Full opinion text
ORDER RE: DEFENDANTS’ MOTIONS FOR SUMMARY ADJUDICATION OF CLAIMS PURSUANT TO FED R. CIV. PRO 56 COLLINS, District Judge. Trying to protect what he claims is his exclusive right to make or present videos or television specials in which the secrets behind well-known magic tricks or illusions are revealed, Plaintiff has sued everyone associated with making and presenting a series of allegedly infringing television specials. Most of the remaining Defendants have now filed two summary judgment motions: (1) for Summary Adjudication Re: Plaintiffs Copyright Claims (“Copyright Motion”); and (2) for Summary Adjudication Re: Plaintiffs Lanham Act/California Business & Professions Code Section 17200 Claims (“Trademark/False Advertising Motion”). Both motions came on regularly for a hearing before this Court on June 18, 2001. For the reasons indicated below, the Court GRANTS the Copyright Motion, and GRANTS IN PART the Trademark/False Advertising Motion. The Court DISMISSES the First Claim for Relief. I. PROCEDURAL HISTORY On September 30, 1999, Plaintiff ROBERT E. RICE (“Plaintiff,” or “Rice”) filed the initial Complaint in this matter, naming a multitude of Defendants: FOX BROADCASTING COMPANY (“Fox Broadcasting Co.”); FOX TELEVISION STATIONS, INC. (“Fox TV”); EARL GREENBURG PRODUCTIONS, INC. (“Greenburg Prod.”); NASH ENTERTAINMENT, INC. (“Nash Entertainment”); SRJ PRODUCTIONS, INC. (“SRJ”); DLT ENTERTAINMENT LTD. (“DLT”); RIVE GAUCHE INTERNATIONAL TELEVISION (“Rive Gauche TV”); INTERNATIONAL CREATIVE MANAGEMENT, INC. (“ICM”); BRUCE NASH (“Nash”); DON WEINER (“Weiner”); EARL GREENBURG (“Greenburg”); RONALD GLAZER (“Glazer”); DAVID JOHN (“John”); MICHAEL LANCASTER (“Lancaster”); SCOTT MITCHELL (“Mitchell”); DAVID NEXT (“Next”); STEVE WOHL (“Wohl”); and LEONARD MONTANO a.k.a “Valentino” a.k.a. “The Masked Magician” (“Montano”). The Complaint asserts a claim of infringement under the Copyright Act (17 U.S.C. § 101 et seq.) against all Defendants (First Claim for Relief), a claim of false designation of origin/false statements under the Lanham Act (15 U.S.C. § 1125) against Defendants Fox Broadcasting Co., Fox TV, Greenburg Prod., Nash Entertainment, SRJ, Nash, Weiner, Greenbhrg, John, Lancaster, Mitchell, Next, and Mon-tano (Second Claim for Relief), and a claim pursuant to the California Unfair Business Practices Act (Cal. Bus. & Prof. Code § 17200 et seq.) against all Defendants. See Complaint ¶¶ 54-71. The Complaint also includes four state-law claims which have since been dismissed (the Fourth through Seventh Claims for Relief), and claims for unjust enrichment (Eighth Claim for Relief), constructive trust (Ninth Claim for Relief), and an accounting (Tenth Claim for Relief), against all Defendants. All the state-law claims are brought pursuant to supplemental jurisdiction due to their alleged linkage to the federal claims. See id. ¶¶ 2, 72-102. On April 17, 2000, Plaintiff and Defendant DLT filed, and this Court signed, a Stipulation and Order dismissing Defendant DLT from the action. This also disposed of the Sixth (for Breach of Written Contract) and Seventh (Breach of Fiduciary Duty) Claims for Relief, which were alleged only against Defendant DLT. A second Stipulation and Order filed and signed on November 22, 2000 dismissed the First (Copyright Act) and Fourth (Breach of Confidence) Claims for Relief as to Defendants ICM and Wohl. As these were the only Defendants against whom the Fourth Claim for Relief had been alleged, this also removed this claim from the action. The Court subsequently granted a motion for summary judgment filed by Defendants ICM and Wohl as to the claims which remained against them (the Third and Fifth Claims for Relief, and by extension the Eighth, Ninth and Tenth Claims for Relief). In that the Fifth Claim for Relief was alleged only against these two Defendants, that claim was also removed by the Court’s January 17, 2001 grant of the previous ICWWohl motion for summary judgment. Therefore, the only substantive claims remaining are the First, Second and Third Claims for Relief. Nearly all of the Defendants that remain are included on the Copyright Motion and the Trademark/False Advertising Motion, both of which were filed on April 2, 2001. The Defendants represented on these Motions include Fox Broadcasting Co., Fox TV, Greenburg Prod., Nash Entertainment, SRJ, Rive Gauche TV, Nash, Weiner, Greenburg, Glazer, and Montano (“Moving Defendants”). These Motions were originally noticed to be heard on May 14, 2001. The Copyright Motion seeks summary adjudication of Plaintiffs copyright infringement claim (the First Claim for Relief), on several alternative grounds. The Trademark/False Advertising Motion seeks summary adjudication of Plaintiffs Lanham Act claim(s) (Second. Claim for Relief) and/or Plaintiffs California Business & Professions Code Section 17200 claim (Third Claim for Relief). Along with the moving papers, Moving Defendants filed a plethora of supporting materials. On April 16, 2001, Plaintiff filed his opposing papers to the two Motions (the “Copyright Opposition,” and the “Trademark Opposition”). Plaintiff also submitted his own evidence in support thereof. On April 30, 2001, Moving Defendants submitted their two sets of reply papers (the “Copyright Reply,” and the “Trademark Reply”). On May 8, 2001, the Court continued the hearing on the Motions to June 18, 2001. II. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT The party moving for summary judgment has the initial burden of establishing that there is “no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Fed. R. Civ. Pro. 56(c); see British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir.1978); Fremont Indemnity Co. v. California Nat’l Physician’s Insurance Co., 954 F.Supp. 1399, 1402 (C.D.Cal.1997). If the moving party has the burden of proof at trial (e.g., a plaintiff on a claim for relief, or a defendant on an affirmative defense), the moving party must, make a “showing sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir.1986) (quoting from Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). Thus, if the moving party has the burden of proof at trial, that party “must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in [its] favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986) (emphasis in original); see Calderone, 799 F.2d at 259. If the opponent has the burden of proof at trial, the moving party has no burden to negate the opponent’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party does not have the burden to produce any evidence showing the absence of a genuine issue of material fact. Id. at 325, 106 S.Ct. 2548. “Instead, ... the burden on the moving party may be discharged by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmov-ing party’s case.” Id. (citations omitted). Once the moving party satisfies this initial burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings ... [T]he adverse party’s response ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. Pro. 56(e) (emphasis added). A “genuine issue” of material fact exists only when the non-moving party makes a sufficient showing to establish the essential elements to that party’s case, and on which that party would bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. “The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which a reasonable