Page:Seiler v. Lucasfilm.pdf/2

1317 Bronson, Bronson & McKinnon, Elliot L. Bien, San Francisco, Cal., for plaintiff-appellant.

Nutter, Bird, Marella, Boxer, Wolpert & Matz, Joel Boxer, Los Angeles, Cal.; and Keker & Brockett, John Keker and Robert Van Nest, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before FARRIS and BOOCHEVER, Circuit Judges, and KEEP, District Judge.

FARRIS, Circuit Judge:

Lee Seiler, a graphic artist and creator of science fiction creatures, alleged copyright infringement by George Lucas and others who created and produced the science fiction movie “The Empire Strikes Back.” Seiler claimed that creatures known as “Imperial Walkers” which appeared in The Empire Strikes Back infringed Seiler’s copyright on his own creatures called “Garthian Striders.” The Empire Strikes Back appeared in 1980; Seiler did not obtain his copyright until 1981.

Because Seiler wished to show blown-up comparisons of his creatures and Lucas’ Imperial Walkers to the jury at opening statement, the district judge held a pre-trial evidentiary hearing. At the hearing, Seiler could produce no originals of his Garthian Striders nor any documentary evidence that they existed before The Empire Strikes Back appeared in 1980. The district judge, applying the best evidence rule, found that Seiler had lost or destroyed the originals in bad faith under Fed.R.Evid. 1004(1) and denied admissibility of any secondary evidence, even the copies that Seiler had deposited with the Copyright Office. With no admissible evidence, Seiler then lost at summary judgment.

Seiler contends that he created and published in 1976 and 1977 science fiction creatures called Garthian Striders. In 1980, George Lucas released The Empire Strikes Back, a motion picture that contains a battle sequence depicting giant machines