Blakeman v. the Walt Disney Co.

MEMORANDUM AND ORDER

Plaintiff Bradley A. Blakeman (“Blake-man” or “plaintiff’) filed the instant action on August 7, 2008 against The Walt Disney Company, Walt Disney Motion Pictures Group, Inc., Touchstone Pictures, Kelsey Grammer, Grammnet Productions, Steven Stark, Treehouse Films, LLC, Swing Vote — The Movie Productions, LLC, Kevin Costner, Joshua Michael Stern, Jason Richman, Robin Jonas and John/Jane Does I-X (collectively, “defendants”), alleging that defendants infringed upon his copyrighted work “Go November” by creating, producing, and distributing the motion picture “Swing Vote.” Specifically, plaintiff asserts a claim of copyright infringement under the Copyright Act, 17 U.S.C. § 101, et seq. against all defendants, and state law claims of (1) unfair competition against defendants Grammer, Stark and Grammnet Productions; and (2) fraud and misrepresentation against defendants Grammer and Stark. Plaintiff seeks an order permanently enjoining all defendants from exploiting any work that infringes upon “Go November,” a judgment declaring that all defendants have willfully and maliciously infringed upon plaintiffs copyright, a judgment requiring defendants to afford plaintiff sole story credit for “Swing Vote,” an award of actual damages and disgorgement of all profits attributable to “Swing Vote,” an award of statutory damages under 17 U.S.C. § 504, attorney’s fees, interests and costs under the Copyright Act, and compensatory and punitive damages under the common law.

Defendants Grammnet Productions and Stark moved to dismiss all claims against them, pursuant to Federal Rule of Civil Procedure 12(b)(2), for lack of personal jurisdiction. Further, all defendants moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss plaintiffs first cause of action for copyright infringement on the following grounds: (1) plaintiff cannot establish that defendants actually copied his “Go November” work; and *293 (2) there is no substantial similarity between “Swing Vote” and protectible elements of “Go November.” At oral argument on April 6, 2009, the Court advised the parties that, in an abundance of caution, the Court was converting the defendants’ Rule 12(b)(6) motion to a summary judgment motion on the “substantial similarity” issue and provided both sides with an opportunity to submit any additional evidence.

For the reasons set forth herein, the motion to, dismiss defendants Grammnet Productions and Stark for lack of personal jurisdiction is denied. Specifically, plaintiff’s amended complaint, which alleges that defendants Grammnet Productions and Stark supplied the infringing work to the other defendants with full knowledge that it would be developed into a movie and distributed nationwide (including in New York), satisfies both the requirements of New York’s long-arm statute, as well as the Due Process Clause. However, the motion by all defendants to dismiss the copyright claim under Rule 12(b)(6) is granted. In particular, given the vastly different themes, plot, scenes, characters, sequence, pace, setting, and overall concept and feel — and the lack of any similarities of protectible elements in this case in any of those categories — no rational fact-finder could conclude that the works are substantially similar. Any similarities between the works are simply scenes a faire that are non-protectible components of works that use the framework of a hotly-contested, modern election and, in any event, no rational trier of fact could conclude that the average lay observer would consider the works as a whole to be substantially similar to one another. Accordingly, the Court concludes that the works are not substantially similar as a matter of law and defendants are entitled to summary judgment on the copyright claim. Although the Court would decline to exercise supplemental jurisdiction over the state law claims given the dismissal of the federal claim, plaintiff has requested leave to file a second amended complaint to allege diversity jurisdiction with respect to the state claims. That application is granted, and plaintiff will have 30 days to submit a second amended complaint that provides a basis for the Court’s exercise of diversity jurisdiction over the remaining state causes of action.

I. Background

A. Facts

The following facts are taken from the amended complaint (“Amended Compl.”) and the affidavits and exhibits of the parties and are not findings of fact by the Court, but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiff, the nonmoving party. The Court also notes that the descriptions of the works at issue here are based upon a review of plaintiffs written works (namely, the treatment and amplification of “Go November”) and a review of defendants’ work (namely, the screenplay and motion picture “Swing Vote”).