jury could reasonably find for plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in favor of the nonmovant. Id. at 248, 106 S.Ct. 2505. However, the court must view the evidence presented “through the prism of the substantive evi-dentiary burden.” Id. at 252, 106 S.Ct. 2505. III. FACTUAL BACKGROUND The parties largely agree on the facts which are most material to decision on the instant Motions, though there are disputed issues of fact which are mostly collateral to the questions presented by these Motions. Thus, the following summary of the operative facts of this case, though complete enough to decide the instant Motions, does not address every fact or piece of evidence submitted by the parties. To the extent possible, the Court relies on the parties’ statement(s) of the undisputed facts. Where facts are disputed, the Court so states. Where it is necessary to do so, all justifiable inferences are drawn in Plaintiffs favor, as is required on motions for summary judgment. A. The Mystery Mayician In 1985 and 1986, Plaintiff Rice began developing the concept and screenplay for a program called “The Mystery Magician.” A screenplay was completed by April, 1986. See Complaint ¶¶ 24-26; Exhibit B to Complaint (April 4, 1986 “revised” version of screenplay); Copyright UF ¶ 1. Plaintiff filed an application for copyright registration in May, 1986, and a Certifícate of Registration was subsequently issued. See Exhibit B to Complaint (Certificate of Registration: PAu 852 154). Also in 1986, Plaintiff entered into a distribution deal with CBS/Fox Video for production, manufacture, marketing and distribution of “The Mystery Magician.” See Complaint ¶ 29; Exhibit C to Complaint. The 1986 agreement between Plaintiff and CBS/Fox Video allocated rights over the to-be-produced videotape for a term of ten years. See id. A videotape was subsequently produced from Plaintiffs idea and screenplay, the Ml title of which is “Mystery Magician— He Dares To Expose the Secrets Behind Magic’s Most Mystifying Illusions.” See Complaint ¶ 29; Exhibit D to Complaint. This video will hereinafter be referred to as the “Rice Video.” The tape was also produced, and distribution began, during 1986. The Rice Video features a magician dressed in a black tuxedo with tails, a white tuxedo shirt, a black bow tie, and a black cape with red lining. He wears a black stocking mask/hood which covers his entire head except for his eyes. In one illusion (the Levitation illusion), the magician in the Rice Video wears white gloves, but otherwise he wears no gloves. See Copyright UF ¶¶ 1, 4; Copyright GI ¶¶ 1, 4. There are two voices heard on the videotape: that of the Mystery Magician, who explains the tricks in a voice-over narrative; and that of a narrator, who opens the video and announces each trick. See Copyright UF ¶¶ 3, 6; Copyright GI ¶¶ 3, 6. The Mystery Magician’s identity is never revealed on the Ricé Video. See Copyright UF ¶ 8; Copyright GI ¶ 8. The parties differ on the style of presentation. Defendants insist that the Rice Video is an instructional home video which uses a pedagogical style, in which the Mystery Magician is a “careful and conscientious teacher,” but in which the “ordinary” magician’s “character” is otherwise not defined. See Copyright UF ¶¶ 2, 5, 7; Lanham Decl. ¶ 7. Plaintiff disputes this description, claiming instead that the Rice Video is a “dramatic presentation featuring a unique and novel character ...,” in which the masked man “is not a teacher ... [but] a professional magician who ... is risking his career by daring to reveal ...” how various stage illusions are accomplished. See Copyright GI ¶¶ 2, 5. Further, Plaintiff argues his is no “ordinary magician,” but a “grand master of magic” willing to reveal its greatest secrets. See Copyright GI ¶ 7. In performing and revealing tricks/illusions on the Rice Video, the Mystery Magician uses two male assistants also dressed in black and with black stocking type hoods, and two female assistants dressed in red, sequined one-piece bathing suits, with red masks over their eyes. See Copyright UF ¶ 11; Copyright GI ¶ 11. The tricks/illusions are performed and revealed in what appears to be an empty theater. During the course of the Rice Video, the Mystery Magician performs a total of twelve tricks or illusions. Of these twelve, only six are then explained/revealed. See Copyright UF ¶ 13; Copyright GI ¶ 13. Plaintiff selected the twelve tricks/illusions for inclusion in the Rice Video by picking those that were fifty or more years old, yet still popular with fans. See Copyright UF ¶ 14; Copyright GI ¶ 14. The twelve tricks/illusions, in their order of presentation, are as follows: (1) Flaming Wand/Torch (not revealed); (2) Bird in Casserole (not revealed); (3) Crystal Box (not revealed); (4) Folding Screen (not revealed); (5) Woman Sawed in Half (revealed); (6) Linking Rings (revealed); (7) Sword Suspension (revealed); (8) Three Cube Box/Zig Zag Lady (revealed); (9) Cards and Coins (revealed); (10) Cigarette through Coin (not revealed); (11) Lady into Tiger (revealed); and (12) Levitation (not revealed). See Copyright UF ¶ 12; Copyright GI ¶ 12. The Mystery Magician closes the Rice Video with a speech reminding his (younger) viewers not to stop believing in magic, but to be inspired: he has just revealed “tricks”; “magic” is in the skill of a magician. Following its production in 1986, the Rice Video was sold over the next ten years by CBS/Fox Video, primarily through retail outlets (or via the Internet). See Copyright UF ¶ 9; Copyright GI ¶ 9. The CBS/Fox Video deal for exclusive home video rights expired in 1996, at which time Plaintiff entered a distribution deal with MPI Home Video (in November 1996) to distribute the Rice Video domestically, and a subsequent deal with DLT Entertainment (in April 1997) to distribute the Rice Video to the international market. See Copyright GI ¶ 9. As of December 31, 1999, approximately 17,100 units of the Rice Video had been sold by retailers, a combined total of sales during the CBS/ Fox Video deal, and thereafter. See Copyright UF ¶ 10; Copyright GI ¶ 10. In September, 1986, the Rice Video was featured in a segment on Entertainment Tonight. Brief segments from the Rice Video (e.g., a few seconds of the Woman Sawed in Half trick, of the Lady into Tiger trick, of the Linking Rings trick, and of the Sword Suspension trick are each played) are layered with comments from a field reporter and a couple of brief interview segments with the Mystery Magician (masked), in which the Mystery Magician says, inter alia, that his goal for the Rice Video was to inspire younger magicians. See Exhibit 1 to Sackey Decl. (“Entertainment Tonight Segment”); Sackey Decl. ¶ 1. In answer to a question from the interviewer, the Mystery Magician says that he may reveal his identity someday, “but now is not the time because it is so young, because there are people in the community that are pretty angry.” See id. Aside from this brief treatment (the entire segment on Entertainment Tonight lasts a maximum of three minutes), the Rice Video was never broadcast on television, or made available other than through video retailers. See Copyright UF ¶ 15; Copyright GI ¶ 15. B. The Television Specials Many years later, sometime between 1995 and 1997, Fox television began developing an idea about doing a special or a series