact, law and logic.*

3 The Second Circuit's decision in my case is_ baffling,

prejudicial and grossly false. Although, according to Rule 10

(Rules of the Supreme Court) explains that it 1s not the role of

this writ to alert the Supreme Court to correct errors in fact, it

is necessary because of the seriousness of the errors, to briefly

note here, that the Second Circuit Decision remains

uncorrected and factually wrong. Specifically, it turns on two

affidavits that do not exist._There are no affidavits from a

“former agent” and a “secretary.” Moreover, the Second Circuit

misapprehends the findings of my experts. Contrary to their

decision, there is an abudance of evidence in the record that

shows both Professor Kastan and Professor Barry stand by

their reports and are in conflict to defendants’ expert. As a

Apparently, | was prejudiced without having a

third Second Circuit Judge to consider my appeal.

Perhaps, Justice Pooler’s view on the Second

Circuit's reluctance to grant summary judgment

based on independent creation defense, would have

entered into the mix for a deliberation and provided

input that the Court of Appeals should not affirm the

District Court unjust decision.

Footnote 4 of The District Court’s Decision in

my case suggests a split among the Second Circuit as

to summary judgment dismissals on _ alleged

independent creation. However, Judge Wood’s

analysis, as these cases relate to my case, 1s wrong.

The cases that grant summary judgment did not

have the same ingredients of “definite” similarities

and showings of access that my case contained for a

trial by jury.

Judge Wood writes:

matter of fact, Professor Kastan (Chairman of the Department

of English and Comparative Literature at Columbia

University) believed and stated it was “very likely” that it was

impossible for Defendants’ to create “Santa Kid” without

relying on Plaintiffs “Kid Santa.”

@. Is it likely that he {Mr. Patterson] did not

independently create Santa Kid?

A. It seems to be that it is very likely that he

did not independently create Santa Kid.

Q. Is it very likely that he did not independently

create Santa Kid?”

A. It seems to be that it is very likely

Kastan Dep. 270:17-23

7 4

“Courts in this district have taken differing

positions regarding whether a district court

may grant summary judgment on the basis of

independent creation. Compare, e.g., Clonus

Assocs.v. Dreamworks, LLC, 457 F. Supp. 2d

432, 441 (S.D.N.Y. 2006) (“No matter how

credible [] a claim fof independent creation] is,

and even absent any contrary evidence, a

court should not grant summary judgment on

that basis.”) with, e.g., Chivalry Film Prods.,

No. 05 Civ. 5627, 2006 WL 3780900, at *2,

2006 U.S. Dist. LEXIS 92956, at “*9;

Silberstein, No. O02 Civ. 1131, 2004 WL

1620895, at *8, 2004 U.S. Dist. LEXIS 13554,

at *27 (S.D.N.Y.July 19, 2004) (“Evidence of

independent creation is an established ground

for granting summary judgment.”); Cox, No.

93 Civ. 6899, 1997 WL 251532, at *7, 1997

U.S. Dist. LEXIS 6687, at *19-20. See also,

Langman Fabrics v. Graff Californiawear,

Inc., 160 F.3d 106, 117 (2d Cir. 1998) (Jacobs,

J., dissenting) (“The majority opinion (in my

view) arrives at the wrong result, but it should

not be read to raise the bar for granting

summary judgment on the defense of

independent prior creation.”).

Judge Wood's footnote displays a lack of

objectivity to rely on the cases she cites that granted

Summary Judgment.

The two decisions that Judge Wood mentioned

in support: Cox and Silberstein did not share the

same strong elements of fact displayed in my case to

support a trial by jury. For example, the Cox case is

not anagolous because the Plaintiff's in the Cox case

stipulated, they could not prove access. ‘To the

contrary, I raised issues of widespread and direct

access for a trial by jury. (see: Three Boys Music vu.

Michael Bolton, 212 F. 3dd 477 (9% Cir. 2000))

Additionally, the Cox case did not have a

showing that the works were “sufficiently similar.”

But, in my case, Judge Wood clearly found “definite”

similarities and “numerous parallels” requiring a

trial by jury.

Similarly, Judge Wood’s reference to a

dissenting Judge in Langman Fabrics case is off

mark. The dissenting Judge in Langman, the Judge

referred to a dispute concerning “independent prior

creation’. In my case, there 1s uo such dispute,

because my "Kid Santa” character/works were

created and copyrights filed on or about two decades

before Defendant’s “Santa Kid.”

More importantly, it is the Second circuit case

law of Langman that sends a loud and clear measure

and standard. [Independent creation 1s a genuine

issue of fact:

“Both the evidence of access and similarity, on

the one hand, and of independent creation, on

the other, are relevant to the ultimate issue of

copying, and the conflict of that evidence

creates a material issue of fact; on such a

record we may not enter summary judgment

for either party.” (emphasis added) Langman

Fabrics v. Graff Californiawear, Inc. 160 F 3d

106, 117 2d Cir (1998).

Other Circuits agree that Independent

Creation is a fact issue for a jury.

A search of the courts across the country

supports a uniform standard that the Supreme

Court should enforce: when there are genuine issues

of fact showing substantial similarities and

independent creation, then summary judgment is

not allowed to be dismissed by a Judge

Below aTe SOTTLC examples oft { hese CAS?

1st Circuit:

Whether a defendant's shop drawings and

constructed frame were substantially similar to a

plaintiffs architectural work presented genuin

issues of material fact and should not have been

decided on summary judgment, the U.S. Court of

Appeals for the First Circuit held Aug. 18 (7'Peg Inc

v. Vermont Timber Works, Inc. 1% Cir. No. 05-2866.

8/18/06)

2.4 Circuit

Judge Leonard Hand of the district court held

that independent creation was not a defense to an

infringement claim. Hein v Harris, 175 F. 875

(S.D.N.Y) affd,183 F. 2d 107 (2d Cir. 1910)

oth Circuit

The Supreme Court has defined this essential

element of an infringement claim as “copying of

constituent elements of the work that are original.”

Feist Publications, Inc. v. Rural Tel. Service Co.. 499

U.S. 340, 361

“We do not view the evidence Rug Market

presented as adequate to support a holding as a

matter of law that the Jessoro was independently

created; rather, a genuine question of material fact

remains in this issue.

Peel has raised genuine issues of material fact

regarding access to the directoire by Rug Market and

the degree of similarity between the two rugs al

issue. We therefore reverse the district court's

summary judgment and remand for’ further

proceedings consistent with this opinion.” Peel &

Company, Inc. vs. The Rug Market. US Court of

Appeals, Fifth Circuit, No. 99-31051, January 24

200]

Oth Circuit

“summary judgment is nol highly favored on

the substantial similarity issue in copyright case

Berkic v. Crichton, 761 I. 2d 1289,( 9" Cir. 1985)

Rather than prove independent creation, the

defendants raised an issue of fact Jada Joys, Inc., a

California Corporation vs. Mattel Inc., a Delaware

Corporation Us Court of Appeals for the ninth circuit

518 F. 3d 628, 2008 US App LEXUS 3627

There was a genuine issue of material fact a:

to whether a musician copied a song previously

written, and thus, summary judgment was_ not

appropriate Sell v. Jordan. No. 99-16580 | ( urt

of Appeal for the 9 Circuit. 200]

Court in SEATTLE, WASHINGTON

“A dispute of fact remain whether W ridge

suggestions were based upon her recollection of

Geminis work, or instead, were the product of he

own independent ideas concerning the packaging

design. Accordingly, summary judgment on thi

issue 1s inappropriate... Gemini Industries v. Labtec

Itnterprises, Inc. and Ired Meyer, Inc No. C92

§341T/C (Sept. 23, 1993)

Court in MICHIGAN

Summary Judgment denied independent

creation give rise to a genuine issue of fact as to

whether the architectural plans were independently

created.” Ronald Mayotte & Assoc. v. Mgc Bldg. Co

(Not reported in F. Supplement, 1995 WL 681269) 36

U.S.P.Q. 2D 1793, E.D. Mich. Sept. 6, 1995

My case illustrates how the lower court

abused their discretion in weighing and resolving an

independent creation defense and in doing so

snubbed Federal, Copyright, Constitutional and

Supreme Court laws.‘

pee statement of case: The District Court weighed tts decisio:

on alleged testimony from Defendants’ “interested partie

And more incredibly, the Second Circuit decision turned on

alleged 2 affidavits of’ parties that don't exist. (The 2°¢ Circuit

referred to affidavits from a “former agent” and a “secretary

There are no such affidavits in the record. Non Hience, bot}

\buse of discretion exists if the district court

rehe|d| on erroneou finding ol fact

apphe|d|the wrong legal Landard

misapphe|[d] the correct legal tandard when

reaching a conclusion, or maf{de] a clear erro

of judgment.” Reeb vo. Ohio Dep't of Rehab. ar

Cor? 1D Id 639, 644 (6th Cir. 2006)

The lower courts wronglully weighed eviden

ind credibility issu instead of identifying the

issues for trial by jury 1 matter of lay

Interestingly both lower court made blanket

tatements using measurement adjectives of “ampl

O! Vast but failed to how pecith of what the

were allegedly “weighing That's because a Judge

on a motion for summary judgment may not “we wh

evidence or athdavit i a matter of law The lowe:

court hould have taken a closer look, for it 3

apparent that defendant Hlevged evidence wa

suspicious on its) face and did dist th

requirements of Federal Rule 5

isfupporting and opposing allidavit hall bye

made on pe! onal knowledyve hall set forth

such facts as would be admissible in evidence

and shall show alfirmatively that the affiant

! compctent to testily to the matte) tated

therein. In reviewing motions fo! ummarys

judgment, courts may not consider affidavit

wr declarations that do not ynply with the

1CCISIOI from tl é '

—

requirements’. Hl Deeb v. Univ. of Minnesota,

60 F. 3d, 423, 428 (8'» Cir. 1995)

In my case, Patterson’s 2.4 Declaration is a

compilation not based on personal knowledge. At

depositions, his testimony was an empty barrel; a

collection of “I don’t knows” and _ contradictory

statements.

