Plaintiff Paul A. Roginski (Roginski) filed a copyright infringement action against defendants Time Warner Interactive, Inc., Atari Games Corp. and Sega of America, Inc., alleging that defendants copied Roginski’s unpublished manuscript entitled “Awesome Possum” when the defendants created a video game and accompanying comic book–“Awesome Possum Kicks Dr. Machino’s Butt.” On March 31, 1993, Roginski filed a copyright application with a copy of the manuscript with the Copyright Office. On July 17, 1992, one of the defendant’s employees presented his “Rad Rhino and Awesome Possum” game proposal to the management of Tengen and obtained approval for the development of the game. Tengen was the corporate predecessor of defendant Time Warner Interactive. These events are significant because they occurred before Roginski began writing his manuscript. Therefore, these facts demonstrate that the concept of the “awesome possum” in a video game setting with an environmental theme was independently created by Tengen’s design team.
The defendants filed a motion for summary judgment, claiming that their products were independently created and that there was no evidence that the defendants had access to Roginski’s manuscript. In a copyright infringement case, a plaintiff must show (1) that he owned a valid copyright; and (2) that the defendant copied protectable expression from the plaintiff’s work. More precisely, as Roginski observed, “the principal issue on summary judgment is whether Plaintiff has produced sufficient evidence so that a reasonable juror, drawing all justifiable inferences in favor of Plaintiff and presuming Plaintiff’s version of any disputed fact to be correct, could conclude that Defendants copied Plaintiff’s work.”
Given defendants’ strong evidence that it was in the process of creating the “awesome possum” video game prior to Roginski’s work, he could not maintain a claim for infringement based upon the video game. Roginski argued, however, that defendants copied his manuscript in their comic book, which was included in the “Awesome Possum Kicks Dr. Machino’s Butt” instruction manual. Therefore, the narrow issue left to resolve was whether there was sufficient evidence to support a claim that defendants copied Roginski’s story in the production of their comic book. One manner in which copyright infringement could be established was by demonstrating inferentially that: (1) the defendant had access to the material; and (2) the defendant’s work was substantially similar to the plaintiffs work.
There was no evidence of direct access in this case. Roginski argued that the defendants could have received copies of the manuscript from the Copyright Office or the Library of Congress. In terms of access, the plaintiff must have demonstrated that such access was reasonably possible. A finding of access, however, could not be the product of speculation or conjecture. Since there was absolutely no evidence that the defendants had access to Roginski’s manuscript, in order to prove copyright infringement, Roginski had to demonstrate that there were “striking similarities” between his product and the defendant’s product. Regardless of whether additional evidence of access should be required, a comparison of Roginski’s and defendants’ works did not disclose the type of similarities that would permit a reasonable juror to infer that defendants copied Roginski’s product.
Roginski’s possum did not really resemble an average cartoon superhero, as he never used any “superpowers” to protect the forest. On the other hand, the defendants’ possum was initially portrayed in a superhero garb and pose on the first page of the comic. The fact that defendants’ possum had a family was not striking as compared to Roginski’s, especially where the family structure between the two works was different–defendants’ possum was a sibling, while Roginski’s possum was a father and husband. It was undisputed that the term “awesome possum” was created independent of Roginski’s manuscript. It could not be considered striking that another animal used the term awesome to describe a possum who was a superhero. Also, the oath in the comic book directly related to defendants’ video game, and therefore, was not strikingly similar to the oath of the manuscript.
Not only was Roginski’s manuscript not strikingly similar to the defendants’ work, there were overwhelming differences between the two stories. The possums had different missions and personalities. The general mood and pace of the two works was different. The settings of the two stories were also dissimilar. Finally, the characters were not even remotely similar. Roginski had demonstrated a few coincidental similarities, but he had not, however, presented evidence which would preclude a reasonable juror from determining that the defendants could not have independently created their comic book. Therefore, defendants’ motion for summary judgment was granted.