                                               Filed:    March 20, 1996


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                             No. 94-1147
                            (CA-93-704-A)



Virginia L. Towler,

                                               Plaintiff - Appellant,

           versus

John Sayles, et al,

                                              Defendants - Appellees.




                              O R D E R


     The Court amends its opinion filed February 23, 1996, as

follows:
     On page 7, third full paragraph, line 11 -- the sentence that

begins "The total concept" will now begin the fourth paragraph on

page 7.

                                       For the Court - By Direction



                                            /s/ Bert M. Montague
                                                        Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA L. TOWLER,
Plaintiff-Appellant,

v.

JOHN SAYLES; ATCHAFALAYA FILMS,
INCORPORATED; ESPERANZA,
INCORPORATED; MIRAMAX FILM
CORPORATION,
                                                              No. 94-1147
Defendants-Appellees,

and

SCS COMMUNICATIONS,
INCORPORATED,
Defendant,

TRACY STRAIN,
Party in Interest.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-93-704-A)

Argued: July 11, 1995

Decided: February 23, 1996

Before MURNAGHAN, Circuit Judge, and BUTZNER and
PHILLIPS, Senior Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Butzner wrote the opin-
ion, in which Judge Murnaghan and Senior Judge Phillips joined.

_________________________________________________________________
COUNSEL

ARGUED: James Phillip Chandler, III, CHANDLER & ROBERT-
SON, Washington, D.C., for Appellants. Michael Dennis Sullivan,
ROSS, DIXON & MASBACK, Washington, D.C., for Appellees. ON
BRIEF: Elizabeth C. Koch, Jay Ward Brown, ROSS, DIXON &
MASBACK, Washington, D.C., for Appellees.

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

In an action for infringement of copyright, Virginia Towler appeals
from the district court's grant of judgment as a matter of law to John
Sayles, Atchafalaya Films, Inc., Esperanza, Inc., and Miramax Film
Corporation. Because we find that Towler did not present sufficient
evidence showing that Sayles infringed her copyright, we affirm.

Virginia Towler wrote the screenplay, "Crossed Wires or Bobbie
and Wendy were Neighbors" ("Crossed Wires"), which she copy-
righted in 1990. John Sayles wrote and directed "Passion Fish," which
he initially called "The Louisiana Project." Towler became aware of
Sayles' screenplay when it was shown throughout the country in
1992.

Alleging numerous similarities between "Passion Fish" and
"Crossed Wires," Towler brought suit for infringement of copyright
and for violations of the Lanham Act and the Virginia unfair competi-
tion laws. The district court dismissed one of the defendants, SCS
Communications, Inc., before trial. It also dismissed the Lanham Act
and unfair competition law claims. Towler has not appealed these rul-
ings. At the close of Towler's evidence in the trial of the copyright
infringement claim, the district court determined that the evidence
was insufficient to show access and substantial similarity, and it
granted the defendants' motion for judgment as a matter of law.
Towler appealed, assigning error to the court's ruling with respect to
both access and similarity.

                    2
I

Judgment as a matter of law is appropriate when "a party has been
fully heard . . . and there is no legally sufficient evidentiary basis for
a reasonable jury to find for that party." Fed. R. Civ. P. 50(a)(1). On
appeal, we evaluate the sufficiency of the evidence de novo, while
viewing the facts and drawing all reasonable inferences in favor of the
nonmoving party. Trandes Corp. v. Guy F. Atkinson Co., 996 F.2d
655, 660-61 (4th Cir. 1993).

To prove copyright infringement, a plaintiff must show first that
she owned the copyright to the work that was allegedly copied, and
second, that the defendant copied protected elements of that work.
Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340,
361 (1991). Here, it is undisputed that Towler possesses a valid copy-
right to "Crossed Wires."

At issue is whether Towler has presented sufficient evidence to sat-
isfy the second prong of the test--proof that Sayles copied her work.
As is often the case, direct evidence of copying is lacking, making it
necessary to look to circumstantial evidence. Accordingly, Towler
can raise a presumption of copying by showing both that Sayles had
access to "Crossed Wires" and that the two screenplays in question
are substantially similar. Dawson v. Hinshaw Music Inc., 905 F.2d
731, 732 (4th Cir. 1990).