It would be a matter of fact for a jury to

evaluate whether Patterson, on his own, is even

“competent” (Rule 56) to testify — or if he needs one

of his ghostwriters, press agents or an attorney to

supply his answers

To illustrate this point, here are some

excerpts from Patterson’s depositions.

Patterson: “...Don’t know. I really don’t know,

and I don’t know, as I said before..and I don’t know

when it all struck me to — I would, my suspicion, but

I couldn’t you know, take this to the bank...” (SA-

2053)

Moreover, Patterson appears to need

preparation to talk about “Santa Kid” the work in

question.

Q. Tell me what the book is about in a summary

A. | can’t say I can do it in the shortest time...I’m

not, you know, prepared to do a TV interview,

right now.” (SA-2063-2064)5

° Moreover, there are genuine issues of fact that were omitted

from both of the lower Court’s Decisions. The fact that my

Genuine issues of fact cannot be resolved on a

motion for summary judgment.

“The duty of a court on a motion for summary

judgment is to determine whether there are

any genuine issues of material fact to be

resolved by trial and not to decide factual

issues. In this regard, the court’s task is issue

identification, mot issue resolution”. See

Liberty Lobby, 477 U.S. at 249

“..the court must draw _ all reasonable

inferences in favor of the nonmoving party

and it may not make credibility

determinations or weigh the evidence.” Lytle

v. Household Mfg., Inc. 494 U.S. 545-55

(1990); Liberty Lobby, Inc. supra. At 254

Continental Ore Co. v. Union Carbide &

Carbon Corp., 70 U.S. 690, 696, n. 6 (1962).

‘he granting of summary judgment based on

defendants’ so-called independent creation is an

insult to my originality and 13 valid copyrights that

were registered in the Library of Congress decades

before Defendants’ works at issue.

“The District court must assess the evidence

in “a light most favorable to the nonmoving

former, press agent, Defendant Linn Tanzman, was the person

in charge of promoting Patterson’s “Santa Kid” at Saks Fifth

Avenue. There are credibility issues for a jury in the record

and issues of fact where it 1s apparent that Linn Tanzman’s

deposition and declaration are suspect and she mirrored my

press materials to feed to James Patterson for his media

Campaign

party...” and “draw all reasonable references”

in its favor. Liberty Lobby, Inc. 477 U.S. 242,

255, 106 8. Ct. 2505, 91 L. Ed 2d 202 (9186)

In granting summary judgment, the lower

court deprived me of a previously scheduled trial by

jury in this action where the court found | had

established a prima facie case ,noting that

defendants’ had _ substantial, even “definite”

similarities with my works that entitled me to a trial

by jury.

On page 33 and 34 of the District Court’s

January 9, 2006 decision in my case, Judge Wood

rules that Plaintiff

“...has developed her themes of believing in

the magic of Christmas, of a young person

overcoming doubts and being able to do a

erown-up job, and of saving Christmas,

through the simple story of Santa’s daughter

stepping in to deliver the Christmas presents

one year when Santa cannot. Similar themes

are expressed through a similar story and

sequence of events in Defendants’ book...”

“On the basis of the foregoing analysis, the

Court finds that Plaintiff has created a story

in which she has described her character,

expressed her themes, and developed her plot

in a manner sufficiently concrete to warrant

protection, and that the same themes and plot

are developed in Defendants’ works, with

certain common elements, and with a

character and sequence of events sufficiently

sumtlar to Plaintiff's to raise issues of material

fact, warranting submission toa jury on the

issue of copyright infringement.”

When the question of substantial similarity is

one on which reasonable minds could differ,

summary disposition will be demied. See

Rogers, 960 F. 2d at 307. Repp v. Webber, 892

IK. Supp, 552, 56 (S.D.N.Y. 1995). Such is the

case here.” (emphasis added)

In my case, the lower courts, in making their

determination on granting summary judgment

ignored law of the case the January 9, 2006

decision that identified the important genuine issues

of “substantial similarity” supporting petitioner's

prima facie case deserving of protection and a trial

by jury.

“Professor Nimmer proposes that Judge

Hand's formulation be combined with

Professor Chafee’s “pattern test,” to provide a

working method for the court. 4 Nimmer at

13.03 {A] {1} 13-39. Professor Chafee’s test

would protect the “pattern of the work...the

sequence of events, and the development off

the interplay of characters.” Chafee

Reflections on the Law of Copyright, 45

Columbia Law Rev., 503, 513 (1945). These

similarities amount to what Professor

Nimmer has termed “comprehensive non

literal similarity.” Nimmer at 13.03 [A] {1}

13-36. (15)

IT. INDEPENDENT CREATION IS A

FACT QUESTION THAT CANNOT

BE RESOLVED BY A JUDGE IN A

ENTITLED TO A TRIAL BY JURY. A

JUDGE CANNOT RESOLVE

GENUINE ISSUES OF FACT,

CANNOT MAKE CREDIBILITY

DETERMINATIONS, AND CANNOT

ACCEPT EVIDENCE FROM

“INTERESTED PARTIES.”

Because the analysis of Independent Creation

of an artistic work is a subjective formula, allegedly

couched deeply in an author’s mind, a Judge should

not grant Summary Judgment.

A principal question...whether the lower

court, under Rule 56 properly deprived

plaintiff of a trial of this copyright

infringement action. The answer depends on,

whether there is the slightest doubt as to the

facts.” Arnstein v. Porter, 154 F 2d (2D Cir.

1946) (also see: Arenas v. United States, 322

U.S. 418, 434, 64S. Ct. 1990, 881.1 Ed. 1363;

Associated Press v. United States, 326 U.S. 1,

6, 7, 65 S. Ct. 1416), Sartor v. Arkansas

Natural Gas Corp., 321 U.S. 620, 64 S. Ct.

724, L.D.

My case exemplifies how the lower court

drifted from the foundation of summary judgment

laws to favor of the celebrity “brand name’

defendants, exhibiting a lack of objectivity.

Rule 56 (c ) of the Federal Rules of Civil

Procedure allows summary judgment only

when the moving party demonstrates that

there is no genuine issue as to any material

fact and the party is entitled to judgment as a

matter of law.” Celotex Corp. v. Catrett, 477,

U.S. 317, 322 (1986)

Solving the puzzle of independent creation.

Judge Wood, herself, at Oral Argument of

Defendants’ motion for summary judgment,

expressed her bewilderment as to the mystery

surrounding defendants’ so-called tndependent

creation when I raised issues of fact concerning

Defendants’ inherently suspect testimony, alleged

drafts, declarations and alleged unsubstantiated

exhibits submitted with Defendants’ motion.

For instance, the Second Declaration of James

Patterson advanced remarkably conflicting

statements to his First declaration and deposition

testimony. Patterson’s Second Declaration appeared

tailored by lawyers to correct James Patterson’s “/

don't know” “J don’t remember” deposition testimony

that conflicted with his request for summary

judgment.

Judge Wood seemed particularly troubled

that there were no eyewitnesses to Patterson's

alleged independent creation ot his alleged suspect

drafts, but instead of identifying the issue for trial,

she questioned on how to rebut evidence; which is

not the function of a Judge on a summary judgment

motion.

Judge Wood ponders:

“Well, you're raising a very interesting point,

and one that I’ve worried about a bit...how

can plaintiff rebut evidence of independent

creation...One can do it among other ways,

the way you're doing it now, which is to say he

usually writes in a particular way and he did

not do it here.” (SA 495-496.)

But, Judge Wood did the wrong thing, here, in

asking a fact question, then trying to resolve it

when that was not her function on a motion for

summary judgment. Further, Judge Wood refers to

how Patterson allegedly writes, “in a particular way”

but doesn’t specify that particular way when she

should have considered Patterson is a “brand name”

and she suppressed and sealed evidence that

supports the fact Patterson uses ghostwriters and

others to write his books.®

6 As the record shows, Judge Wood failed to disclose at the

onset of this case that she was a neighbor of Defendant, James

Patterson where she lived on the same floor, and in the same

apartment house for on or about eleven years. Further, it was

also learned that Judge Wood had failed to disclose alleged

other social and family ties to the defendants. (Should a judge

not disqualify himself, then the judge is in violation of the Due

Process Clause of the US Constitution, United States v. Sciuto,

521 F. 2d, 842, 845 (7 Cir. 1996). (“The right to a tribunal free

from bias or prejudice is based, not on secition 144, but on the

Due Process Clause”). “Justice must satisfy the appearance of

justice” Levine v. United States, 362 U.S. 610, 80 S. Ct. 1038

((1960), citing Offutt v United States, 348 US 11, 1475S. Ct. 11,

13 (1954).