Plaintiff is a political commentator and consultant and the sole proprietor of the copyright to the treatment and amplification entitled “Go November.” (Amended Compl. ¶¶ 1, 9.) Defendant Grammer is a well-known actor, producer and director who owns defendant Grammnet Productions (“Grammnet”), a corporation duly organized under the laws of the State of California with production offices in Hollywood, California, and also had a character role in “Swing Vote.” (Id. ¶¶ 15-16.) Defendant Stark, a domiciliary of the State of California, was the President of Grammnet during the relevant time frame of the instant action. (Id. ¶ 17; Stark Decl. ¶ 9.) The Walt Disney Company is a publicly *294 traded corporation in the business of, among other things, commercially exploiting feature films. (Amended Compl. ¶ 12.) Touchstone Pictures is a division of the Walt Disney Company and worked in conjunction with Walt Disney Motion Pictures Group, Inc. and/or Swing Vote — The Movie Productions, LLC, a limited liability company duly organized under the laws of the State of California, to distribute “Swing Vote” in the United States and Canada. (Id. ¶ 14.) Treehouse Films, Inc. is a limited liability company duly organized under the laws of the State of California that distributed and/or produced the motion picture “Swing Vote.” (Id. ¶ 18.) Defendant Costner is a well-known actor who portrayed the leading role in “Swing Vote,” and funded and distributed and/or produced the feature film, in conjunction with other defendants. (Id. ¶ 19.) Defendant Stem wrote and directed the feature film and defendant Jonas served as its executive producer. (Id. ¶¶ 21-22.) Defendants John/Jane Does I-X are various unknown individuals and/or entities who exploited the feature film. (Id. ¶ 24.)

On or about October 27, 2006, plaintiff and non-party Peter Sobich met with Grammer and Stark at the Grammnet offices in Hollywood, California to discuss development of “Go November.” (Id. ¶ 26.) Prior to the meeting, plaintiff mailed a copy of the treatment and amplification of “Go November” to Grammer and Stark, allegedly with the understanding that it would not be used in any manner unless plaintiff was fairly compensated. (Id. ¶¶ 27, 29.)

At the meeting, plaintiff advised Grammer and Stark that: (1) the feature film should be released in late July or early August of 2008; (2) the feature film should cast reporters playing themselves to provide authenticity; (3) the political parties in the feature film should have a “win at all costs” strategy and engage in dirty tricks; (4) the actual 2008 presidential election would be decided by swing voters; (5) the feature film should utilize an electoral “red/blue” map as its logo for marketing purposes; (6) the feature film should “come down to the last day in order to build to a crescendo”; (7) the official website of the feature film should have an interactive feature to involve visitors in the “ ‘political process’ ” of the film; and (8) the feature film should use the “ ‘trappings’ of the Office of the Presidency, like Air Force One, to make it more realistic.” (Id. ¶ 31.)

Grammer represented to plaintiff that he would star as the incumbent Republican president in the film production of “Go November”; further, Stark and Grammer agreed that they would assist in finding a screenwriter to develop the treatment and amplification. (Id. ¶ 33.)

1. “Go November”

The treatment of “Go November” states, by way of background, the following:

This story involves a race for the White House. The time frame is just prior to the Convention through Election Day. The Incumbent President is a fatherly Reagan type, moral, likable, principled. The story is about a moral President who is engaged in a very tough race. He has an amoral staff that will do anything to win. The Challenger is a liberal charismatic California U.S. Senator who has a young idealistic staff. “Go November” has a double meaning .... first being Election Day the other being the frequency on the Incumbent’s staff radio that the staff refers to when something bad is happening or someone is about to get an a* * chewing. A staff person would get on the radio and demand that the offending staffer to “Go November,” as a result; all staff would *295 “Go November” on their radios to listen to the gossip.

(Lynch Decl., Ex. D, at 1.) The treatment lists the following roles as “Characters” (along with a brief description): (1) for the Incumbent’s team — the President, the Vice President, the Chief of Staff, the Campaign Manager, the Advance Director, the Pollster, the Chief Strategist, and Press Secretary; and (2) for the Challenger’s Team, the Challenger, the Vice Presidential Candidate, the Chief of Staff, the Campaign Manager, the Advance Director, the Pollster, the Chief Strategist, and the Press Secretary. (Id.) The Chief Strategist for the Incumbent is listed as a “main character” for the Incumbent team who “directs the dirty tricks” and dates the Challenger’s Press Secretary, who is also listed as a “main character”. (Id.) The other three characters listed as “main characters” are the respective Advance Directors for the both the Incumbent and Challenger, and the Challenger’s Chief Strategist (who is described as the “nemesis” of the Incumbent’s strategist).

