Freeman v. Deebs-Elkenaney
- Colleen McMahon
- 1:22-cv-02435
- U.S. District Court · Southern District of New York
- 4
In Freeman v. Deebs-Elkenaney, Judge Netburn ordered Freeman to identify two manuscripts supporting her copyright claim by January 20, 2023.
Lynne Freeman must identify two manuscripts supporting her copyright claim; the defendants, including Tracy Deebs-Elkenaney, receive clarification of the works they must address in discovery and in defending the claim.
What happened
In Freeman v. Deebs-Elkenaney, the defendants asked Freeman to identify the specific manuscripts she claimed had been copied. They argued that the works had to be compared individually, while Freeman argued that she could combine material from several works and use expert-created lists.
The court ruled that Freeman could not rely on an assortment of excerpts and other material from works in progress. It also declined at that stage to bar expert testimony, but required Freeman to identify the works so the defendants could address issues including access and similarity.
Judge Sarah Netburn ordered Freeman to identify two manuscripts as the primary works supporting her copyright claim by January 20, 2023.
The detailed version
- Freeman v. Deebs-Elkenaney · No. 1:22-cv-02435
- Colleen McMahon
- Jan. 11, 2023
Background
The court held a discovery conference about disputes concerning Freeman's copyright-infringement claim. In an earlier order, the court directed Freeman to identify specifically which manuscripts she alleged were infringed and to provide metadata. Freeman responded by producing 30 documents, including manuscript versions with different titles, chapter outlines, plot points, character descriptions, and excerpts.
The defendants asked Freeman to identify, at most, one version of each manuscript titled Masqued and Blue Moon Rising. They argued that a copyright claim requires a side-by-side comparison of a particular copyrighted work and the allegedly infringing work. Freeman argued that she could aggregate multiple works and use expert-generated lists under approaches involving overall similarity and similarity of specific copied passages.
Court's Analysis
To prove copyright infringement, a plaintiff must show unauthorized copying and improper appropriation through substantial similarity of protected material. The usual comparison asks whether an ordinary reader would recognize the alleged copy as having been taken from the copyrighted work. When a work contains both protectable and unprotectable elements, the court separately considers whether the protectable elements are substantially similar. Both inquiries require comparing the works' overall concept and feel through a detailed examination.
The court held that Freeman could not rely on an aggregation of multiple works. She had to identify the work she alleged was copied and could not use an amalgam of bits and pieces from her work in progress. The court noted that Freeman did not allege that her copyrights covered a series of works, but instead described works in progress leading to a single final manuscript.
The court declined at this stage to preclude expert testimony because it could not determine in the abstract whether that testimony would help the factfinder. But the court stated that Freeman's belief that her materials were too voluminous did not excuse her from identifying the allegedly infringed work or works. The defendants also needed the identity of the work to defend against the requirement that they had access to it.
Order
The court ordered Freeman to identify two manuscripts to serve as the primary works establishing her copyright claim. She was required to do so by January 20, 2023.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.