Judge Wood abused her discretion

withholding knowledge that she acquired during the

discovery process and keeping it under wraps;

including but not limited to issues of facts relating to

Defendant Patterson’s inability to produce books on

his own.’?. Judge Wood knew or should have known

that the alleged drafts that Mr. Patterson submitted

to the Court (drafts that he originally said he didn’t

7 | respectfully caution the Court to not be influenced in any

way by the puffery press campaign Mr. Patterson initiated

outside the record. Mr. Patterson and his team have made a

conscious effort to deceive the public as to his alleged method of

churning out books. Contrary to statements in the press his

usual pattern is to hire ghostwriters and_ researchers

Additionally, Judge Wood appeared to take on the role as

protecting the press campaign of Mr. Patterson by suppressing

and sealing evidence that allegedly would immediately wipe

out Mr. Patterson’s alleged “independent creation” defense

First, Judge Wood ignored the evidence in the record that I had

submitted my project to Patterson’s agent, Arthur Pine

Secondly, Judge Wood refused to accept an affidavit from my

mother, who was also my personal manager. Judge Wood read

this affidavit and therefore was knowledgable that my mother

handed my works to James Patterson’s agent, Jennifer

Rudolph Walsh. Ms. Walsh was Patterson’s agent for “Santa

Kid.” Judge Wood knew or should have known that: “evidence

that a third party with whom both plaintiff and defendant were

dealing with had possession of plaintiffs work is sufficient to

establish access by the defendant. “Nimmer on Copyright,

13.02 [A] at 13-11 (1981), see e.g. Meta &iim Associates, Inc.,

586 F. Supp at 1355 (reviewing intermediary access cases) (‘in

each of these cases...the intermediary, the person who had

viewed plaintiffs work, and was therefore in a position to

transmit it to the copier, either was a supervisor with

responsibility for the defendant’s project, was part of the same

work unit as the copier, or contributed creative ideas or

material to the defendant’s act). Kamar International, Inc. us

Russ Berrie and Co., 657 F. 2d 1059 (9th Cir, 1981),

have) defied his usual pattern. A pattern of which

Mr. Patterson had of using ghostwriters and

researchers. This pattern is a genuine issue of

material fact since the court knew Patterson’s secret

patter and was a key to not dismiss this case on

summary judgment.

It appears the District Court and Court of

Appeals have stayed in an unconstitutional orbit of

their own when reviewing my case. Their Decision to

dismiss on Summary Judgment must be reversed for

their Decisions can hurt the importance of copyright

protection.

The lower Courts did not rely on _ the

foundation of summary judgment laws and the

identification of evidence. They wrongfully relied on

Defendants’ self-serving alleged feigned tome of

“independent creation”, ignoring or suppressing

evidence that would support Plaintiffs contentions

that Defendant did not make an “independent

creation” but rather infringed my works. (see app.

43a)

Lastly, the lower courts abused _ their

discretion and deprived Plaintiff of her rights for

conducting cross-examination to impeach

defendants’ so-called independent creation raised on

its motion. Instead, the lower courts wrongfully

weighed questions of fact by considering

unsupported evidence and self-serving statements;

only taking information from “interested” parties.

(Arnstein v. Porter, 154 F.2d (2d Cir. 1946)

(“advantage of having the witness before a jury.”)

“Thus, although the court should review the

record as a whole, it must disregard all

evidence favorable to the moving party that

the jury is not required to believe. See Wright

& Miller 299. That is, the court should give

credence to the evidence favoring the non-

moving as well as that “evidence supporting

the moving Party that is uncontradicted and

unimpeached, at least to the extent that the

evidence comes from disinterested witnesses.”

Id, at 300 See Reeves v. Sanderson Plumbing

Products, Inc. (99-636) 530 U.S. 133 (2000)

197 F. 3d 688.

The lower courts did not follow established

Supreme Court law and wrongfully attempted to

weigh evidence of interested parties who receive the

monetary benefits. According to law, the lower

courts should have stood behind my originality and

13 copyrights, exhibiting historical originality of the

first daughter of Santa Claus, who drives a sleigh led

by 2 lead reindeer wearing hats, and_ saves

Christmas.

In affirming Summary Judgment based on

defendants’ alleged independent creation, the Second

Circuit forgot about my constitutional rights to

protect my originality — protect my 13 copyrights

filed on or about two decades prior to Defendants’

works in question

These standards of copyright protection and

constitutional right to a trial by jury must be

enforced by the Supreme Court to all circuits around

the country.

4()

“ Originality is a constitutional requirement

The source of Congress' power to enact

Constitution, which authorizes Congress to

"securfe] for limited Times to Author the

exclusive Right to their respective Writing

In two decisions from the late 19th century

The Trade-Mark Cases, 100 U.S. 82, 25 L.Ed

550 (1879); and Burrow-Giles Lithographvu

Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28

L.Ed. 349 (1884)--this Court defined the

crucial terms "authors" and "writings." Feist

Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S

340, 361 (1991)

The Supreme Court of the United States of

America needs to send a strong message to the

world, that Goliath brand-names, with the aid of

Goliath attorneys cannot override or tear down an

original writer's copyright protection by allegedly

raising issues of “independent creation” on a motion

for summary judgment. In my case, it is obvious that

there are questions of fact throughout the record

warranting a trial by jury and the Second Circuit

affirmation of the unlawful District Court’s Decision

must be reversed

CONCLUSION

Can the original thought proc ever b

summary judgment worthy?

[It cannot

Independent Creation 1s a genuine issue of

fact warranting a trial by jury in a copyright

infringement case. Especially when ther ire

penuine issues of access and substantial “definit

similarities warranting a trial by jury

FOR THESE REASONS, this Court should

grant my writ of certiorari, reverse the decision

below, and — case for a trial by jury on the

merit

j j i

/ AL) 2

f ]

| Cty lows

PATSY\ MAI [ARAM

229 East 89th Street, #1F'V

New York City, NY 10128

(917) 279-185 1%

Pro Se Petitione

| Mi 15-0

Maharam v. Patterson

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT

HAVE PRECEDENTIAL EFFECT. CITATION

TO A SUMMARY ORDER FILED ON OR

AFTER JANUARY 1, 2007, IS PERMITTED

AND IS GOVERNED BY THIS COURT'S LOCAL

RULE 32.1.1 AND FEDERAL RULE OTF

APPELLATE PROCEDURE 32.1. WHEN

CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A

PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE

(WITH THE NOTATION “SUMMARY ORDER”).

A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NO’

REPRESENTED BY COUNSEL

At a stated term of the United Stat (Court ol

Appeals for the Second Circuit, held at the Dante!

Patrick Moynihan United States Courthouss 00

Pearl Street, in the City of New York n the llth

day of Mart h. two thousand ten

PRESENT

JOSEPH M. McLAUGHE,!

Circuit Judge

UPON DUE CONSIDERATION l'| I;

HEREBY ORDERED ADJIUDGED AND

DECREED that tl listrict irt judg

AFFIRMED

ey (*}

ither Distri I t I

Ihe Hionorable Ko tr |

pial 1d not part pat ! l

t I rity f ti

igreement, } letermined t ' if

1 ( int bal Lope i) |

14 | )

Plaintiff-Appellant Patsy Maharam, pro se,

appeals from the September 17, 2007 judgment of

the United States District Court for the Southern

District of New York (Wood, Judge) granting

summary judgment to the defendants-appellees and

dismissing Maharam’s copyright infringement claim.

We assume the parties familiarity with the

underlying facts and the procedural history of th

Case

This Court reviews an order’ granting

Summary judgment de novo and focuses on whether

the district court properly concluded that there we

no genuine issues as to any material fact and that

the moving party was entitled to judgment as a

matter of law. See Miller v. Wolpoff & Abramson,

LA.P., 321 ¥£.3d 232, 300 (Cd Cir. 2003). In

determining whether there are genuine issues of

material fact, this Court is “required to resolve all

ambiguities and draw _ all permissible factual

inferences in favor of the party against whom

summary judgment is sought.” Jerry v. Ashcroft, 336

3d 128, 137 (2d Cir. 2003) (internal quotation

marks omitted). The denial of a recusal motion 1

reviewed for abuse of discretion. United States 1

Morrison, 153 F.3d 34, 48 (2d Cir. 1998)

In order to establish a claim for copyright

infringement, the owner of a valid copyright must

show: (1) actual copying by the defendant; and (2)

that the copying amounts to an improper or unlawful

appropriation of the protected material. See

Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d

Cir. 2003). Actual copying “may be established either

by direct evidence of copying or by indirect evidence,

including access to the copyrighted work, similarities

that are probative of copying between the works, and

expert testimony.” Laureyssens v. Idea Group, Inc.,

964 F.2d 131, 140 (2d Cir. 1992). However, “not all

copying results in copyright infringement, even if the

plaintiff has a valid copyright,” Boisson v. Bantan,

Ltd., 273 F.3d 262, 268 (2d Cir. 2001), and the

plaintiff is required to additionally demonstrate that

“substantial similarity to protected material exists

between the two works,” Laureyssens, 964 F.2d at

140. A defendant may rebut a prima facie case of

creation. See Procter & Gamble Co. v. Colgate

Palmolive Co., 199 F.3d 74, 77 (2d Cir. 1999)