The treatment further describes over thirty scenes under the heading “Scenario,” four scenes under the heading “Vice Presidential Scenes” and five scenes under the heading “Love Interest Scenes.” (Id. at 2-5.) The scenes describe a number of “dirty tricks” undertaken by both campaigns to undermine the opposing candidate, wherein the Incumbent’s operatives concoct and execute the following tricks, among others: (a) rigging the balloons at the Challenger’s convention so that they do not drop at the finale (id. at 2); (b) unfurling banners bearing derogatory statements written in Chinese at the Challenger’s campaign rally in Chinatown (id.); (c) manipulating the line of march at a Labor Day parade and bribing parade employees charged with removing horse excrement so that the Challenger is forced to march through a path of horse droppings (id. at 3); (d) putting a skin irritant in the Challenger’s make-up prior to a debate (id.); (e) cutting off the sound system at one of the Challenger’s rallies (id.); and (f) bringing “bums,” the elderly, and the insane to the polls to vote. (Id. at 4.) The Incumbent asks his staff about the dirty tricks (id. at 3), and further declares that they have no place in the campaign. (Id. at 4.) The treatment further describes scenes wherein the Challenger’s staff agrees to launch their own “dirty tricks operation,” (id. at 4), which includes the following: (a) unfurling banners bearing derogatory statements written in Spanish at the Incumbent’s “Hispanic Rally” in Texas (id.); (b) casting ballots for those who do not speak English (id.); and (c) bribing bums with cigarettes and alcohol in order to secure their vote. (Id.) The treatment also describes a scene where the Incumbent’s helicopter arrives at the Iowa State Fair and “[a]s Marine One touches down the Porta-Potties go down like dominos, trapping people inside and when they come out they are covered in crap.” (Id.)

The “love interest” scenes in the treatment describe the relationship between the Incumbent’s Chief Strategist and the Challenger’s Press Secretary, wherein they discuss the campaign over the phone, exchange Blackberry messages and share a romantic weekend together. (Id. at 5.)

The amplification further describes “Go November” as the “ANIMAL HOUSE of politics” where “[t]he likeable, moral President is running against a slick, charismatic challenger. But the real battle is between the President’s tough ‘do anything to win’ campaign team and the challenger’s idealist young team that is ready to fight back with every trick they can muster.” (Lynch Decl., Ex. E, at 2.) It again describes some characters, some key scenes, and other scenarios, similar to the treatment. (Id.) *296 It also describes a “surprise ending” “with the closing scene of a California voter entering a voting booth. The voter pulls the lever but we’re not able to see their choice. Credits begin to roll while election results begin to be called.” (Id. at 4.)

2. “Swing Vote”

“Swing Vote” follows the journey of Bud Johnson, a recently laid-off single father, convicted felon, recreational drinker and resident of the fictional county of Texico in New Mexico, struggling to raise his precocious, civic-minded daughter Molly. Bud unwittingly becomes the focus of two presidential campaigns when a voting machine malfunction on Election Day casts him as the deciding vote in the race. (See generally Lynch Decl., Ex. F.) Specifically, on Election Day, after Bud disappoints Molly by failing to meet her at the polling place to cast his vote, she forges his name on the electoral roll and sneaks into the voting booth to cast a ballot on his behalf, which is ultimately not counted because of a machine malfunction. (See id.) When the presidential race comes down to the results of Texico County, where the vote is evenly split save for Bud’s vote (which was not counted), election officials determine that a follow-up election will be held ten days later for Bud alone. (Id.)

When Kate Madison, a local reporter, discovers that Bud will cast the dispositive vote, the campaign teams for both candidates descend upon Bud’s hometown, attempting to discern his views on the relevant issues and curry favor with him. (Id.) Specifically, the incumbent Republican, President Boone, invites Bud and Molly aboard Air Force One, where he offers Bud a beer, permits him to hold the briefcase containing the “nuclear football,” and discusses football as a metaphor for national security, suggesting that an inexperienced Democratic Senator from Vermont could not protect the country from nuclear warfare with North Korea. (Id.) The President later sends Richard Petty, famous Nascar driver and a hero of Bud’s, to take Bud and Molly for a ride. (Id.) The Democratic challenger, Senator Greenleaf from Vermont, arranges for Bud to play a musical set with his band at a gala attended by Bud’s musical hero, Willie Nelson. (Id.) After a Presidential aide overhears Bud expressing concern to Senator Greenleaf about proposed dam construction on a river where he fishes, President Boone declares the- river a national wildlife preserve, switching positions on the issue and angering his corporate donors. (Id.) When Bud unwittingly suggests in a news interview that he is anti-immigration and pro-life, Senator Green-leaf runs advertisements adopting those positions in contravention of his party’s platform. (Id.) Likewise, when Bud suggests that he supports same-sex marriage rights, President Boone runs an advertisement supporting the same, in contravention of his party’s platform. (Id.)