To prove access, Towler must show that Sayles had an opportunity
to view or to copy her work. 3 Nimmer on Copyright § 13.02[A], at
13-16 to 13-18 (1995). A mere possibility that such an opportunity
could have arisen will not suffice. Rather, it must be reasonably possi-
ble that the paths of the infringer and the infringed work crossed.
Moore v. Columbia Pictures Industries, Inc., 972 F.2d 939, 942 (8th
Cir. 1992).

II

In an effort to find a producer for "Crossed Wires," Towler con-
tacted numerous individuals in the film industry. In May 1991, she
phoned Cinecom Pictures in an attempt to contact Sayles, a well-

                     3
known independent film director and screenwriter. Because of Cine-
com's involvement with the distribution of two of Sayles' previous
films, Towler mistakenly assumed that Cinecom was one of Sayles'
companies. In any event, after Towler asked to speak with a Cinecom
representative, the telephone operator instead gave her the number for
SCS Films.

The reasons why the operator referred Towler to SCS are readily
explained. Facing mounting financial difficulties, Cinecom had filed
for bankruptcy. Subsequently, Cinecom's chairman of the board, Ste-
ven Clark Swid, created SCS Communications, which he named after
himself. SCS Communications and one of its divisions, SCS Films,
occupied Cinecom's former office and employed several of the bank-
rupt company's personnel, including Tracy Strain and her supervisor,
Shelby Stone.

After receiving SCS's phone number from the operator, Towler
assumed that SCS was affiliated with Cinecom. She then called SCS
and spoke with Tracy Strain. She testified that Strain told her that
SCS stood for "Secaucus Seven," the title of one of Sayles' prior
films. Towler took this as an affirmation of her belief that SCS was
one of Sayles' companies and asked Strain to forward "Crossed
Wires" to Sayles. Towler testified that Strain agreed to do so.

Shortly after speaking with Strain, Towler sent Strain a copy of
"Crossed Wires" along with a follow-up letter, dated May 28, 1991.
She addressed the letter to Strain at SCS Films and did not mention
Sayles. Towler had no further contact with Strain or SCS, except for
a letter in which SCS rejected "Crossed Wires." At no time did
Towler write to Sayles directly, nor did she ever receive any corre-
spondence from him. In excerpts from Strain's deposition that were
read to the jury, Strain stated that she knew SCS stood for Steven
Clark Swid. She also stated that she did not know Sayles and did not
recall speaking to Towler about sending "Crossed Wires" to Sayles.
Towler admitted on cross-examination that Sayles was not affiliated
with either Cinecom or SCS.

Sayles, testifying as a witness called by Towler, denied knowing
Strain or receiving anything from her at any time. He testified that he
began researching and writing a screenplay, entitled "The Louisiana

                    4
Project," in January 1991, at least four months before Towler sent
"Crossed Wires" to SCS on May 28, 1991. To support his testimony,
he introduced numerous book receipts and other documents related to
his research that were dated prior to May 28, 1991. He also testified
that he spoke with Mary McDonnell in late March 1991 to find out
if she was interested in acting in the film that he hoped to make from
his screenplay. He introduced additional evidence showing that he
was on a multi-city book tour from May 28 until June 7, 1991. During
the tour, he told an interviewer that he had just given the first 80
pages of the script to a friend to read. In late 1991, Sayles sold the
production rights to "The Louisiana Project." He retained the right to
direct the film version, renaming it "Passion Fish." He derived this
title from the name of a small fish in Louisiana that legend credits
with the ability to grant the wish of a person who holds it.

