United States District Court, N.D. Illinois, Eastern Division
November 18, 2004.
DARYL MURPHY, Plaintiff,
EDDIE MURPHY; EDDIE MURPHY PRODUCTIONS, INC., a California corporation; LARRY WILMORE; STEVE TOMPKINS; RON HOWARD; TONY KRANTZ; BRIAN GRAZER; TOM TURPIN; WILL VINTON; WARREN BELL; WILL VINTON STUDIOS, INC., an Oregon corporation; IMAGINE TELEVISION, a California general partnership; TOUCHSTONE TELEVISION PRODUCTIONS, LLC; FOX BROADCASTING COMPANY, INC., a Delaware corporation; and WARNER BROS. TELEVISION, A DIVISION OF TIME WARNER ENTERTAINMENT COMPANY, L.P., a Delaware limited partnership, Defendants.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Daryl Murphy ("D. Murphy"), filed suit against
Defendants under the Copyright Act and the Lanham Act. Count I
seeks an issuance of a declaratory judgment; Count II alleges
copyright infringement; and Count III alleges federal unfair
competition. Presently pending before the Court is: Eddie Murphy
Productions, Inc.; Will Vinton Studios, Inc.; Touchstone
Television Productions, LLC; Fox Broadcasting Company, Inc.; and
Time Warner Entertainment Company, L.P.'s (hereinafter
"Defendants") Motion to Dismiss D. Murphy's Complaint. In his
response to Defendants' Motion to Dismiss, Plaintiff voluntarily
withdrew his causes of actions under Counts I and III.
Accordingly, only Count II of Plaintiff's Complaint is addressed. BACKGROUND
A reading of D. Murphy's Complaint supports the following
summary of the alleged conduct of the parties.
D. Murphy was raised in the Robert Taylor Homes, a building in
the Chicago Housing Authority Projects. Beginning in mid-1997, D.
Murphy, a documentary film maker and owner of Keep It Real Movie
Production, decided to film the lives of individuals in the
projects, specifically those in the Robert Taylor Homes, Stateway
Gardens, and the Ida B. Wells Apartments. D. Murphy filmed
individuals who lived or once lived in the projects, scenery,
buildings, signs, traffic intersections, personal home scenes,
and family gatherings at his late mother's home. Furthermore, D.
Murphy filmed specific individuals, including Tally Collier, a
man who used a voice box to speak; Derrick Pittman, a heavy set
child with a chubby face; Lester Jackson, a skinny middle-aged
man; Theoada Griffin, a middle-aged woman; Walter Hale, a
middle-aged man; and Kate Murphy Foster, the late mother of D.
Murphy. During all of his filming, D. Murphy also made references
to himself and referred to himself as "Daryl Murphy, Keep It Real
After months of filming and interviewing, D. Murphy finished
his documentary and applied for the registration of copyright. On
or about April 18, 1998, D. Murphy proposed an idea for a show to
Oprah Winfrey based on his documentary of the projects. D. Murphy
wrote Oprah a letter explaining the importance of his
documentary; and along with the letter, he mailed to her, by
certified mail, a videotape of his documentary and his business
card. Shortly thereafter, D. Murphy received a green card
confirming receipt of his package. After receiving confirmation,
D. Murphy heard nothing from Oprah, any representative connected
with her organization, or any individuals specifically mentioned
in his letter to her. In his letter to Oprah, D. Murphy asked her
to pass his documentary onto Spike Lee, Tom Hanks, Quincy Jones, Ron Howard,
or Fred Williamson. None of these individuals contacted D. Murphy
in regards to his documentary.
Approximately nine months after D. Murphy contacted Oprah about
his documentary, a new television program called "The PJs" aired
in all major and minor television markets throughout the United
States. The television program appeared on Fox, Channel 32 in
Chicago, Illinois. PJs was a cartoon, set in an urban housing
project fictitiously named Hilton-Jacobs, whose purpose was to
show life in the projects. PJs was created by Eddie Murphy, Larry
Wilmore, and Steve Tompkins. In addition, Quincy Jones was
involved in the creation of PJs. Eddie Murphy, Larry Wilmore,
Steve Tompkins, Ron Howard and Brian Grazer were all executive
producers. PJs aired from January of 1999 through the 2001
television season. Based on its success, PJs received two or more
Emmy Awards and was nominated for other Emmy Awards, including
Outstanding Animated Program, Outstanding Main Title Theme Music,
and for the episode "He's Gotta Have It."
