Durkin v. Platz (920 F. Supp. 2d 1316, 2013)

United States District Court for the Northern District of Georgia 2013-01-30

Copyrights

Citations

Full opinion text

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

The relationship between Defendants Ann Platz and Rachel Thomas Hale and Plaintiffs Brian F. Durkin and Craig W. Richards started off amicably enough. Desiring to adapt their unpublished manuscript “The Snow White Ladies of the Third Week” into a movie, Defendants decided to join forces with Plaintiffs, who have experience in the movie business and had recently formed a production company.

Plaintiffs explained to Defendants that the first step in making their dream a reality was to write a screenplay. The parties determined that Plaintiffs would write the screenplay and executed a contract to that effect. The parties now dispute the scope of that agreement.

Plaintiffs contend that in addition to being a contract for the parties to create a screenplay together, the contract also evidences the parties’ intent to form a partnership to produce the screenplay into a “Snow White Ladies” movie. Plaintiffs claim Defendants breached the contract, as well as their fiduciary duty as partners, when Defendants refused to work with them to develop a film based on the screenplay and feigned dissatisfaction with the screenplay, despite months of plentiful praise. Additionally, Plaintiffs contend that under the contract they are co-owners of the screenplay and therefore have the right to use their screenplay to make a movie regardless of whether Defendants grant them permission to do so.

Defendants, however, insist that the parties never formed a partnership to make a movie based on the screenplay. According to them, the parties’ contract was simply for the creation of the screenplay: Defendants were to pay Plaintiffs $8,000 and perform as editors of the first draft, and Plaintiffs were to write a screenplay to Defendants’ satisfaction. They argue that they have paid Plaintiffs $8,000 and edited the first draft and thus have no further obligation to them. Moreover, Defendants contend that Plaintiffs cannot show any ownership interest in the screenplay and Plaintiffs cannot make a “Snow White Ladies” movie without Defendants’ permission.

This case comes before the Court on Defendants’ second motion for summary judgment [89] and motion for a hearing [109] and Plaintiffs’ Daubert motion to exclude the testimony of Defendants’ expert, David Blakesley [81].

I. Background

A. The Parties’ Budding Relationship

In 2005, Defendants wrote “The Snow White Ladies of the Third Week.” It is a dramatic comedy centering on an exclusive bridge club known as the Snow White Ladies of the Third Week located in the small, traditional fictional Southern town of St. Bartholomew. On January 30, 2006, Defendants filed a copyright registration of their unpublished manuscript, and on June 14, 2010, they filed a second copyright registration for the revised manuscript.

After completing the manuscript, Defendants became interested in making it into a movie. Platz was introduced to Durkin and gave him a copy of the manuscript to review. After reading the manuscript, Durkin sent Platz an email in January 2008 telling her, “I have a visual of this film and I believe it’s because of how well you and Rachel painted the picture.... I would love nothing more than to be tucked away in a small southern town for 3 or 4 months to shoot this.”

A year and a half later, in August 2009, Durkin reached out to Platz to let her know that he and Richards were putting together a production company. In that conversation, he told her that as a first step to making a movie, they would need to turn Defendants’ manuscript into a screenplay.

In September 2009, Platz emailed Durkin, “[W]e are thrilled that you and Mary Catherine [Durkin’s wife] want to consider producing Snow White Ladies.” Durkin then forwarded Platz an email from Richards, in which Richards said that Plaintiffs “would need to contract the ‘rights’ to shop this project, and yes it needs to be exclusive.”

On September 28, 2009, Richards sent an email to Platz introducing himself and telling her that he and Durkin “would like to propose to you our thoughts concerning the desire to work with you and move this project to the next stage, a ‘pitch-able’ feature film package.” Richards then included a “task list”: “A. Write an adaptation of the manuscript into a script. B. Define the location and look of the project. C. Research a director and casting short list. D. Create a producer’s preliminary budget and schedule. E. Submit various Business/Creative/Investor license and registrations.” As far as a screenplay, Richards gave Defendants two options: “[p]ay an established writer to create a ‘first pass’ script” or “We write the adaptation together!” In subsequent emails, the parties exchanged casting ideas for the film.

B. The Blossoming of the Screenplay

In early October 2009, Richards prepared an initial draft of an agreement and submitted it to Plaintiffs. Platz gave the draft to an attorney friend to review. Platz’s friend made changes, including adding language that “Copyright Holders shall own the script.” Platz emailed the edited draft to Plaintiffs, and said, “I am so excited about this partnership!” After receiving Defendants’ changes, Plaintiffs further revised the agreement by editing Defendants’ language to read “Copyright Holders and Writers/Producers shall own the script in full partnership” and returned the new draft to Defendants.

At this point, Plaintiffs had already begun writing the screenplay even though the parties had not actually signed an agreement, and on October 12, Durkin sent the first twenty-six pages of Plaintiffs’ first draft. Platz responded, “[A]bsolutely wonderful ... great job ... guys!”

The next day, Durkin emailed Platz the next thirty pages of the first draft. Platz responded, “[Gjreat!!!!!!” That same day, Plaintiffs and Defendants signed a finalized agreement. The one-page contract reads in its entirety as follows:

Memorandum of Agreement

BETWEEN

Ann Platz and Rachel Thomas Hale: The Third Week Brigade, LLC

AND

Craig Richards and Brian Durkin

Ann Platz and Rachel Thomas Hale (“Copyright Holders”) under the Georgia Corporation: The Third Week Brigade, LLC and Craig Richards and Brian Durkin (“Writers/Producers”) agree to enter into this Agreement for the creation of a long form feature film script adaptation of the literary property entitled “Snow White Ladies of the Third Week.”

The period of performance for this Agreement shall be [October 13, 2009] through satisfaction of Copyright Holders and/or date of first talent, creative or development attachment, not to exceed [October 13, 2010].

Copyright Holders agree to:

1. Reimburse Writers/Producers up to $[8,000] for above-referenced project; [in two installments: $4,000 upon agreement, balance payable upon completion of first draft submission]

2. Perform as Editors for this first draft/pass of adaptation cycle, October 12-22, 2009.

Writers/Producers agree to:

1. Create a first pass full feature film script adaptation of the literary property entitled “Snow White Ladies of the Third Week” to the satisfaction of the copyright holders.

