DANIEL H DAVIS 

T (2 1 2) 479-6360 

F (646) 6 19-4894 

December 20, 2007 

BY HAND DELIVERY 

Richard M. Berman. US.DJ. 

The Honorable Richard M. Berman 

Daniel Patrick Moynihan United States Courthouse 

500 Pearl Street, Room 650 

New York, New York 1 0007 

RE: Christopher Pape v. Electronic Arts, Inc. 

07-CV-5760 (RMB) 

Dear Judge Berman: 

Pursuant to the Court's individual practices, Defendant El 

requests a pre-motion conference in advance of a potential summary judgment motion on the issue of 

substantial similarity in this copyright infringement matter. Plaintiff Christopher Pape is an artist who 

claims copyright in a graffiti-style mural of the word "Freedom." EA published a video game entitled 

"Freedom Fighters," which includes images of graffiti depicting the word "Freedom." Plaintiff alleges 

that EA's artwork infringes copyright in his mural. As the copies of Plaintiff's and EA's works attached 

to this letter as Exhibits A and B, respectively, demonstrate, except for the common use of the word 

"Freedom" on a wall, they are utterly different, and thus no reasonable factfinder could find them 

substantially similar, as required to prove copyright infringement. 

To sustain his claim, plaintiff must show that the two works are substantially similar, 

and that whatever similarities exist are related to protectable expression rather than unprotectable 

ideas. See, e.g., Mallery v. NBC Universal, Inc., No. 07 Civ. 2250, slip. op. at 14-1 5 (S.D.N.Y. Dec. 3, 

2007) (Cote, J.). Only Plaintiff's original artistic depiction of the word "Freedom" is protected - not the 

idea of graffiti comprising the word "Freedom" - and EA's depiction of the word differs totally from 

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The Honorable Richard M. Berman I December 20,2007 

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Plaintiff's. Summary judgment is appropriate as: (1) substantial similarity is commonly resolved by 

motion at an early stage; and (2) the works are not substantially similar.' 

A. Substantial Similarity is an Early Stage Question for the Court 

Courts in this district commonly resolve questions of substantial similarity on motions 

for summary judgment. See, e.g., Walker v. Time Life Films, Inc., 784 F.2d 44 (2d Cir. 1 986); Warner 

Bros. Inc. v. American Broadcasting Co., 720 F.2d 231 (2d Cir. 1983); Silberstein v. Fox 

Entertainment Group, 424 F. Supp. 616 (S.D.N.Y. 2004); Kroencke v. General Motors Corp., 270 F. 

Supp. 2d 441 (S.D.N.Y. 2003). The Honorable Denise L. Cote recently granted such a motion in 

Mallery v. NBC Universal, cited above. The judge converted defendants' Rule 12(b)(6) motion into a 

summary judgment motion, and noted neither party would suffer any prejudice as a result of the 

conversion, as "the works in question are the only documents it is necessary to review in order to 

resolve the questions presented by the motion." Mallery at 6, n.2 (internal citations omitted). Here, 

too, all that is needed to determine substantial similarity are the works, which are undisputed. 

B. Plaintiff's Work and Defendant's Work are not Substantially Similar 

Plaintiff will not be able to show substantial similarity for two reasons. First, the only 

thing similar about the two works is the idea of the word "freedom" written as graffiti on a wall, and 

plaintiff cannot claim copyright in that idea. Second, Plaintiff's specific expression of that idea in his 

artwork does not at all resemble the expression featured in EA's work. 

"[Clopyright protection does not extend to ideas; it protects only the means of 

expression employed by the [artist]." Little v. Twentieth Century Fox Film Corp., 37 U.S.P.Q. 2d 1353, 

1355 (S.D.N.Y. 1995); see also Walker, 784 F.2d at 48-49; Warner Bros., 720 F.2d at 239-40. 

Decisions in this district applying that principle have declined to extend copyright protection to ideas 

1 EA also denies that its artist - actually an employee of game developer 10 Interactive in Copenhagen, Denmark - had access to Plaintiffs work or in fact copied it. To avoid an expensive and unnecessary deposition of an overseas 

witness, EA requests that discovery as to access be stayed pending resolution of this motion, which will moot that issue. 

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The Honorable Richard M. Berman I December 20,2007 

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much more specific than Plaintiff's use of the word "Freedom" here. See, e.g., Mattel, Inc. v. AzrakHamway Int'l, Inc., 724 F.2d 357, 360 (2d Cir. 1983) (artist's rendering of muscleman crouching in a 

traditional fighting pose not protectable); Williams v. Crichton, 84 F.3d 581, 588-89 (2d Cir. 1996) 

(idea of a fictional dinosaur zoo an unprotectable idea). Likewise, the idea of "Freedom" written on a 

wall is common to groups resisting oppression and cannot be copyrighted by any one individual. 

Instead, Plaintiff's rights are limited to his particular expression of the word "Freedom," 

which is entirely different from EA's work. As shown in Exhibit A, Plaintiff employs primarily orange 

and yellow colors and capital and small letters, his letter "R" contains both upward and downward 

pointing arrows, the letter "0" is styled as a heart and contains the text "El Wild De Style," and the "M" 

ends in a circular flourish. EA's work in Exhibit B is plainly different: it uses a red, white and blue 

American flag motif within block capitals. No reasonable person could find these two images 

substantially similar, and therefore EA requests that the issue be resolved by summary judgment. 

*pectfully submitted, 

Daniel 

p H. ~-2- 

Davis 

cc: John W. Crittenden, Esq. 

Carl I. Kaminsky, Esq. 

135 Ocean Parkway 

Brooklyn, NY 1 121 8 

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