By Ross Todd, From The Recorder

SAN FRANCISCO — “Let it go.”

That was the push lawyers for The Walt Disney Co. made on Thursday in a copyright infringement suit over a trailer for the animated hit “Frozen.”

But U.S. District Judge Vince Chhabria seemed, ahem, cold to that argument and prepared to let a jury resolve whether a Mill Valley animator’s short film “The Snowman” was “substantially similar” to a trailer for “Frozen” featuring the snowman character Olaf. He also said he had a “fairly strong inclination” that a jury should decide whether the Disney official with creative responsibility for the trailer also had access to Wilson’s computer-animated film. Chhabria reserved judgment on the parties’ dueling summary judgment motions, but said he’d issue an opinion in the next week.

Kelly Wilson sued Disney in March 2014 claiming the teaser for “Frozen” infringed on her copyrighted film. According the complaint, Wilson created “The Snowman” between 2008 and 2010 and it’s been screened at eight film festivals, including at the San Francisco International Film Festival in 2011 where she shared the stage with an employee of Disney subsidiary Pixar Animation Studios who was screening a film during the same session.

In Wilson’s film a snowman races to save his carrot nose from a gang of hungry rabbits after it falls off and slides to the middle of a frozen pond. Wilson, who is represented by Santa Barbara’s Arias Ozzell & Cignac and solo practitioner J.A. Ted Baer, claimed the “Frozen” trailer, released in June 2013, was substantially similar to her film. The trailer features Olaf dashing to save his carrot nose in a race to the middle of a frozen pond with a reindeer.

Disney animators, Wilson maintained, had access to “The Snowman” prior to creating their trailer via the film festivals, the Internet, and job applications she and her co-creator submitted for positions at Disney from 2009 to 2012.

In July, Chhabria denied a motion to dismiss the case filed by Disney’s lawyers at Munger, Tolles & Olson. Although he agreed with Disney that there are differences in pace and mood between the short film and the trailer, he found that the two also had similarities, particularly in the sequence of events depicted, that might lead a reasonable juror to find them substantially similar.

In their motion for summary judgment, Disney’s lawyers maintain that no one involved in the conception or development of the trailer had access to Wilson’s film, and only one Pixar employee, John Lasseter, the chief creative officer of both Walt Disney Animation Studios and Pixar, was involved in the creation of the trailer.

At Thursday’s hearing, Chhabria asked Munger’s Kelly Klaus if people who worked with Lasseter had seen the film at the festival, why that wasn’t enough to establish access. Klaus responded that no one at Pixar was in a position to have creative input on the trailer, except Lasseter, and that none of the festival-goers told him about “The Snowman.”

Said Chhabria in reply, “We judges at the summary-judgment stage are told not to credit that type of testimony because that is something for the jury to decide.”

The 90-minute hearing was dominated by discussion between Disney’s counsel and the judge, who seemed less interested in grilling Wilson’s team.

Klaus cited multiple cases involving allegedly copied screenplays. Chhabria, however, didn’t find those screenplay cases applicable to the one in front of him.

“This is very different, right?” he said. Wilson’s short film was shown at a film festival alongside, and in competition against, that of a Pixar employee, the judge pointed out. “That is a much more notable, memorable event than being one of 20,000 people who is trying to get some producer to read your screenplay.”

The Pixar animator who was on stage with Wilson in 2011 was on leave from the company at the time, Klaus said, and never went back to Pixar. The animator also hadn’t worked with Lasseter in the six years prior to the trailer’s development. To establish a chain of access for copyright infringement purposes, Klaus argued that the person who had seen the copyrighted work must be either a supervisor or work in the same unit as the person involved in the alleged copyright infringement.

In this case, Chhabria suggest working in the same unit could be defined as people working at Pixar in creative positions alongside Lasseter. The burden is on Wilson, Klaus argued, to provide evidence of a reasonable connection between the festival-goers and the team that worked on the trailer and none has been presented. In particular, Klaus said the storyboards used to create the trailer show no influence from Wilson’s film.

“The storyboards tell an interesting story,” Chhabria said. “I think it’s a story to be told to the jury.”

For more on this story go to: http://www.therecorder.com/id=1202723130040/Judge-Turns-Up-Heat-on-Disney-in-Frozen-Suit#ixzz3WvlhPotT