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WHITEHEAD v. PARAMOUNT PICTURES CORP.

June 30, 1999

DAVID L. WHITEHEAD, PLAINTIFF,
v.
PARAMOUNT PICTURES CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Paul L. Friedman, District Judge.

  OPINION

Plaintiff David L. Whitehead alleges that the film BAD COMPANY the film MISSION: IMPOSSIBLE and the novelization of the film MISSION: IMPOSSIBLE all infringe on the copyright of his book Brains, Sex, & Racism, in the C.I.A. and the Escape. He has sued a number of individual and corporate defendants allegedly involved with writing, filming, producing or distributing BAD COMPANY and MISSION: IMPOSSIBLE, and he seeks to recover damages pursuant to the Copyright Act, 17 U.S.C. § 101, et seq., and various common law tort theories.

The corporate defendants have moved for summary judgment, arguing that Mr. Whitehead has failed to state a claim for violation of the Copyright Act and that the various common law claims either are preempted by the Copyright Act or fail to state a claim. Defendants Time Warner Entertainment, Warner Brothers, and Home Box Office also have moved to recover attorneys' fees and costs pursuant to the Copyright Act. See 17 U.S.C. § 505 Plaintiff responded by moving for discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure.

Upon consideration of the works in question, the parties' submissions and the relevant law, the Court concludes that defendants' works are not substantially similar to plaintiff's work, and it therefore will grant defendants' motion for summary judgment on the Copyright Act claim. Plaintiff's motion for discovery will be denied because there is no additional discovery that defendants could provide to plaintiff that would bear on the issue of substantial similarity. Plaintiff's common law claims either are preempted by the Copyright Act or fail to state a claim upon which relief can be granted, and those claims will be dismissed. Finally, while plaintiff's case clearly lacks merit, in view of plaintiff's pro se status, the Court will refrain from awarding attorneys' fees on this occasion.

I. BACKGROUND

A.  Mr. Whitehead's Book: Brains, Sex, & Racism in the C.I.A.
    and the Escape

Mr. Whitehead's book, Brains, Sex, & Racism in the C.I.A. and the Escape, is an autobiographical account of his seven years with the Central Intelligence Agency and his foray into, politics that followed. See Def. Walt Disney Co. Motion for Summ.J., Exh.A (Copy of Brains, Sex, & Racism in the C.I.A. and the Escape). Mr. Whitehead briefly describes his childhood and his experiences as a college basketball player, Army reservist and member of the Navy before delving into a detailed narrative about his time at the CIA

In the book, Mr. Whitehead recounts that he began his work at the CIA in Virginia in 1983 as a communications specialist, and later worked as a computer operator. From the outset, he was discontented at the CIA; he believed that many of his supervisors and co-workers felt threatened by him because he is an intelligent, athletic black man to whom many women, in particular white women, were attracted. Brains, Sex, & Racism gives detailed descriptions of the many women with whom Mr. Whitehead had sexual relations or relationships or who he thought were attracted to him From his descriptions, the women cover a broad spectrum; they are African American, white and Asian-American, lawyers, doctors, students and secretaries. All are described as beautiful.

Mr. Whitehead asserts that he worked hard for the CIA and performed his job extremely well, and he includes in the text of the book copies of many laudatory notes that he received. He nevertheless had a great deal of difficulty with other CIA employees, and the CIA refused to give him promotions. For instance, in July 1988, he was transferred to Chicago for a two-year term to work for the Office of Personnel as a recruiter. During his time in Chicago, he conducted interviews at colleges throughout the Midwest to recruit minorities to work for the CIA, but he says he experienced a great deal of difficulty with his co-workers and the "establishment" at the CIA. According to the book, he became ill from the stress of that environment, and he appears to believe that someone may have drugged the drinking water in his refrigerator. In 1989, despite what he thought was exceptional work, Mr. Whitehead was told that he was being removed from his assignment in Chicago short of his two-year term, and he was told to return to the Washington D.C. area. In January 1990, Mr. Whitehead decided that he could no longer tolerate the racism and stress at the CIA, and he submitted his resignation.

In February 1990, Mr. Whitehead undertook the "escape" of the book's title. CIA officials called Mr. Whitehead into the headquarters office for an emergency meeting and asked him to surrender his badge and credentials. According to the book, when he refused and instead ran out of the building, CIA officials chased him and called for security. Mr. Whitehead ran out of an emergency exit onto a ramp, and when he saw "security coming close with an old white lady leading the pack," he jumped off the ramp to the parking lot, got in his car and drove away. Immediately after that incident, Mr. Whitehead contacted several news agencies and newspapers about his story, but according to the book, the people that he contacted were afraid to pursue the story.