of specials about revealing the secrets of tricks/illusions. The executive in charge of the idea for Fox was Mike Darnell. See Copyright UF ¶ 16. It appears that by September or October, 1997, production began on four Fox television specials, the first of which aired on or about November 24,1997. See Complaint ¶¶ 43^45; Copyright Motion at 3 n. 2; see also Exhibits A to C to Tratos Decl. (contracts relating to the appearance of the Masked Magician in these specials, dated September through October, 1997). The four specials are titled “Breaking the Magician’s Code: Magic’s Biggest Secrets Finally Revealed I” (“TV Special 1”), “Breaking the Magician’s Code: Magic’s Biggest Secrets Finally Revealed II” (“TV Special 2”), “Breaking the Magician’s Code: Magic’s Biggest Secrets Finally Revealed III” (“TV Special 3”), and “Breaking the Magician’s Code: Magic’s Biggest Secrets Finally Revealed IV” (“TV Special 4”) (collectively, “Television Specials”). The Television Specials were created for broadcast to a network television audience. See Trademark UF ¶ 28; Trademark GI ¶ 28. In each of the Television Specials, unlike in the Rice Video, all of the tricks/illusions which are performed are subsequently revealed. See Trademark UF ¶ 25; Trademark GI ¶ 25. Only TV Special 1 has any of the same tricks/illusions as are in the Rice Video. The three other Specials have no tricks/illusions in common with the Rice Video. See Trademark UF ¶¶ 23, 26; Trademark GI ¶¶ 23, 26 In TV Special 1, a total of eleven tricks/illusions are performed and revealed. Of these eleven, five are performed in the Rice Video, and four are revealed in the Rice Video. See Trademark UF ¶¶ 22-24; Trademark Glfl 22-24. The eleven tricks/illusions in TV Special 1 are performed in the following order (boldface indicates commonality with the Rice Video): (1) Lady into Tiger; (2) Chinese Lantern; (3) Levitation (in the Rice Video, but not revealed); (4) Exploding Box; (5) Three Cube Box/Zig Zag Lady; (6) Linking Rings; (7) Metamorphosis; (8) Woman Sawed in Half; (9) Pull Rabbit Out of Hat; (10) Swords in the Basket; and (11) Disappearing Elephant. See Trademark UF ¶ 22; Trademark GI ¶ 22. As Moving Defendants point out, there are therefore more tricks/illusions that are performed and revealed in TV Special l(six) which are not in the Rice Video than there are tricks/illusions in common (five). See Trademark UF ¶ 27; Trademark GI ¶27. A total of twenty-eight more tricks/illusions are performed and then revealed in TV Specials 2, 3 and 4 (the specific tricks/illusions are not important here). See also Exhibits A to D to Weiner Decl. (TV Specials 1, 2, 3, and 4). The magician (the “Masked Magician”) in the Television Specials wears black pants, a sleek black turtleneck, a black jacket and black gloves. See Trademark UF ¶ 31; Trademark GI ¶ 31. He also wears a mask/hood which covers his entire head, though it appears to be made of a more rubberized/molded material than that of the magician in the Rice Video. The guise worn by the Masked Magician in the Television Specials is more of a “mask” than that worn by the Mystery Magician in the Rice Video: it has facial features such as a molded nose, eyebrows and fully-formed eyeholes, and a mouth (whereas the Mystery Magician’s mask/hood simply had cut-outs for his eyes). The Masked Magician’s mask is also covered with white tiger-like stripes which run up to the top of his head, sideways to his cheeks, and down onto his chin (and continuing onto his neck). See Trademark UF ¶ 31; Trademark GI ¶ 31. The mask of the Masked Magician actually seems more white than black. The Masked Magician does not speak or purport to speak through a voice-over during the Television Specials (until the conclusion of TV Special 4, see below). See Trademark UF ¶ 33; Trademark GI ¶ 33. In contrast to the Rice Video, where the Mystery Magician (in voice-over) explains the performance of the tricks/illusions revealed, the Masked Magician performs and reveals the tricks/illusions without speaking. All commentary in the Television Specials is provided by the announcer (actor Mitch Pileggi), who appears on-screen at the beginning (and at the conclusion of each commercial break) of the Television Specials. He introduces himself to viewers, and his is the only voice that is heard during the performance and subsequent revelation of the tricks/illusions performed by the Masked Magician. See Trademark UF ¶ 34; Trademark GI ¶ 34. It is Pileg-gi who explains the tricks/illusions, whereas the Mystery Magician does the explaining in the Rice Video. The Television Specials feature somewhat higher production values than the Rice Video, though the narrator (Pileggi) explicitly states at the opening of TV Special 1 that: “It doesn’t matter where you see these illusions performed, in a glittery Vegas show, a big budget television special or a show like this, where we stripped away the lasers and pyrotechnics ...” See Trademark UF ¶¶ 29-30; Trademark GI ¶¶ 29-30; Exhibit A to Weiner Decl. (TV Special 1). The “scene” for the filming of the four Television Specials is purported to be the interior of an abandoned warehouse. The stage is somewhat larger, as are the effects, than in the Rice Video. The music and mood is a bit more lively, and the tricks are performed and revealed more quickly. The Masked Magician is assisted in the Television Specials by female dancers whose identities are not concealed. They move in a series of choreographed sequences. See Trademark UF ¶ 35; Trademark GI ¶ 35. Again, the parties dispute the presentation style of the Masked Magician and/or the Television Specials. Moving Defendants and their expert claim that, by contrast to the Rice Video’s pedagogical style, the Masked Magician uses a “flamboyant style of performance suited to the bigger illusions, the bigger stage, the dynamic choreography and the higher production value of the Television Specials.” Trademark UF ¶ 30; see Lanham Decl. ¶ 7.e. Plaintiff, of course, disputes that this distinguishes the two presentations (i.e., he argues the same is allegedly true of the Mystery Magician). See Trademark GI ¶ 30. The parties, and their competing experts, also make a few other comparisons between the Rice Video and the Television Specials. For instance, Moving Defendants point out that even those tricks in TV Special 1 which also appear in the Rice Video (five, four revealed) are shown in different order. See Copyright UF ¶ 24. They also note the differing music, scene, and camera angles. See id. ¶¶ 45-47. Moving Defendants further emphasize that three of those tricks which appear in both videos are performed (and explained) differently by the respective magicians. In the Lady into Tiger trick/illusion in the Rice Video, a female assistant climbs from the cage into a hollow in the stairs leading up to the cage, which are then pushed away by the Mystery Magician. The cage remains on the ground while being spun around by the Mystery Magician’s male assistants, until it is finally uncovered to reveal a tiger (initially hidden by a false back wall of the cage). By contrast, in the Lady into Tiger trick/illusion in TV Special 1, the female assistant instead climbs into a false bottom in the cage, and remains therein as the cage is lifted into the air and spun around on its cable(s). She pulls the cable which releases the false back of the