Towler asserts that access is established because Strain said she
would forward the screenplay to Sayles. At this stage of the proceed-
ings, we must credit Towler's testimony that Strain said she would
forward "Crossed Wires" to Sayles. But this is just the beginning, not
the end, of our inquiry. Towler introduced no evidence that Strain
actually sent "Crossed Wires" to Sayles. Nor has Towler introduced
evidence from which a jury could draw a reasonable inference that
Sayles received "Crossed Wires." This gap in the proof is enlarged by
Sayles' testimony, which Towler introduced, that he never received
"Crossed Wires" from Strain. Towler has presented no evidence upon
which a jury could base an inference that Sayles was not truthful. Cf.
Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 113 (5th
Cir. 1978).

We conclude that Towler has failed to prove a reasonable possibil-
ity that Sayles gained access to "Crossed Wires" through Towler's
contact with Strain.

III

A court may infer that the alleged infringer had a reasonable possi-
bility of access if the author sent the copyrighted work to a third party
intermediary who has a close relationship with the infringer. An inter-
mediary will fall within this category, for example, if she supervises
or works in the same department as the infringer or contributes cre-

                    5
ative ideas to him. Moore, 972 F.2d at 944-45; Meta-Film Associates,
Inc. v. MCA, Inc., 586 F. Supp. 1346, 1358 (C.D. Cal. 1984).

Towler contends that Strain and Stone, along with a number of
named and unnamed individuals in the film industry, all satisfy the
definition of an intermediary, thereby permitting the inference of
access. With regards to Strain, Towler's primary argument is that
Strain expressed interest in the screenplay and told her she would
send it to Sayles. Stone is implicated because she supervised Strain
at SCS and worked with Sayles previously when Cinecom distributed
two of his films. As further evidence of Stone's continuing relation-
ship with Sayles, Towler points to the fact that Sayles' business attor-
ney, John Sloss, had worked for Cinecom and knew Stone socially.
Towler concludes her argument by naming a host of individuals con-
nected with film production who received the screenplay from Towler
and who presumably could have sent the work to Sayles.

Towler's speculative reasoning is wholly unpersuasive. First, with
regards to Strain and Stone, there is no evidence that either of them,
or SCS generally, had any contact with Sayles during the period that
he was working on "Passion Fish." In fact, Sayles' uncontroverted
testimony was that he has never dealt with SCS. We will not infer
access simply because Sayles worked with SCS's predecessor, Cine-
com, on unrelated projects several years before Towler sent "Crossed
Wires" to SCS. "[A]t a minimum, the dealings between the intermedi-
ary and the alleged copier must involve some overlap in subject mat-
ter to permit an inference of access." Meta-Film Associates, 586 F.
Supp. at 1358.

Second, Towler's arguments regarding various individuals in the
film industry who supposedly forwarded the screenplay to Sayles are
without merit. Aside from unsatisfactory speculation and conjecture
based on Sayles' prominence in the film industry, Towler failed to
present any evidence showing that Sayles had a reasonable opportu-
nity to view "Crossed Wires" while it was in the possession of these
individuals. She also introduced no evidence demonstrating that any
of these people qualified as third party intermediaries. The "tortious
chain of hypothetical transmittals" that Towler attempts to forge is
insufficient to infer access. See Meta-Film Associates, 586 F.Supp. at
1355.

                    6
IV

Even if access were to be inferred, Towler would also have to show
that "Crossed Wires" is substantially similar to Sayles' composition.
Proving substantial similarity requires a two-part analysis. First, a
plaintiff must show--typically with the aid of expert testimony--that
the works in question are extrinsically similar because they contain
substantially similar ideas that are subject to copyright protection.
Second, a plaintiff must satisfy the subjective, or intrinsic, portion of
the test by showing substantial similarity in how those ideas are
expressed. Dawson, 905 F.2d at 732-33. This portion of the test con-
siders whether the intended audience could determine that the works
are substantially similar, usually without the aid of expert testimony.
Dawson, 905 F.2d at 736-37. In this case, the intended audience is the
movie-going public.

Towler called one expert witness, Dr. Mark Reid, who catalogued
an extensive array of alleged similarities between "Crossed Wires"
and "Passion Fish," including characters, dialogue, plot, and setting.
Towler supplements his testimony with a detailed chart that compares
fragments of dialogue.