After having reviewed Maharam’s contentions

on appeal and the record of proceedings below, we

affirm for substantially the reasons stated by the

district court in its thorough opinion. Additionally,

we note that Maharam’s reliance on Repp v. Webber

132 F.3d 882, 889 (2d Cir.1997), 1s misplaced. Repp

can be distinguished in two important respects

first, unlike in Repp, where the plaintiffs expert

testified that the plaintiffs work was so “strikingly

similar” to the defendant’s as to preclude the

possibility of independent creation, id. at 890-91

here, Maharam’s two experts specifically declined to

offer the opinion “that the respective works were so

strikingly similar as to preclude the possibility of

independent creation.” Second, in Repp,_ the

defendant submitted only his wife's and his own

affidavit, and we concluded that the district court

wrongly “accepted only the version of interested

witnesses on the question of separate creation.” Jd.

at 891. Here, the defendants provided numerous

affidavits, including those of non-parties, such as the

author’s former agent and secretary. Moreover, the

defendants provided ample documentary evidence

in the form of 11 drafts and numerous memos with

editorial notes—corroborating the affidavits.

Therefore, there was no issue of material fact with

respect to independent creation

We further find no abuse of discretion in the

district court’s denial of Maharam’s recusal motion.

The record demonstrates that neither the district

judge nor her husband had a disqualifying financial

interest and, when the judge discovered that her son

had owned a_ potentially disqualifying interest

during the pendency of the litigation, she properly

determined that, because her son sold the stock

before the judge was aware that he owned it, recusal

was not warranted. See 28 U.S.C. § 455(f). Moreover

neither the fact that the district court judge and a

defendant once lived on the same floor of an

apartment building nor Maharam’s general and

unsubstantiated allegations about the district

judge’s social connections to the defendants would

cause a reasonable person to question the court's

impartiality. See United States v. Pitera, 5 F.3d 624

626 (2d Cir. 1993)

We have considered all of Maharam’s

arguments and find them to be without merit

Accordingly, the judgment of the district court 1s

AFFIRMED

FOR THE COURT

Catherine O'Hagan Wolfe, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

dae awe ate X

PATSY MAHARAM,

Plaintiff

izainst

JAMES PATTERSON, MICHAEL GARLAND,

TIME WARNER, INC., TIME INC., TIME

WARNER BOOK GROUP INC., LITTLE

BROWN AND COMPANY, LINN TANZMAN

and SAKS

Defendant

04 cv 9569 (KMW)

MEMORANDUM OPINION AND ORDER

KIMBA M. WOOD. U.S.D.J

In this copyright action, Plaintiff Patsy

Maharam (‘Plaintiff’) argues that Defendants James

Patterson (“Patterson”), Michael Garland

(“Garland”), Little Brown & Co., Saks Inc. (“Saks”),

Linn Tanzman, and Time Warner, Inc., and its

subsidiaries, Time Inc. and Time Warner Book

Group, Inc., (collectively “Defendants’), infringed her

character, Holly Nicole. Plaintiff contends that

Defendants’ children’s book “santaKid” and window

displays based thereon “actually copy” and

“unlawfully misappropriate” her work.! Defendants

' The Court set forth the background of this case and

engaged in a detailed analysis and comparison of “‘Kid’ Santa

ae 2

move for summary judgment pursuant to Federal

Rule of Civil Procedure 56(b).2 For the reasons stated

below, Defendants’ motion for summary judgment is

granted.

To establish copyright infringement, Plaintiff

must prove: (1) ownership of a valid copyright; and

(2) unauthorized copying of constituent elements

that are original. E.g., Jorgensen v. Epic/Sony

Records, 351 F.3d 46, 5] (2d Cir. 2008): Repp U.

Webber, 132 F.3d 882, 889 (2d Cir. 1997). Only the

second element 1s 1n issue here

Claus” and “santakKud” in its January 2006 Order denying

Defendants’ motion for judgment on the pleadings and

Plaintiffs motion for a preliminary injunction (the “January

2006 Order’). Familiarity with the January 2006 Order 1:

assumed

The Fourth Affidavit of Elizabeth A. McNamara

attaches as exhibits the deposition testimony of Patsy

Maharam, James Patterson, Michael Garland, Linn Tanzman,

Andrea Spooner, Jennifer Walsh, and Mary Jordan and are

referred to herein as “[X] Dep. [X].” All exhibits attached to the

Second Declaration of Michael Garland are referred to herein

as “Second Garland Ex. [X].” All exhibits attached to the

Second Declaration of James Patterson are referred to as

“Second Patterson Decl. Ex. [X].” All exhibits attached to Patsy

Maharam’'s Declaration are referred to as “Maharam Decl. Ex

{A]."” When the same document 1s included as an exhibit by both

Plaintiff and Defendant, only one of those exhibits ts cited

2 Defendants’ motion for summary judgment was fully briefed

on June 21, 2006. On July 20, 2006, Plaintiff sent a letter to the

Court purporting to “correct{] the record on which defendants’

motion for summary judgment rests.” Letter from Andrew

Berger to Court (July 26, 2006); Letter from Andrew Berger to

Court (July 20, 2006). This letter simply repeats the arguments

that Plaintiff made in her opposition papers

ad;

“To satisfy the second element of an

infringement claim -- the ‘unauthorized copying’

element -- a plaintiff must show both that his work

was ‘actually copied’ and that the portion copied

amounts to an ‘improper or unlawful appropriation.”

Jorgensen, 351 F.3d at 51 (citing Castle Rock Entm't,

Inc. v. Carol Publ’g Group, Inc. et al., 150 F.3d 132,

137 (2d Cir. 1998)). “Actual copying may be

established ‘either by direct evidence of copying or by

indirect evidence, including access to the copyrighted

work, similarities that are probative of copying

between the works, and expert testimony.” Castle

Rock Entm't, Inc., 150 F.3d at 137 (citing

Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140

(2d Cir. 1992)). There is no infringement, however, if

the evidence supports the conclusion that a

defendant created his or her work independently.

E.g., Folio Impressions, Inc. v. Byer Calif., 937 F.2d

759, 765 (2d Cir. 1991); Cox v. Abrams, No. 93 Civ.

6899, 1997 WL 251532, at *7, 1997 U.S. Dist. LEXIS

6687, at *19-20 (S.D.N.Y. May 14, 1997).

The Court assumes, arguendo, that Plaintiff

has made a prima facie case of infringement and

turns to Defendants’ evidence that Patterson created

“santaKid” independent of Plaintiffs work.®

3 The Court emphasizes that it assumes, arguendo, that

Plaintiff has made a prima facie case. Plaintiff has set forth an

attenuated argument that Defendant might have encountered

her work because it was widely disseminated. To presume,

however, that Defendants had access to Plaintiffs work

because it was widely disseminated, Plaintiff must show that

Defendants had a reasonable opportunity to hear or see the

work, not simply a “bare possibility.” Jorgensen, 351 F.3d at 51

“Even where a plaintiff is successful in creating a

triable issue of fact with respect to actual copying, a

defendant may defeat a copyright infringement

claim by demonstrating independent creation of the

Here, Plaintiff has produced evidence that radio

stations played her songs during the Christmas holiday season,

which received attention in the print media, and that she

appeared on a number of radio and television shows primarily

during the 1980s to promote her work. Maharam Decl. 44] 41-

106, 110. During these appearances, she typically summarized

the plot of “Kid’ Santa Claus” and sometimes read from her

storybooks. Maharam Decl. 4] 54-62, 73, 81-83, 94, 96, 100-01,

105, 110, 111, 126-27. Two hotels and a record store in New

York City promoted her work, Maharam Decl. 4/§ 107-08, 128

35, and she performed her musical play at the Russian Tea

Room in New York City (for which she received media

attention), a Long Island school, and at the Plaza Hotel in New

York City. Maharam Decl. 4 112-21, 124, 125. This

dissemination is not as extensive as the broadcasting that has

taken place in cases where courts have found a work to be

widely disseminated. FE.g., Acuff-Rose Music, Inc. v. Jostens,

Inc., 988 F. Supp. 289, 293 (S.D.N.Y. 1997), aff'd, 155 F.3d 140,

141 (2d Cir. 1998) (finding widespread dissemination where

plaintiff's song had a “top five ranking as a country hit at the

time” that defendant allegedly infringed plaintiffs copyright);

ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988,

997-98 (2d Cir. 1983) (finding widespread dissemination where

a song was “Number One on the Billboard Charts” for five

weeks in the United States and one of the “Top Thirty Hits” for

seven weeks in England); see also Silberstein, 424 F. Supp. at

627 (collecting cases). Here, by contrast, Defendants created

“santaKid” approximately 20 years after the bulk of Plaintiffs

dissemination of her work. Even if this evidence were sufficient

to establish that Plaintiffs work was widely disseminated,

Defendants have produced volumes of evidence to establish

that Defendants were not exposed to it. Cf. Three Boys Music

Corp v. Bolton, 212 F.3d 477, 483-84 (9th Cir. 2000) (finding

sufficient evidence of access where defendant “confessed to

being a huge fan” of plaintiffs and “a collector of their music”)

10a

allegedly infringing work.” Silberstein v. Fox Entm'’t

Group, Inc., 424 F. Supp. 2d 616, 628 (S.D.N.Y

2004). “Summary judgment is appropriate where a

plaintiff fails to offer evidence sufficient to raise a

factual question about a defendant’s’ proof of

independent creation.” Chivalry Film Prods. v. NBC

Universal, Inc., No. 05 Civ. 5627, 2006 WL 3780900,

at *2, 2006 U.S. Dist. LEXIS 92956, at *9, (S.D.N.Y

Dec. 22, 2006).4

Here, Defendants have produced a_ vast

amount of evidence, in the form of sworn testimony,

and contemporaneous’ drafts, e-mails, letters

memos, and_= sketches.” to demonstrate that

‘ Courts in this district have taken differing positions regarding

whether a district court may grant summary judgment on the

basis of independent creation. Compare, eg., Clonus Assocs.