According to D. Murphy, the similarities between his
documentary and PJs are far too numerous and personal to be mere
coincidence. For instance, D. Murphy alleges that the scenic
footage from his documentary was used in PJs. In addition, D.
Murphy alleges that there were three or more individuals from his
documentary used as models for characters in PJs. D. Murphy
alleges that the facts from the lives of certain people filmed in
his documentary were so similar to the characters in PJs that the
creators and producers of PJs could not have known, imagined, or
thought these facts up independently. For example, the character
Sanchez in PJs closely resembles Tally Collier, an individual who
appeared in D. Murphy's documentary. Both Tally Collier and the
character Sanchez use a voice box to speak, their wives are
deceased, they have similar head-neck placement, dark eyebrows,
jowled checks, similar noses, gestures and similar built.
Furthermore, D. Murphy alleges that the creators and producers of PJs used or
paraphrased direct verbal remarks stated or implied in his
documentary. The likenesses and the scenery in PJs are so
identifiable to his documentary that he has been stopped by many
people in the Chicago Housing Authority Projects because they
believe he is a part of, or involved with, the PJs and has
profited from the television program.
D. Murphy alleges that his documentary was passed on to one or
more of the persons listed in his letter to Oprah, thereby
providing access to the creators and executive producers of PJs.
These individuals involved in the creation and production of PJs
received, possessed, and took control of his documentary; used
portions of his documentary for their benefit; and improperly
realized profits, gains, and advantages from his documentary.
Those involved in the creation and production of PJs never
notified, gave credit to, acknowledged, or obtained permission
from him in regards to the use of his documentary. D. Murphy
never gave verbal or written permission for his work to be used
in any medium, for any purpose, by anyone, or any entity.
In reviewing a motion to dismiss, the court reviews all facts
alleged in the complaint and any inferences reasonably drawn
therefrom in the light most favorable to the plaintiff.
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323,
326 (7th Cir. 2000). A plaintiff is not required to plead the
facts or the elements of a claim, with the exception found in
Federal Rules of Civil Procedure 9. See Swierkiewicz v. Sorema,
534 U.S. 506, 511 (2002) (Swierkiewiez); Walker v. Thompson,
288 F.3d 761, 764 (7th Cir. 2002). A filing under Federal Rules
of Civil Procedure need not contain all the facts that will be
necessary to prevail. It should be "short and plain," and it
suffices if it notifies the defendant of the principal events.
See Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir. 2003). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of its claim that would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be
dismissed if it is possible to hypothesize the facts, consistent
with the complaint that would make out a claim." Graehling v.
Village of Lombard, Ill, 58 F.3d 295, 297 (7th Cir. 1995). The
simplified notice pleading relies upon liberal discovery and
summary of motions to define disputed issues and facts and to
dispose of unmeritorious claims. See Swierkiewicz,
534 U.S. at 513.
The Defendants argue that the Plaintiff has not alleged
infringement of any copyrightable elements of his documentary.
A claim of copyright infringement involves two elements: "(1)
ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original." Fiest Publications,
Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361
(1991) (Fiest). "Copying may be inferred where the defendant
had access to the copyrighted work and the accused work is
substantially similar to the copyrighted work." Gentieu v. Tony
Stone Images, 255 F. Supp. 2d 838, 847 (N.D. Ill. 2003)
(Gentieu). "Proof of access can be established by demonstrating
that the creators of the allegedly infringing works had the
opportunity to view the protected item." Gentieu,
255 F. Supp. 2d at 847. In addition, "access can be established by evidence
that the copyrighted work was sent to a close associate of the
defendant or that the material was widely disseminated."
Gentieu, 255 F. Supp. 2d at 847-848. In copyright infringement
cases, substantial similarity is determined by the "ordinary
observer test: whether the accused work is so similar to the
plaintiff's work that an ordinary reasonable person would conclude that the
defendant unlawfully appropriated the plaintiff's protectable
expression by taking material of substance and value." Gentieu,
255 F. Supp. 2d at 848.
Copyright extends to "original works of authorship."
