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White v. Alcon Film Fund, LLC

United States District Court, N.D. Georgia, Atlanta Division

October 6, 2014

ALCON FILM FUND, LLC, et al., Defendants

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[Copyrighted Material Omitted]

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For Franklin White, Plaintiff: Alan Stuckey Clarke, LEAD ATTORNEY, The Entertainment Law Group Alan S. Clark & Associates, LLC, Atlanta, GA USA.

For Alcon Film Fund, LLC, Alcon Entertainment, LLC, Cube Vision, Inc., Warner Bros. Pictures, Time Warner, Inc., Defendants: Anthony D. Sbardellati, Gerald L. Sauer, LEAD ATTORNEYS, Sauer & Wagner, LLP, Los Angeles, CA USA; Alexandra Jacqueline Chanin, Gary S. Freed, Thompson Hine LLP-GA, Atlanta, GA USA.

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Timothy C. Batten, Sr., United States District Judge.

This copyright infringement case comes before the Court on the parties' cross-motions for summary judgment [65, 69].

I. Background

Plaintiff Franklin White is the author of First Round Lottery Pick (" the book" ), which follows the story of fictional character Langston Holiday. The book was first published in hardback in November 2005. A revised paperback version was published and registered with the United States Copyright Office in March 2010.[1] Langston is an All-American basketball talent, living in Ohio's dangerous and gritty housing projects. Recognizing that a basketball career is his opportunity to escape poverty, he decides to forgo college and enter the professional draft. But before realizing his dream, he must overcome " a wave of unthinkable drama and crime."

Erik White,[2] a non-party to this action, maintains that he came up with the story idea for Lottery Ticket (" the film" ) in the late 1990s. He later collaborated with screenwriter Abdul Williams, and the story became the basis for their 2006 treatment.[3] The screenplay was finalized, pre-production began in August 2009, and the film was released in 2010. The film centers on main character Kevin Carson, a recent high school graduate living in urban housing projects.[4] Kevin discovers on Saturday morning that he has the winning lottery ticket to a $370 million jackpot. But the lottery office is closed for the Fourth of July holiday weekend, so Kevin must survive the antics of his greedy neighbors until the office re-opens on Tuesday.

In November 2010, Franklin White viewed the film and formed the belief that Defendants had copied his book. In 2013, he brought this copyright infringement action against the film's production company and distributor. To adjudicate a copyright dispute of this kind, a court must undertake a detailed comparison of the works.

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Beal v. Paramount Pictures Corp., 20 F.3d 454, 456 (11th Cir. 1994). The Court has reviewed both works and begins by briefly summarizing them below.

A. First Round Lottery Pick (the book)

The book is an urban crime drama about Langston Holiday, a young African-American boy from Poindexter Village (a fictional public housing project in Ohio). Langston is being raised by a single mother in a community rife with poverty, violence and drugs--but Langston finds relief in basketball. The book begins with Langston, a high school senior, walking past the courts he grew up playing on, remarking that " not even all the empty beer cans, used condoms, or broken pint bottles" could change his good mood about his future as a professional basketball player. He meets up with his best friend, Jalen, and his longtime girlfriend Tori, whom he describes as " the finest female at East High School." Langston tells Jalen that he has decided to enter the professional draft, but that he intends to maintain his eligibility so that he can play at Ohio State University as a back-up.

Meanwhile, Toy, a much older neighborhood thug and former stand-out basketball player, is determined to be Langston's professional agent. Langston initially refuses, however, not only because he wants nothing to do with Toy, but because signing with an agent would destroy his college eligibility. Despite being in a long-term relationship with Tori, Langston also carries on a sexual relationship with Katrina, a young woman in his high school class. The book's initial chapters introduce readers to Langston's casual sexual relationship with Katrina, his incredible resentment toward his absent father, who is in a homosexual relationship with another man, and Langston's decision to ask Tori to marry him.