2. Refer all work daily via electronic or verbal communications during adaptation cycle.

3. Submit a Producers top sheet production budget no later than December 22, 2009.

Both institutions agree to the following:

1. Modifications to this Agreement will be made by mutual agreement in writing.

2. Writers Guild of America EAST registration submission.

3. Copyright Holders and Writers/Producers shall own the script in full partnership.

By signing this agreement both institutions agree to be active partners and agree to abide by this agreement.

In the “Copyright Holders” signature block, Platz and Hale signed and dated the agreement, and Durkin and Richards signed and dated the agreement as the “Writers/Producers.” Pursuant to their agreement, Defendants paid Durkin and Richards $2,000 each upon signing the agreement.

Three days after executing the contract, Durkin emailed Defendants another seventy pages of the screenplay. Platz responded, “Bravo! I love it soooooo much ... I do not know what we will have to shave off to make it 2[&] hours of film ... I love it all. You two are doing an amazing job!”

On October 27, Plaintiffs submitted the first pass of the screenplay, and Defendants paid Plaintiffs the remaining $2,000 each. The parties continued to work on the screenplay to create a “shooting script.” Plaintiffs submitted revised portions of the screenplay to Defendants, and Defendants edited the revisions.

On November 12, Hale emailed Plaintiffs, “I am thrilled to be working with you all on this project and have the utmost confidence in your guidance and direction.” On December 22, Plaintiffs emailed Defendants to notify them that they had completed a first draft of the screenplay and would be delivering it to Defendants. After reviewing the draft, Platz responded, “Great genius ... You guys are awesome! Love the funny stuff you added!” On December 30, Hale sent Plaintiffs an email, this time stating, “[Platz] and I have read and discussed the script nearly line by line. You all have done a magnificent job and we love it.”

On January 5, 2010, Durkin emailed Platz, Hale and Richards, “[W]e believe we should move forward with the script as it is. All the little ‘tweaks’ we are talking about can be covered in revisions in the pre-production phase.” Platz replied, “I agree. I think it’s time to move it forward. I love what you have created with the script. I agree that we have something very special. The world needs to laugh. I know the story will be tweaked more when it’s time to refine more.”

Plaintiffs made a few more adjustments to the screenplay and on January 11, 2010 submitted another version to Defendants. That same day, Plaintiffs registered that version of the screenplay with the Writers Guild of America.

C. The Winter of Defendants’ Discontent

In January 2010, Platz asked Plaintiffs to set up a meeting with her neighbor, Sean Adorno, telling them that Adorno raised money for films. On January 28, Plaintiffs attended the meeting where Adorno told them that he could obtain start-up money for a film based on the screenplay.

In February, Plaintiffs began putting together a budget for the film and a private placement memorandum (“PPM”) that would be used to raise money to produce the film. On March 6, Plaintiffs emailed Adorno about the PPM. However, at that point, unbeknownst to Plaintiffs, something had shifted in Plaintiffs and Defendants’ relationship: when Adorno forwarded Plaintiffs’ email to Platz, she replied, “[Durkin] is going to be surprised when he hears from our attorney.”

In March, Defendants stopped talking to Plaintiffs entirely. That is, until March 30, when Defendants sent Plaintiffs a work-for-hire agreement regarding the screenplay. Plaintiffs responded on April 16, through a letter from their attorney, Becky Patrick, rejecting that agreement. In reply to Patrick’s letter, Defendants’ attorney Scott Sanders sent another letter on April 29 formally notifying Plaintiffs that Defendants (1) rejected the screenplay as unsatisfactory and unmarketable; (2) did not want to use the screenplay for a movie; and (3) were terminating any further relationship with Plaintiffs.

On May 28, 2010, Plaintiffs filed a copyright registration for the original screenplay, listing themselves as the screenplay’s authors and copyright owners. Durkin testified in his deposition that he registered the screenplay with Platz’s permission. However, Platz testified in her deposition that Plaintiffs did not tell Defendants that they were registering the screenplay solely in Plaintiffs’ names.

D. Procedural History

On July 20, 2010, Plaintiffs filed this action. In their second amended complaint, they seek a declaratory judgment that (1) they own a valid and enforceable copyright in the screenplay; (2) the screenplay does not infringe any copyright owned by Defendants; and (3) Plaintiffs are entitled to market and produce a film version of the screenplay without any interference from Defendants.

Plaintiffs also assert claims for breach of fiduciary duty, breach of contract, quantum meruit and specific performance. In addition to actual damages, Plaintiffs seek their attorneys’ fees and punitive damages.

On May 21, 2012, Plaintiffs moved to exclude the testimony of Defendants’ expert, David Blakesley, because (1) Defendants did not timely disclose Blakesley’s expert report, and (2) Blakesley’s testimony fails under Federal Rule of Evidence 702 and Daubert.

On June 11, Defendants filed a motion for summary judgment. Defendants contend that there is no genuine dispute as to any material fact on any of Plaintiffs’ claims.

II. Motion to Exclude Blakesley’s Testimony

In support of their motion for summary judgment, Defendants rely upon the testimony of Blakesley, an English professor at Clemson University. According to Defendants, Blakesley would testify at trial as to whether Plaintiffs’ contributions to the screenplay are copyrightable. Specifically, Defendants argue that Blakesley would testify that Plaintiffs did not add any significant or original material in preparing the screenplay and are not entitled to any copyright interest in the screenplay as a derivative work.

Plaintiffs move to exclude Blakesley’s testimony on two bases. First, Plaintiffs contend that the Court should strike the expert report because Defendants disclosed their expert and proffered his report over two months after the close of discovery in violation of the Federal Rules of Civil Procedure and this Court’s Local Rules. Second, Plaintiffs argue that Blakesley’s testimony should be excluded under Federal Rule of Evidence 702 and Daubert because he is not qualified, he bases his opinion on unreliable methodology, and his proffered testimony is irrelevant.

Additionally, Plaintiffs move for sanctions, arguing that due to Defendants’ failure to comply with disclosure deadlines, the Court should award them their attorneys’ fees in bringing their motion to exclude.