We believe that a list comparing "random similarities scattered
throughout the works" is "inherently subjective and unreliable."
Litchfield v. Spielberg, 736 F.2d 1352, 1356 (9th Cir. 1984). Instead,
a court must analyze both screenplays and the record, searching for
extrinsic similarities such as those found in plot, theme, dialogue,
mood, setting, pace, or sequence. The only similarity shared by the
two screenplays is that they both have a black female character and
a white female character who are friends. But Towler cannot copy-
right such a general idea. Nimmer on Copyright § 13.03[B], at 13-68.
Our examination disclosed that "Passion Fish" and "Crossed Wires"
are not extrinsically similar.

The total concept and feel of "Crossed Wires" and "Passion Fish" is
also completely different, rendering the works intrinsically dissimilar.
See Dawson, 905 F.2d at 733. When sending her screenplay to agents
and producers, Towler included a form letter that aptly summarized
the issues highlighted in "Crossed Wires":

        Bobbie is a black lawyer. Wendy is a white babysitter. How-
        ard is Bobbie's husband. Harold is Wendy's husband. They

                    7
        are next door neighbors. Wendy fantasizes about black men.
        Howard fancies himself a white man. Harold doesn't like
        Howard. Howard doesn't like Harold. Bobbie and Wendy
        like each other. ABC, a black construction worker, likes
        Wendy and Bobbie. Bobbie is trying to make sense of it all.

        This screenplay highlights a weekend in the friendship of
        the two women--their alienation and discovery. It also sati-
        rizes the ever-important role that the telephone plays in
        entangling their mundane lives. Although it appears to be
        farcical, this screenplay will also encourage healthy discus-
        sion about race relationships and friendship. In all its
        emphasis on the two women, the screenplay actually serves
        as a vehicle to address the plight of the American black
        male in a country that does not fully understand him.

The play takes place in suburbia. Wendy flirts with Howard, Bobbie's
husband. Bobbie commits adultery with ABC. The play ends with
Wendy and Harold reconciling and Bobbie planning to desert Howard
to be with ABC.

In comparison, "Passion Fish" is a bittersweet, yet frequently
humorous, story about the growing friendship between two women--
Mae-Alice, who is white, and Chantelle, who is black. Mae-Alice, a
successful soap opera actress, is struggling to cope with the changes
in her life brought on by an automobile accident that left her a para-
plegic. She has returned from New York to her childhood home in the
Louisiana bayou country, where she is becoming an alcoholic recluse.
Her attendant, Chantelle, is a recovering drug addict who is trying to
make peace with her past and regain custody of her daughter. Gradu-
ally the two women reinforce each other. Chantelle encourages Mae-
Alice to stop drinking, and Mae-Alice gives Chantelle self-confidence
by assuring her steady employment. Chantelle has an affair with
Sugar, a man who befriends her. Mae-Alice emerges from her self-
pity by engaging in a new hobby, photography, and by renewing her
acquaintance with a childhood friend. Together the two women
reshape their lives.

We conclude that no member of the public reading or viewing the
screenplays could reasonably decide that the two works are substan-
tially similar.

                    8
V

Citing Gaste v. Kaiserman, 863 F.2d 1061, 1067-68 (2d Cir. 1988),
Towler contends that she can prevail on the theory that proof of strik-
ing similarity establishes infringement without the necessity of show-
ing access. Accord Ferguson, 584 F.2d at 113; contra Selle v. Gibb,
741 F.2d 896, 901 (7th Cir. 1984); see generally 3 Nimmer on
Copyright § 13.02[B] at 13-23 to 13-27. We need not, however, join
this debate, for Towler did not prove striking similarity between
"Crossed Wires" and "Passion Fish." Both Gaste, 863 F.2d at 1068,
and Ferguson, 584 F.2d at 113, require proof of striking similarity
that precludes the "possibility of independent creation." For reasons
explained in Part IV, it is apparent that Towler's evidence does not
even approach this exacting standard.

AFFIRMED

                    9