Dreamworks, LLC, 457 F. Supp. 2d 432, 441 (S.D.N.Y. 2006)

(“No matter how credible {] a claim [of independent creation] 1s,

and even absent any contrary evidence, a court should not

grant summary judgment on that basis.”) with, e.g., Chivalry

Film Prods., No. 05 Civ. 5627, 2006 WL 3780900, at *2, 2006

U.S. Dist. LEXIS 92956, at *9; Silberstein, No. 02 Civ. 1131,

2004 WL 1620895, at *8, 2004 U.S. Dist. LEXIS 13554, at *27

(S.D.N.Y. July 19, 2004) (“Evidence of independent creation is

an established ground for granting summary judgment.”); Cox,

No. 93 Civ. 6899, 1997 WL 251532, at *7, 1997 U.S. Dist

LEXIS 6687, at *19-20. See also, Langman Fabrics v. Graff

Californiawear, Inc., 160 F.3d 106, 117 (2d Cir. 1998) (Jacobs,

J., dissenting) (“The majority opinion (in my view) arrives at

the wrong result, but it should not be read to raise the bar for

granting summary judgment on the defense of independent

prior creation.’).

5 The Court emphasizes that evidence from disinterested third

parties supports Defendants’ argument that they created

“santaKid” independent of Plaintiffs work. This case is

different from Repp v. Webber, 132 F.3d 882 (2d Cir. 1997), in

lla

Patterson (the author) and Garland (the illustrator)

created “santaKid” independent of any knowledge of

Plaintiffs work. Specifically, Defendants have

produced copies of Patterson’s original handwritten

manuscript and ten subsequent re-drafts, along with

correspondence between Patterson and his secretary,

and between Patterson and his editors, which

includes detailed editorial comments. Second

Patterson Decl. Exs. A-E, H-X. Defendants also

produced Garland’s initial black-and-white sketches

and subsequent drafts, many of which contain

editorial comments. Second Garland Dec. 44] 15-16,

Kxs. A-F. Defendants corroborate the authenticity of

these drafts with affidavits and _ declarations

supporting that Defendants independently created

and developed the “santaKid” story and _ its

illustrations. Second Patterson Decl. Ex. A-C;

Jennifer Rudolph Walsh’ Dep. 15:5-20 (stating that

Patterson spoke with her about “an idea for a book

about a little boy who was Santa’s child .. . and this

little boy basically has to save Christmas.”;) Second

Patterson Decl. Ex. O (attaching a letter from

Andrea Spooner, Patterson’s editor, which states

which the Second Circuit reversed a district court's entry of

summary judgment where “the district court accepted only the

version of interested witnesses on the question of separate

creation.” Jd. at 891; see also, Scholastic v. Speirs, 28 ¥. Supp.

2d 862, 869 (S.D.N.Y. 1998) aff'd, 199 F.3d 1323 (2d Cir. 1999)

6 Patterson's secretary is not a party to this action. Patterson's

editors work for Defendant Little, Brown & Co

? Jennifer Rudolph Walsh worked as Patterson’s agent from

about October 2002 through February 2005. Walsh Dep. 8:9-18.

Neither Walsh nor her employer, the William Morris Agency

(“William Morris”), represents Patterson. Neither Walsh nor

William Morris is a party to this lawsuit

12a

“The idea of a super-kid that saves Christmas from

evil forces has wide and timeless appeal. And, |

honestly think it’s the first time I’ve seen a story told

from the point of view of Santa’s own progeny -- a

fantastic premise.”).

Plaintiff fails to offer evidence sufficient to

raise a factual question about Defendants’ proof of

independent creation. Instead of rébutting

Defendants’ evidence, Plaintiff makes generalized

assertions that Defendants’ evidence is unconvincing

and even falsified. For example, Plaintiff uses

Patterson's deposition testimony, in which he states

that he cannot remember the precise date that he

conceived of the “santaKid” story, to argue that

Patterson must have infringed Plaintiffs work. Pl.’s

Mem. of Law in Opp’n to Defs.’ Motion for Summ. J

45 (stating that Defendants’ documentation of

independent creation is “pure fiction” because: (1)

Patterson did not know when he conceived of the

idea for “santaKid”; (2) Patterson has no documents

indicating the date of conception; (3) Patterson offers

no testimony from anyone who saw him writ

“santaKid”: (4) Patterson has no notes of is initial

thoughts about “santaKid”; (5) Patterson “is a

compulsive outliner”’ but has no_ outline for

“santaKid” and is not sure if he created one: (6)

Patterson never told his secretary that his son was

the inspiration for “santaKid’; and (7) Patterson

does not explain why he “allegedly” created two early

drafts of “santaKid” in early 2003 with a male

protagonist “when he agreed with his former agent

in March 2002 that the central character should be a

girl’). Plaintiff attempts to argue that Patterson

could not have created “santaKid” independent of

“Kid’ Santa Claus,” because, although it is

Patterson’s usual practice to use idea folders and

outlines to write his novels, he has produced no idea

folders or outlines for “santaKid.” P].’s Mem. of Law

in Opp'n to Defs.’ Motion for Summ. J. 45 (“Although

[Patterson] has 3,000 folders of ideas for new books,

he never had a folder for santaKid.”) She suggests

with no evidence to back the suggestion, that the

correspondence and drafts that Patterson relies upon

were created after Plaintiff filed this lawsuit to

manufacture a defense. Pl.’s Mem. of Law in Opp’n

to Defs.’ Motion for Summ. J. 47 (stating only that

Patterson had “a few initial drafts that seem

suspiciously prepared for this litigation’). Plaintiff

argues that Garland failed to demonstrate that he

created his illustrations independent of Plaintiff

work because “|h]is declaration says nothing about

how he was selected to create the illustrations, who

selected him, when he was selected and what

instructions he was given at the outset with respect

to the illustrations he created.” Pl.’s Mem. of Law in

Opp’n to Defs.’ Motion for Summ. J. 48. Becauss

these generalized, speculative arguments fail to

rebut Defendants’ showing of independent creation

there is no genuine issue of material fact for trial

Jorgensen, 351 F.3d at 51 (“[Plaintiff] to avoid

summary judgment, ‘may not reply simply on

conclusory allegations or speculation but instead

must offer evidence to show that{her] version of the

events is not wholly fanciful.) (citing Morris |

Lindau, 196 F.3d 102, 109 (2d Cir. 1999))

Thus, even assuming, = arguendo that

Defendants had access to Plaintiff's work, they have

defeated her copyright infringement claim by

producing substantial, uncontradicted evidence that

the "“santaKid" works were created independent ot

her work. The Court therefore grants Defendant

Motion for Summary Judgment [#73]

The Clerk of Court | directed t

Any pending motions are moot

SO ORDERIGCD

Dated New York, New

September 14

Becau e paks window Were » derivalive

Patterson and Garland's work in antakKid the Court

conclusion that Defendants created "“santaKid" independent

Plaintiff's work nece

Alan L. Ffuchsberg, member (AF 6626)

The Jacob D. Fuchsberg Law Firm, LLP

500 Fifth Avenue

New York, New York 10110

(212) 869-3500

\ttornevs for Plaintiff

UNITED STATES DISTRICT COUR

SOUTHERN DISTRICT OF NEW YORI

PATSY MAHARAM

again

JAMES PATTERSON, MICHAEL]

GARLAND; TIME WARNER, IN¢ iM]

WARNER BOOK GROUP INC.; LITTLIs

BROWN AND COMPANY; LINN

TANZMAN:;: and SAKS INCORPORATE!