A. Defendants’ Late Disclosure of Blakesley

Plaintiffs first contend that the Court should strike. Blakesley’s report because Defendants filed the report two months after the close of discovery in violation of Federal Rule of Civil Procedure 26 and Local Rule 26.2C.

Rule 26(a)(2)(D) requires parties to “make [expert] disclosures at the times and in the sequence that the court orders.” Pursuant to Local Rule 26.2C, a party desiring to use expert testimony “shall designate the expert sufficiently early in the discovery period.” The purpose of this rule is so the opposing party has the “opportunity to depose the expert and, if desired, to name its own expert sufficiently in advance of the close of discovery so that similar discovery deposition of the second expert might also be conducted prior to the close of discovery.” LR 26.2C, NDGa. Local Rule 26.2C further provides that a party who fails to comply with the expert disclosure requirements “shall not be permitted to offer the testimony of the party’s expert, unless expressly authorized by court order based upon a showing that the failure to comply was justified.”

Defendants readily admit that they filed their disclosures late. However, they argue that their failure to comply with Local Rule 26.2C was justified because (1) filing their disclosures late was unavoidable, (2) their actions do not prejudice Plaintiffs, (3) Blakesley’s testimony is imperative in this case, and (4) the late filing was due to excusable neglect.

It seems that Defendants’ first and fourth reasons are one in the same: their neglect to timely file their expert disclosures is excusable because doing so was unavoidable. In their brief in opposition to Plaintiffs’ motion, Defendants contend that “Plaintiffs [sic] identification early on of the alleged original material they claim to have added would possibly determine whether an expert would be a necessary expense.... ” In essence, Defendants argue that Plaintiffs’ delay in identifying the original material that they claim to have added to the screenplay delayed Defendants in deciding whether they needed an expert. This argument — that Plaintiffs have failed to identify what original material they claim to have added in creating the screenplay — is one the Court has heard on numerous occasions. Defendants now attempt to recycle this overworked argument yet again by offering it as a justification for their inability to follow the Local Rules.

Contrary to Defendants’ contention, Plaintiffs did identify “early on” the material they claim they added to the screenplay. Following a July 14, 2011, telephone conference in which the Court ordered Plaintiffs to answer Defendants’ interrogatory requesting Plaintiffs to identify the original material they claim to have contributed to the screenplay, Plaintiffs served Defendants with a redline copy of the manuscript showing the changes from the manuscript to the screenplay. Additionally, Plaintiffs filed a supplemental response that includes citations to page numbers of the redline and summarizes all changes made to the manuscript in creating the screenplay. Nonetheless, Defendants, unsatisfied with Plaintiffs’ response, argued to the Court that Plaintiffs had not complied with the Court’s July 14 order. The Court disagreed and in October 2011 entered an order finding that Plaintiffs had complied with Defendants’ request. Despite the Court’s ruling, Defendants continued to argue that Plaintiffs’ submission was inadequate. And at Richards’s deposition, Defendants’ counsel insisted that Richards was refusing to identify the original material Plaintiffs added to the screenplay.

Defendants now contend that they did not know they needed an expert until Plaintiffs’ depositions in February 2012 because that was the point when it became apparent that Plaintiffs would not identify the material they claim to have added. The Court disagrees. Since August 2011, Defendants have been in possession of the material that Plaintiffs contend they added to the manuscript in creating the screenplay. Further, Defendants have always found Plaintiffs’ response adequate, despite the Court’s holding to the contrary. Thus, even if Plaintiffs’ failure to supply Defendants with an acceptable response necessitated Defendants’ retaining an expert, Defendants should have known of that need since August 2011 — a time well within the discovery period. Consequently, Defendants cannot establish that their late disclosure was justified on this basis.

As to Defendants’ remaining arguments, neither relates to Defendants’ justifications for their delay. Defendants contend that the Court should excuse their late disclosure because Plaintiffs will not suffer any prejudice. This Court flatly rejected that argument in Fedrick v. Mercedes-Benz USA, LLC, 366 F.Supp.2d 1190, 1195 (N.D.Ga.2005). There, the Court explained that the standard for striking untimely expert testimony is not whether the opposing party is prejudiced, but whether the proffering party’s failure to comply was justified. Thus, Defendants’ contention is without merit. Likewise, Defendants’ argument that Blakesley’s “testimony is imperative” fails. Again, the relevant standard is justifiable delay, and the necessity of Blakesley’s testimony in no way relates to Defendants’ justifications for their late disclosures. Thus, Defendants have failed to show that their delay in filing their expert disclosures was justifiable.

Pursuant to Federal Rule of Civil Procedure 37(c)(1), “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” As Local Rule 26.2C explains, the point of this Court’s expert-disclosure rule is for the opposing party to have an adequate opportunity to depose the expert and name its own counter-expert. By filing their expert disclosures two months after the close of discovery, Defendants deprived Plaintiffs of this opportunity. See Reese v. Herbert, 527 F.3d 1253, 1266 (11th Cir.2008) (“Because the expert witness discovery rules are designed to allow both sides in a case to prepare their cases adequately and to prevent surprise, compliance with the requirements of Rule 26 is not merely aspirational.”) (citations omitted). Consequently, because Defendants have failed to show that their failure to comply with Local Rule 26.2C was substantially justified, Blakesley’s testimony will be excluded. See Id. at 1266 (affirming district court’s exclusion of expert testimony pursuant to Local Rule 26.2C where party failed to show substantial justification for filing expert disclosure seven weeks after close of discovery).

B. Award of Attorneys’ Fees

In addition to the exclusion of Blakesley’s testimony, Plaintiffs move for sanctions in the form of their attorneys’ fees in preparing this motion.

Rule 37(c)(1) also allows a court to “order the payment of the reasonable expenses, including attorneys’ fees” caused by a party’s failure to identify a witness as required by Rule 26. This Court has found that it “has the power to impose sanctions, including the award of attorney’s fees, for failures to properly disclose expert witnesses.” Morrison v. Mann, 244 F.R.D. 668, 676 (N.D.Ga.2007). “Moreover, the Court has particularly broad discretion in sanctioning discovery abuse.” Id. citing Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir.1993).

