ROGER W. TITUS, District Judge.
In his Second Amended Complaint, Plaintiff Bryant Moore ("Moore") seeks various forms of relief from Defendants for allegedly using content from Moore's copyrighted works to create the movie Avatar, a blockbuster science-fiction film. Defendants now move for summary judgment, arguing that Moore cannot raise a genuine dispute of material fact as to whether (1) Defendants had access to his works and (2) his works are substantially similar in protected expression to Avatar. Moore also moves for summary judgment on the issue of Defendants' access to Moore's works in 2003 and on the existence of striking and/or fragmented literal similarities between the works.
Bryant Moore, a Maryland resident, is a science fiction writer who has written several original works, including the screenplays Aquatica and Descendants: The Pollination (" Pollination "). Second Amended Complaint, Aug. 29, 2013, ECF No. 45 ("Second Am. Compl.") at 1. Moore wrote Aquatica between 1992 and 1994, and registered it with the U.S. Copyright Office in May of 1994. Id. ¶¶ 10-11. He wrote Pollination between 2002 and 2003, and registered it in July of 2003. Id.
Defendants are individuals and entities involved in creating the film Avatar. James Cameron ("Cameron") is a writer, producer, director, and principal owner of Lightstorm Entertainment, Inc. ("Lightstorm"), a California Corporation. Id. ¶ 4. Cameron wrote the screenplay for Avatar and Lightstorm produced the film. Id. ¶ 5. Twentieth Century Fox Film Corporation ("Fox"), a Delaware corporation with its principal place of business in California, produced and distributed Avatar, releasing it worldwide in December of 2009. Id. ¶¶ 6, 8. Avatar subsequently grossed box office earnings of $2, 782, 275, 172, and won Golden Globe and Academy Awards. Id. ¶ 9.
Moore alleges that his copyrighted works pre-date the Avatar screenplay and that there is substantial similarity between his copyrighted works and Avatar, such that the film and its screenplay infringe his copyrights. Id. ¶¶ 11, 36. He alleges that Defendants selectively extrapolated themes and content from his copyrighted works and used these "selective and substantial extracts" to "develop, write, and produce the movie Avatar. " Id.
Moore asserts that prior to Cameron's writing of the screenplay for Avatar, he and the other Defendants, Lightstorm and Fox, had access to Moore's two screenplays, Aquatica and Pollination, as well as related copyrighted drawings. Id. ¶¶ 21-32. According to Moore's Second Amended Complaint, he first submitted the screenplay for Aquatica to Lightstorm in 1994 and then again in 1995, each time through an intermediary. Id. at ¶¶ 23-24. Eight years later, in early 2003, Moore alleges that he sent a script to Cameron's business manager, and on April 7, 2003, to Tom Cohen, Lightstorm's Creative Director. Id. at ¶ 25-27. He also submitted a copy of Pollination to Lightstorm in July of 2003. Id. ¶ 29. Moore asserts that he made a series of follow-up phone calls and sent mail to Lightstorm throughout 2003 and 2004. Id. at ¶¶ 30-31. On April 29, 2005, Moore registered Pollination -themed artwork with the U.S. Copyright Office and, on some unstated date, submitted the art to an intermediary alleged to be connected to Cameron. Id. at ¶ 32.
Moore requests actual damages and profits in excess of $1, 500, 000, 000, a preliminary and permanent injunction enjoining Defendants from infringing further upon his copyrighted material, an accounting of all gains by Defendants' infringement of his copyrighted works, declaratory relief relating to his copyrights, punitive damages in excess of $1, 000, 000, 000, and statutory damages, attorney's fees, and costs. Second Am. Compl. at 16-17.
On December 19, 2011, Moore filed his original Complaint in this Court. ECF No. 1. The Complaint has since been amended twice. Corrected Am. Compl., June 11, 2012, ECF No. 21; Second Am. Compl. Moore's Second Amended Complaint originally included six counts, but on March 18, 2013, this Court dismissed all but two on preemption grounds. ECF No. 59. On April 15, 2013, Moore moved for reconsideration of the dismissal, ECF No. 73, which this Court denied on August 9, 2013. ECF Nos. 92, 93. The remaining counts are for alleged copyright infringement of Pollination and Aquatica in violation of the Copyright Act.
