Case 1:09-cv-12034-MLW Document 76-1 Filed 12/03/10 Page 1 of 31
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`SUSAN HASSETT,
`Plaintiff,
`v.
`ELISABETH HASSELBECK, et al.,
`Defendants.
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`)
` )
` )
` ) C.A. No. 09-12034-MLW
` )
`)
` )
`
`MEMORANDUM AND ORDER
`
` December 3, 2010
`
`WOLF, D.J.
`I. INTRODUCTION
`On November 30, 2009, pro se plaintiff Susan Hassett filed a
`complaint alleging copyright infringement by defendants Elisabeth
`Hasselbeck and Center Street Hachette Book Group ("Center Street")
`(collectively, "defendants"), as well as by an unidentified
`ghostwriter (referred to in the complaint as John Doe). Hassett
`alleges that she is the author of a book entitled Living with
`Celiac Disease ("Living"), for which she obtained a copyright in
`March, 2008. She alleges that she mailed a copy of Living to
`Hasselbeck on April 4, 2008. She alleges that, on or about May 4,
`2009, Center Street published and distributed The G Free Diet ("G
`Free"), a book written by Hasselbeck and the ghostwriter. She
`alleges that G Free contains actual copying of and is substantially
`similar to Living. As clarified at the November 30, 2010 hearing,
`her claim is based in part on a theory she terms "compilation
`copyright," meaning, essentially, that Hasselbeck broke Living down
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`into its constituent facts, ideas, and phrases, made changes to the
`text, and then distributed these elements throughout G Free in a
`different order and arrangement. Hassett seeks damages and
`injunctive relief.
`Defendants are moving for summary judgment on the ground that
`there is not substantial similarity between G Free and Living.
`Hassett is moving for leave to proceed in forma pauperis, for
`appointment of counsel, for a preliminary injunction prohibiting
`defendants from distributing or promoting G-Free, and for an order
`compelling defendants to identify the alleged ghostwriter, John
`Doe.
`The court has thoroughly reviewed the works in question, as
`well as Hassett's lists of purported similarities. As discussed
`below, the court concludes that, after the unprotected elements of
`Living are identified and removed from consideration, a rational
`factfinder, correctly applying the pertinent legal standards, would
`be compelled to conclude that no substantial similarity exists
`between Living and G Free. Accordingly, defendants' motion for
`summary judgment is being allowed. All other pending motions are
`moot.
`
`The court recognizes that Hassett worked hard and under
`difficult circumstances to assemble the facts and ideas included in
`Living. Yet even if defendants appropriated some of these facts
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`and ideas and incorporated them in a new work,1 they are not liable
`to Hassett. This may appear unfair to Hassett. However, this
`perceived unfairness is not an unforeseen byproduct of the
`copyright law, but "is, rather, the essence of copyright and a
`constitutional requirement." See Feist Publ'ns, Inc. v. Rural Tel.
`Serv. Co., 499 U.S. 340, 349 (1991)(internal citations and
`quotation marks omitted). "[C]opyright assures authors the right
`to their original expression, but encourages others to build freely
`upon the ideas and information conveyed by a work." Id. at 349-50.
`"'The very object of publishing a book on science or the useful
`arts is to communicate to the world the useful knowledge which it
`contains. But this object would be frustrated if the knowledge
`could not be used without incurring the guilt of piracy of the
`book.'" Id. at 350 (quoting Baker v. Selden, 101 U.S. 99, 103
`(1880)). Consequently, to paraphrase the Supreme Court, great
`praise may be due to Hassett for her industry and enterprise in
`publishing her book, which may be of great utility to those
`suffering from celiac disease. See id. at 364. The law does not,
`however, authorize her to be rewarded in the manner she requests.
`See id.
`II. PROCEDURAL HISTORY
`On November 30, 2009, Hassett, appearing pro se, filed the
`
`1Defendants deny that they had access to Living and that any
`copying occurred. See Mem. in Support of Mot. to Dismiss at 6
`n.6. These questions are not presently before the court.
