USDC D. District of Columbia, January 15, 2009

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On a motion for attorney’s fees, the court held that plaintiff’s claim that defendants’ 1997 short story infringed the copyright in her 2005 novel was objectively unreasonable, and granted defendants’ request for attorney’s fees on this issue.

Pro se plaintiff Blanton sued the producers and writers of the motion picture Brokeback Mountain, claiming that the 1997 short story on which the screenplay was based, as well as the 1998 screenplay and 2005 motion picture, infringed the copyright in her novel which was published in March, 2005. The court granted summary judgment to defendants after concluding that plaintiff could not prove that defendants had access to her novel while writing the short story and screenplay because both pre-dated the creation of her novel.

Defendants moved for attorney’s fees and the court granted the motion in part. According to the court, when the plaintiff is a pro se litigant, courts in the District of Columbia Circuit afford greater leniency and rarely award attorney’s fees.

In this case, the court noted that many of the alleged similarities between plaintiff’s novel and the defendants’ works were in the original short story, which was published before the plaintiff created her work. The court also noted that plaintiff’s argument that the creation date of the short story was backdated was “so implausible as to lie outside the realm of reason.” The court concluded: “Even peering through a deferential lens in keeping with the leniency afforded to pro se litigants, the plaintiff’s steadfast refusal to accept the validity of the copies of the short story with which she was presented, coupled with the invention of arguments with no factual grounding, is objectively unreasonable. After all, it does not take a skilled legal practitioner to understand that one cannot copy a work that does not yet exist.” (citations omitted)

With respect to the plaintiff’s infringement claims resting with the screenplay and motion picture itself, the court denied defendants’ motion for attorney’s fees. Although the defendants provided documents during discovery that showed that the screenplay and motion picture were completed before the plaintiff’s novel was published, the plaintiff did not necessarily have this information when she filed her claim, so her claim was not considered by the court to be objectively unreasonable.