Friday, October 15, 2010

Submitting an unpublished work to a writing competition doesn't mean unaffiliated people had access to it

Bridgette Burgin submitted her manuscript, The Final Call, to some writing competitions. She later sued Tim LaHaye and Jerry Jenkins, claiming two books they co-authored infringed her copyright. The defendants won summary judgment (in a 28 page opinion), as the court found the defendants did not have access to Burgin's work. Burgin appealed. The Eleventh Circuit agreed with the trial court.

To prove copyright infringement, Burgin needed to show: (1) she owned a valid copyright; and (2) defendants copied protected elements. Defendants didn't challenge the first part. But Burgin couldn't prove that defendants copied protected elements.

There are 2 ways to prove that a defendant copied protected elements: (1) with direct evidence; or (2) with circumstantial evidence. No direct evidence in this case, so Burgin tried to prove copying circumstantially. To do this, Burgin needed to show either: (1) the defendants' works were "strikingly similar" to her work; or (2) the defendants had access to her work and the "probative similarity" of the works. Burgin couldn't do this:
Here, even viewing the evidence in the light most favorable to Burgin, she has not shown that either of the defendants had access to her work, and thus has not established an inference of copying. Burgin has not demonstrated that either LaHaye or Jenkins ever had a reasonable opportunity to view a manuscript of The Final Call. See Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir. 2007) (“Access requires proof of a reasonable opportunity to view the work in question.” (quotation omitted).). The evidence shows that neither LaHaye nor Jenkins was affiliated with the Peter Taylor Prize writing competition, to which Burgin submitted her work. That Jenkins may or may not have corresponded with one of the Peter Taylor Prize judges regarding an entirely separate matter does not establish a reasonable opportunity for Jenkins to have viewed Burgin’s original work. To consider this flimsy “evidence” sufficient to establish access would be entirely speculative. See Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (“[A] finding of access in this case would be based on speculation or conjecture, and this is impermissible.”).

Burgin also asserts that submission of a portion of her work to a Writer’s Digest writing competition was sufficient to show access. The evidence shows that LaHaye has never had any connection to the Writer’s Digest prize, and, although Jenkins was a judge for the competition, Burgin has not shown that he had a reasonable opportunity to view the work. Burgin submitted her writing in the competition categories of romance, thriller and suspense, and science-fiction/fantasy; Jenkins judged only the Inspirational Writing (Spiritual/Religious) category. Burgin’s work never progressed past the first round of the competition; Jenkins judged only the second round. Moreover, the evidence shows that the many manuscripts that were not chosen to progress to the second round were set to be destroyed. A mere allegation that Jenkins was affiliated with the same large writing competition to which Burgin submitted her work is not enough to establish access. Concluding that Jenkins may have seen Burgin’s work although he judged a different category and a different round would be impermissibly speculative. See Ferguson 584 F.2d at 113.


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