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`instant complaint, in which she asserts three counts of copyright
`infringement, one against each defendant. See Compl. at 5-8.
`On August 2, 2010, defendants moved to dismiss the complaint
`due to a lack of substantial similarity. In connection with this
`motion, defendants submitted various exhibits, including a copy of
`G Free and a copy of Living. Hassett opposed dismissal, in part on
`the ground that the version of Living submitted with defendants'
`motion was the 2009 copyright version (the "2009 edition"), whereas
`the complaint refers to the 2008 copyright version (the "2008
`edition"). In an October 14, 2010 Order, the court converted
`defendants' motion to dismiss to a motion for summary judgment
`pursuant to Federal Rule of Civil Procedure 12(d). The court
`ordered the parties to submit all material pertinent to such a
`motion by November 1, 2010, and scheduled a hearing on the motion
`for summary judgment for November 30, 2010. Since that time,
`Hassett has expanded the record by filing the 2008 edition of
`Living, as well as an additional list of purported similarities.
`III. LEGAL STANDARDS
`A. Summary Judgment
`The court’s discretion to grant summary judgment is governed
`by Federal Rule of Civil Procedure 56. Rule 56 provides, in
`pertinent part, that the court may grant summary judgment only if
`"the pleadings, depositions, answers to interrogatories, and
`admissions on file, together with the affidavits, if any, show
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`there is no genuine issue as to any material fact and that the
`moving party is entitled to judgment as a matter of law." Fed. R.
`Civ. P. 56(c). In addition, the facts are to be viewed in the light
`most favorable to the non-moving party. Woods v. Friction
`Materials, Inc., 30 F.3d 255, 259 (1st Cir. 1994). "When a party
`fails to make a showing sufficient to establish the existence of an
`element essential to that party’s case, and on which that party
`bears the burden of proof at trial, there can no longer be a
`genuine issue as to any material fact . . . and the moving party is
`entitled to judgment as a matter of law." Smith v. Stratus
`Computers, Inc., 40 F.3d 11, 12 (1st Cir. 1994).
`In determining the merits of a motion for summary judgment,
`the court is compelled to undertake two inquiries: (1) whether the
`factual disputes are genuine, and (2) whether any fact genuinely in
`dispute is material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-
`48 (1986). "As to materiality, the substantive law will identify
`which facts are material. Only disputes over facts that might
`affect the outcome of the suit under the governing law will
`properly preclude the entry of summary judgment." Id. To determine
`if the dispute about a material fact is "genuine," the court must
`decide whether "the evidence is such that a reasonable [fact
`finder] could return a verdict for the non-moving party." Id.; see
`also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st
`Cir. 1990); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
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`Cir. 1988). Under this analysis, the evidence relied upon must be
`admissible. See Vazquez v. Lopez-Rosario, 134 F.3d 28, 36 (1st
`Cir. 1998).
`B. Copyright Infringement: Substantial Similarity
`The plaintiff bears the burden of proving the two elements of
`copyright infringement: "'(1) ownership of a valid copyright[;] and
`(2) copying of constituent elements of the work that are
`original.'" See Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir.
`2005)(quoting Feist, 499 U.S. at 361). To establish copying, a
`plaintiff must show actual copying and substantial similarity. Id.