During the parties’ last discovery dispute, the Court warned counsel that “future discovery disputes will likely be resolved with serious sanctions being imposed upon the erring side and/or their counsel.” In light of Defendants’ counsel’s past failure to comply with the Local Rules, this Court’s warning to counsel, and the Court’s conclusion that Defendants’ delay in disclosing their expert was not justified, the Court agrees with Plaintiffs that Defendants should be sanctioned.

The Court will therefore grant Plaintiffs’ request for attorneys’ fees in preparing their motion to exclude Blakesley’s testimony. Such recovery, however, is limited to the fees Plaintiffs incurred in arguing that Defendants’ expert disclosure was untimely, as only that portion of their brief was caused by Defendants’ failure to comply with Rule 26(a). The remaining portion of Plaintiffs’ motion is dedicated to arguing that Blakesley’s testimony is inadmissible pursuant to Rule 702 and Daubert; Plaintiffs have not argued that Rule 37(c)(1) provides a basis for recovering their attorneys’ fees incurred related to those grounds for excluding Blakesley’s testimony.

Plaintiffs shall submit to the Court within fourteen days of this order their attorneys’ fees and expenses incurred in addressing this issue before the Court. Defendants shall have fourteen days from the date of Plaintiffs’ filing in which to file a brief and/or evidence in opposition to Plaintiffs’ filing, and Plaintiffs shall have ten days from that date within which to file a reply brief.

C. Admissibility of Blakesley’s Testimony Under Rule Federal Rule of Evidence 702 and Daubert

Even if Defendants could show justifiable delay, Blakesley’s testimony is nonetheless inadmissible under Rule 702 of the Federal Rules of Evidence, which governs the admissibility of expert testimony. Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a)the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

In applying Rule 702, the Supreme Court has exhorted trial courts to scrutinize expert testimony and to exclude unreliable expert evidence. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). The Court must serve as a gatekeeper, “screening out experts whose methods are untrustworthy or whose expertise is irrelevant to the issue at hand.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1250 (11th Cir.2007).

Accordingly, the Court must consider whether (1) the expert is qualified to testify regarding the matters he intends to address; (2) the expert’s methodology is sufficiently reliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); and (3) the expert’s testimony assists the trier of fact to understand the evidence or to determine a fact in issue. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340-41 (11th Cir.2003); Allison v. McGhan Med. Corp., 184 F.3d 1300, 1309 (11th Cir.1999). Defendants, as the proponent of Blakesley’s testimony, bear the burden of showing that the three criteria are met. United States v. Frazier, 387 F.3d 1244, 1260 (2004).

1. Blakesley’s Qualifications

Blakesley is an English professor at Clemson University, with a specialization in rhetoric, linguistics and literature. He states in his report that he is the founder and CEO of Parlor Press, a scholarly publishing company based in Anderson, South Carolina. He further states that he has written in published articles and books about the nature and teaching of writing and literature, the state of publishing, research methodology and ethics, film and literary analysis, copyright and plagiarism, and the adaptation of literary works into film.

Defendants retained Blakesley to answer the question, “As an adaptation of the Platz^Hale SWL Manuscript, does the Screenplay include any original material not present in the Platz-Hale SWL Manuscript, and, if so, is the material significant and thus separately copyrightable?” In short, Defendants retained Blakesley to analyze the eopyrightability of Plaintiffs’ screenplay.

Under Rule 702, an expert may be qualified by knowledge, skill, experience, training or education. According to Plaintiffs, Defendants have not established that Blakesley is an expert in the field of copyright law. Specifically, Plaintiffs contend that Blakesley is not a lawyer and thus lacks the qualifications to offer any opinions as to whether Plaintiffs have copyright protection in their screenplay. In response, Defendants argue that Blakesley “is a literary and plagerism [sic] expert fully qualified to render the opinions contained in his expert report.”

Although Blakesley may be an expert in plagiarism, Defendants fail to point to any qualifications rendering Blakesley an expert in the field of copyright law, and neither his expert report nor his curriculum vitae demonstrates an expertise in copyright law. While his expert report states that he deals with copyright issues in his role as CEO of his publishing company, this hardly renders him an expert in the field of copyright law. Further, despite his assertion in his expert report that he has written articles in the area of copyright, the word “copyright” does not even appear in his twenty-one page curriculum vitae. Thus, Defendants have failed to show that Blakesley is qualified to render an opinion regarding the eopyrightability of the screenplay. Cf. Crom Corp. v. Crom, 677 F.2d 48, 50 (9th Cir.1982) (expert with “long training and experience in patent law” was qualified to testify regarding the “interpretation and application of patent claims”).

Nevertheless, Defendants argue that “[a]ny expressed weakness that [Plaintiffs] may perceive in Blakesley’s qualifications to testify as an expert witness, or his expert testimony and opinions, is not the basis for exclusion of testimony.” In support of this assertion, Defendants cite Daubert for the contention that weaknesses in an expert’s qualifications are “the subject of cross-examination to be weighed by the jury.”

Despite Defendants’ extensive discussion of Daubert in their brief in opposition to Plaintiffs’ motion to exclude, they seem to have little understanding of Daubert’s actual application. In arguing that Blakesley should be allowed to testify because Plaintiffs can attack any weaknesses in his qualifications during cross-examination, Defendants presumably rely on the Supreme Court’s statement in Daubert that “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 596, 113 S.Ct. 2786. Defendants’ reliance on this language in misplaced.

The problem with Defendants’ interpretation is that the Supreme Court has not said that cross-examination can be used to attack any “shaky” expert testimony— only “shaky but admissible” testimony. Id. To arrive at their proffered interpretation, Defendants gloss over the key word “admissible.” Were the Court to follow Defendants’ interpretation and allow them to proffer testimony of an unqualified expert on the basis that Plaintiffs could attack any weaknesses during cross-examination, Rule 702 and Daubert’s purpose of having the court act as gatekeeper of experts “whose expertise is irrelevant to the issue at hand” would be eviscerated. Corwin, 475 F.3d at 1250. This, the Court will not do.

The Court therefore concludes that Blakesley is not qualified to render an opinion regarding the copyrightability of the screenplay.

