10:52am PT by Eriq Gardner
Disney Loses Second Attempt to Beat 'Frozen' Lawsuit
A lawsuit over the trailer to the smash animated film, Frozen, is causing The Walt Disney Company quite a headache as a federal judge is ice-cold to the studio's arguments why it should be dismissed.
Kelly Wilson brought the copyright lawsuit in March 2014 with allegations that the Frozen trailer was substantially similar to a short 2D computer-animated film entitled The Snowman about an "average Joe" snowman who must battle a gang of hungry rabbits to save his carrot nose. The bar on showing similarity is usually quite high, but four months later, Disney failed to have the lawsuit tossed upon California federal judge Vince Chhabria's opinion that "the sequence of events in both works, from start to finish, is too parallel to conclude that no reasonable juror could find the works substantially similar."
Disney made another attempt to beat the lawsuit on summary judgment. This time, the company looked at YouTube records and made a forensic analysis of who had viewed The Snowman online, where the watchers were geographically located, how long they watched, and so forth. Disney argued the creators of the Frozen trailer lacked access to Wilson's work. Disney's lawyers also attempted to introduce denials from witnesses they'd ever seen The Snowman.
That argument fails too.
On Thursday, the judge came out with a new order (in full below) denying Disney's summary judgment motion because there's a genuine factual dispute over whether the creators of the Frozen trailer had access to Wilson's work.
"The most direct connection between The Snowman and the creators of the trailer... comes from the 2011 San Francisco International Film Festival," writes Chhabria. "There, The Snowman was screened four times back-to-back with the short film Play by Play, which was created by employees of Pixar, a Disney subsidiary. Many Pixar employees attended the festival, including Elyse Klaidman, an executive producer of Play by Play. Klaidman works with John Lasseter, who is Chief Creative Officer for both Disney and Pixar. Lasseter was heavily involved in the creation of the Frozen trailer."
The judge points to evidence that "roughly sixteen Pixar employees saw The Snowman" at that film festival, which the judge adds generated news and might have caused others in the industry to learn about Wilson's work through word of mouth. And there's another connection.
"Wilson and her co-creator sent numerous job applications to Disney and Pixar, some of which included images from or references to The Snowman," writes the judge.
Disney couldn't explain away one person who did a YouTube search for "snowman and rabbit" and arrived at Wilson's work on YouTube. That one unknown person trumps Disney's diligent efforts to trace everyone who watched The Snowman. "Disney rightly points out that The Snowman was not popular online, but the lack of online popularity actually makes this YouTube search, and its timing, more noteworthy," says the judge.
And so, the case really looks like it could be headed to trial, or at least settled, given Disney's escalating legal bill. If Disney is at all fortunate here, the judge will also deny Wilson's own motion for summary judgment arguing that the works are so "strikingly similar" that they could not have been created independently.
Wilson, represented by attorney J.A. Ted Baer, attempted to point to an email from a Disney employee who used those very words — "strikingly similar." The judge responds, "But the Disney employee appears to have been speaking as a layperson; the employee does not appear to have been using the phrase 'strikingly similar' as it is used in copyright law."
The judge says a reasonable jury could go either way. A trial has been tentatively scheduled for October.