cage, allowing the tiger inside. See id. ¶ 49. Similarly minor differences may be seen in two of the other four tricks appearing in both videos. In the Linking Rings trick/illusion in the Rice Video, the Mystery Magician uses three rings, and then eight rings (each time illustrating the use of a “key ring” which has a break through which other rings may be passed by sleight of hand). In TV Special 1, however, although the Masked Magician similarly uses three rings, and the use of the non-solid ring is also revealed, the Masked Magician does not move on to show use of eight rings. In the Woman Sawed in Half trick/illusion in the Rice Video, the assistant’s head and feet are visible, and the Mystery Magician uses false feet and a false leg to fool the audience. In TV Special 1, by contrast, the woman is first placed in shackles/stocks, and a box is lowered over her body so that only her (bound) hands extend. The illusion does not use false feet or a false leg (the “trick” is that her legs appear to be restrained, but really are not). See id. ¶¶ 50-51. Finally, Moving Defendants point out that Plaintiff admitted in his deposition that there are differences in the dialogue/voice-overs in the Rice Video and in TV Special 1. See id. ¶ 52; Deposition of Robert Rice (“Rice Depo.”) at 300. Moving Defendants also disclaim any identity of language between the opening monologues/comments of the Rice Video and TV Special 1, or the closing speeches of the Rice Video and TV Special 4. See id. ¶ 53. The scene in TV Special 4 to which Moving Defendants refer is the final scene in the last of these four specials, in which the Masked Magician takes off his mask and reveals himself to be a magician named “Valentino.” See TV Special 4. Plaintiff, in response, relies primarily on the opinion of his expert witness (Kauff-man), and points to alleged similarities between the “character” of the Mystery Magician and the “character” of the Masked Magician, as well as purported similarities in “plot, setting, sequence of events, dialogue (or monologue), mood, tone and pace [all of which are] directly driven from the persona of the Masked Magician ... a magician anti-hero who embarks upon a simple, direct approach to the age-old ‘no-no’ of telling tales out of school by revealing highly secret magic illusions to the public.” Copyright Opposition at 14-15. Pointing to similarities in costume, social standing, and the respective roles of the two men in the two presentations, Plaintiff argues an identity of “character.” He also points to similarities in setting (empty theater vs. abandoned warehouse), and to the fact that both men faced anger from the “magic community.” See id. at 16-17. These are really Plaintiffs (expert’s) opinions, rather than facts. The primary factual similarities to which Plaintiff points, in addition to those already noted above, are the alleged similarities (though not identity) between the opening and closing monologues of the Rice Video and of TV Special 1 and TV Special 4. Plaintiff does not (and cannot) claim that the actual words/scripts are identical, but he seems to emphasize the similarity in themes revealed by the opening and closing speeches in the two presentations. For example, Plaintiff notes that both opening monologues state, with different words, that the respective magicians will be placing their careers at risk (and perhaps inviting some physical consequences) by what they are about to reveal to the audience, so that in each the (Mystery or Masked) magician’s identity must be concealed. See id. at 18. Plaintiff also notes that, as is true of the Mystery Magician’s closing monologue in the Rice Video, the Masked Magician, when he is revealed at the close of TV Special 4, gives a similar speech (again, in different words) about how the secret of the trick is only a small part of magic, and the real magic is in the performance. The Masked Magician/Valentino also similarly reveals his true “altruistic” motive for revealing illusions: to inspire “bigger and better tricks.” Id. In addition to their alleged similarities in theme, if not in words, Plaintiff claims these speeches illustrate similarity of “character.” Finally, Plaintiff points to other claimed similarities. For instance, Plaintiff notes that both narrators state that the audience is about to see heretofore-secret stage illusions performed, and that all of the various illusions are performed without trick photography or other special effects. Plaintiff also claims that the opening of the Rice Video, in which a man’s (presumably the Mystery Magician’s) feet are shown walking into the frame, and then walking down a dark and deserted street, is strikingly similar to the opening of at least TV Special 1, in which the host, Mitch Pileggi, strides into the frame in front of an apparently abandoned warehouse. See id. at 20-21. As far as distribution and sales, the parties agree that videos of the four Television Specials, unlike the Rice Video, have not been generally available for purchase in video stores or retail outlets. See Trademark UF ¶ 38; Greenburg Decl. ¶ 3. Rather, it appears that videotape versions of the Television Specials were primarily sold in conjunction with their broadcast on television. See Trademark UF ¶ 36; Trademark GI ¶ 36; Greenburg Decl. ¶ 2. Television viewers were invited to order videotapes of the show they had just seen by calling a telephone number which appeared on the screen at the conclusion of the broadcast(s). See Trademark UF ¶ 37; Greenburg Decl. ¶ 2. It does appear, however, that perhaps the Television Specials were later re-packaged for direct sales to the public via the Fox.Com website, and/or through other Internet retailers. See Trademark GI ¶¶ 36-37; Sackey Decl. ¶¶ 43, 44, 46; Exhibits 43, 44, and 46 to Sackey Decl. No sales or profit figures are provided for either the original sales in connection with the broadcast or the Television Specials, or for these purported direct sales over the Internet. Nor is any ratings information provided for the broadcast(s) of the Television Specials. C. Genesis and Development of the Television Specials The parties heavily dispute facts pertaining to the origin(s) of the idea for the Television Specials, and/or the inferences that may be drawn therefrom as to Defendants’ access to the Rice Video and the likelihood that the Television Specials are derivative thereof. They each tell a fairly mutually-exclusive story about how the Television Specials came to be, and about the inspiration for these programs. Moving Defendants, for instance, insist it was Mike Darnell at Fox who first “proposed” the specific idea for what eventually became the Television Specials. See Copyright UF ¶ 16; Deposition of Mike Harris Darnell (“Darnell Depo.”) at 46-50; Deposition of Bruce Nash (“Nash Depo.”) at 60, 67. Though apparently unwilling or unable to be very precise about the specific date, they contend that there was a meeting sometime between 1995 and early 1997 between Bruce Nash (who seems to be a producer), Steven Wohl (Nash’s agent at ICM), and Mike Darnell. See id. In that meeting, which was a “pitch meeting” to discuss various ideas for television specials/shows, Moving Defendants claim that it was Darnell who first came up with the idea of doing a show where the secrets of magic tricks would be revealed. This is supported by