The book then goes on to describe Mr. Whitehead's foray into politics, and his unsuccessful bid to become a shadow senator for the District of Columbia. The book also details his contact with and views on various political figures including Mayor Marion Barry and Reverend Jesse Jackson.

After completing his book, Mr. Whitehead submitted it to the CIA for preclearance, which he received. He obtained a copyright for Brains, Sex, & Racism in the C.I.A. and the Escape in April 1991. See Pl's Motion for Discovery and Opposition to Motion for Summ.J, Exh.H. (Certificate of Copyright). The book was published by Equality America Press in 1992.

B. Defendants' Works

1. BAD COMPANY

The film BAD COMPANY is described as a fictional "edge-of-your-seat . . . sexy thriller." See Def. Walt Disney Co. Motion for Summ.J., Exh.C. (Videotape Copy of BAD COMPANY). The main character, Nelson Crowe (played by Laurence Fishburne), is an African American former CIA agent specializing in blackmail and bribery. Sometime before the film opens, he had lost his position with the CIA for allegedly stealing $50,000 that he was supposed to use to blackmail an Iraqi colonel. Crowe swears that he delivered the money to the colonel, but the colonel tells the CIA that he never received it. As the movie opens, Crowe is hired by The Grimes Organization, a for-profit company that hires former CIA agents to conduct a variety of espionage and covert operations for its clients. Victor Grimes (played by Frank Langella), the creator of The Grimes Organization, originally envisioned it as a "toolshed" or brain trust for former CIA operatives to use their skills and training from the CIA to benefit private clients. Most of the operations of The Grimes Organization are managed by Margaret Wells, an attractive, blonde "master spy and seductive manipulator" played by Ellen Barkin. See id.

Margaret Wells works with Crowe on his first assignment: setting up and photographing a corporate CEO having sex with his teenaged niece so that, the CEO will lose his position. Crowe apparently completes the assignment to Wells' satisfaction. Wells then attends a meeting between Victor Grimes and the main client of The Grimes Organization at which Grimes, Wells and the client decide to bribe a judge who has significant gambling debts and who is sitting on a case with major ramifications for the client.

Wells shows up at Crowe's apartment at 2:30 in the morning and rouses him from sleep to tell him about the plan to bribe the judge. She also tells Crowe that she wants to kill Victor Grimes so that she can take over The Grimes Organization. She promises Crowe half the control and profits of the organization if he will help her eliminate Grimes. Crowe agrees. The two then begin a passionate sexual relationship that continues through much of the movie.

Back at The Grimes Organization, Crowe and Tod Stapp, another African American former CIA agent employed by The Grimes Organization, begin laying the groundwork for bribing the judge. Victor Grimes gives Crowe a bag containing one million dollars in bribe money. Crowe takes the bag, but instead of immediately contacting the judge, Crowe detours to see his former CIA supervisor, Agent William Smithfield ("Smitty"), played by Michael Murphy, and it becomes apparent that Crowe is still working with Smitty and the CIA.

The audience now learns that instead of firing Crowe for allegedly stealing the money that he was supposed to deliver to the Iraqi colonel, Smitty has used the allegations and the threat of criminal prosecution to force Crowe to accept a most difficult and dangerous assignment: to help him take over The Grimes Organization so that the CIA can use the highly trained operatives in Grimes' toolshed. Smitty has forced Crowe to infiltrate The Grimes Organization to carry out this mission. After Crowe tells Smitty of the plan to bribe the judge, Smitty instructs Crowe to follow through with the bribe and then to report back to Smitty for further instructions.

Crowe meets the judge, played by David Ogden Stiers, at the home of the judge's lover, Julie Ames. Crowe tells the judge that he will give him one million dollars if the judge will vote a certain way on the case involving Grimes' client. Otherwise Crowe threatens to go to the press and reveal that the judge is heavily indebted with gambling debts. The judge succumbs and accepts the money.

Meanwhile, Tod Stapp has discovered that Crowe actually is operating as an agent of the CIA. Crowe tells Stapp of the plan to eliminate Victor Grimes and to install Margaret Wells as the head of The Grimes Organization. He tells Stapp that after Grimes is eliminated, The Grimes Organization will become a part of the CIA. He offers Stapp a place in the organization if Stapp agrees to keep the plan and Crowe's work with the CIA secret. Stapp agrees, and he and Crowe go to see Smitty. Smitty instructs them to go back to the judge and bribe him to vote the opposite way so that Victor Grimes' influence with his main client will be undermined, making Grimes vulnerable. Crowe agrees, but then changes his mind, apparently because he knows that he and Margaret Wells are planning to kill Victor Grimes.