Meanwhile, the town is besieged by the media and special interest groups also hoping for insight as to Bud’s opinions on the relevant issues. (Id.) The film features several “real life” news personalities, including Chris Matthews, Tucker Carlson, Mary Hart, Arianna Huffington, James Carville, Larry King and Bill Maher, to name a few. (Id.) Aside from press attention, Bud and Molly are also inundated with letters from Americans expressing their views on the election issues. (Id.) Molly dutifully reads the letters and attempts to respond. (Id.) She decides that the candidates should have one last debate, where they answer questions asked by Bud and posed by Americans who submitted letters to him. (Id.)

The candidates, meanwhile, begin to doubt the strategy advised by their respective campaign managers; Senator Green- *297 leaf has a confrontation with his wife wherein she accuses him of standing for nothing, and President Boone begins to offer Bud a job in exchange for his vote, but has a change of heart. (Id.) When the candidates express their misgivings to their campaign managers, the managers encourage them by suggesting that they must first win the presidency before they can pursue the ideals that inspired them to run for public office in the first place. (Id.)

After Molly, arranges for Kate Madison to interview Bud, she expresses interest that the two will strike up a romantic relationship, as she likes and -respects Kate. (Id.) When Bud disappoints Molly by failing to remember “Bring Your Father to School Day” at Molly’s school, she visits Kate and begins to reveal that it was she, not Bud, who attempted to cast the deciding vote. (Id.) When Kate leaves the room to answer the telephone, Molly notices that Kate has been secretly recording then-conversation. (Id.) Angry and disappointed, Molly decides to visit her biological mother, who tells Molly she does not want to have a relationship with her. (Id.) After the Secret Service, (tasked with protecting Bud and Molly during the ten days until the election), informs Bud both that Molly is missing and that she has developed a crush on a classmate, he goes to pick her up at her mother’s, ashamed that he has let her down and that virtual strangers know more about her personal life than he does. (Id.)

When Bud and Molly return home, Kate is waiting with an apology for Molly and a copy of the tape she recorded. (Id.) Upon Molly’s request, Kate agrees to help Bud prepare for the debate the next night. (Id.) Bud, Molly, Kate’and the Secret Service agent tasked with their protection stay up all night preparing questions for the debate. (Id.) The next night, after an emotional speech to the country in which he reveals that he has been a disappointment to his daughter and an undeserving, apathetic recipient of the right to vote, Bud begins to pose the submitted questions to the candidates. (Id.) The next day, he and Molly go to the polling place, where he casts the deciding vote. (Id.) The film does not reveal who received his vote and the credits roll. (Id.)

B. Procedural History

Plaintiff filed his complaint on August 7, 2008, and amended it on August 12, 2008. Defendants The Walt Disney Company, Walt Disney Motion Pictures Group, Inc. and Touchstone Pictures and Grammer filed their respective answers to the amended complaint on October 3, 2008. On October 24, 2008, this matter was assigned to the undersigned. All defendants moved to dismiss the action on January 16, 2009. Plaintiff filed his opposition on March 2, 2009. Defendants replied on March 12, 2009. Oral argument was held on April 6, 2009.