`at 18 (citing Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56,
`60 (1st Cir. 2000)). Actual copying is shown by direct or
`circumstantial evidence, including evidence of access coupled with
`probative similarity. See id. Substantial similarity is shown by
`"proof that the copying was so extensive that it rendered the works
`so similar that the later work represented a wrongful appropriation
`of expression." Id. (citing Yankee Candle Co. v. Bridgewater
`Candle Co., 259 F.3d 25, 33 (1st Cir. 2001)). A plaintiff's
`failure to show substantial similarity entitles a defendant to
`judgment. See Yankee Candle, 259 F.3d at 33, 37 (affirming summary
`judgment based on lack of substantial similarity where validity of
`the copyright was undisputed and actual copying was assumed).2
`
`2Because Hassett is a pro se litigant, the court construes
`her complaint and other filings liberally. See Donovan v. Maine,
`276 F.3d 87, 94 (1st Cir. 2002). However, even if pro se,
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`Substantial similarity is measured by the ordinary observer
`test, which provides that "two works will be said to be
`substantially similar if a reasonable, ordinary observer, upon
`examination of the two works, would 'conclude that the defendant
`unlawfully appropriated the plaintiff's protectable expression.'"
`See T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 112
`(1st Cir. 2006)(quoting Johnson, 409 F.3d at 18)). The volume of
`similar material is not necessarily dispositive, as the fact that
`"the copying involved only a small portion of the plaintiff's work
`does not by itself make the copying permissible." Situation Mgmt.
`Sys., Inc. v. ASP Consulting LLC, 560 F.3d 53, 59 (1st Cir. 2009).
`"Indeed, even if the similar material is quantitatively small, if
`it is qualitatively important, the trier of fact may properly find
`substantial similarity."3 Id. Additionally, "'[s]light or trivial
`variations between works will not preclude a finding of
`infringement under the ordinary observer test.'" Segrets, 207 F.3d
`at 65 (quoting Concrete Mach. Co. v. Classic Lawn Ornaments, Inc.,
`843 F.2d 600, 608 (1st Cir. 1988)). An artist may avoid
`
`Hassett is "obligated to comply with what the substantive law
`require[s]." Edwards v. New England Tel. and Tel. Co., 86 F.3d
`1146, at *1 (1st Cir. 1996)(table).
`3The First Circuit has noted that commentators view de
`minimis copying, meaning copying of insufficient length to create
`substantial similarity, "as relating to instances of fragmented
`literal similarity, applicable only where no more than a line, or
`a paragraph, or a page or chapter of the copyrighted work has
`been appropriated." Situation Mgmt., 560 F.3d at 59 n.2
`(internal quotation marks omitted).
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`infringement "'by intentionally making substantial alterations in
`the design of a copyrighted work so as to provide a substantially
`different expression of the idea embodied in the copyrighted
`work,'" but only if "'the points of dissimmilarity not only exceed
`the points of similarity, but indicate that the remaining points of
`similarity are (within the context of plaintiff's work) of minimal
`importance either quantitatively or qualitatively.'" Id. at 65-66
`(quoting Concrete Mach., 843 F.2d at 608).
`Importantly, however, the examination for substantial
`similarity "must focus on 'what aspects of the plaintiff's work are
`protectible under copyright laws and whether whatever copying took
`place appropriated those protected elements.'" Johnson, 409 F.3d at
`19 (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998));
`see T-Peg, 459 F.3d at 112. "[O]nly the 'protected expression' is
`relevant to an evaluation of substantial similarity." Yankee
`Candle, 259 F.3d at 33-34. Thus, an impression of overall
`similarity will not establish substantial similarity if the
`"impression flows from similarities as to elements that are not
`themselves copyrightable." Johnson, 409 F.3d at 19.
`For this reason, a court evaluating substantial similarity
`must recognize and apply certain limits on the scope of copyright
`protection. See id. "Copyright law protects original expressions
`of ideas but it does not safeguard either the ideas themselves or
`banal expressions of them." See id.; Yankee Candle, 259 F.3d at 33
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`("[I]deas cannot be copyrighted . . . ." (internal quotation marks
`omitted)); Dunn v. Brown, 517 F. Supp. 2d 541, 544-45 (D. Mass.
`2007)(Ponsor, J.); see also 17 U.S.C. §102(b)("In no case does
`copyright protection for an original work of authorship extend to
`any idea, procedure, process, system, method of operation, concept,
`principle, or discovery, regardless of the form in which it is
`described, explained, illustrated, or embodied in such work.").