The book takes its first dramatic turn when Tori is riding in a car that is attacked by gunfire and she is kidnapped. Langston is left searching for Tori and consoling her mother as she cries in his arms. Days later, Toy reveals that he knows where Tori is and will disclose her location only if Langston signs him as his agent. Langston agrees and discovers that Tori has been beaten and hidden in an abandoned car. Tori spends days in the hospital recovering. Langston wants desperately to be at her bedside, but she initially refuses to be around any men, including him. Langston cannot understand Tori's her fear and refusal until she reveals that she was brutally gang-raped by multiple men.

Meanwhile, Toy has arranged a $17 million shoe endorsement deal for Langston with fictional sports apparel company New Funk Apparel. Langston shares his newfound wealth by buying his mother a new home and fronting Jalen money. Jalen uses that money to buy a Cadillac Escalade, start a record label, try his hand at adult films, and invest in a " package" of high-quality drugs being sold in the projects by a shady and dangerous figure, Murder One. Langston tries to focus on training for basketball and getting ready for the draft, but his relationship with Tori is further complicated when she realizes that she is pregnant as a result of the attack. The two discuss the possibility of her having an abortion and her fears that everything that has happened to her has changed their future together. Despite vowing to stay with Tori and to marry her, Langston continues his sexual exploits with Katrina. When Tori finds out, she is crushed and breaks up with him.

Eventually, draft day arrives and Langston travels to New York with his mother,

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Jalen and Toy. Langston appears proud that he can afford to take his mother to New York to shop in fancy stores, but he spends much of his time breaking up altercations between Jalen and Toy. Soon after their return to Ohio, Langston's mother wakes him to the tragic news that Jalen is at the hospital, in the intensive care unit. He has been beaten severely and has had his left leg and right arm cut off. Jalen reveals to Langston that Toy was responsible for mutilating him and for the gang-rape of Tori. Before Langston is able to confront Toy, Jalen dies. Like the somber mourning and tearful episodes described following Tori's kidnapping, Langston is again forced to deal with incredible loss. The book describes intense grieving by his family, Langston's attempts to console Jalen's mother, and Jalen's funeral.

Jalen's death brings Langston and Tori back together, and they decide to raise her child and name him after Jalen. Langston and Tori also complete Jalen's project to build and dedicate a new basketball court to the community, as an effort to keep children off the streets and away from violence. In the final scenes of the book, Langston arranges a meeting with Toy, planning to shoot him. But just before Langston can pull the trigger, Katrina (Langston's earlier love interest) emerges from the shadows, bloody and swollen, to reveal that she has been raped as well. She shoots Toy at point blank range and the book ends as they stare at Toy's lifeless body.

B. Lottery Ticket (the film)

The film is a light-hearted comedy about Kevin Carson, a recent high school graduate living in the non-descript but upbeat Fillmore housing project. The film opens with news coverage and amusing local television interviews with people all over town telling the morning newscaster what they would do if they won the upcoming mega lottery drawing. School has recently let out for summer and Kevin is getting ready for work. Kevin, his best friend Benny, and their friend Stacie walk through the housing project, encountering the film's principal characters: Kevin's gregarious and satirically religious Grandma; Nikki, a sexy and unattainable girl who pays no attention to Kevin; Lorenzo, the neighborhood bully who has recently been released from jail; Semaj, the community gossip; and Mr. Washington, the odd recluse who never leaves his home, but seems to have a special connection with Kevin.

While Kevin is at work at Foot Locker, Lorenzo shows up with his friends and attempts to steal several pairs of sneakers. Kevin decides to tell the truth about Lorenzo but is still fired by his harebrained boss. Upset that he has just lost his job, Kevin meets Stacie in the food court for lunch. He opens a fortune cookie that says: " Many a false step is made by standing still." On his walk home from work, Kevin stops at the crowded neighborhood liquor store run by an entertaining clerk. Earlier that day he had promised Grandma that he would play her lucky numbers, but at the last minute he buys a second lottery ticket for himself, using the numbers from the back of the fortune cookie.

Kevin wakes up the next morning to learn that he has won the jackpot and he and Grandma enjoy a riotous, dancing celebration in their living room. He and Benny head downtown to the lottery office, only to find out the office is closed until Tuesday morning due to the long holiday weekend. By the time Kevin returns home, Grandma and Semaj have broadcast the good news, and the whole neighborhood gathers around Kevin, hoping to profit from his new riches.