In their written submissions, both plaintiff and defendants asked that, for the purposes of the Rule 12(b)(6) motion to dismiss, the Court consider the motion picture “Swing Vote,” appended to the motion papers of both parties as an exhibit. Plaintiff also submitted the “Swing Vote” screenplay for the Court’s consideration. Defendants further requested that the Court consider the treatment and amplification of “Go November,” also appended as an exhibit to their motion papers. As both works are referenced in the amended complaint and are “integral to the complaint,” the Court may properly consider these materials in connection with a motion to dismiss. See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (the Court may consider a document not appended to the complaint if the document is “incorporated in [the complaint] by refer *298 ence” or is a document “upon which [the complaint] solely relies and ... is integral to the complaint.”) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)) (emphases in original). In fact, in copyright cases, many courts have, after comparing the works at issue, dismissed infringement claims for failure to state a claim where substantial similarity between the works cannot be found. See, e.g., Nelson v. PRN Prods., Inc., 873 F.2d 1141, 1143-44 (8th Cir.1989); Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F.Supp.2d 625, 629 (S.D.N.Y.2008); Adams v. Warner Bros. Pictures Network, No. 05 CV 5211(SLT), 2007 WL 1959022, at *4-*5 (E.D.N.Y. June 29, 2007), aff'd, 289 Fed.Appx. 456 (2d Cir.2008); Le Book Pub. Inc. v. Black Book Photography, Inc., 418 F.Supp.2d 305, 309-10 (S.D.N.Y.2005); Tabachnik v. Dorsey, No. 04 Civ. 9865(SAS), 2005 WL 1668542, at *5 (S.D.N.Y. July 15, 2005), aff'd, 257 Fed.Appx. 409 (2d Cir.2007); Bell v. Blaze Magazine, No. 99 Civ. 12342(RCC), 2001 WL 262718, at *3 (S.D.N.Y. Mar. 16, 2001); Boyle v. Stephens, Inc., No. 97 Civ. 1351(SAS), 1998 WL 80175, at *4 (S.D.N.Y. Feb. 25, 1998), aff'd, 21 Fed.Appx. 76, 2001 WL 1313784 (2d Cir.2001); Buckman v. Citicorp, No. 95 Civ. 0773(MBM), 1996 WL 34158, at *3 (S.D.N.Y. Jan. 30, 1996), aff'd, 101 F.3d 1393 (2d Cir.1996). In other words, in the copyright context, when analyzing the issue of substantial similarity based upon a comparison of the two works, it is clear that courts may decide the issue without permitting discovery. See, e.g., Nelson, 873 F.2d at 1144; see also Green v. Proctor & Gamble, Inc., 709 F.Supp. 418, 421 (S.D.N.Y.1989) (“nothing that could be found by the plaintiff in discovery would change this Court’s findings with regard to [lack of substantial similarity]”). This Court confirmed at oral argument with counsel that there was nothing beyond a review of the “Go November” written works (that is, the treatment and amplification), as compared to the screenplay and motion picture “Swing Vote” (as contained in the “Swing Vote” DVD release submitted to the Court), that would be relevant for purposes of determining substantial similarity.

Nevertheless, in an abundance of caution, the Court provided notice to the parties at oral argument that it was converting the Rule 12(b)(6) motion to dismiss into a motion for summary judgment and was going to consider the “Go November” and “Swing Vote” works in connection with that motion (which had already been submitted to the Court), as well as any other evidence the parties wished to submit on the issue of substantial similarity. Thus, the Court provided both sides with an opportunity following oral argument to make further evidentiary submissions to the Court by April 20, 2009 on the “substantial similarity” issue. Neither side made any additional evidentiary submissions. Moreover, plaintiff agreed with defendants that “[n]o additional discovery is needed on this issue” of substantial similarity. (Letter of Plaintiffs Counsel, dated April 21, 2009, at 1.) However, counsel for plaintiff did submit additional legal arguments in his letter, dated April 21, 2009, further addressing the legal issues surrounding the question of “substantial similarity.” On April 29, 2009, the defendants responded to plaintiffs letter.

Accordingly, this matter is fully submitted, and the Court has considered all the evidentiary and legal submissions of the parties.

II. Standard ob’ Review

A. Rule 12(b)(2)

On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that *299 the court has jurisdiction over the defendant. Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir.1996). However, prior to discovery, the plaintiff “need only make a prima facie showing of jurisdiction through its own affidavits and supporting materials to defeat the motion.” Welinsky v. Resort of the World D.N.V., 839 F.2d 928, 930 (2d Cir.1988) (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)). Furthermore, in considering a Rule 12(b)(2) motion, the pleadings and affidavits are to be construed in the light most favorable to plaintiff, the non-moving party, and all doubts are to be resolved in plaintiffs favor. DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir.2001). However, a plaintiffs “unsupported allegations” can be rebutted by “direct, highly specific, testimonial evidence[.]” Schenker v. Assicurazioni Genereali, S.p.A., Consol., No. 98 Civ. 9186, 2002 WL 1560788, at *2 (S.D.N.Y. July 15, 2002).

