Disney Declared Victorious In Copyright Infringement Action Over EPCOT

Case: Corwin v. Walt Disney Co., Nos. 04-16554 and 05-12869 (11th Cir. 11/02/2006)

The One Sentence Summary: The 11th Circuit affirmed summary judgment in favor of Walt Disney World Company ("Disney") finding that plaintiff Orrin Corwin ("Corwin") failed to raise a genuine issue of material fact as to either: (1) Disney's access to a painting by Mark Waters of a theme park concept for a "Miniature Worlds" containing cities, villages and landscapes representing nineteen nations from six continents, or (2) as to "striking similarity" between Waters' illustration of "Miniature Worlds" and Disney's EPCOT.

What They Were Fighting About: Corwin, the sole heir and personal representative of the Estate of Mark Waters, filed a copyright infringement action against Disney alleging that Waters, while living in Hawaii in the 1960's, painted a rendering of a concept developed by Robert Jaffray ("Jaffray") for an international theme park in miniature and that Disney copied the rendering of Jaffray's concept to create EPCOT. In support of his assertions regarding Disney's access to the Waters painting, Corwin offered the testimony of Waters' former wife, Jaffray's widow, and Jaffray's daughter. In addition, Corwin submitted correspondence between Jaffray and Disney representatives to show that Jaffray pitched the idea to Disney and shared plans of the "Miniature Worlds" concept including the Waters illustration with Disney representatives. He also offered the reports of four experts, each indicating that there was similarity between the Waters proposal for "Miniature Worlds" and EPCOT. Disney, in turn, produced evidence of the independent creation of EPCOT. Disney explained that the idea for EPCOT arose from a concept called International Street (a cluster of buildings, including restaurants and shops, designed to feature other countries and cultures) and further developed to include architectural pavilions following Disney's participation in the 1964 World's Fair, and that ultimately the concept merged with Walt Disney's idea for a "City of Tomorrow." Disney moved for summary judgment and to exclude portions of the four expert reports submitted by Corwin as well as certain of Corwin's evidence on Disney's access to the Waters painting. The district court granted the Daubert motion to exclude portions of the expert reports, excluded certain testimony relating to Disney's access to the Waters painting as hearsay, and granted summary judgment in favor of Disney. Corwin appealed.

Federal Circuit Holdings:

• The 11th Circuit reviewed the grant of summary judgment de novo and affirmed the district court's grant of summary judgment, finding there was no genuine issue of material fact as to any of the essential elements of a copyright infringement claim.
• To establish copyright infringement, Corwin had to prove his ownership of the copyright in the Waters painting and that Disney copied the work to create EPCOT. To demonstrate copying, Corwin had to show that Disney had access to the copyrighted material and that there was substantial similarity between the Waters illustration of the concept "Miniatures World" and EPCOT. Although the Court acknowledged that Corwin owned the copyright to the Waters painting, the Court explained that Corwin failed to establish Disney had access to the Waters illustration. The evidence Corwin submitted on this point consisted of inadmissible witness testimony. Waters' former wife had no direct personal knowledge of the painting or of the transaction between Waters and Jaffray relating to the "Miniatures World" concept. Jaffray's widow and Jaffray's daughter each admitted they did not attend the alleged meeting between Jaffray and Disney and could only speculate about what materials Jaffray might have taken with him to the alleged meeting. In addition, the correspondence between Jaffray and Disney representatives did not provide any indication that Disney ever had access to the painting. The 11th Circuit agreed with the district court that the evidence offered by Corwin was insufficient to raise a genuine issue of material fact as to access.
• In the 11th Circuit, even where a plaintiff cannot show the defendant had access to the work, a plaintiff may establish copying by demonstrating that the copyrighted work and the alleged infringing work are "strikingly similar." The Court explained that striking similarity exists "where proof of similarity in appearance is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded." The four expert reports submitted by Corwin were of no help to him on this point. The Court agreed with the lower court's determination that the bulk of the reports should be excluded from evidence because they focused the analysis on the uncopyrightable ideas (and common elements) behind the Waters painting, explaining neither the originality of the Waters arrangement of elements or "how, precisely, the expressive effect of Water's arrangement is duplicated by either EPCOT or the rendering thereof." What remained of the reports failed to support any assertion of striking similarity.
• Moreover, the Court rejected Corwin's claim that a 1981 rendering of EPCOT showed that Disney copied Waters' illustration of Jaffray's concept. Corwin was unable to refute the "significant differences" between the various elements depicted in Waters' painting of Jaffray's "Miniature Worlds" concept and the elements embodied in the 1981 rendering of EPCOT.
• The Court was convinced, as was the district court, by Disney's presentation of "overwhelming, uncontroverted evidence" of independent creation. In addition to the testimony of a high-level executive at Disney Imagineering (the creative development, design, and research and development arm of The Walt Disney Company and its affiliates), the record contained many drawings and correspondence relating to Disney's independent development of the concepts and designs that led to the creation of EPCOT.
• Having ruled against Corwin on nearly every substantive issue, the only item returned to the district court on remand was the award of costs to Disney, which impermissibly taxed as recoverable costs various items including witness and travel expenses.