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 and with whom Hunt had been falling in love, also is
a traitor. The plot climaxes as Hunt foils Phelps' escape atop
the speeding train. Phelps is killed and Hunt is a hero.
II. SUMMARY JUDGMENT STANDARD
Mr. Whitehead has sued Time Warner Entertainment, Warner
Brothers, Home Box Office, the Walt Disney Company, Wait Disney
Pictures and Television, ABC, Columbia House, and a number of
individual defendants allegedly associated with the film BAD
COMPANY. He has sued Paramount Pictures, Simon and Schuster,
Pocket Books, and a number of individual defendants allegedly
associated with the film MISSION: IMPOSSIBLE and the
novelization of that film.*fn1 He alleges copyright
infringement under the Copyright Act, 17 U.S.C. § 501, et seq.,
mental pain and suffering, intentional infliction of emotional
distress, "misappropriation of intellectual ideas," and
"improper distribution and dissemination of copyright material
(Privacy Act Violation)." See Amended Complaint at 16.*fn2
The Court already has dismissed ten of the individual named
defendants. See Memorandum Opinion and Order of November 22,
1996. The Court stayed the case against the remaining
individual defendants pending briefing of motions for summary
judgment filed by Paramount Pictures, Simon and Schuster,
Pocket Books, Time Warner, Warner Brothers, Home Box Office,
the Walt Disney Company, Walt Disney Pictures and Television,
ABC, and Columbia House. See id; Order of November 27, 1996.
The case now is before the Court on the motions for summary
judgment of those defendants.
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment should be granted if the pleadings,
depositions, answers to interrogatories, admissions on file and
affidavits show that there is no genuine issue of material fact
in dispute and that the moving party is entitled to judgment as
a matter of law. Rule 56(c), Fed.R.Civ.P. Material facts are
those "that might affect the outcome of the suit under the
governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a
motion for summary judgment, the "evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn
in his favor." Id. at 255, 106 S.Ct. 2505; see also Washington
Post Co. v. U.S. Dept. of Health and Human Services,
865 F.2d 320, 325 (D.C. Cir. 1989).
Plaintiff's complaint was filed pro se. Complaints filed
without the assistance of counsel are held "to less stringent
standards than formal pleadings drafted by lawyers." Haines v.
Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
The non-moving party's opposition, however, must consist of
more than mere unsupported allegations or denials and must be
supported by affidavits or other competent evidence setting
forth specific facts showing that there is a genuine issue for
trial. Rule 56(e), Fed.R.Civ.P.; Celotex Corp. v. Catrett,
477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The
non-moving party is "required to provide evidence that would
permit a reasonable jury to find" in his favor. Laningham v.
U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the
evidence is "merely colorable" or "not significantly
probative," summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50, 106 S.Ct. 2505.
III. COPYRIGHT INFRINGEMENT
Mr. Whitehead alleges that defendants Time Warner
Entertainment, Warner Brothers, Home Box Office, the Walt
Disney Company, Walt Disney Pictures and Television, ABC, and
Columbia House (the "BAD COMPANY defendants") infringed his
copyright by making and/or distributing the film BAD COMPANY,
and that defendants Paramount Pictures, Simon and Schuster, and
Pocket Books (the "MISSION: IMPOSSIBLE defendants") infringed
his copyright by making and/or distributing the film MISSION:
IMPOSSIBLE and by publishing the novelization of the film
MISSION: IMPOSSIBLE. The Court concludes that Mr. Whitehead has
failed to establish substantial similarity between his book and
any of the works at issue here. Judgment therefore will be
entered for defendants on Mr. Whitehead's copyright
To establish copyright infringement, a plaintiff must prove
(1) "ownership of a valid copyright, and (2) copying of
constituent elements of the work that are original." Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361,
S.Ct. 1282, 113 L.Ed.2d 358 (1991); see Stenograph L.L.C. v.
Bossard Assoc., Inc., 144 F.3d 96, 99 (D.C. Cir. 1998). In this
case, the first element is not in dispute. Mr. Whitehead has
submitted a certificate of copyright, see Pl's Motion for
Discovery and Opposition to Motion for Summ. J, Exh. H.
(Certificate of Copyright), and a certificate of copyright
constitutes prima facie evidence of ownership of a valid
copyright. See Stenograph L.L.C. v. Bossard Assoc., Inc., 144
F.3d at 99.
With respect to the second element, in the absence of direct
evidence of copying a plaintiff may prove copying by
establishing (1) that defendants had access to the copyrighted
work, and (2) the substantial similarity between the
protectible material in plaintiff's and defendants' works.
Williams v. Crichton, 84 F.3d 581, 587 (2nd Cir. 1996); see 4
NIMMER ON COPYRIGHT § 13.03[A] (1997). Mr. Whitehead has
provided no direct evidence of copying, so he has the burden of
establishing both substantial similarity and access.*fn3
The substantial similarity inquiry is somewhat complicated by
the fact that in order to establish substantial similarity
between plaintiff's work and defendants' works, a plaintiff
must show that defendants' works are substantially similar to
elements of plaintiff's work that are copyrightable or
protected by the copyright. The mere fact that a publication is
copyrighted does not mean that every part of it is protected.
