Virginia IP Law : Virginia Intellectual Property Lawyer & Attorney : Troutman Sanders Law Firm : Technology & Patent Litigation

Bailey apparently has a copyright infringement claim history.  Defendants pointed out that he had previously claimed that the film “The Negotiator” infringed upon his work.  See Bailey v. New Regency Prods., Inc., No. 99-2525, 2000 WL 338993 (4th Cir. Mar. 31, 2000) (unpublished).  And Bailey alleged in his Complaint that the defendants had previously committed copyright infringement by using his screenplay “Topless Burning Love” to make the movie “Boomerang.”

In this Complaint about “Dreamgirls,” Bailey claimed that several of the film’s central characters (James Early, played by Eddie Murphy; Deena, played by Beyonce Knowles; and Effi, played by Jennifer Hudson) were “exact replica[s]” of characters in his work.

Defendants responded by moving to dismiss under Rule 12(b)(6) and the “Twiqbal” standard.  In their memorandum, they pointed to the 1981 Tony Award-winning Broadway play by the same name, “from which the film was adapted and which featured these very same characters with these very same names and occupations.”  They also asserted that Bailey had failed to allege the elements required when verbatim duplication is not claimed – specifically, that the defendant had access to the copyrighted work and that the defendant’s work is “substantially similar” to the protected material.

In a response titled "Motions for Constitutional and Technically Evidential Opposition to Defendants' Motions to Dismiss Case," Bailey (who “is a Historian as well as a Screenwriter” and also wrote a sci-fi novel about the Cold War) gave an interesting discourse on Hollywood depictions of Cleopatra.  He also noted that “Defendants tried to be deceptive by having actor Jamie Foxx play the characterization of 'Poison Passion's' Dominique Prince.”  And he closed on an ominous note:  “If this case is not resolved in Court ... [it] will be resolved in the Power and Law of Fate.  And whomever deserves punishment for their unlawful action(s) will in all due likelihood receive it accordingly.”

In his May 3rd Memorandum Opinion, Judge Spencer agreed that the Complaint failed to allege any access by the Defendants to Bailey’s work prior to the year 2000. 

In addition, pursuant to Fed. R. Evid. 201(b), which allows judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," Judge Spencer took judicial notice of a December 21, 1981, New York Times article submitted by Defendants and regarding the Broadway production.  Because “Bailey has not presented any evidence to rebut Defendants' assertion that the characters and storyline of the 2006 film ‘Dreamgirls’ that he accuses of infringement were the same characters created for the Broadway musical ‘Dreamgirls’ in 1981, eleven years before Mr. Bailey copyrighted his screenplay,” Judge Spencer held that the Complaint failed to state a plausible claim.

Bailey has 30 days to appeal.