Earlier this month, the Northern District of California delivered another blow to entrepreneurial plaintiffs looking to establish a claim for copyright infringement based in part on the theory that the defendant accessed his or her work via the Internet. See Briggs v. Blomkamp, No. C 13-4679, 2014 WL 4961396, at *1 (N.D. Cal. Oct. 3, 2014).
To prevail on a claim for copyright infringement, a plaintiff must establish that (1) she is the owner of a valid copyright, and (2) the defendant copied elements of her copyrighted work that are both original and subject to copyright protection. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). To establish copying, and absent allegations of direct copying, a plaintiff must show both (1) that the defendant had access to plaintiff’s work, and (2) that the two works are substantially similar in those elements which are protected by the Copyright Act. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002).
In order to establish access, a plaintiff must show that the defendant had a “reasonable possibility” or “reasonable opportunity” of viewing the plaintiff’s work. Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000). Absent direct evidence of access, a plaintiff may establish access in one of two ways: (1) establishing a chain of events linking the plaintiff’s work and the defendant’s access, or (2) showing that her work has been widely disseminated. Art Attacks Ink, LLC v. MGA Entm’t Inc., 581 F.3d 1138, 1143-45 (9th Cir. 2009); Three Boys Music, 212 F.3d at 482.
Courts have consistently held that merely posting a work on the internet is insufficient to establish widespread dissemination. In Art Attacks Ink, the Ninth Circuit held that the plaintiff’s mere posting of its copyrighted t-shirt design on its image-heavy internet website was not wide dissemination. 581 F. 3d at 1145. Similarly, in O’Keefe v. Ogilvy & Mather Worldwide, Inc., the Southern District of New York found that there was “no dispute” that the plaintiff’s posting of his work on the internet prior to the creation of the defendant’s work was insufficient by itself to give rise to an inference of access. 590 F. Supp. 2d 500, 515 (S.D.N.Y. 2008). In Hoch v. MasterCard International Inc., the court found that the plaintiff’s thirty-minute documentary was not widely disseminated where the plaintiff posted a portion of the documentary on its website and there was no evidence of the number of site visits at the time that the defendant created the alleged infringing work. 284 F. Supp. 2d 1217, 1221 (D. Minn. 2003).
The Northern District of California’s decision in Briggs v. Blomkamp is the latest to hold that the posting of an alleged copyrighted work on a website is insufficient by itself to support an inference that the defendant had access to the plaintiff’s work. Briggs v. Blomkamp, No. C 13-4679, 2014 WL 4961396, at *1 (N.D. Cal. Oct. 3, 2014). In Briggs, Plaintiff Steve Wilson Briggs alleged that he posted a screenplay, entitled Butterfly Driver, on the website triggerstreet.com, which he alleged “allowed members to post screenplays and short films to get feedback from peers and professionals—and gave them ‘a small hope of being noticed by a Hollywood insider.’” Id. at *1, 8. On this ostensible basis, Mr. Briggs concluded that screenwriter and director Neill Blomkamp must have accessed his Butterfly Driver script and used it as the basis for the science fiction film, Elysium. Id. at *8. The Northern District of California dismissed Mr. Briggs’ single claim for copyright infringement on summary judgment, conclusively finding, among other things, that Mr. Briggs’ allegations were “entirely speculative as they relate[d] to Blomkamp’s access to the screenplay” and that “[i]nternet posting do not constitute evidence of wide dissemination[.]” Id. at *9.
At bottom, despite that information posted on the World “Wide” Web has the potential to reach millions of people, courts are reluctant to find that mere potential – standing alone – is sufficient to raise an inference of access necessary to support a claim for copyright infringement.