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