testimony from Darnell and Nash, each of whom stated in deposition that it was Darnell who had this idea first. See id. The purported inspiration for Darnell’s idea was in part a recent visit that Darnell had allegedly made to the Magic Castle, a club/venue for professional magicians and their guests, where he was confounded by a trick he saw performed. See Copyright UF ¶ 17; Darnell Depo. at 47. Darnell’s recollection of the meeting is that Nash and Wohl were actually reluctant, at first, to get involved in such a project, for fear of anger from other magicians. See Darnell Depo. at 50. Darnell claims that he eventually convinced them of the merits of the idea, in part by suggesting that they could disguise the magician in the show so that he would not have to worry about anger or retribution from the “magic community.” See Copyright UF ¶ 18; Darnell Depo. at 51-52. In their depositions, both Darnell and Nash specifically state that it was Darnell (not Nash or Wohl) who first had the idea for the show(s), and of disguising the magician therein. See Darnell Depo. at 52; Nash Depo. at 59-67. This is confirmed by deposition testimony from Wohl in which he states that prior to the meeting (in 1995, 1996, or 1997) he and Nash had with Darnell, Nash had never had, suggested, or passed on to him the idea of doing a show about revealing magic tricks. See Exhibit K to Dawson Decl. (“Wohl Depo.”) at 31-32. Darnell further reports that it was his idea to give the Television Specials a bit of a “sarcastic”/in-on-the-joke edge. See Darnell Depo. at 61-62. Following this meeting, it appears that development/production on the Television Specials soon got into gear-. By September, 1997, it appears that Nash Entertainment had entered into negotiations with Montano a.k.a. “Valentino” to play the Masked Magician. See Copyright UF ¶ 19; Tratos Decl. ¶¶ 7-8; see also Exhibits A to C to Tratos Decl. Moving Defendants insist (and Plaintiff admits) it was actually Montano/Valentino, or more specifically his attorney (Tratos), who insisted that Montano/Valentino appeal1 in a mask and costume. This was expressly included in the contract Monta-no/Valentino signed with Nash Entertainment, at Tratos’ insistence. See Copyright UF ¶ 19; Tratos Decl. ¶¶ 7-8. The reason for this, Tratos states, is that he wanted to ensure that his client, who had previously been a successful professional magician in Las Vegas, would not suffer career damage. See Tratos Decl. ¶¶4-8. Plaintiff notes that Montano/Valentino has stated that he never intended to keep his identity a secret forever. See Copyright GI ¶ 19; Sackey Decl. ¶ 22; Exhibit 22 to Sackey Decl. At some point, Weiner and Monta-no/Valentino decided to make it a “very glitzy Vegas type of a show.” Exhibit G to Kravitz Decl. (“Valentino Depo.”) at 86. The tricks in TV Special 1 were allegedly chosen in an informal poll of Fox employees. See id. at 80; Copyright UF ¶ 29. Moving Defendants claim there is no evidence that, prior to the commencement of this lawsuit, any of the Defendants involved in the development or production of the Television Specials had either seen or heard of the Rice Video. See Copyright UF ¶ 21. Indeed, in each of their depositions, Montano/Valentino, Weiner, Nash, Darnell, and Fleiss (co-writer with Nash of the Television Specials, under the name David Next) denied having seen the Rice Video. See Valentino Depo. at 135; Exhibit E to Kravitz Decl. (“Weiner Depo.”) at 52; Nash Depo. at 31-32; Darnell Depo. at 32-34; Exhibit I to Kravitz Decl. (“Fleiss Depo.”) at 80. Further, there is no dispute that prior to production, Nash Entertainment did trademark searches for federal/state trademark registrations in entertainment-related classes for similar marks, and found no references. See Trademark UF ¶ 21; Trademark GI ¶ 21. In contrast to this version of events, Plaintiff claims that the Defendants primarily responsible for the development of the Television Specials had a significant number of opportunities to, and probably did, know about and view the Rice Video at various times prior to the production of the Television Specials. Plaintiff therefore implies that they got their idea from his own video, and/or copied therefrom. First of all, Plaintiff claims that the “most direct route” for Defendants to have had either “actual knowledge” of the Rice Video or an “opportunity to view or copy it” was through his own submission, in March of 1996, of copies of the Rice Video and a “pitch” sheet to Mike Darnell at Fox. Copyright GI ¶ 21. This is obviously contradicted by Darnell’s testimony that he had never seen nor heard of the Rice Video. See Darnell Depo. at 32-34. Plaintiff admitted in deposition that he has no copy of the “pitch” sheet purportedly sent to Darnell. He also stated that he received no response to this alleged pitch. See Rice Depo. at 92-94. Nonetheless, Plaintiff continues to maintain that Darnell had the Rice Video in hand at least by March of 1996. Plaintiff also engages in a somewhat complicated combination of inferences and assumptions designed to establish a “chain” or “chains” of custody of the Rice Video itself and/or of idea(s) therein. These purportedly culminate in the possession, by Defendants privy to the production of the Television Specials, of one or both “properties.” For instance, one thread of Plaintiffs inferential chain begins with Stephen Marks, a talent agent with ICM who represented Plaintiff in his 1986 negotiations with CBS/Fox Video for production and then distribution of the Rice Video. Marks was Plaintiffs agent from 1986 until 1988, when Plaintiffs contract with ICM ended. During this period of representation, Plaintiff asserts that he gave copies of the Rice Video to Marks. He also claims (despite the exclusivity of his contract with CBS/Fox Video) that following the “splash” that his video made in 1986 (e.g., the Entertainment Tonight segment, and an alleged boycott by members of the “magic community”), Marks began shopping the Rice Video to various television networks, including Fox. See Rice Depo. at 40-43, 68-74, 86; Exhibit H to Kravitz Decl. (“Marks Depo.”) at 16-21. The testimony supposedly supporting this alleged submission to Fox television is very thin, if not non-existent. Plaintiff also claims (and Marks confirms) that when Darnell gave the “green light” for the Television Specials for Fox, Marks called Darnell to protest. See Rice Depo. at 149-150; Marks Depo. at 35-38. In this alleged conversation, though Marks’ objections seem to have been more ethical than legal, he says he likely told Darnell about the Rice Video, and the reaction of the magic community thereto. See id. The “thread” which begins with Marks also involves Defendant Wohl (dismissed from the case in the January 17, 2001 Prior Order). It seems that during the 1986-1988 time period during which Plaintiff was represented by Marks at ICM, Wohl (another ICM talent agent) had the office down the hall from Marks. See Marks Depo, at 19. Plaintiff claims that on a number of occasions on his way to and from his visits with his agent, Marks, he would stop and chat with Wohl. He asserts that during pre-production of the Rice Video, Wohl repeatedly told him he “loved” the idea, and that (apparently after seeing a completed version thereof), Wohl told Plaintiff that he thought it would be a “smash hit.” Rice Depo. at 