2. Blakesley’s Methods

Considering Blakesley’s lack of expertise in the field of copyright law, it is not surprising that he applies an unreliable methodology. In determining whether the screenplay is copyrightable, Blakesley analyzed whether Plaintiffs had made “significant” additions to the manuscript. In his report, he defines a significant addition as one that “would need to be at the level of an entire scene, major character, or plot event that would alter the reader’s/viewer’s reception of the work’s focus and theme, rendering a different interpretation from that afforded by' [Defendants’] manuscript.” He explains that “substitution of a word here and there, rearrangement of a character’s spoken dialogue, or the dramatization of a character’s thoughts in the novel as action in the screenplay” do not qualify as significant additions.

First, it is common sense that a derivative work should not have to “alter the reader’s/viewer’s reception of the work’s focus and theme” in order to be copyrightable. Such a standard would often defeat the very purpose of a derivative work. Here, Defendants wanted a screenplay based on their manuscript. It seems unlikely that in converting the medium of their story from manuscript to screenplay, Defendants intended for Plaintiffs to alter the “focus and theme” of their work. Had Plaintiffs made such wholesale changes, it seems unlikely that Defendants would have been satisfied with Plaintiffs’ work because changing the focus and theme of their work would thwart the very purpose of the screenplay.

Second, as set forth in greater detail below regarding Defendants’ motion for summary judgment, Blakesley’s standard is not the one applied under the Copyright Act. In their brief in support of their motion for summary judgment, Defendants cite Schrock v. Learning Curve International, Inc., 586 F.3d 513, 520 (7th Cir.2009), for the proposition that “[t]he key inquiry [in determining the extent of copyright in a derivative work] is whether there is sufficient nontrivial expressive variation in the derivative work to make it distinguishable from the underlying work in some meaningful way.” However, in their brief in opposition to Plaintiffs’ motion to exclude Blakesley’s testimony, Defendants offer no explanation as to why Blakesley applied his own standard rather than Schrock’s.

An example of Blakesley’s failure to apply the legal standard is his statement that “[r]earranging a sequence does not create new or original material; it simply presents the same material in a new order and thus does not represent an original or significant transformation from the source.” But the Copyright Act includes within its definition of a derivative work an “abridgement, condensation, or other form in which a work may be recast, transformed, or adapted.” 17 U.S.C. § 101. Thus, Blakesley’s assertion that the selection and rearrangement of material does not satisfy the originality standard is contrary to the well-established principle of copyright law that “[t]he selection and arrangement of preexisting material ... is entitled to copyright protection.” Penelope v. Brown, 792 F.Supp. 132, 135 (D.Mass.1992) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); see also Weissmann v. Freeman, 868 F.2d 1313, 1322 (2d Cir.1989)) (copyright law “expressly protects the selection of subject matter and content from underlying works, as well as the rearrangement of preexisting material taken from those works”). Thus, because Blakesley’s methods are inconsistent with established principles of copyright law, they are unreliable.

3. The Relevance of Blakesley’s Opinion

Naturally, the result of an unqualified expert using unreliable methods is an irrelevant opinion. Blakesley’s proffered testimony is irrelevant for two reasons. First, it reaches a conclusion regarding an issue that is not in dispute. Second, it addresses a pure issue of law and therefore will not assist the jury.

In Defendants’ motion for summary judgment, they argue that Blakesley concluded that “Plaintiffs did not add any significant or original material in preparing the screenplay and are not entitled to any copyright interest in the Screenplay, as a derivative work.” However, that is not what Blakesley concluded. Instead, he opined that Plaintiffs’ additions are “not sufficiently transformative to qualify the screenplay as an original work of art, and thus, it is ... subject to the usual laws of copyrights governing derivative works.” Blakesley’s actual conclusion—that the screenplay is not copyrightable as an original work—is irrelevant because Plaintiffs have not sought to protect the screenplay as an original work. Both sides agree that the screenplay is not protectable as an original work but only as a derivative work. And Plaintiffs have claimed a copyright only in the screenplay as a derivative work. Accordingly, Blakesley’s testimony that the screenplay is not protectable as an original work has no bearing on the copyrightability of the screenplay as a derivative work.

Moreover, Blakesley’s testimony is inadmissible because it addresses a pure issue of law and therefore is not helpful to the jury. Expert testimony is admissible where the expert’s “specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702(a) (emphasis added). Thus, expert testimony regarding a pure legal issue is not relevant to the fact-finder. See Plantation Pipeline Co. v. Cont’l Cas. Co., 1:08-cv-2811-WBH, 2008 WL 4737163, at *7 (N.D.Ga. July 31, 2008) (“Expert legal opinion is not admissible under Federal Rule of Evidence 702.”); see also United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir.1991) (“[Although an expert may opine on an issue of fact within the jury’s province, he may not give testimony stating ultimate legal conclusions based on those facts.”).

Defendants gave Blakesley the task of determining whether the screenplay is copyrightable. However, whether material is copyrightable is purely a legal issue. See Stern v. Does, No. 09-1986DMG, 2011 WL 997230, at *2 (C.D.Cal. Feb. 10, 2011) (“When a defendant challenges the quantum of plaintiffs originality or creativity as a matter of law, these matters should be resolved solely by the judge.”); see also Schrock, 586 F.3d at 517; Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 34 n. 5 (1st Cir.2001); Leigh v. Warner Bros., Inc., 10 F.Supp.2d 1371, 1375 (S.D.Ga.1998), rev’d on other grounds, Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.2000); Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 932 F.Supp. 220, 225 (N.D.Ill.1996). Consequently, had Blakesley actually opined as to the copyrightability of the screenplay as a derivative work, his testimony as to this legal issue would be irrelevant and unhelpful to the trier of fact.

For all of these reasons, even if Defendants’ disclosure of Blakesley had been timely, the Court would grant Plaintiffs’ motion to exclude his testimony.