See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S.
at 348, 111 S.Ct. 1282; Rogers v. Koons, 960 F.2d 301, 307 (2nd
Cir.) ("that a whole work is copyrighted does not mean that
every element of it is copyrighted; copyright protection
extends only to those components of the work that are original
to the creator"), cert denied, 506 U.S. 934, 113 S.Ct. 365, 121
L.Ed.2d 278 (1992). Because "the sine qua non of copyright is
originality," "no author may copyright ideas or the facts he
narrates." Feist Publications, Inc. v. Rural Tel. Serv. Co.,
499 U.S. at 345, 111 S.Ct. 1282 (quoting Harper & Row,
Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556, 105
S.Ct. 2218, 85 L.Ed.2d 588 (1985)). Ideas and facts contained
in copyrighted works therefore are not protected even though
the creative expression of those ideas or facts may be. See
Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499
U.S. at 348; Nelson v. Grisham, 942 F. Supp. 649, 652 (D.D.C.
1996), aff'd, 132 F.3d 1481 (D.C. Cir. 1997), cert.
denied, ___ U.S. ___, 118 S.Ct. 1166, 140 L.Ed.2d 176 (1998).
As Judge Boudin explained for the First Circuit, "the
underlying idea (e.g., the travails of two star-crossed
lovers), even if original, cannot be removed from the public
realm; but its expression in the form of a play script (such as
William Shakespeare's Romeo and Juliet) can be protected.
Needless to say, the line is a blurry one." Matthews v.
Freedman, 157 F.3d 25, 27 (1st Cir. 1998).
Similarly, sequences of events that "necessarily result from
the choice of setting or situations," known as scenes a faire,
and stock themes or settings that often arise in works of a
particular genre also are not protected. See William v.
Crichton, 84 F.3d at 587; Nelson v. Grisham, 942 F. Supp. at
653. For instance,
the use of a police car chase in an action movie is not
copyrightable, although the way a particular car chase is
depicted may be copyrightable. As the Ninth Circuit has
expressed it, "[D]epictions of the small miseries of domestic
life, romantic frolics at the beach, and conflicts between
ambitious young people on one hand, and conservative or evil
bureaucracies on the other [are] unprotectible. These familiar
scenes and themes are among the very staples of modern American
literature and film. The common use of such stock . . . merely
reminds us that in Hollywood, as in the life of men [and women]
generally, there is only rarely anything new under the sun."
Berkic v. Crichton, 761 F.2d 1289, 1294 (9th Cir.), cert.
denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 69 (1985).
Courts use various methods to "isolate the protectible
expression" in the copyrighted work in order to determine
whether there are substantial similarities between that
protected expression and the defendant's work. Matthews v.
Freedman, 157 F.3d at 27. When a work contains both protectible
and unprotectible elements, the Court must ascertain whether
"the protectible elements, standing alone, are substantially
similar." Williams v. Crichton, 84 F.3d at 588 (emphasis in
original) (quoting Knitwaves, Inc. v. Lollytogs Ltd.,
71 F.3d 996, 1002 (2nd Cir. 1995)). At the same time, when comparing
the works the Court must recognize the danger of so dissecting
a work "as to classify all its elements as unprotectable . . .
thereby possibly blind[ing it] to the expressiveness of their
ensemble." See CMM Cable Rep., Inc. v. Ocean Coast Properties,
Inc., 97 F.3d 1504, 1515 (1st Cir. 1996) (internal quotation
omitted). The Court therefore must examine not just the
isolated protectible elements but the overall "concept and feel
of a work" as well as any specific similarities. See Williams
v. Crichton, 84 F.3d at 589; Nelson v. Grisham, 942 F. Supp. at
Upon extensive review of Mr. Whitehead's book and defendants'
works, the Court concludes that the alleged similarities do not
concern any protectible element of Mr. Whitehead's book and
that no reasonable trier of fact could find the works
substantially similar. Summary judgment therefore will be
granted. See Williams v. Crichton, 84 F.3d at 587 (summary
judgment appropriate if "similarity concerns only
noncopyrightable elements of plaintiff work, or no reasonable
trier of fact could find the works substantially similar")
(internal quotations omitted); Nelson v. Grisham, 942 F. Supp.
at 652 (summary judgment appropriate "where the works are so
dissimilar that a claim of infringement is without merit")
(internal quotations omitted).*fn4
A. Alleged Similarities Between Plaintiff's Work and BAD
Plaintiff lists several hundred points that he contends
establish similarity between Brains, Sex, & Racism and BAD
COMPANY. See Amended Complaint at ¶¶ 43-56; Pl's. Motion for
Discovery and Opp. to Motions for Summ.J., Exh. Pt. 2.
Virtually every similarity between BAD COMPANY and Mr.
Whitehead's book that Mr. Whitehead identifies either is not at
all similar or is an element that is not copyrightable because
it is a fact, an idea or a scene a faire. While Mr. Whitehead's
lists of alleged similarities are too extensive to review point
by point, the Court has reviewed all of the items on his lists
and finds that none of them establishes similarity.