213-214. Plaintiff points out that ICM, and Wohl, subsequently became the agent(s) for Defendant Nash, around 1989 or 1990. See Copyright Opposition at 7; Nash Depo. at 18-19. Plaintiff clearly implies that Wohl may have “passed” the idea (or even the actual videotape) of the Rice Video on to the Defendants involved in the Television Specials, either directly (through- Wohl’s participation in the 1995-97 meeting with Darnell) or indirectly (by giving the idea and/or the videotape to Defendant Nash). There is no direct evidence of this “chain” of custody. However, in what might be considered the same “thread” or, alternatively, a different “thread,” Plaintiff next focuses on Defendant Nash’s purported involvement in developing a television show about revealing magic tricks, long before the idea was allegedly “proposed,” in the “pitch meeting,” by Darnell. Specifically, Plaintiff points to documents obtained from Nash (and Nash Entertainment) in discovery, which seem to be, essentially, lists of project ideas Nash was pursuing at various times. The first of these is an October, 1990 memorandum from a production company with which Nash was apparently associated. See Exhibit 29 to Sackey Decl. The 1990 memorandum (which was not apparently written by Nash) relates to a (proposed) television program called “America’s Best Kept Secrets,” which was to contain a five-minute segment called “Secrets of Magic.” The synopsis of this segment states: “In this segment we will show how a woman is sawed in two. We will perform the trick once straight and then re-run the trick revealing the secret.” Id. The memorandum discusses magicians who might possibly be appropriate to star in the revealing-magic segment, including “Harry Blackstone.” The memorandum says that Blackstone was initially leery of giving away any secrets, and “would only do it if he can do a twist on the trick.” Id. The responses from other magicians are also listed. See id. Other documents to which Plaintiff points include a January 27, 1997 memorandum from Nash Entertainment to his agent(s) at ICM, in which are laid out the “Business Objectives” for Nash Entertainment for the year 1997. See Exhibit 30 to Sackey Decl. This is basically a list of projects being pushed by Nash Entertainment, and includes under “ACTION NEEDED:” for the category “PRIME-TIME SPECIALS” that he would like to “[g]et Mike Darnell to pick up the five projects he likes,” among which is included “Magic Secrets Revealed.” Id. This 1997 objective was apparently not immediately achieved, as on April 24, 1997 Nash wrote a letter to Darnell (with a copy to Wohl) laying out a “list of new TV projects for your consideration.” Exhibit 31 to Sack-ey Decl. (emphasis added). Among the described projects was one entitled “MAGIC TRICKS REVEALED!” along with the following text: “Ever wonder how all those magic tricks you see on TV are actually pulled off? For the first time on network television, this amazing special reveals how!” Id. Plaintiff claims that these documents indicate that Nash (and/or Wohl) were actually pitching this idea to Darnell. Plaintiff also asserts that it is most likely that the so-called “pitch meeting” between Darnell, Nash, and Wohl actually took place on June 2, 1997. He bases this on a letter from Nash to Darnell (and Wohl), dated June 3, 1997, in which Nash says: “I really enjoyed our meeting yesterday. I’m thrilled to be producing ... WORLD’S GREATEST MAGIC TRICKS REVEALED! ... for FOX.” Exhibit 33 to Sackey Decl. He goes on to assert, based on certain equivocal testimony from Darnell, that it was most likely actually Nash (and/or Wohl) who “proposed” the idea which eventually became the Television Specials. He notes that Darnell said that “[t]he concept came out of’ that “pitch meeting,” and that Darnell testified that it was Nash and Wohl who were “doing the pitching.” Darnell Depo. at 45-47. Plaintiff claims that both Darnell’s (and Nash’s and Wohl’s) claim that it was Darnell who came up with the idea, and the agreement of these three that Nash and Wohl were hesitant and fearful to become involved, are belied by the 1997 (and 1990) correspondence which allegedly predated the meeting. It is also apparently undisputed that in 1993 or 1994, Nash (and Fleiss, his writing partner on the Television Specials) participated in a television production called “Secrets Revealed,” which was first aired on ABC, and later on The Learning Channel. See Nash Depo. at 14-16. This show was about revealing all kinds of secrets, but did have one segment consisting of exposing the Woman Sawed in Half trick. It is not clear exactly how large a role Nash (or Fleiss) played in developing, writing, or producing the “Secrets Revealed” show, or the specific segment on the Woman Sawed in Half trick, but the show does bear a striking resemblance to the proposed special laid out in the 1990 memorandum (on Ohlmeyer Communications Company letterhead) with which Nash has been associated. The “Secrets Revealed” show was hosted by actor William Devane, who provides much of the introduction and commentary on each of the respective segments (e.g., the show has another segment revealing the secrets of beauty pageant contestants). The Woman Sawed in Half segment is introduced with a lot of rhetoric about the secrecy maintained by magicians, and the ethical codes by which they are bound to refrain from revealing their secrets. Then Devane says that, “for the first time on network television,” one of those famous illusions will be exposed: the Woman Sawed in Half. The trick is first performed by a magician named Chris Angel, who is described as being a young magician “on the cutting edge” of magic, whose shows are like a cross between a rock concert and a magic show. Angel and his two female assistants are not masked, and there is loud music playing throughout his performance of the trick. Aside from the fact that he uses a chain saw to “cut” one of the assistants in half inside the box, however, the trick is performed nearly identically to how it is performed in the Rice Video. Following the performance of the trick, there is an interview with Harry Blackstone, described as being the son of one of the all-time masters of magic. Blackstone describes the ethical canons of magic, and how magicians cannot and should not reveal their secrets. He implies they might face some sort of discipline for violating ethical canons from either international or American societies of magicians. See Exhibit 2 to Sackey Decl. Blackstone says that he could tell how the Woman Sawed in Half trick is done, but that he refuses to do so. He says that secrecy is very important, and that ethics committee(s) have come up with lists of rules that magicians are supposed to follow. Blackstone makes a reference to “a magician several years ago” who “divulged one of the secrets in a blindfold — not a blindfold but a mask, rather, on his face, in order to hide his identity.” Blackstone says that “we, of course, knew who it was, and that magician, or rather his widow, now are suffering the results of it.” Id. The host of the show notes that the producers actually had to “leave the country” to find any magician willing to reveal the Woman Sawed in Half trick. Named only as “Mr. X,” an on-screen interview is conducted with a magician clad entirely in black, who wears fencing headgear to hide his