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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JAYME GORDON, Plaintiff, v. DREAMWORKS ANIMATION SKG, INC., DREAMWORKS ANIMATION LLC, and PARAMOUNT PICTURES CORP., Defendants. * * * * * * * * * * * *

Civil Action No. 1:11-10255-JLT

MEMORANDUM March 28, 2013 TAURO, J. I. Introduction In 2008, Defendants DreamWorks Animation SKG, Inc. and DreamWorks Animation LLC (together "DreamWorks"), in collaboration with Defendant Paramount Pictures Corp., (collectively "Defendants") released the movie Kung Fu Panda, a wildly successful animated film featuring a giant panda who becomes a kung fu warrior. Plaintiff Jayme Gordon, an artist, claims to have created the film's main characters in the late 1980s and early 1990s. He brings this suit against Defendants for copyright infringement, contributory copyright infringement, and vicarious copyright infringement. Before the court are Defendants' Motion to Dismiss on Grounds of Spoliation [#117] and Motion for Summary Judgment [#99]. For the reasons set forth below, Defendants' Motion to Dismiss on Grounds of Spoliation [#117] is ALLOWED IN PART AND DENIED IN PART. 1

Defendants' Motion for Summary Judgment [#99] is DENIED. II. Background A. Factual Background1

During the 1980s and 1990s, Gordon worked as an artist, developing sketches for dozens of characters. Over the course of a decade, he registered hundreds of pages of drawings, ideas, and story sketches with the U.S. Copyright Office.2 In the early 1990s, he developed two panda characters, a giant Panda known as "Kidd Panda" and a red panda known as "Redd Panda," who together constituted "Panda Power."3 Written reference to "Panda Power" first appears in Gordon's 1993 copyright registration.4 Gordon registered more material relating to Kidd and Redd in 2000, when he created a website to promote his material.5 These materials included promotional pictures of "Kidd Panda" and "Redd Panda," along with personality sketches, a story outline, and an animated series theme song.6 At this time, Gordon described Kidd Panda as "[s]erious yet fun loving," a "big brother to Red" [sic] with a "sweet-tooth for bamboo."7 He The basic facts are set forth here in the light most favorable to Gordon as supported by the record. See De La Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000). Additional relevant facts are included in the discussions of the motion to dismiss for spoliation and the motion for summery judgment.
2 1

See generally Grossman Aff. Exs. B- F [#107]. Gordon Dep. 83:9-85:12.

3

Grossman Aff. Ex. F. Gordon's 1992 Copyright Registration contains a passing reference to "Red Panda." Grossman Aff. Ex. F. See Grossman Aff. Ex. I, at JG 000107-000118; Gordon Dep. 196:10-203:22; Koro Dep. 24:18-21.
6 5

4

See Grossman Aff. Ex. I, at JG 000107-000118. Grossman Aff. Ex. I, at JG 000108. 2

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described Redd Panda as an immature "prankster" who often needed "to be saved by Kid."8 But these descriptions did not represent fixed character traits in Gordon's mind. Rather, the story and characters evolved over time, changing personalities as they developed.9 In the 1990s, Gordon began submitting artwork to animation studios. He sent his early materials to the Walt Disney Company ("Disney") in 1989 and 1990. During the 1980s-1990s, Jeffrey Katzenberg worked at Disney as head of the motion picture and feature animation divisions.10 He left Disney in 1994 to co-found DreamWorks LLC, where he oversees all of DreamWorks Animation's animated movies.11 Disney rejected all of Gordon's submissions.12 Per company policy, Disney did not accept unsolicited materials unless sent through a "bona fide literary agent."13 Nevertheless, in 1992, before Katzenberg left for DreamWorks, Gordon for a third time submitted his work to Disney. His letter to Disney indicated that he included a work entitled "The Great Dinosaur War."14 Gordon remembers including other materials as well, specifically his "Kung Fu Panda Power stuff" and a picture of the "Five Fists of Fury," the supporting cast of characters to Redd and

8

Grossman Aff. Ex. I, at JG 000109. Gordon Dep. 200:1-201:19. Katzenberg Aff.

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