A. Rule 12(b)(6)

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff must satisfy “a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require “heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

In connection with a motion to dismiss under Rule 12(b)(6), the Court generally may only consider “facts stated in the complaint or documents attached to the complaint as exhibits or incorporated by reference.” Nechis, 421 F.3d at 100; accord Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). The Court may only consider a document not appended to the complaint if the document is “incorporated in [the complaint] by reference” or is a document “upon which [the complaint] solely relies and ... is integral to the complaint.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)) (emphases in original). Further, the Court may consider “documents or information contained in defendant’s motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, ... and [ ] facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.” In re Merrill Lynch & Co., 273 F.Supp.2d 351, 356-57 (S.D.N.Y.2003) (internal citations omitted), affd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir.2005), vacated on other grounds, 547 U.S. 71, 126 S.Ct. 1503, 164 L.Ed.2d 179 (2006); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.1991) (“[T]he district court ... could have viewed [the documents] on the motion to dismiss because there was undisputed notice to plaintiffs of their contents and they were integral to plaintiffs’ claim”); Brodeur v. City of New York, No. 04 Civ. 1859, 2005 WL 1139908, at **3-4, 2005 U.S. Dist. LEXIS 10865, at **9-10 (E.D.N.Y. May 13, 2005) (court could con *300 sider documents within the public domain on a Rule 12(b)(6) motion to dismiss).

C. Summary Judgment

The standards for summary judgment are well settled. Pursuant to Federal Rule of Civil Procedure 56(c), a court may not grant a motion for summary judgment unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Globecon Group, LLC v. Hartford Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.2006). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir.2005). The court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that summary judgment is unwarranted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party”).

Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247-48, 106 S.Ct. 2505. Thus, the nonmoving party may not rest upon mere conclusory allegations or denials, but must set forth “concrete particulars” showing that a trial is needed. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir.1984) (internal quotations omitted); St. Paul Mercury Ins. Co. v. Pepsi-Cola Bottling Co. of N.Y., Inc., No. 04 Civ 360(DGT), 2007 WL 2262889, at *6, 2007 U.S. Dist. LEXIS 56884, at *18 (E.D.N.Y. Aug. 2, 2007). Accordingly, it is insufficient for a party opposing summary judgment “merely to assert a conclusion without supplying supporting arguments or facts.” BellSouth Telecommc’ns, Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted).

III. Discussion

Because the court should first determine whether a party is properly present before considering substantive issues, the Court will first address the motion to dismiss by defendants Grammnet Productions and Stark for lack of personal jurisdiction and then address the substantive issues raised by the motion filed by all defendants with respect to the copyright infringement claim. See, e.g., In re DES Cases, 789 F.Supp. 552, 560 (E.D.N.Y.1992) (“On the theory that a court ought to first determine whether a party is properly present before considering substantive issues, the normal practice is to consider 12(b)(2) motions prior to 12(b)(6) motions.”) (citing Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir.1963) (en banc)). As discussed in detail below, the *301 Court concludes that the motion to dismiss for lack of personal jurisdiction is without merit, but finds that all defendants are entitled to summary judgment on the copyright infringement claim because no substantial similarity exists between “Go November” and “Swing Vote” as a matter of law.

A. Personal Jurisdiction

It is well settled that “[i]n diversity or federal question cases the court must look first to the long-arm statute of the forum state, in this instance, New York.” 1 Bensusan Rest. Corp. v. King, 126 F.3d 25, 27 (2d Cir.1997). “If the exercise of jurisdiction is appropriate under that statute, the court then must decide whether such exercise comports with the requisites of due process.” Id. Thus, the district court should engage in a two-part analysis in resolving personal jurisdiction issues: (1) whether New York law would confer jurisdiction by New York courts over defendants; and (2) whether the exercise of jurisdiction over defendants comports with the Due Process Clause of the Fourteenth Amendment. See Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir.2005).

Under New York law, there are two bases for personal jurisdiction over out-of-state defendants: (1) general jurisdiction pursuant to N.Y. C.P.L.R. § 301, and (2) long-arm jurisdiction pursuant to N.Y. C.P.L.R. § 302. As set forth below, plaintiffs amended complaint satisfies both the strictures of New York law under the state’s long-arm statute, as well as the requirements of due process. Accordingly, defendants Grammnet and Stark’s motion to dismiss the action for lack of personal jurisdiction is denied.

1. Long-Arm Jurisdiction

Under N.Y. C.P.L.R. § 302(a), “a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; or (2) commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or (3) commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have, consequences in the state and derives substantial revenue from interstate or international commerce.” N.Y. C.P.L.R. § 302(a); see also Overseas Media, Inc. v. Skvortsov, 277 Fed.Appx. 92, 95 (2d Cir.2008).

Here, plaintiff alleges that Section 302(a) is applicable to Grammnet and Stark because the allegedly infringing work, “Swing Vote,” was shown in movie theaters and distributed via DVD throughout the United States, which would obviously include New York. Defendants *302 Grammnet and Stark submit that neither defendant was involved in the production or distribution of “Swing Vote,” and, therefore,