III. Defendants’ Motion for Summary Judgment

Plaintiffs have asserted claims for (1) a declaratory judgment that (a) they own a valid and enforceable copyright in the screenplay, (b) the screenplay does not infringe any copyright owned by Defendants, and (c) Plaintiffs are entitled to market and produce a film version of the screenplay without any interference from Defendants; (2) breach of fiduciary duty; (3) breach of contract; (4) attorneys’ fees and expenses; (5) punitive damages; (6) quantum meruit; and (7) specific performance. Defendants contend that summary judgment is proper as to all of Plaintiffs’ claims.

Because the disposition of Plaintiffs’ claims for breach of fiduciary duty and breach of contract necessarily affect their claim for declaratory judgment, the Court will analyze those claims first.

A. Legal Standard

Summary judgment is proper when no genuine dispute as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed. R.CivP. 56(a). The movant carries the initial burden and must show that there is “an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

The nonmovant is then required to “go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. “The mere existence of a scintilla of evidence” supporting the nonmovant’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the Court must determine “whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Id.

B. Analysis

1. Breach of Fiduciary Duty

Plaintiffs contend that the agreement reflects the parties’ intent to form a partnership for the purpose of creating a film. The creation of the screenplay, Plaintiffs argue, was only one part of the overall goal of producing a film from Defendants’ manuscript. Plaintiffs further argue that as partners, Defendants owed Plaintiffs fiduciary duties as well as a duty of confidence, loyalty and fair dealing. According to Plaintiffs, Defendants breached those duties by inexplicably ceasing communication with Plaintiffs, feigning dissatisfaction of the screenplay to avoid their contractual obligations, and refusing to work with Plaintiffs to produce the screenplay into a film.

Defendants, on the other hand, contend that they hired Plaintiffs to write the screenplay, and that the agreement reflects that intention. According to Defendants, Plaintiffs’ obligation was to write a screenplay to Defendants’ satisfaction and in return Defendants would act as editors and pay Plaintiffs $8,000. Although the agreement provided that the parties would “own the script in full partnership” and would be “active partners,” Defendants argue that absent details as to how the parties would accept the rights and responsibilities associated with a partnership, such nomenclature did not create a partnership. Thus, it is Defendants’ argument that because no partnership existed as a matter of law, Defendants did not breach any duty to Plaintiffs.

a. Partnership Formation

The Court first turns to whether the parties formed a partnership. O.C.G.A. § 14-8-6 provides in relevant part: “A partnership is an association of two or more persons to carry on as co-owners of a business for profit.” A partnership results from a contract, which may be either express or implied. Clark v. Schwartz, 210 Ga.App. 678, 436 S.E.2d 759, 760 (1993). The question is whether the parties intended to form a partnership. Ghee v. Kimsey, 179 Ga.App. 446, 346 S.E.2d 888, 889 (1986).

First, Defendants argue that the parties did not form a partnership because they did not detail each party’s rights and responsibilities in the contract. Relying on Jerry Dickerson Presents, Inc. v. Concert/Southern Chastain Promotions, 260 Ga.App. 316, 579 S.E.2d 761 (2003), Defendants contend that the parties’ mere use of the word “partner,” absent any documentation that the parties assumed the rights and responsibilities associated with a legal partnership, is not sufficient to create a partnership.

Defendants’ reliance on Dickerson is misplaced. In Dickerson, the plaintiff claimed that he and the defendants had formed a partnership. In support of his claim, he submitted three letters referring to himself as a “joint venture partner” or “minority partner.” However, none of the three letters was written by the defendants, and the parties’ only contract — a sublease — did not include the word “partner.” To determine whether a partnership nonetheless existed, the court looked to factors indicating the existence of a partnership, including “a common enterprise, the sharing of risk, the sharing of expenses, the sharing of profits and losses, a joint right of control over the business, and a joint ownership of capital.” Id. at 768 (citing Aaron Rents, Inc. v. Fourteenth Street Venture, 243 Ga.App. 746, 533 S.E.2d 759, 761 (2000)). Thus, in Dickerson, the court sought to ascertain whether, in absence of specific language asserting the existence of a partnership, a partnership could be inferred from the relevant contract and other evidence.

While Georgia courts apply the partnership factors in cases like Dickerson where there is no express agreement to form a partnership, the Georgia Supreme Court has made clear that “there is no need for inference when the parties have themselves entered into an express contract.” Huggins v. Huggins, 117 Ga. 151, 43 S.E. 759, 760 (1903). Thus, where parties “distinctly agree among themselves to become partners, there is no reason why the law should not take them at their word, even though that agreement falls short of the facts from which the law would otherwise have inferred a partnership.” Accolades Apartments, L.P. v. Fulton Cnty., 279 Ga. 257, 612 S.E.2d 284, 286 (2005) (citing Huggins, 43 S.E. at 760). Where there is an express agreement to become partners, “there need not necessarily be anything said about joint ownership of property or profits, or joint liability for losses.” Huggins, 43 S.E. at 760. And O.C.G.A. § 14-8-7, which deals with partnership formation in the absence of an express agreement, should not be applied when there is an express agreement to become partners. Accolades Apartments, 612 S.E.2d at 286.

Thus, the issue is whether the contract constitutes an express agreement to form a partnership. To determine whether there is an express partnership, the court must analyze whether the parties intended to create a partnership. Aaron Rents, 533 S.E .2d at 761. “The language which the parties used in making the contract is to be looked to in determining what their intention was, which when ascertained will prevail over all other considerations.” Chalkley v. Ward, 119 Ga.App. 227, 166 S.E.2d 748, 753 (1969).

Plaintiffs contend that the parties’ use of the words “full partnership” and “active partners” evidences their express intent to form a partnership. Defendants, on the other hand, argue that the words “partnership” and “partner” are merely used in a “figurative sense.” Defendants also contend that the evidence shows Defendants never discussed or intended to form a partnership with Plaintiffs and the parties never discussed any partnership terms such as how revenues and expenses would be shared.