Defendant

AMENDED COMPLAINT AND DEMAND

ROR JURY TRIAL

Case No: 04 CV 09569 (KMW)

Plaintiff Patsy Maharam (M Maharam), |

and through her attorneys, for her complaint again

Defendants Jami Patterson; Michael Garland

Time Warner, Inc., ‘Time Ine. Time Warner Bool

Group; Little, Brown and Company; Linn Tanzman

and Sak: Incorporated d/b/a Sak hiith Avenus

hereby allege

NATURE OF THE ACTION

delendant bit Mattes I Viicha (Garland: Vas

Warner, In hime ine... Time Warner Book Grou

Inc., Little, Brown and Company, Linn Tanzman and

Sal Incorpor Led i i result defendan

unlawful use of plaintiffs intellectual property, |

theft and usurpallon of hes unigu had mba

Clau ! developed characte. mid toryiine

lelendant unauthorized pubdie MLIOT) ystribublion

ituthorshy ind/or illustration in 2004 of defendant

hook SantakKid and their further expansive use an

CX] loitation of M Maharam tory md charactey

lor public consumption ll} without M Viaharan

perm! ton Without vivin her proj hit

tnoutl paying ! bibs

original tory and character de VelOpmMentl of KI

inta Clau Panta daugvhte through musi

work and accompanying word hderary Vor

lramats work MICiIUaINY ACCOMpPanyiny mu wate

through = video picture ind =o praphi 1

CO] yvrivhted L982 Ort’ Kid Santa Clau a

then Vi Maharam ha continued

iccomplished musician and song writer/performer |

promote her “first daughter of Santa Cla throu

Various enbvlerlalnment project

sy media mntervieyv rint

media and hive perlormanc Tay! wale hed

recordimy MI Maharan unique character a

tory lin ha by (DTT Vide! KNOW! [ {re mul

Moreover presenvatliol packay yytAamMnN ney

copyrighted materials have been widely circulated

among industry professionals, including defendants.

4. No one prior to Ms. Maharam had come

up with the unique character and story line of Santa

Claus’s first daughter, which she has richly

developed, performed and promoted over many years

using her signature creative talent and hard work.

Ms. Maharam has created an original work of

authorship that was fixed in a tangible medium of

expression, namely her original copyrighted 1982

song “Kid” Santa Claus and additional derivative

copyrighted text and illustrations, songs and lyrics,

and dramatic performances including the character.

5. Defendants have infringed upon Ms.

Maharam’s’” exclusive rights in this original

copyrighted work by preparing, § distributing,

promoting, and advertising a derivative work based

upon plaintiffs copyrighted work and by their failure

to give her attribution of original authorship, all in

violation of Title 17 of the United States Code,

sections 101 et seq. Ms. Maharam_ secks a

declaration of her rights, an accounting, substantial

damages and other relief against defendants’

unlawful conduct as more fully described below

JURISDICTION

6. This court has subject matter jurisdiction

over this matter pursuant to Title 28, United States

Code, Section 1331 in that this civil action arises

under the United States Constitution and laws of the

United States; pursuant to Title 28, United States

Code, Section 1338(a) in that this action arises under

18a

the copyright laws of the United States, and

pursuant to Title 17, United States Code, Section

501:b) providing for an action and remedy by a

pursuant to Title 28, United States Code, Section

2201 in that plaintiff seeks a declaration of her

respective rights to the musical compositions and

royalties at issue. This court has_ pendent

jurisdiction over the state law claims in this action

pursuant to Title 28, United States Code, Sections

1367(a), 1338 (b)

VENUE

7 Venue is proper pursuant to Title 28,

United States Code, Sections 1391(b), 1391(c) and

1404 in that all defendants either reside in the State

of New York and/or are subject to personal

jurisdiction in the State of New York and a

substantial part of the events or omissions giving

rise to the claim occurred in the Southern District of

New York

PARTIES

8. Plaintiff Patsy Maharam is a singer,

writer, composer and musician residing in New

York. New York.

9. Defendant James Patterson is a

professional author who conducts business, and has

caused his book, “SantaKid’, to be soid within the

State of New York, and can be reached care of Time

Warner Book Group (Little, Brown and Company),

271 Avenue of the Americas, New York, New York

10. Defendant Michael Garner is a New York

State resident and professional illustrator who can

be reached care of Time Warner Book Group (Little,

Brown and Company), 1271 Avenue of the Americas,

New York. New York

ll. Defendant Time Warner, Inc. is a

domestic corporation registered to do business in the

State of New York with its principal place of

business at One Time Warner Center, New York,

New York.

12. Defendant Time Inc. is, upon information

and belief, a subsidiary of Time Warner Inc., is a

domestic corporation duly licensed and registered to

do business in the State of New York with its

principal place of business at One Time Warner

Center, New York, New York

20a

13. Defendant Time Warner Book Group Inc.

is, upon information and belief, a division of Time

Inc., and is a domestic corporation duly licensed and

registered to do business in the State of New York

with its principal place of business at 1271 Avenue of

the Americas, New York, New York.

14. Defendant Little, Brown and Company is,

upon information and belief, a division of Time

Warner Book Group, and is a domestic corporation

duly licensed and registered to do business in the

State of New York with its principal place of

business at 1271 Avenue of the Americas, New York,

New York.

15. Defendant Linn Tanzman is a publicist

who formerly worked for Ms. Maharam as _ her

publicist and is currently employed by Defendant

Saks Incorporated or Saks Fifth Avenue Enterprises

d/b/a Saks Fifth Avenue (collectively, “Saks”), and

she resides in the State of New York. On behalf of

defendant Saks, defendant Tanzman is responsible

for that store’s subject display windows

16. Defendant Saks Incorporated is a foreign

state corporation duly licensed and registered to do

business in the State of New York, and operates the

Saks Fifth Avenue retail store through its

subsidiaries and/or divisions

FACTUAL BACKGROUND

17. As charismatic as her creations. Ms.

Maharam tus a multi-media talent and an

accomplished musician, who created and developed

dla

the character and story line for “Kid” Santa Claus,

Santa’s first daughter, which defendants have copied

in the book “SantaKaid”.

18. As a child, Ms. Maharam called herself

Kid Santa whenever she gave out presents during

the holiday season. It occurred to her that it would

be wonderful to do something new and enlarge the

legend of Santa Claus and add a daughter who lives

at the North Pole.

19. In 1982 Ms. Maharam gave life to her

new character by writing a song called “Kid” Santa

Claus. In her lyrics, Ms. Maharam created the first

daughter of Santa Claus, and developed the

character and the story line that underlies the

musical composition. From the opening verse of the

song, it was clear that Ms. Maharam had created a

unique character:

“T can fly,

With my reindeer thru the sky,

At each house I’m dropping by

To say “Hil”

Take my hand,

And I'll tell you who | am -

I’m the offspring of a man,

We all love throughout the land...

Just call me, Kid Santa Claus..

“All the stories have my name in

hts.”

lig

20. Ms. Maharam registered the words and

music of the song “Kid” Santa Claus with the United

States Copyright Office with an effective date of

registration: June 14, 1982.

21. Thereafter, Ms. Maharam _ continued

developing the character and the story though

additional songs and related material, all of which

was registered with the Copyright Office, including a

Form ‘TX to protect the character in story form.

22. Ms. Maharam furthered her copyright

protection with “additional text and illustrations” on

another TX Form (on or about effective date of

registration August 18, 1983). Ms. Maharam has a

long list of derivative material registrations that she

filed between 1982 and the present, which are listed

in the schedule annexed as Appendix A.

23. The copyrighted materials registered by

Ms. Maharam relating to and in development of her

unique story of Santa Claus’s daughter include:

v Music and lyrics to the song “Kid”

Santa Claus copyrighted in 1982

Y Supplemental songs and musical play

copyrighted in 1983 and 1991

“ “Kid” Santa Claus collected stories

1988

Y Poem 1992

23a

Y New song “Daughter of Santa Claus”

1997

Y New song “Christmas Girl” 2000

Y Additional text “Determination is the

Key to the Claus Family Tree” 2000

Y “Kid” Santa Claus description sheets

and compact discs (songs and text) with

additional title, “The Kid Saves

Christmas’ 2000

DEFENDANTS’ KNOWLEDGE OF

PLAINTIFF’S CREATION AND RIGHTS

24. In or about 1983, Ms. Maharam recorded

the song, “Kid” Santa Claus, at the famous Media

Sound Recording Studios on West 57th Street in

Manhattan. Ms. Maharam specifically chose Media

Sound for its reputation of having cathedral-lke

acoustics, which would enhance the Christmas flavor

she wanted in the lush string arrangement.

25. BILLBOARD Magazine reported on the

session with a photograph showing Ms. Maharam

with her hands in the air conducting the orchestra

over the caption: “That's the way Patsy, left, always

thought it should be as she conducts a string session

for a forthcoming Christmas disk on Roperry

Records at Media Sound Studios in New York.” Ms.

Maharam specifically performed the song in the first

person to identify that “Kid” Santa Claus was hers.

26. The debut single of the song “Kid” Santa

Claus broke onto the National Pop Charts in 1983

24a

and set Ms. Maharam on a media sleigh ride:

appearing on radio and television, as well as in

printed press. The video of the song establishes that

this creation came from Ms. Maharam’s creativity,

as Ms. Maharam pulls a sweatshirt over her head

and says: “Ssssshhhhh..... I’ve got a special! secret!”

Then, the animated character of “Kid” Santa Claus

appears, telling her own story in the first person as

Santa’s daughter.

27. CASHBOX Magazine raved:

“Patsy asks that she be called ‘Kid

Santa Claus’ when substituting for Big Daddy

during a gift distributing sleigh-ride. The

enchanting tale delivers on its promise of

brightening up Christmas, and could well lead

to the title character becoming an annual

favorite.”

