Deebs-Elkenaney v. United States
- Colleen McMahon
- 1:22-cv-02435
- U.S. District Court · Southern District of New York
- 11
In Tracy Deebs-Elkenaney v. United States, Judge McMahon requested submissions before deciding whether to hold a copyrightability hearing or revisit summary judgment.
The plaintiff and defendants in the copyright dispute, whose trial preparation and possible summary-judgment proceedings may be affected by the court’s planned hearing and further review.
What happened
In Tracy Deebs-Elkenaney, et al. v. United States, the court is handling a copyright dispute involving the parties’ written works. Earlier rulings left unresolved which parts of those works are protected by copyright and whether the works are legally similar enough to support an infringement claim.
Judge McMahon said the court should address copyrightability before trial and may also reconsider arguments about substantial similarity raised in earlier summary-judgment motions. She explained that the earlier decisions did not actually decide those issues on their merits, so she believes reconsidering them may be allowed.
Judge McMahon did not decide the copyrightability or similarity questions in this order. Instead, she asked the parties to provide January hearing dates, propose any additional briefing, and explain whether expert testimony should be considered before she makes a final decision.
The detailed version
- Deebs-Elkenaney v. United States · No. 1:22-cv-02435
- Colleen McMahon
- Dec. 5, 2025
Background
The case concerns alleged copyright infringement involving written works. The opinion refers to works by Freeman and Wolff and to a newly filed lawsuit involving books that Judge McMahon had not read. The court had stayed proceedings relating to those books pending the outcome of this case.
A prior report and recommendation declined to decide substantial similarity—the question whether the allegedly infringing works are sufficiently similar to protected parts of the earlier works. It instead found a genuine dispute about access, meaning whether the defendants had an opportunity to see the works. A later decision also did not make a merits-based ruling on substantial similarity or decide which parts of the works were copyrightable.
Court’s Analysis
Judge McMahon explained that access is not an element of substantial similarity and that a court may be able to resolve substantial similarity on summary judgment even if access remains disputed. She also stated that identifying copyrightable elements is a legal question for the court, not a factual question for a jury.
The judge concluded that the earlier rulings did not create a binding “law of the case” on substantial similarity because that issue had not actually been decided on its merits. She further stated that, even if the doctrine applied, the court could reconsider the issue because pretrial rulings may be modified before judgment and because addressing copyrightability could make the case more manageable and less expensive to try. She did not express a final view on how she would rule on renewed summary-judgment arguments.
Action Taken
The order is a request for submissions, not a final ruling on the parties’ motions. Judge McMahon said she was favorably considering the defendants’ request for a hearing on copyrightability and was considering whether to revisit summary-judgment arguments concerning substantial similarity. She asked the parties to submit: (1) dates in January when they could attend a hearing on copyrightability and possibly argue renewed summary-judgment motions; (2) a proposed schedule for additional briefing; and (3) their views on whether the court should consider expert testimony on copyrightability.
Judge McMahon also said she intended to continue reading the plaintiff’s works before addressing copyrightability on the merits. The opinion does not state a final disposition of the case or of the summary-judgment motions.
Read the full 11-page opinion on CourtListener, the free public archive maintained by the Free Law Project.