In Antoskow & Associates, LLC v. Gregory, 278 Ga.App. 468, 629 S.E.2d 1 (2005), the court examined a contract clause similar to one at issue here — that the parties would own the script in “full partnership.” There, a boyfriend executed the following agreement with his girlfriend:

On this day, January 18, 2000, I, Christopher P. Antoskow, will state the following: If I, Christopher P. Antoskow, dies [sic] with out [sic] Carolyn M. Gregory, and we are still together, she will receive 30% of the Jessica-Morgan Building.... If Christopher P. Antoskow and Carolyn M. Gregory are not together at that time she will receive 20%. In any case in incident, Carolyn M. Gregory [will receive] a percentage as a partner in ownership of this property. On the sale of said property, Carolyn Gregory, will receive the said above percentage of whatever the total sale may be at the time of the sale of the property. This was agreed upon by both parties involved in this legal document.

629 S.E.2d at 3 (emphasis added). The court found that the document unambiguously stated that the girlfriend was a partner in ownership of the subject property, thereby evidencing a partnership.

As in Gregory, where the court found an express partnership based on the express language of the parties’ written agreement, the Court finds that the contract’s provision that the parties would own the screenplay in full partnership evidences the parties’ intent to become partners in ownership of the screenplay. Further, the agreement’s provision that the parties be “active partners” likewise indicates a partnership for “creation” of a screenplay. Because the agreement unambiguously expresses the parties’ intent to form a partnership, the Court need not consider Defendants’ parol evidence that the parties never discussed a partnership or that Defendants did not intend to form a partnership. O.C.G.A. § 24-6-1 (“Parol contemporaneous evidence is generally inadmissible to contradict or vary the terms of a valid written instrument.”).

In concluding that the partnership was to create and own the screenplay, the Court rejects Plaintiffs’ argument that the partnership was also to produce the screenplay into a movie. At first blush, Plaintiffs’ argument is rather persuasive. After all, within the agreement are terms related to movie-making. Specifically, the contract includes the terms “first talent, creative or development attachment.” Plaintiffs explain that “talent attachment” means hiring actors, “creative attachment” means “hiring a director,” and “development attachment” means hiring co-producers. Plaintiffs argue that the inclusion of these terms shows that the parties were to perform these “tasks,” i.e., hire talent and a director and sign co-producers, once Defendants approved the screenplay. Additionally, the contract requires Plaintiffs to submit a “producers top-sheet production budget,” which Plaintiffs explain is a one-page overview of the budget to make a film. Plaintiffs argue that if the contract is construed not to include an agreement to act in partnership to produce the screenplay into a film, the terms related to making a movie are rendered meaningless, thus violating Georgia’s rules of contract construction.

First, to determine the parties’ partnership duties the Court looks to the partnership agreement. See Oddo v. Ries, 743 F.2d 630, 632 (9th Cir.1984) (looking to partnership agreement to define parties’ duties pursuant to partnership to create and publish a book describing how to restore F-100 pickup trucks). Contrary to Plaintiffs’ assertion that the hiring of lead actors, hiring of a director, and the signing of co-producers were “tasks” that the parties were to perform once Defendants approved the screenplay, the agreement is bereft of any language indicating that Plaintiffs and/or Defendants were to perform such tasks. The agreement specifically itemizes the parties’ partnership duties according to those that (1) Plaintiffs agreed to perform, (2) Defendants agreed to perform, and (3) both parties agreed to perform. None of those three lists includes tasks related to the hiring of lead actors, hiring of a director, or the signing of co-producers. While the contract does contain a requirement that Plaintiffs submit a production budget, the contract contains no provision requiring Defendants to accept Plaintiffs’ budget or to do anything further with it — such as use it to produce the screenplay into a film — once Plaintiffs submitted it.

Second, although the Court does not construe the terms “talent, creative or development attachment” as creating an agreement to produce a film from the screenplay, the terms are not rendered meaningless. Because they appear in the section of the contract setting forth the period of performance, these terms are necessary for determining the contract’s expiration. According to the contract’s language, the parties’ obligations pursuant to the agreement would terminate upon occurrence of “satisfaction of [Defendants], and/or date of first talent, creative or development attachment.” Thus, as the contract plainly states, these potential events were relevant to the period of performance. Simply including these events as instances that would result in the contract’s termination did not necessarily mean the events would occur, or that the parties were required to perform any specific tasks related to them — only that in the event of their occurrence, the parties were no longer required to perform under the contract. As to the requirement that Plaintiffs submit a production budget, this simply shows that the parties were considering producing a movie from the screenplay. It does not, however, show that they ever actually agreed to do so.

Third, were the Court to construe the inclusion of terms related to making a movie as being an agreement to produce the screenplay into a film, it would create a construction that is contrary to the contract’s express terms. The contract expressly provides that it is “for the creation of a long form feature film script” based on Defendants’ manuscript and makes no mention of producing the screenplay into a film. Plaintiffs argue that there is correspondence, both before and after the parties signed the agreement, demonstrating the parties’ intent to make a film. However, the Court only looks to the parties’ intent as expressed by the contract. Although the parties discussed making a movie, “[i]t is the duty of the courts to construe and enforce contracts as made, and not to make them for the parties. The law will not make a contract for the parties which is different from the contract which was executed by them.” Sellers v. Alco Fin., Inc., 130 Ga.App. 769, 204 S.E.2d 478, 480 (1974). While Richards recognized early on that Plaintiffs “would need to contract the ‘rights’ to shop this project, and yes it needs to be exclusive,” and Plaintiffs might have even intended to contract to produce a movie based on the screenplay, the contract itself simply does not reflect an agreement to produce the screenplay into a film. Thus, as a matter of law, the Court cannot hold that the contract was for the production of the screenplay into a movie when it unambiguously states that it was for the screenplay’s creation.

b. Whether Defendants Breached a Fiduciary Duty to Plaintiffs

Having concluded that the parties were partners for the purposes of creating and owning the screenplay, the Court turns to the issue of whether Plaintiffs can show a breach of fiduciary duty by Defendants.

A claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty, (2) breach of that duty, and (3) damages proximately caused by the breach. Bailey v. Stonecrest Condo. Ass’n, Inc., 304 Ga.App. 484, 696 S.E.2d 462, 470 (2010). Fiduciary relationships are synonymous with “confidential relationships,” as described in O.C.G.A. § 23-2-58. Arko v. Cirou, 305 Ga.App. 790, 700 S.E.2d 604, 608 (2010). Pursuant to that statute, a relationship is confidential “where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.” O.C.G.A. § 23-2-58.

