*

After an examination of the briefs and the record, we have concluded that oral

argument is unnecessary.  Thus, the appeal is submitted on the briefs and the record.  See

Fed. R. App. P. 34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

Submitted October 2, 2008*

Decided October 7, 2008

Before

JOEL M. FLAUM, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 08‐1667

CHITUNDA TILLMAN, SR.,

Plaintiff‐Appellant,

v.

NEW LINE CINEMA CORPORATION,

et al.,

Defendants‐Appellees.

Appeal from the United States District

Court for the Northern District of

Illinois, Eastern Division.

No. 05 C 910

Matthew F. Kennelly,

Judge.

O R D E R

In this action for copyright infringement, Chitunda Tillman claims that New Line

Cinema Corporation and its parent company produced the Denzel Washington movie

John Q. from a script filched from Tillman’s own screenplay, Kharisma Heart of Gold.  The

district court granted summary judgment for the defendants, and Tillman appeals.  Like the

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08‐1667 Page 2

district court, we detect no pertinent similarities between the screenplays, which should not

be surprising because New Line’s undisputed evidence establishes that John Q. was written

five years before Tillman’s work.  Accordingly, we affirm the judgment.

The district court’s thorough decision sets out fuller summaries of the two works; we

offer only the basic plot lines here.  Tillman’s screenplay, written and copyrighted in 1998, is

based in part on his own struggle to secure medical care for his son.  The script tells the

story of Tune Love, a millionaire whose assets are frozen by the IRS just when he needs

$600,000 to pay for critical heart surgeries for his newborn daughter, Kharisma.  When all

seems lost, Tune happens to be eating lunch at the mall food court and witnesses a robbery

in progress.  Tune intervenes and knocks the two robbers unconscious, but not until they

have shot his sandwich out of his hands.  During this interlude Tune devises a plan: he will

insure his life for $3.5 million and then commit suicide so that his family can pay for

Kharisma’s surgery with the proceeds.  After securing his life insurance policy and saying

goodbye to his family, Tune drives off a cliff while R. Kelly’s Trade in My Life plays in the

background.  The script closes with Tune’s spirit visiting a healthy Kharisma five years after

her successful surgeries.  

In 2002 New Line released John Q., the tale of factory laborer John Q. Archibald who

is struggling to make ends meet when tragedy strikes and his son, Mikey, collapses from a

heart disorder requiring a transplant.  The hospital refuses to perform Mikey’s transplant

because the family’s health insurance will not cover the procedure, and John cannot afford

to pay out of pocket.  Hopeless, John takes everyone in the hospital waiting room hostage in

an effort to force the hospital to perform Mikey’s surgery.  The story reaches its climax as

John turns his gun on himself in a selfless attempt to give his own heart to Mikey, but—as

so often happens in the movies—John’s gun jams and he is apprehended by authorities.

Although the hospital saves Mikey’s life by agreeing to perform the surgery, the law holds

John accountable and the movie ends with John being driven off to prison as his young son

looks on.

Tillman saw the movie and believed it was copied from Kharisma Heart of Gold.  He

investigated the production of John Q. and concluded that screenwriter James Kearns, a

member of the Writers Guild of America West, had read and stolen Kharisma Heart of Gold

after Tillman registered it with the Guild.  In February 2005 Tillman filed a complaint in

district court for copyright infringement against New Line, parent company Time Warner

Inc., employees of both companies, and Kearns.  Two months later, after retaining counsel,

Tillman amended his complaint, adding new claims and several additional defendants

including the Writers Guild and several of its officers.  The district court dismissed the

claims against the individual defendants and the Guild for lack of personal jurisdiction.
No. 08‐1667 Page 3

1

  Tillman argues for the first time in his reply brief that the district court erroneously

dismissed his claims against the Writers Guild and several individual defendants for lack of

personal jurisdiction.  Because this argument was not made in his main brief it is waived.

See R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating Eng’rs, 335 F.3d 643, 651 (7th

Cir. 2003).  But even if this question was properly before us, we would conclude that the

district court correctly dismissed Tillman’s suit against the individual defendants for lack of

personal jurisdiction.  See Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549‐51 (7th Cir. 2004).  

The court then whittled the complaint down to its essential claim of copyright infringement,

dismissing Tillman’s newly added claims for failure to state a claim.

For purposes here we refer to the surviving defendants as New Line.  New Line

moved for summary judgment, arguing that the scripts are not alike and that Kearns could

not have stolen Tillman’s script because he wrote John Q. in 1993—five years before

Kharisma Heart of Gold.  Along with the two scripts, New Line submitted a declaration from

Kearns stating that he wrote John Q. in 1993 and then sold the script to Island World

Productions.  New Line also submitted the purchase contract and the declaration of Island

World’s senior vice‐president confirming that the company bought Kearns’s screenplay in

1993.  Finally, New Line submitted several articles published in 1993 discussing Kearns’s

screenplay, John Q.  Tillman, proceeding pro se again, responded not with contrary

evidence, but by accusing New Line of falsifying its documentary evidence.  The district

court sided with New Line and specifically noted that Tillman’s claim rests on similarities

between unprotected ideas rather than expressions.   