Realizing Kevin will soon be a millionaire, Nikki suddenly takes an interest in

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him. His friends insist that he impress her by taking her to a fancy restaurant. But having not yet cashed in his winning ticket, Kevin gets a $100,000 loan from local mobster Sweet Tee, and goes on a shopping spree, goes out on the town, and takes Nikki to the fanciest restaurant in town. Kevin ends up at Nikki's house that evening, where she tries to seduce him and admits that she is interested in him solely for his newfound money. On his way home, Kevin is invited into the house of the elderly neighborhood recluse, Mr. Washington, who mentors Kevin.

The next day at Grandma's church, the pastor (a satirical, money-grubbing church leader) makes a thinly veiled plea for Kevin's lottery money, which is interrupted by Lorenzo chasing Kevin down the aisles and around the city, trying to steal the lottery ticket. Kevin begins to feel exploited by everyone in the neighborhood and even accuses his best friend Benny of trying to take the ticket. Kevin then goes to Stacie's house, where for the first time he admits to her that he really likes her and their relationship turns romantic. As Kevin leaves Stacie's house, Lorenzo knocks him out and steals the lottery ticket.

Kevin and Benny quickly reconcile, and they come up with a plan to get the lottery ticket back. Ultimately, at the neighborhood Fourth of July barbeque, Lorenzo, Kevin and Sweet Tee come to blows over the ticket--the demure Kevin trying to stand up to Lorenzo; Sweet Tee trying to protect his " investment" in Kevin's new money. Both are beaten badly by the far stronger Lorenzo. But ultimately, Mr. Washington, a former boxer, comes to Kevin's rescue and with one uppercut knocks Lorenzo out. The lottery ticket is returned to Kevin and he presumably cashes it in the next morning.

The film then fast-forwards months later, revealing that Kevin has founded the " Carson Foundation" which funds local businesses, grants scholarships and focuses on positive changes in the community. Kevin donates a park to the community, names Mr. Washington the new head of security and then flies off in a helicopter with Benny and Stacie.[5]

C. Procedural Background

Plaintiff White's copyright infringement claim is based principally on the paperback version of his book. White contends that in February 2009, he sent a pre-publication copy of the book to Matt Alvarez, president of Defendant Cube Vision, Inc.[6] Having heard that Cube Vision was potentially producing a new television series that would feature NBA star LeBron James, White sent the unsolicited book as a writing sample so that he might be considered for a writing position for the series.[7]

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In the meantime, in the late 1990s, Erik White contends that he conceived of the idea for the film. He has testified that he developed the general idea while growing up in the projects in Brooklyn and watching sweepstakes winners on television--imagining what winnings would be like for someone in the projects and later reading a newspaper article about a man who had to wait a few days to cash in a winning ticket. Years later, in 2004 and 2005, Erik White collaborated with screenwriter Abdul Williams, who drafted the screenplay. The film project was put on hold due to various studio and ownership changes, but in August 2009, Defendants began pre-production for the film. In 2010, the film was distributed nationwide by Warner Brothers Pictures and its parent company, Time Warner.

On April 4, 2011, White's previous counsel sent a demand letter to Warner Brothers Pictures, Alcon Entertainment and Cube Vision, informing them that the film constituted infringement of the book. White received no response. On April 9, 2013, he filed this action against Defendants.

On April 16, 2014, both parties moved for summary judgment.

II. Summary Judgment Standard

Summary judgment is appropriate when " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). There is a " genuine" dispute as to a material fact if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." FindWhat Investor Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In making this determination, however, " a court may not weigh conflicting evidence or make credibility determinations of its own." Id. Instead, the court must " view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor." Id .

" The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact." Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). If the nonmoving party would have the burden of proof at trial, there are two ways for the moving party to satisfy this initial burden. United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437-38 (11th Cir. 1991). The first is to produce " affirmative evidence demonstrating that the nonmoving party will be unable to prove its case at trial." Id. at 1438 (citing Celotex, 477 U.S. at 324). The second ...

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