face, and whose voice is altered to “protect his identity.” He says that many in his profession would “take a shot at me for doing this.” Id. Mr. X, and his masked assistants, are next shown re-creating the trick as performed by Angel, though substituting a sword for the chain saw used to “cut” the assistant in half. The methodology of the trick is nearly identical to that employed in the Rice Video, including the fake legs and feet, but with slightly higher production values (e.g., the fake legs and feet are actually able to “move” thanks to an offstage assistant with a remote control). The narrator’s voice takes the viewer quickly through all of the various stages of the trick. Based on all of these “chains” of custody, or “threads” in the development of Nash Entertainment’s involvement in the revelation of magic secrets, Plaintiff clearly believes that it was Nash, rather than Darnell, who “proposed” the idea of the Television Specials. It is less clear how exactly Plaintiff believes that Nash got his idea from the Rice Video. This apparently relies on Plaintiffs theory as to Wohl’s direct or indirect involvement in spreading it around. In other words, it appears that Plaintiff would draw a “thread” for the copying of his idea and/or his Rice Video from Marks to Wohl (or from Plaintiff to Wohl directly) to Nash, and finally to Darnell, at Fox. D. Background for Trademark/False Advertising Claims Plaintiff admits that he has never registered “Mystery Magician,” or any related mark, as a trademark or trade dress with either a state or federal agency appropriate for such registration. See Trademark UF ¶ 89; Trademark GI ¶ 39. Nonetheless, Plaintiff claims common law trademark rights in the name “Mystery Magician,” and apparently also in the “character” in the Rice Video, based on his use of the mark (and the character) in commerce. See Trademark GI ¶ 39. Plaintiff also has not commissioned a formal consumer confusion survey, to demonstrate a likelihood of confusion between his mark and any similar mark used by Defendants. See Trademark UF ¶ 40; Trademark GI ¶ 40. Plaintiff did claim in his deposition that he invited some friends and neighbors over to watch the Rice Video and the Television Specials, and that they all thought they were similar. See Rice Depo. at 203-205. He also points to one or two alleged incidents of actual confusion of the two works by distributor(s), and by a website selling the Television Specials. See Exhibits 23 and 39 to Sack-ey Decl. As support for his claim of false advertising actionable under Section 43(a) of the Lanham Act and California Business & Professions Code Section 17200, Plaintiff points to several allegedly (literally) false statements made during the Television Specials or in connection with their promotion. First, he notes that Mitch Pileggi, on-camera narrator of the Television Specials, says in his opening monologue that the secrets of magic will be revealed “tonight, for the first time on television ...” TV Special 1 (emphasis added). Plaintiff asserts that this is a literally false claim of being “first” on TV. Second, Plaintiff points to several statements made on the video packaging of the Television Specials when TV Specials 1 and 2 were repackaged for direct sales as a single “two-volume set.” See Exhibits 43 and 44 to Sackey Decl. The allegedly offending statements to which Plaintiff points include: “Magic’s Biggest Secrets Finally Revealed,” “Never before has a magician dared to reveal the dark secrets behind the world’s mystifying illusions,” and “You’ve Always Wondered How They ... Saw a woman in half, make an elephant disappear, shoot an arrow through a human body, escape from a padlocked water tank. Now, for the first time, you’ll learn the secrets behind these and many, many more tricks and illusions.” Exhibit 43 to Sackey Decl. (emphasis added). These statements appear on the back of the “Volumes I & II” videotape, in the descriptive section. Also, on the front cover of the tape are the words: “Plus: Never Before Seen on TV! World’s Most Mystifying Illusions-Unveiled At Last.” Id. (emphasis added). On the basis of these claimed falsities, Plaintiff asserts the right to a claim under the Lanham Act, and/or under Section 17200, for actionable false representations. These claims are separate and apart from Plaintiffs claim of trademark infringement and confusion. IV. DISCUSSION Moving Defendants seek judgment as a matter of law on Plaintiffs first three Claims for Relief (which would, by extension, also seem to dispose of the final three Claims for Relief, which are really only prayers for the specific equitable remedies of disgorgement based on unjust enrichment, a constructive trust, and/or an accounting). They argue that there are no triable issues of fact supporting Plaintiffs claims for copyright infringement (17 U.S.C. § 101 et seq.) (the First Claim for Relief), for trademark infringement or false statements in violation of the Lanham Act (15 U.S.C. § 1125) (the Second Claim for Relief), or violations of the California Unfair Business Practices Act (Cal. Bus. & Prof.Code § 17200 et seq.) (the Third Claim for Relief). The Copyright Motion addresses the First Claim for Relief, while the Trademark/False Advertising Motion addresses the Second and the Third. Plaintiff has opposed both Motions. They will be addressed in turn. A. The Copyright Motion: Plaintiff’s First Claim for Relief A plaintiff asserting infringement of copyright must prove: (1) ownership of a valid copyright; and (2) infringement-that defendant copied protected elements of the plaintiffs work. See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir.2000). “Absent direct evidence of copying, proof of infringement involves fact-based showings that the defendant had 'access’ to the plaintiffs work and that the two works are ‘substantially similar.’ ” Id. In this case, the existence and validity of Plaintiffs copyright in the Rice Video is not contested. Therefore, the question is whether the Television Specials copy protected elements thereof. With no direct evidence of copying, both “access” and “substantial similarity” must be proven. 1. Access to Plaintiffs Work (the Rice Video) Sufficient “access” to a copyrighted work to make it reasonably plausible that the allegedly infringing work is copied therefrom is defined as “an opportunity to view or to copy plaintiffs work.” Sid and Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1172 (9th Cir.1977). “We have defined reasonable access as ‘more than a “bare possibility.’ ” ” Three Boys Music, 212 F.3d at 482. Thus, there must be a “reasonable possibility” or “reasonable opportunity” for viewing the plaintiffs work. See id. “Access may not be inferred through mere speculation or conjecture. At times, distinguishing a ‘bare’ possibility from a ‘reasonable’ possibility will present a close question.” Id. (quoting 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, § 13.02[A], at 13-19 (1999)). “Access” to a plaintiffs copyrighted work is most often proven through circumstantial evidence, because admissions or direct evidence of access for purposes of copying are rare. “Circumstantial evidence of reasonable access is proven in one of two ways: (1) a particular chain of events is established between the plaintiffs work and the defendant’s access to that work ..., or (2) the plaintiffs work has been widely disseminated.” Id. (citations omitted). Access can be difficult to prove, but is also difficult to disprove. As a result, reasonable access to a plaintiffs work is often conceded, at least for purposes of summary judgment. In this case, however, the Moving Defendants dispute that they had ever seen or heard of, let alone had a reasonable opportunity to view for purposes of copying, the Rice Video, prior to development/production of the Television Specials. The Court must therefore gauge Plaintiffs proof that one or more of those Defendants involved in this production had access to his work. This may be one of those times where the line between a “bare” possibility and a “reasonable” possibility of access is difficult to draw. Certainly, Plaintiff has not presented overwhelming evidence that any of the Defendants involved in production were aware of, or had an opportunity to view or copy, the Rice Video. He has only his own testimony (contradicted by Darnell’s) to support his claim that he sent copies of the Rice Video to Darnell in 1996. And while all the inferential evidence presented by Plaintiff, to refute Darnell’s claim (supported by Nash and Wohl) that it was he who came up with the idea for the Television Specials, might be sufficient for that purpose, a far greater leap must be made to go from assuming that it was Nash who was pushing the idea to concluding that Nash got the idea from/copied the expression of the Rice Video. This leap requires a fair amount of speculation and conjecture. We must assume that: Marks or Plaintiff told Wohl about the Rice Video, and/or gave him a copy; that Wohl gave the idea and/or the tape to Nash; and that Nash shared the idea and/or the tape with Darnell. However, in his deposition Plaintiff admitted he had no reason to think that Wohl had given either the Rice Video or its script either to Nash or to Darnell. See Rice Depo. at 379-380. Plaintiff is also not significantly helped by the fairly meager distribution of the Rice Video, which has only sold 17,100 + copies in domestic and international markets in the thirteen years from release in 1986 to the latest figures from 1999. Moreover, at least some of these sales must have taken place after development of the Television Specials, even if the Court assumes that these were not “pitched” to Darnell/Fox until 1997. And even if the full total of approximately 17,-100 sales is considered, this is not exactly market saturation; it is not clear that this should be considered “widely disseminated.” Nonetheless, for purposes of summary judgment the Court construes these facts in the light most favorable to Plaintiff, the nonmovant. While Plaintiffs- evidence of access is weak, it is enough to raise a triable issue of fact as to whether Darnell, Nash, or others had the opportunity to view or copy the Rice Video. The question, after all, is not whether Defendants actually viewed or copied the Rice Video (a question more properly addressed by “substantial similarity”), but whether they had the “opportunity” to do so. See Krofft, 562 F.2d at 1172. “The trier of fact may conclude that the person who created defendant’s work had, but did not avail himself of, the opportunity to view, but this conclusion properly goes to the ultimate issue of copying, and not to the subordinate issue of access.” 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.02[A] at 13-16 (2000) [hereinafter Nimmer ]. In this case, the combination of Plaintiffs testimony that he sent copies of the Rice Video to Darnell, and the inferential chain of custody flowing to development by Nash, are for purposes of summary judgment enough to constitute proof of access. However, the Court rejects Plaintiffs claim that there is such strong proof of access that the Court should employ the “inverse ratio rule,” and therefore require less “substantial similarity” between Plaintiffs work and the allegedly infringing work of the Defendants. See Copyright Opposition at 12. Plaintiff relies on eases noting the inextricable linkage between access and substantial similarity, which “require a lower standard of proof of substantial similarity when a high degree of access is shown.” Three Boys Music, 212 F.3d at 485; see also Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996); Shaw v. Lindheim, 919 F.2d 1353, 1361-62 (9th Cir.1990). Plaintiff has not met this standard of showing a “high degree of access” by Defendants. If anything, Plaintiffs proof of access is sufficiently weak to suggest that perhaps the opposite maxim should apply: that Plaintiff should be required to offer greater proof of similarity. However, the “inverse ratio rule” does not tilt in that direction. “We have never held ... that the inverse ratio rule says a weak showing of access requires a stronger showing of substantial similarity. Nor are we redefining the test of substantial similarity here ...” Three Boys Music, 212 F.3d at 486. Accordingly, the only question is whether Plaintiff has satisfied the showing necessary to avoid judgment as a matter of law on the issue of access. The Court finds that he has. The fact that he only barely cleared that bar is of no import to the remainder of the Court’s inquiry. Plaintiffs proof of access is not so strong as to lower the bar for “substantial similarity.” Beyond that, however, the Court approaches similarity with a clean slate. 2. Substantial Similarity: Copying of Protected Elements Copyright infringement is a measure of the extent to which an allegedly infringing work represents “copying of constituent elements of the work that are original.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). In other words, it is only copying of copyrightable elements of a plaintiffs work that is answerable under the federal Copyright Act. “The mere fact that a work is copyrighted does not mean that every element of the work may be protected. Originality remains the sine qua non of copyright; accordingly, copyright protection may extend only to those components of a work that are original to the author.” Id. at 348, 111 S.Ct. 1282. Thus, “[n]ot all copying ... is copyright infringement.” Id. at 361, 111 S.Ct. 1282. Whether original expression has been copied is a case by case determination. Therefore, “ ‘[substantial similarity1 refers to similarity of expression, not merely similarity of ideas or concepts.” Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1398 (9th Cir.1997) (citing 17 U.S.C. § 102(b)). And it is only “protected expression” which is relevant for purposes of assessing “substantial similarity.” See Shaw, 919 F.2d at 1361. “As we recognized long ago in the case of competing jeweled bee pins, similarities derived from the use of common ideas cannot be protected; otherwise, the first to come up with an idea will corner the market.” Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1443 (9th Cir.1994). “[T]he party claiming infringement may place ‘no reliance upon any similarity in expression resulting from’ unprotectable elements.’ ” Id. (quoting, and adding emphasis to, Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir.1987)). “[T]he un-protectable elements have to be identified, or filtered, before the works can be considered as a whole.” Id. The Ninth Circuit uses a two-part test to determine “substantial similarity.” First, the “extrinsic”/“objective” test “obje