In copyright infringement action concerning trailer for Disney’s blockbuster film Frozen court denied both parties’ motions for summary judgment, finding that plaintiff established genuine factual dispute as to Disney’s access to her film.

Plaintiff Kelly Wilson, the creator of the short film The Snowman, sued The Walt Disney Company and related defendants, alleging that they infringed her copyright when they created the trailer for the film Frozen. The court denied both parties’ motions for summary judgment, finding that there were genuine factual issues.

Wilson argued that the Frozen trailer and The Snowman were so “strikingly similar” that they could not have been created independently. She relied primarily on emails between Disney employees about the similarities between the two works, including one email in which a Disney employee described the works as “strikingly similar.” The court dismissed that evidence, however, noting that the Disney employee was speaking as a layperson rather than using the phrase “strikingly similar” as a term of art. The court was similarly unconvinced by the testimony of Wilson’s expert that the two works were strikingly similar, concluding instead that a reasonable jury could go either way as to whether theFrozen trailer and The Snowman were “substantially similar.”

The court likewise found that factual disputes prevented Disney from prevailing at the summary judgment stage. Because there was a genuine factual dispute as to whether the two works were substantially similar, and because Disney did not establish independent creation, Disney could win its summary judgment motion only if it showed that it lacked access to The Snowman as a matter of law. The court found that it did not. To get the “access” question to a jury, Wilson did not have to present evidence that the creators of the trailer actually viewed or copied The Snowman. Rather, she only had to present evidence that the creators of the trailer had enough of a connection to The Snowman that there was a “reasonable possibility” that they had an “opportunity” to view or copy it.

The court stated that it was not permitted to credit the Disney witnesses’ denials that they’d ever seen Wilson’s work. Instead, the court considered a variety of facts that established at least a possibility of Disney’s access to The Snowman. Notably, The Snowman was screened four times at the 2011 San Francisco International Film Festival, back-to-back with the short film Play by Play, which was created by employees of Pixar, a Disney subsidiary. Many Pixar employees attended the festival, including an executive producer of Play by Play who interacts regularly with Disney’s chief creative officer. The producer also had contact with other Disney employees who were involved in the creation of the Frozen trailer.

While the court viewed that connection alone as sufficient to create a factual dispute, additional circumstances made the possibility of access even more “reasonable.” There was evidence that roughly 16 Pixar employees saw The Snowman at the San Francisco International Film Festival, and Wilson spoke onstage with Pixar employees twice during the festival. The Snowman was also shown at seven other film festivals. While the film’s dissemination may not have been “widespread” within the meaning of copyright law, the film festivals increased the possibility that Disney had an opportunity to view or copy the work. There were other circumstances—such as The Snowman’s availability on YouTube and Vimeo, and the fact that a Disney employee searched for “snowman and rabbit” on YouTube—that contributed to the possibility that people involved in the creation of the Frozen trailer had viewed (and perhaps copied) The Snowman. Given these open factual questions, the court concluded that Wilson’s case should be presented to a jury rather than decided on summary judgment.