On appeal Tillman abandons all but his copyright claim against New Line.1

  We

review the district court’s grant of summary judgment de novo, construing all disputed

facts in favor of Tillman as the non‐moving party.  See JCW Invs., Inc. v. Novelty, Inc., 482

F.3d 910, 914 (7th Cir. 2007).  To sustain a claim of copyright infringement, the plaintiff must

prove “(1) ownership of a valid copyright, and (2) copying of constituent elements of the

work that are original.”  Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

The parties agree that Tillman holds a valid copyright in Kharisma Heart of Gold.  Therefore,

the key inquiry is whether Tillman could establish that John Q. was copied from his work.

Copying may be established via direct evidence, or may be inferred “‘where the defendant

had access to the copyrighted work and the accused work is substantially similar to the

copyrighted work.’”  Susan Wakeen Doll Co., v. Ashton‐Drake Galleries, 272 F.3d 441, 450 (7th

Cir. 2001) (quoting Atari, Inc. v. N. Am. Philips Consumer Elecs. Corp., 672 F.2d 607, 614 (7th

Cir.1982)).
No. 08‐1667 Page 4

Where no reasonable juror could find that two works are substantially similar,

summary judgment in favor of the alleged infringer is appropriate.  See Oravec v. Sunny Isles

Luxury Ventures, L.C., 527 F.3d 1218, 1227 (11th Cir. 2008); Stromback v. New Line Cinema, 384

F.3d 283, 297‐99 (6th Cir. 2004).  That is the situation here.  Tillman lists perceived

similarities between the two scripts.  For example, he notes that both scripts include sick

children, caring fathers, hospital nurses, a beeping heart monitor, the lack of health

insurance, praying, crying, and expressions such as “Don’t Shoot!” and “It’s a miracle.”  But

these are generic similarities far removed from the realm of protected expression.  See

Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257‐62 (11th Cir. 1999) (“A court may grant

summary judgment for defendant as a matter of law if the similarity between the two works

concerns only noncopyrightable elements of the plaintiff’s work or if no reasonable jury

would find that hte two works are substantially similar.”).  The central characters, theme,

and plot in John Q. differ markedly from those in Kharisma Heart of Gold, and thus the

district court properly reasoned that the scripts are not substantially similar.  See Funky

Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1078‐81 (9th Cir. 2006) (holding that, as a

matter of law, scripts were not substantially similar where there were differences in plot,

characters, themes, mood, pace, dialogue, and sequence of events); Grosso v. Miramax Film

Corp., 383 F.3d 965, 967 (9th Cir. 2004) (holding that common setting of poker game and use

of poker jargon in both works did not make the works substantially similar); Cavalier v.

Random House, Inc., 297 F.3d 815, 823‐25 (9th Cir. 2002) (holding that two stories of talking

moons were not substantially similar where pace, dialogue, mood, and theme were

different).  And any similarities between the two scripts, such as the leading character being

a concerned father willing to do anything for his sick child, are standard elements known as

scènes à faire that are unprotected under copyright law.  See JCW Invs., 482 F.3d at 915;

Gaiman v. McFarlane, 360 F.3d 644, 659‐60 (noting that “stock” characters such as a drunken

old bum, are unprotected scènes à faire).  

That the two scripts are dissimilar is not surprising given the uncontroverted

evidence that Kearns could not have copied Tillman’s script because John Q. was written five

years before Kharisma Heart of Gold.  The district court reasoned that this evidence

established that John Q. was independently created and rebutted an inference of copying.

See JCW Invs., 482 F.3d at 915; Susan Wakeen Doll Co., 272 F.3d at 450.  But here Tillman has

not established an inference of copying, and really this is just further proof that Kearns did

not copy Tillman’s script.  See Armour v. Knowles, 512 F.3d 147, 153‐54 (5th Cir. 2007)

(holding that district court properly granted summary judgment for defendants where

copyright holder admitted writing song after defendants wrote allegedly similar song).

Tillman’s unsubstantiated assertions that New Line fabricated testimony, legal documents,

and news articles showing that John Q. predates his own screenplay are not sufficient to

create a triable issue of material fact.  See Petts v. Rockledge Furniture LLC, 534 F.3d 715, 722‐
No. 08‐1667 Page 5

23 (7th Cir. 2008).  And therefore the district court properly granted summary judgment in

favor of New Line.

AFFIRMED.