17 U.S.C. § 102(a). However, there can be no copyright in facts. Fiest,
499 U.S. at 356 (emphasizing that § 102(b) of the Copyright Act
of 1976 is "universally understood to prohibit any copyright in
facts"). "[A]ll facts scientific, historical, biographical, and
news of the day . . . may not be copyrighted and are part of the
public domain available to every person." Fiest,
499 U.S. at 348. A compilation of facts, on the other hand, "is not
copyrightable per se, but is copyrightable only if its facts
have been `selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original work of
authorship.'" Fiest, 499 U.S. at 356 (quoting the definition of
compilation in § 101 of the 1976 Copyright Act). However, "[e]ven
a compilation that is copyrightable receives only limited
protection, for the copyright does not extend to facts contained
in the compilation." Fiest, 499 U.S. at 359 (emphasizing that §
103 of the 1976 Copyright Act makes clear that the "facts
contained in existing works may be freely copied because
copyright protects only the elements that owe their origin to the
compiler the selection, coordination, and arrangement of
The Defendants argue that the Plaintiff's copyright
infringement claim should be dismissed because factual elements
cannot be copyrighted. For instance, the Defendants argue that
there is no copyright protection for facts taken from the lives
of various individuals and no protection for the portrayal of
buildings and scenery used in the Plaintiff's documentary. As the
court in Fiest emphasized, "[F]acts do not owe their origin to
an act of authorship. The distinction is one between creation and
discovery. The first person to find and report a particular fact
has not created the fact; he or she has merely discovered its existence." Fiest,
499 U.S. at 347. Taking images and facts from real-life people and places
and then recasting those images and facts into a cartoon does not
support a claim for copyright infringement. Regardless of how
original the Plaintiff claims his documentary is, the facts it
exposes are "free for the taking." Fiest, 499 U.S. at 349. "The
very same facts and ideas may be divorced from the context
imposed by the author, and restated or reshuffled by second
comers, even if the author was the first to discover the facts or
to propose the ideas." Fiest, 499 U.S. at 349. Therefore, the
Defendants were free to use the facts contained in the
However, the Plaintiff contends that his documentary is more
than a compilation of facts. He argues that his documentary is
copyrightable because it was independently created by him and the
documentary possesses some minimal degree of creativity. The
Plaintiff asserts that he can establish that the Defendants had
access to his copyrighted work and that there are substantial
similarities which exist between his documentary and the PJs.
Although the facts themselves are not copyrightable, the
Plaintiff's selection, coordination, and arrangement of those
facts are copyrightable. Because the Plaintiff may be able to
prove that the Defendants copied the actual selection,
coordination, and arrangement of the facts in his documentary,
Count II sufficiently pleads a copyright cause of action.
The Defendants argue that the statute of limitations either
bars or significantly limits the Plaintiff's claims against them.
In addition, the Defendants argue that the Plaintiff's claim must
be limited to acts that occurred during the three years preceding
the filing of his complaint.
Under the Copyright Act of 1976, "[n]o civil action shall be
maintained under the provisions of this title unless it is
commenced within three years after the claim accrued."
17 U.S.C. § 507(b). The Plaintiff filed suit on May 19, 2004. The last
episode of PJs aired on or about May 20, 2001. According to the Defendants, the Plaintiff can only recover for
acts that occurred on or after May 19, 2001. The Plaintiff
asserts that he is entitled to bring up acts that occurred prior
to May 19, 2001, because of the "continuing violation" rule.
Under the continuing violation rule, the statute of limitations
does not begin to run on a continuing wrong until the wrongful
conduct is finished. Taylor v. Meirick, 712 F.2d 1112, 1118
(7th Cir. 1983). The Plaintiff alleges that the Defendants'
infringement was a continuing wrong, beginning in early 1999 and
continued until the last broadcast. The Plaintiff further alleges
that the Defendants' infringement may continue today because PJs
is still being aired in Canada and Great Britain.
The Defendants argue that the continuing violation rule does
not apply to the Plaintiff's suit against them. The continuing
violation rule does not apply when "the harm is definite and
discoverable, and nothing prevented the plaintiff from coming
forward and seeking redress" at an earlier time. Wilson v.
Gieson, 956 F.2d 738, 743 (7th Cir. 1992); Moskowitz v.
Trustees of Purdue University, 5 F.3d 279, 282 (7th Cir. 1993);
Stone v. Williams, 970 F.2d 1043, 1050 (2d Cir. 1992)
(emphasizing that the application of the continuous violation
rule "generally has been rejected in the [copyright] infringement
As set out above, Plaintiff has sufficiently pled a cause of
action for infringement. The factual question of the
applicability of the continuing violation doctrine and what
proofs Plaintiff may present is premature. CONCLUSION
For the foregoing reasons, Counts I and III are voluntarily
withdrawn by Plaintiff. The Defendants' Motion to Dismiss is
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