28. Well-respected radio trades such as

Bobby Poe and Kal Rudman (The Friday Morning

Quarterback”) gave the song “Kid” Santa Claus

support and acknowledged the great potential of this

new established character and radio stations proudly

added their logos to “Kid” Santa Claus t-shirts. "Kid"

Santa Claus became a recurring Christmas sung and

was ultimately re-mixed with a flipside tune “Happy

Holly-day” which was an excerpt from Ms.

Maharam’s full-length score, now attached to full

length performance scripts.

29. When Ms. Maharam spoke with music

directors, disc jockeys, press people and television

interviewers, she not only discussed the debut song

25a

but she also introduced and detailed the stories of

the characters involved.

30. From 1983 on, Ms. Maharam_ was

continually contacting various’ entertainment

professionals, such as agents, producers, publishers

and others, in an attempt to have a film and/or book

and/or musical play produced about “Kid” Santa

Claus. She prepared and distribut d extensive press

kits, packets, scripts, videos, overviews, music tapes,

lyric sheets and music, records, CD’s and the lke

that fully detailed Ms. Maharam’s development of

her original, unique character: the first daughter of

Santa Claus and her continuing adventures

31. After 1983, the musical story, including

the original “Kid” Santa Claus songs, became a part

of Ms. Maharam’s performing repertoire

32. As time went on, Ms. Maharam expanded

and developed her unique character, the daughter of

Santa Claus, and protected her works with further

copyrights filed in the copyright office, which were

extensions of her original copyright of the “Kid”

Santa Claus song

33. . On or about 1986, Ms. Maharam hired

defendant Linn Tanzman as her press agent to assist

her in getting additional press for “Kid” Santa Claus

for the holiday season. Ms. Maharam fully shared

all information about the “Kid” Santa Claus story

and copyrighted materials with defendant Tanzman,

who prepared press kits and releases describing the

copyrighted works

26a

34. Linn Tanzman_ suggested that Ms.

Maharam get in touch with David Hinckley of The

Daily News. He was interested in doing an interview

with Ms. Maharam.

35. On November 26, 1986, The Daily News

headlined a feature article: “Santa’s Kid Will Sleigh

You”. The article showed a picture of Ms. Maharam

labeled with the caption: “Girl Wonder’, and

described “Kid” Santa Claus as the creation of a

“singer/writer/composer named Ms. Maharam.” ‘The

article describes the basic story that Santa’s

daughter “takes the sleigh and delivers the goods.”

Moreover, the article explains Ms. Maharam’s

desires for the further development of her unique

creation: “Eventually, she hopes, the adventures of

Kid Santa Claus will expand into glossy books, TV

specials and home video.”

36. Ongoing exposure continued and Ms.

Maharam’s “Kid” Santa Claus was being shopped by

various producers, agents, and others to _ the

television, movie, literary and theatrical industries.

37. Ms. Maharam’s participation in_ the

theater community’ propelled an _ acclaimed

Christmas Cabaret of her “Kid” Santa Claus musical

at the famous Russian Tea Room in New York City.

The delightful show starred Tony-Award winner

Russell Nype as Santa Claus, Eileen Fulton (“As The

World Turns’) as Mrs. Claus and_ recording

artist/tv personality Clint Holmes as the

Popman/Narrator. Ms. Maharam portrayed the

“kid” with the grand piano disguised as her sleigh

38. The show was covered by national pre

and was included in columns in “The Daily New

“City Guide” and “The New York “Time:

Approaching the new millennium, Ms. Maharam

released a CD-single entitled “The Daughter of

Santa Claus” -- another song from the musical score

that identified this unique character as the first

daughter of Santa Claus: "Santa Claus is her Dad!

39. BILLBOARD Magazine in the Novembe:

27, 1999 issue called “The Daughter of Santa Clau

“adorable” with a good musical track. The following

year BILLBOARD Magazine tagged Ms. Maharam

two Christmas. singles a: “favorite easonal

recordings.”

40. In 2001 and 2002, Ms. Maharam, during

the seasonal run, appeared in-person at ‘Towe:

Records, Trump Tower in Manhattan for in-hous

performances and signings of the CD-single “The

Daughter of Santa Claus.“ During the signing:

promotional items, such as posters, hats, clip

buttons and candy were distributed to the publi

while the song was continually played through the

store, the video played on the big screens and the

posters were displayed in the window and on an

easel outside the entrance to the Tower Jecord

Store

4] The publicity for the signing included

flyers on the lampposts lining Fifth Avenue and

flyers which were personally handed out to holiday

shoppers on the street, and both New York “City

Guide” and “City Info” ran information and pictur

of “Kid” Santa Claus, giving the character, the story

and the song further exposure

42. For example, “City-Info” wrote Meet

composer/performer Ms. Maharam, creator of “Kid

santa Claus. Fun & surprises for the whole family

and a special in-store viewing of the “Kid” Santa

Claus animated video.” Additionally, the magazine

ran a picture of the CD cover that specifically said

that “The Daughter of Santa Claus” is “Based on the

“KID” SANTA CLAUS™ character & story created

and written by M Maharam

13. Over the year: ets of M Maharam

copyrighted work the promotional — piece and

newspaper and mavgaZine clipping were put

together in complete and = finished’ exquisité

presentation package which were widely

distributed. James Patterson, Michacl Garland and

Linn ‘Tanzman all had opportunities to review thes

package:

14. Specifically M Maharam recalled

meeting author Jam Patterson former avent

Arthur Pine, at Arthur Pine Associates, and giving

him a _ packet, including written material and

illustrated text and music, for possible Agent

representation. Ms. Tanzman was directly involved

In preparing presentation package

5. Little Brown and Company in

(

Scholastic are two « Kamp of pubhshers who wer

given the material!

November!

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rHE INFRINGEMI

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approached

Maharam (

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their Christma tore windows on opening night

Jovember 23. 2004 You ( Mi pharan As

from her original son 1

Vnd | made I li! renu ! , |

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PLAINTIFF'S COPYRIGHTED STORY AND

(CHARACTERS

eit TL mnmediately | A }

one comparison of the marked similarities betwee

Mi Maharan pynehted r| md detendan

hoot

Kad ita ' lirst Pattes 1) anbtouiid

pynighted n ()} OO4 4 i transpositiol

the name Kid Santa

anta i Mtes V1) " i laughter = ]

ha Ag i} name Holly real nen piarnie

Nicol ma knan (Chri i | mK AD

Kid init mntakKid

al iit I | | if

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& the prpirangee

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Ir roaIW

e of elaborate

SantakKid

it 7

—

| character

independent and. br:

characteristics

] ] '

LOOKS

I atsy

photo

Chrissy

W hose

remarkably

Maharam,

of herself dressed as Kid

included

promotional materials

Maharam

Santa, was in

(Patsy was

known LO dress up as Kid

Santa and play her in

performances and_ her

| image this way appears

‘ character with

independent and_ brave |

characteristics

“Kid” Santa Claus uses

outstretched hand

gestures and cowgirl |

characteristics

Her lead

reindeer wears

hats

She comes to the aid of

her ‘dad’ who

prevented by

from delivering presents

|' on time

|of course, grounds

| airplane—a modern day |

Bad weather in LA, smog |

his |

1S |

}

| by

weather |

| delivering

Santakaid

Ses

aoc.

hand

. . on

cow erir!

outstretched

eestures

characteristics

indeer

. } 4

ala Qi

the

her dad who is prevented

comes to

weather from

presents on

time

Bad weather at the

Pole

another

North srounds

modern |

‘trucks’

| She has

weather emergency,

sleigh and

presents

| day weather emergency.

Moreover, there is also

| an airplane in this story

| She questions her ability |

| The

kid

situation

as a to handle

She “believes in magic”

and from the strength of

this belief is able to make

her debut journey and

save Christmas

The reason the sleigh

flies

deep feelings or behef

because of

book “Kid”

Claus is dedicated to ‘

panta

believers’

the

She has LO take the

sleigh and deliver the

presents

She questions her ability

is a kid to handle the

situation

She has been told LO

“believe” and from the

strength of this behef is

| able to make her debut

| journey and save

| Christmas. On the next

| page the story continues,

and then the most

amazing thing-—the

| magic happened...”

As “Kad” Santa Claus

takes off in the sleigh,

her mother. called |

The

flies

the

pDecauUuse

sleigh

deep feelings or belief

reason

1S her

The last line of Santakid |

is “kids are the ones who

know how to believe”

her

She ealls

“Momma

puanen

}

nickname

secret.

“Mama” says “love

lift vou high...”

Both parents are lovingly

portrayed and that

was ‘born’ is

giving emphasis to

she

mentionea,

her

inherent human quality

Holly Nicole first gets the |

“Kad”

Claus as she signs off on

a thank you letter to a

little boy who tried hard

to stay up and_ left

cookies and milk for

Santa: “Kid Santa was

here!”