Plaintiffs aver that Defendants breached their fiduciary duty by inexplicably ceasing communication with Plaintiffs regarding the screenplay and informing Plaintiffs that the screenplay was unsatisfactory and unmarketable, despite previously having stated that they were extremely satisfied with the screenplay. Even assuming that ceasing to communicate with Plaintiffs and feigning dissatisfaction with their screenplay constitutes a breach of fiduciary duty, Plaintiffs’ claim fails as a matter of law.

Plaintiffs’ evidence is that Defendants terminated communications in March 2010 and that they rejected the screenplay as unmarketable in April 2010. But none of these actions related to the creation of the screenplay, which, as explained above, was the purpose of the partnership. As of January 2010, the screenplay had been created. After that point, Plaintiffs efforts and communications related to the production of the screenplay into a movie — not its creation. Plaintiffs’ own evidence is that they were attending meetings and putting together the private placement memorandum to raise money for the film. And in a letter to Defendants’ counsel, Plaintiffs’ counsel stated, “[Plaintiffs] have attempted to contact and communicate with [Defendants] regarding the execution of a Production Agreement, which is the next step in the production of the screenplay into a motion picture.” Thus, what Defendants had stopped communicating with Plaintiffs about in March 2010 was production of the screenplay, not its creation.

Along the same lines, Defendants’ rejection of the screenplay as unsatisfactory and unmarketable related to Defendants’ decision not to produce the screenplay into a film. Nevertheless, Plaintiffs argue that Defendants were feigning dissatisfaction with the screenplay, which is not permissible when a contract contains a satisfaction clause. While this legal principle is correct, it is irrelevant because even if Defendants truly found the screenplay satisfactory and were only feigning dissatisfaction, under the contract Defendants had no duty to do anything further with it, i.e., they had no obligation to work with Plaintiffs to produce the screenplay into a movie.

Finally, Plaintiffs’ third basis for breach of fiduciary duty — that Defendants’ failed to act with Plaintiffs in producing the screenplay into a film — obviously fails in light of the Court’s holding that the parties never formed a partnership to produce the screenplay into a movie.

Accordingly, Defendants’ motion for summary judgment will be granted as to Plaintiffs’ claim for breach of fiduciary duty.

2. Breach of Contract

Like their claim for breach of fiduciary duty, Plaintiffs’ claim for breach of contract fails as a matter of law. The contract specifically sets forth Defendants’ duties under the agreement. Defendants were to reimburse Plaintiffs up to $8,000 for writing the screenplay and serve as editors during the first draft phase. Rather than averring that Defendants breached either of these express duties, Plaintiffs aver that Defendants breached their contractual agreement to act as partners in the development of the screenplay and its production into a film and that Defendants breached the duty of good faith and fair dealing by failing and refusing to exercise reasonable efforts to develop the screenplay with Plaintiffs.

The contract only required Defendants to create the screenplay with Plaintiffs by reimbursing Plaintiffs up to $8,000 and acting as editors. As of January 2010, the screenplay was created and Defendants had fulfilled their contractual duties. As already explained, Plaintiffs have not shown that Defendants had any further duty under the contract to develop the screenplay or act as partners in developing the screenplay into a film. Because Defendants fulfilled their contractual duties, as a matter of law, Plaintiffs cannot show that Defendants breached the contract.

The Court will therefore grant Defendants summary judgment on Plaintiffs’ claim for breach of contract.

3. Declaratory Judgment

Plaintiffs seek a declaratory judgment regarding their alleged copyright in the screenplay. Their requested declaratory relief has three parts. They seek declarations that (1) they own a valid and enforceable copyright in the screenplay, (2) the screenplay does not infringe any copyright owned by Defendants, and (3) they are entitled to market and produce a film version of the screenplay without any interference from Defendants.

Defendants contend that Plaintiffs do not have a copyright ownership in the screenplay. They argue that because all of the material in the screenplay was taken from the manuscript, Plaintiffs have contributed no original material to the screenplay and thus Plaintiffs’ registration of the screenplay’s copyright was fraudulent. Further, Defendants urge the Court to order Plaintiffs’ copyright registration of the screenplay be cancelled.

As an initial matter, whether Plaintiffs’ registration should be cancelled is not before the Court because Defendants did not counterclaim for cancellation of Plaintiffs’ registration. The only issues the Court considers for purposes of this motion are whether there is a genuine dispute of material fact as to Plaintiffs’ claim for a declaratory judgment that they have a valid copyright in the screenplay, their copyright does not infringe Defendants’ copyright in the manuscript, and they are entitled to market and produce a film version of the screenplay. With this in mind, the Court turns to Plaintiffs’ claim.

a. Whether Plaintiffs Own a Copyright in the Screenplay

The Court first considers whether Plaintiffs have shown that they own a valid copyright in the screenplay. As explained above regarding Plaintiffs’ motion to exclude Blakesley’s testimony, copyrightability is a purely legal issue. See Stern, 2011 WL 997230, at *2 (“When a defendant challenges the quantum of plaintiffs originality or creativity as a matter of law, these matters should be resolved solely by the judge.”). After carefully considering Plaintiffs’ evidence, the Court finds that the screenplay is copyrightable as a derivative work and that it is eo-owned by Plaintiffs and Defendants.

Under the Copyright Act, “[a] work consisting of editorial revisions, annotations, elaborations, or other modifications [to a preexisting work which], as a whole, represent an original work of authorship, is a ‘derivative work.’ ” 17 U.S.C. § 101. The parties do not dispute that the screenplay is a derivative work. However, Defendants contend that the screenplay is not copyrightable. To qualify for a copyright separate from the underlying work, the derivative work must (1) not unlawfully use the preexisting material (the underlying material upon which the derivative work is based) and (2) be sufficiently original. Montgomery v. Noga, 168 F.3d 1282, 1290 (11th Cir.1999) (citing 17 U.S.C. § 103 (1994); Stewart v. Abend, 495 U.S. 207, 223-24, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990); 1 Nimmer On Copyright §§ 3.01, 3.04[A]). Here, Defendants contend that the screenplay is not sufficiently original to warrant protection under the Act.

“With r