Kung Fu Panda Copyright Claim Hangs On

(CN) - A federal judge sanctioned an artist for destroying evidence in his case over the rights to the cartoon characters of "Kung Fu Panda," but the case can proceed.

Jayme Gordon filed a lawsuit in 2011 that claimed his stories and drawings from the early 1990s served as the basis to "Kung Fu Panda," which DreamWorks Animation and Paramount Pictures released in 2008.

Gordon's 1990s panda characters, Kidd Panda and Redd Panda, allegedly belonged to a group he called "Panda Power," and their supporting cast included a snake, crane, mantis, tiger and monkey.

The cartoonist said he submitted his artwork to Walt Disney Co. and DreamWorks, but both companies rejected all of his submissions.

In early 2008, Gordon saw a promotional trailer for "Kung Fu Panda" and wanted to copyright all of his Panda Power materials before the movie's release. He compiled his drawings and character sketches into a book called the "Book of P.U."

Then, he shredded all of the pre-existing materials.

Gordon filed the Book of P.U. with the U.S. Copyright Office and his registration became effective two days before the movie's release.

After Gordon files suit for copyright infringement in 2011, Dreamworks and Paramount moved to dismiss for spoliation of evidence as well as for summary judgment,

U.S. District Judge Joseph Tauro found Thursday that Gordon did indeed deserve sanctions since he contemplated litigation when he sought to copyright his work.

"In addition to shredding the paper materials, Gordon's testimony also makes clear that he discarded all of the electronic equipment used to create the 'Book of P.U,'" Tauro wrote. "Gordon threw out several computers and lost a thumb drive that may have contained documents or files relating to the 'Book of P.U.' His testimony leaves little room for doubt that he intentionally destroyed the preexisting materials. Whether he acted in bad faith or simply as part of his artistic process does not render the destruction any less intentional, though it may affect the appropriate sanction."

Tauro continued: "The court concludes that Gordon acted while under a duty to preserve relevant evidence. Gordon cannot rely solely on his own statement that, at the time he saw the Kung Fu Panda trailer in early 2008, he did not contemplate subsequent litigation."

Gordon may sill have a case, however, since the evidence is insufficient to support that Gordon acted in bad faith by deleting all emails related to the Book of P.U.

The court "can glean little of Gordon's alleged wholesale effort to destroy relevant communications from an email, signed 'Luke aka Jabba The Hut,' stating that 'the furry Ewok is forever blocked,'" Tauro wrote.

"Under the circumstances of this case, the court concludes that the appropriate spoliation sanction is exclusion of Gordon's 2008 copyright registration from evidence. Defendants face tremendous prejudice without the opportunity to examine the materials that led to the creation of the 'Book of P.U.,'" he added.

According to the judgment, Gordon admitted that he made changes to his drawings after seeing the trailer for "Kung Fu Panda," and testified that he "'quite possibly could have' added the words 'kung fu' to drawings that previously did not include those words. He also indicated that he does 'all kinds of stuff ... take heads off, cut them off, move them around, whatever I want.'"

"These types of changes - small-scale additions or subtractions - could make all the difference to defendants' ability to refute Gordon's claims of substantial similarity," Tauro wrote. "Without the pre-existing materials, defendants have no meaningful way to impeach the legitimacy of the 'Book of P.U.' or probe Gordon as to how viewing the movie trailer influenced his creative process. Excluding Gordon's 2008 copyright registration removes this significant risk of prejudice."

Dreamworks similarly cannot have summary judgment because Gordon's evidence shows that the Panda Power materials he sent could have influenced the studio's work on the film.

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