That Santa has a

daughter and that she

delivers the presents and

Christmas

“No

the

bed that it wasn’t Santa

the

his daughter instead”

Saves 1S

one knew

while world was in

down chimney but

| “Kad” Santa Claus wears

a distinct red baseball

cap and red boots _

Santa |

Both parents are lovingly

portrayed and that

was ‘born’ is mentioned,

her

giving emphasis to

inherent human quality

Chrissy first

gets

she |

the

nickname Santahid from |

a young boy who shouts |

“It's SantaKid” as he sees |

her aloft from his house

That

daughter

has

that

Santa a

and she

‘delivers the presents and

saves Christmas 1s a

secret. “But only = 1,

Chrissie, Sarta’s§ little

girl, knows the whole |

| true store about

everything that

| happened...”

Santakuid wears red

boots with a red hat and

Santa wears

a distinct

At a crucial point during

the

principal

musical play, ” a

becomes dejected and is

motivated to keep going

and move on

The “Kid” Santa Claus

book is “For the

yhievers

Che ‘content and

structure of Ms.

Maharam’s

video

promotional

uses a storyboard

style with snow-capped

houses

character |

| SantakKid Q

red baseball cay

At ae crucial! Ln

point

principal

character becomes

| dejected and is motivated

to keep going and move

| SantaKid has a_ special

fold out page tells its

readel Beheve |

The content und

structure of the

Santahaid

promotional video uses a

website

storyboard style with

snow-capped houses

[In addition, the format

of Patterson’s book and

the profiling in a number

sufficiently similar to the

illustrations are

illustrations essociated

“Kid” Santa Claus

by Patsy Maharam that

with

coincidence not a

LIS

possibility. |

94. The fundamental identity of the two

stories and the two characters, and the derivation of

defendants’ SantaKid from plaintiffs “Kid” Santa

Claus story line is further confirmed by a

comparison of the media statements about the two

stories:

“....this tale of Santa’s | “It’s about Santa Claus’s

daughter to-the-rescue!” | little girl and how she

Bobby Poe, Pop Music] saves Christmas...This

Survey little kid winds up in the

sleigh - flying over the

“The basic story of “Kid” | country and she delivers

Santa Claus -_ Holly | the presents!”

takes the sleigh and | JAMES PATTEPS ON

| delivers the goods - can| Today in NY -TV)

| be heard in a song of that | 11/24/04

name, which Patsy

recorded...” | Darlene Rodriguez:

David Hinckley “..the big revelation

The Daily News | here is that Santa has a

daughter...”

“Holly Nicole’s account | huh, uh huh” - Interview

of how she saved |on Today in NY (NBC-

Christmas, is | TV) (11/24/04)

fantastically told and

beautifully sung by | “This is SantakKid. It’s

PATSY MAHARAM in} about Santa Claus’s little

the destined-to-be | girl.”

holiday classic “KID” | JAMES PATTERSON,

SANTA CLAUS.” Television commercial

j '? eri

Linn Tanzman_ (Press | Aired Nov. 23, 2004

y |

Release)

October 14, 1986 |

James Patterson: “uh |

—

{

46a

“The Kid Santa Claus |

persona eS Santa's

daughter who substitutes

for her dad in= an

emergency, thus coming

into her own...”

The Friday Morning

Quarterback Nov. ‘83 _

55. Defendant James Patterson has a

practice of mining existing works for his own story

titles. For examp’e, his book titles include: “Four

Blind Mice”, “London Bridges’, “The Big Bad Wolf”

“Violets are Blue”, “Roses are Red” and “Jack and

Jill’. However, in contrast to these much older

works, Ms. Maharm still holds a copyright in her

works.

COUNT ONE

[DECLARATORY JUDGMENT AND COPYRIGHT

RB iigionive a NT RELIEF]

[28 | >. §2201; 17 U.S.C. §201(a), et seq.]

56. Ms. Maharam repeats and realleges

each and every allegation contained in paragraphs |]

through 53 above as if set forth fully herein.

57. With her copyrighted works, Ms.

Maharam wrote, created, and developed the “Kid”

Santa Claus character and storyline.

58. Ms. Maharam duly and_ properly

registered the storyline and character development,

as expressed through musical works’ and

accompanying words, literary works, dramatic works

including accompanying music, pictures and graphic

compositions, with the United States Copyright

Office.

59. Ms. Maharam has the exclusive right to

produce derivative works from her said copyrighted

works. Defendants’ publication, promotion and

displays are an unlawful infringement on this right.

60. Ms. Maharam has the right’ to

attribution in any derivative works from’ her

copyrighted works. Defendants’ publication,

promotions and displays provide no attribution.

61. Defendants deliberately copied and

misappropriated without attribution Ms. Maharam’s

copyrighted material.

62. Ms. Maharam’s ability to promote and

market her own copyrighted materials is being

destroyed by defendants’ infringement and Ms.

Maharam has and will sustain emotionai and

economic damages.

63. Defendants have and will receive

substantial monies from sales of the storybook

SantaKid and possibly through other promotional

arrangements and license agreements unknown to

plaintiff at this time, and profits are anticipated.

64. WHEREFORE, Ms. Maharam requests

a declarato..: judgment, pursuant to 28 U.S.C. §

2201 and 17 U.S.C. § 201(a), against defendants (1)

declaring and attributing Ms Maharam's

38a

contribution to and ownership right in Patterson's

derivative story »f Santa’s daughter, (2) declaring

that Ms. Maharam is entitled to royalties consistent

with Ms. Maharam’s ownership and/or contribution

to said derivative story, (3) enjoining defendants

from further publication of Patterson’s book and of

distr’ uting or displaying further representational

material, music, drama, pictorial or storyline derived

from Ms. Maharam’s copyrighted material; (4)

declaring that defendants must accurately state Ms.

Maharam’s authorship on all future communications

and/or writings which accompany or concern the

subject SantakKid story; (5) cease and desist from

using the character SantaKid, being a transposition

of the name and likeness to Ms. Maharam’s title

character “Kid” Santa.

Further, in accordance with Title 17 U.S.C.,

Chapter 5, Ms. Maharam requests as her damages,

restitution to her of defendants’ ill gained profits

(both corporate as well as any personal income gain

derived by Patterson or Garland) arising from their

unlawful infringement, statutory damages, punitive

damages, attorneys' fees, costs of suit and such other

further relief as the Court deems just.

COUNT TWO

[ACCOUNTING]

65. Ms. Maharam repeats and realleges

each and every allegation contained in paragraphs 1

through 62 above as if fully set forth herein.

66. Defendants have or wills receive

substantial monies from the sale of materials

49a

derived from Ms. Maharam’s copyrighted work:

described above.

67. The amount of money received or to be

received by defendants is unknown to Ms. Maharam

and can only be determined by an accounting. Upon

information and belief, the profits due to Ms.

Maharam from the sale and/or distribution of

material derived from Ms. Maharam’s copyrighted

works is or will be substantial.

68. Ms. Maharam hereby demands an

accounting by defendants of all amounts received as

a result of the exploitation of her work and of all

agreements pertaining to this derivative material

69. Ms. Maharam is entitled to an

accounting from defendants of all gains, profits and

advantages derived by defendants therefrom

WHEREFORE, Ms. Maharam_ seeks an

accounting of all income and profits received, as well

as any agreements entered into, by any of the

defendants related to the above-referenced

publishing transaction, promotion displays and

sales, directing payment to Ms. Maharam of all

amounts due from such sales and agreements,

interest, attorneys' fees, costs of suit, and such other

further relief as the Court deems just.

JURY DEMAND

Plaintiff hereby demands a trial by jury on all

iSSues

1Oa

Dated December 9, 2004

New York, New York

Tne dacob 1) Hy, ay Ners

Law Firm, LLP

Attornevs for Plaintiff

Alan L. Fuchsberg (AF 6626)

500 Fifth Avenue

New York, New York 10110

Tel: (212) 869-3500

Thomas S. Howard (TH 0601)

Kirsch Gartenberg Howard LLI

Co-Counsel for Plaintiff

Two University Plaza

Hackensack, New Jersey 07601

(201) 488-4644

AMES COURTS

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UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRUCIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pearl Street, in the City of New York, on the 15 day

of April, two thousand and ten,

Sefore: JOSEPH M. McLAUGHLIN

Circuit Judge

DENNY CHIN,’

District Judg

Patsy Maharam,

Plaintiff App llant

James Patterson, et al..

Defendant-Appellees

ORDER

Docket Number: 07-4715-cy

Appellant, Patsy Maharam

petition for panel rehearing and

determined the appeal having

request

[TIS HEREBY ORDERED th

denied

for the Court

Catherine O'Ha

na\

mat

Of)

ing hiled

pane! that

idered = thi

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€S COURT &

(NE iLeED Las

a MAF 15 2010

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See nan

EC SOND Gin uy

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRUCH

\t a stated Term of the Unit

Appeal! for the Second Circuit, held at the

Patrick Moynihan United States Courthou

Pear! Street, in the City of New York, on the

of Mar h LWO thou and ind ten

Patsy Mi: inal mn

Def ndant-, pp ble

ORDERED that the Apps

motion to unseal, motion to stay Appellate de

until plaintiff has the opportunity to view inte;

probation documents 1s DIENIED as moot in lg

summary order issued on March 11. 2010

FOR THE COURT,

Catherine O’Hagan Wollte, Clerk

Judy Pisnanont, Motions Staff Attorney

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