In the meantime, the judge has been overcome by guilt. After giving the bribe money to his lover and instructing her to deposit it in an account in her name, he commits suicide. Margaret Wells then lures Victor Grimes on a trip, and Crowe enters the house while Wells and Grimes are having sex and murders Grimes. After seeing Grimes murdered, Wells appears to have second thoughts, and she looks to Crowe apparently for some compassion. But Crowe is concerned with covering up the murder, and he beats Wells and ties her up to make it look as though an intruder both beat her and killed Grimes.

After her release from the hospital, Margaret Wells takes control of The Grimes Organization. Although she and Crowe still are working together, their relationship has deteriorated and she no longer trusts him. Shortly thereafter, Smitty visits Wells in her office, tells her that the CIA has decided to take control of The Grimes Organization, and asks her to run the organization for the CIA. If she does not cooperate, he threatens to criminally prosecute her for bribing the judge and murdering Grimes. Smitty also instructs her to eliminate Crowe.

Wells immediately goes to Crowe's apartment. In the elevator on the way up to Crowe's apartment, Wells sees the judge's lover, Julie Ames, who has come to kill Crowe for his part in the judge's death. Once both Wells and Ames are in Crowe's apartment, Ames tries to shoot Wells and Crowe, but she misses both of them. Wells and Crowe then grab their guns and simultaneously shoot one another. Both are killed. Ames gathers evidence of the CIA's involvement with The Grimes Organization from Crowe's apartment and, as the movie closes, sends the information to the United States Attorney's Office.

2. MISSION: IMPOSSIBLE

The film and the novelization Of MISSION: IMPOSSIBLE are fictional, action-packed thrillers, loosely based on the old television series about the Impossible Mission Force (IMF), a team of highly-trained secret agents within the CIA. See Def. Paramount Picture's Motion for Summ.J., Exh. 2 (Videotape COPY Of MISSION: IMPOSSIBLE); Exh. 4 (Copy of Novelization of MISSION: IMPOSSIBLE). The latest mission of the IMF is to film a spy named Golitsyn in the act of stealing a list of the CIA's undercover agents from the United States embassy in Prague. The team is told that the spy is stealing the list to sell it to a shadowy Czech arms dealer named Max. IMF leader Jim Phelps, played by Jon Voight, carefully briefs the team on the assignment, and he warns them that if the list is stolen and sold to Max, the lives of many undercover agents will be lost.

The mission begins as planned, and the team films Golitsyn stealing the list. As the mission unfolds, however, something goes wrong. Master of disguise Ethan Hunt, played by Tom Cruise, hears and sees the other members of' the IMF team killed one by one. Through his wristwatch television, he witnesses what he believes is Phelps' murder at the hands of an unknown gunman. Golitsyn also is murdered, and Hunt realizes that the list has been stolen.

Hunt calls his CIA supervisor and meets him so that they can arrange Hunt's safe passage back to the United States. At that meeting, Hunt learns that the mission was a "mole hunt," a mission set, up to identify a traitor. The CIA had suspected for some time that someone on the IMF team had been selling secrets to Max, and it set up the mission to try to catch the mole. The stolen list actually was a fake. As the sole known survivor of the mission, Hunt realizes that the CIA thinks that he is the mole. To avoid capture by CIA agents, he throws a stick of explosive bubble gum and flees to the secret meeting place of the IMF team.

Hunt realizes that the only way to clear his name and avenge the deaths of his fellow agents is to capture and expose the real traitor. As Hunt tries to think of a way to make contact with Max, Claire Phelps (played by Emanuelle Beart), a member of the ill-fated IMF team and the wife of team leader Jim Phelps, shows up at the meeting place. She also has survived the ill-fated mission, and she tells Hunt that she wants to help him avenge the deaths of the other team members.

Hunt makes contact with and meets Max, provocatively portrayed by Vanessa Redgrave. He convinces her that the list of undercover agents that she bought from the mole is phony. Max agrees that she will reveal the traitor's identity if Hunt will provide her with the real list. Hunt concocts a scheme to steal the genuine list of agents from the only place it exists: a high-security computer room in the CIA's Langley, Virginia headquarters. He recruits a team of other disavowed CIA agents to conduct this mission, including Claire Phelps. The team successfully executes an intricate plan to gain access to the high-security room and download the list. Hunt and his team then travel to London to meet Max.

Once in London, Phelps, the team leader of the ill-fated Prague mission whose murder Hunt thought he had witnessed, contacts Hunt. Phelps tells Hunt that the head of the CIA's covert operations is the traitor, but Hunt realizes that Phelps in fact is the IMF traitor. In the final scene, Hunt and his team are on a speeding train traveling from London to Paris. They meet Max there and give her a list of agents, but they use computer technology to frustrate her ability to access the list. Max tells Hunt that the traitor is on the train. As Hunt prepares to confront Phelps, the traitor, he discovers that Phelps' wife Claire, who has been working with Hunt's team of disavoweds ...


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