Intellectual Property

What a Wizard and a Talk Show Host Can Teach You about the “Substantial Similarity” of Books

Last Friday, Susan Hassett, the plaintiff in Hassett v. Elisabeth Hasselbeck, et al., 2010 U.S. Dist. LEXIS 128216 (D. Mass. Dec. 3, 2010) [enhanced version available to lexis.com subscribers], filed a notice of appeal with the First Circuit (No. 11-1111), seeking review of the Massachusetts District Court's decision on Hassett's copyright claim against Elisabeth Hasselbeck, co-host of "The View."

Hasset's copyright claim is based in part on a theory she termed "compilation copyright," meaning Hasselbeck broke down Hasset's book, Living with Celiac Disease, into its constituent facts, ideas, and phrases, made textual changes, and then reordered the elements throughout Hasselbeck's book, The G Free Diet. In granting Hasselbeck summary judgment, the district court concluded that after the unprotected elements of Living were identified and removed from consideration, a rational fact-finder would be compelled to conclude that no substantial similarity existed between Living and G Free. The district court stated:

After reviewing the similarities submitted by Hassett, the court finds that the similarities arise out of ideas, facts, individual words or short phrases, and aspects of the works customary to the genre, none of which are copyrightable. Once these unprotected elements are excised, a reasonable factfinder could not find substantial similarity.

(citations omitted)

On January 6th, a similar result was reached in Allen v. Scholastic Inc., 2011 U.S. Dist. LEXIS 1201 (S.D.N.Y. Jan. 6, 2011) [enhanced version]. In Allen, the trustee of Adrian Jacobs' estate alleged that J.K. Rowling's Harry Potter and the Goblet of Fire unlawfully used protected expressions from Jacobs' The Adventures of Willy the Wizard - No 1 Livid Land.  

Like the Massachusetts district court in Hassett, the Southern District of New York in Allen dismissed the complaint on the ground that no reasonable juror could find a substantial similarity between the two books. In refusing to find a substantial similarity between Goblet of Fire and the protectable elements of Livid Land, the district court examined the books and their: 1) total concepts and feel; 2) themes; 3) characters; 4) plots and sequencing; 5) pacing; and 6) setting. In addressing plot and sequencing, which were offered as the clearest examples of similarity, the district court, like the court in Hassett, held that:

the allegedly infringing plot features are not protectible elements. First, they are too generic to constitute an expression. . . . 

. . . .

Second, Allen attempts to portray similarities by selectively extracting various trivialities from each book, but "random similarities scattered throughout the works . . . cannot [by themselves] support a finding of substantial similarity." . . .

Third, many, if not all, of the allegedly infringing features constitute scenes a faire "that flow naturally from a work's theme rather than from an author's creativity." . . . Lastly, courts have declined to find substantial similarity in situations where there has been far greater overlap in plot elements.

More Resources: (lexis.com customers can access the items directly)

Complaint - Hassett v. Elisabeth Hasselbeck, et al. 2009 U.S. Dist. Ct. Pleadings 11063

4-13 Nimmer on Copyright § 13.03 Substantial Similarity (Purchase this treatise at the LexisNexis Store)

Goldstein on Copyright, Third Edition § 2.3 Requirements for Copyrightable Subject Matter - Expression (Not Ideas) 

Copyright Law: A Practitioner's Guide § 11:6 Elements of an Infringement Claim 

LexisNexis Communities:

Eighth Circuit refuses to find substantial similarity between YMCA's campfire play and the medieval theme/scenes a faire in author's campfire play: Frye v. YMCA (Aug. 20, 2010)

“Disturbia” Decision: Not Just a Remake of “Rear Window” Case

Vogt on Fiction and Fair Use in the Internet Age: When Rights Collide


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