On September 16, 2013, Defendants moved for summary judgment under Fed.R.Civ.P. 56. Defs.' Mot., Sept. 16, 2013, ECF No. 118. Moore filed his opposition on October 18, 2013, Pl.'s Opp'n, Oct. 18, 2013, ECF No. 151, and Defendants replied on November 1, 2013. Defs.' Reply, Nov. 1, 2013, ECF No. 168. Moore moved for partial summary judgment in his favor on October 18, 2013. Pl.'s Mot., Oct. 18, 2013, ECF No. 150. Defendants filed an opposition on November 1, 2013, Defs.' Opp'n, Nov. 1, 2013, ECF No. 166, and Moore replied on November 18, 2013. Pl.'s Reply, Nov. 18, 2013, ECF No. 170. The Court held a motions hearing on November 25, 2013 to consider both motions.
STANDARD OF REVIEW
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure, which states that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material fact is one that "might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49. "When faced with crossmotions for summary judgment, the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003). "When considering each individual motion, the court must take care to resolve all factual disputes and any competing, rational inferences in the light most favorable to the party opposing that motion." Id. (internal quotation omitted).
The Copyright Act of 1976, as amended, provides that an owner of a copyright has the exclusive rights "to distribute copies... of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." 17 U.S.C. § 106(3). "Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122... is an infringer of the copyright or right of the author...." Id. § 501(a). To establish a claim of copyright infringement, "two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 361 (1991). The parties do not contest that Moore owns a valid copyright in his works. While there is no evidence of literal copying, a plaintiff can raise a "presumption of copying by showing both that [defendants] had access to [plaintiff's copyrighted material] and that the... screenplays in question are substantially similar." Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996).
I. Defendants' Access to Moore's Works
In order to prove access, a plaintiff must show that a defendant had a reasonable opportunity to view or copy the work at issue. "A mere possibility that such an opportunity could have arisen will not suffice. Rather, it must be reasonably possible that the paths of the infringer and the infringed work crossed." Towler, 76 F.3d at 582. Moore's Complaint posits a number of ways that Defendants may have accessed his works but fails to introduce anything more than mere speculation to back these assertions. The access claims fall into two different time periods: 1994-1996 when Defendants allegedly accessed Aquatica through intermediaries and 2003-2005 when Moore formally submitted both Aquatica and Pollination to Lightstorm.
None of these theories of access creates a dispute of material fact. "[S]peculation and conjecture" that Defendants may have accessed the works, that amount to no more than a "tortious chain of hypothetical transmittals... [are] insufficient to infer access." Towler, 76 F.3d at 583. See also Eaton v. National Broadcasting Co., et al., 972 F.Supp. 1019, 1025 (E.D. Va. 1997) ("[H]ypothetical possibilities [that someone may have forwarded a script to a senior executive] are mere conjectures insufficient to create a genuine issue of material fact.").
a. The 1994-1996 Access Claims
Moore alleges that during this time period, he gave his screenplays to two intermediaries who could have transmitted them to Cameron. The first of these is Howard Gibson, a production assistant who worked on the set of James Cameron's movie True Lies. Second Am. Compl. ¶ 22. Although acknowledging that Moore gave him a copy of Aquatica around 1994, Gibson testified in deposition that he only spoke to Cameron once during his employment and never passed the script to Cameron or anyone at Lightstorm. Defs.' Mot., Ex. Williams 25, ECF No. 118-106. Despite this testimony, Moore argues that there remains a question of fact about whether Gibson delivered the screenplay to Lightstorm. In 1994, Gibson went to Lightstorm's offices and met with a white male with brown hair in his late-twenties or early thirties for a job interview. Pl.'s Opp'n at 13. Moore relies on the testimony of another Lightstorm employee who said that Tom Cohen, an employee who later became a creative executive, fit a similar description, and argues that Gibson may have given Cohen a copy of the screenplay during his interview. Pl.'s Opp'n at 13-14. In a summary judgment analysis, "[t]he nonmoving party... cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Moore's argument is just such speculation. Furthermore, even assuming that Gibson met with Cohen, Gibson denied bringing the script to the interview and "a copyright plaintiff cannot base [his or] her opposition to summary judgment entirely on the hope that a fact finder will disbelieve the persons who have submitted affidavits on issues of access." Eaton, 972 F.Supp. at 1024 (internal quotation omitted).
The second alleged intermediary during the 1994-1996 time period is Anthony Lancto, an employee of Fox Broadcasting (a different corporate entity from Defendant Twentieth Century Fox) to whom Moore gave a copy of his screenplay. Defs.' Mot. at 14; Affidavit Lancto, ECF No. 118-50. In his deposition, Lancto unequivocally denied delivering the script to or having any relationship with Defendants. Id. Moore's Opposition and oral argument did not address this ...