`Under the merger doctrine, even the expression of an idea is
`unprotected "when there is only one way to express a particular
`idea." Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 68 (1st
`Cir. 2009). Although a particular selection and arrangement of
`facts may be "thin[ly]" protected, the facts themselves are not.
`See Feist, 499 U.S. at 348-49. Under the doctrine of scenes a
`faire, there is no protection for "elements of a work that are for
`all practical purposes indispensable, or at least customary, in the
`treatment of a given subject matter." Coquico, 562 F.3d at 68.
`Additionally, "copyright law denies protection to fragmentary words
`and phrases and to forms of expression dictated solely at
`functional considerations." CMM Cable Rep, Inc. v. Ocean Coast
`Props., Inc., 97 F.3d 1504, 1519 (1st Cir. 1996)(internal quotation
`marks omitted)(holding short, clichéd phrases conveying the idea of
`employment were not protected because, among other reasons, they
`did not involve an appreciable amount of text or the minimal
`creativity necessary to warrant copyright protection); see Johnson,
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`409 F.3d at 24 (holding that the phrase "You're the One for Me" did
`not warrant copyright protection); see also Matthews, 157 F.3d at
`28.
`
`The process of identifying the unprotected elements of a work
`and removing them from consideration is sometimes called
`"dissection analysis." See Yankee Candle, 259 F.3d at 34. "In
`performing the substantial similarity analysis, a court should be
`careful not to over-dissect the plaintiff's work, causing it to
`ignore the plaintiff's protectable expression." Situation Mgmt.,
`560 F.3d at 59 (citing CMM, 97 F.3d at 1515 (stating that the court
`must be aware of the danger of "so dissect[ing] the work as to
`classify all its elements as unprotectable[,] thereby possibly
`blinding [the court] to the expressiveness of their ensemble."
`(internal quotation marks and ellipses omitted))). "[T]he court
`should not lose sight of the forest for the trees; that is, it
`should take pains not to focus too intently on particular
`unprotected elements at the expense of a work's overall protected
`expression." Coquico, 562 F.3d at 68.
`"Summary judgment on substantial similarity is 'unusual' but
`can be warranted on the right set of facts." T-Peg, 459 F.3d at
`112 (quoting Segrets, 207 F.3d at 62). "'Summary judgment on
`substantial similarity is appropriate only when a rational
`factfinder, correctly applying the pertinent legal standards, would
`be compelled to conclude that no substantial similarity exists
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`between the copyrighted work and the allegedly infringing work."
`Id. (quoting Johnson, 409 F.3d at 18); see also Quaglia v. Bravo
`Networks, No. 06-1864, 2006 WL 3691667, at *1-2 (1st Cir. Dec. 15,
`2006)(affirming summary judgment where no reasonable juror could
`find substantial similarity because the similar elements were
`either insubstantial or not subject to copyright protection).
`IV. DISCUSSION
`At the outset, the court notes that both the 2009 edition and
`the 2008 edition of Living are in the record and are referred to in
`the briefing. The complaint relates only to the 2008 edition.
`Although Hassett originally took issue with the defendants'
`submission of the 2009 edition of Living, she now takes the
`position that the 2008 edition and the 2009 edition have "exactly
`[the] same text." See Hassett Decl. at 1. She states that the
`only differences between the two versions are that the 2009 edition
`has numbered pages, corrects some spelling errors, and has a
`different copyright date and ISBN number. See id. at 2. Hassett
`states that she, in fact, submitted pages from the 2009 edition to
`the court in her exhibits. See id. Consequently, as agreed by the
`parties at the November 30, 2010 hearing, any differences between
`the 2009 edition and the 2008 edition are immaterial to the
`substantial similarity analysis. Because the 2009 edition has
`numbered pages, the court will cite to that version for the sake of
`clarity.
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`The sole question before the court is whether a rational
`factfinder, correctly applying the pertinent legal standards, would
`be compelled to conclude that no substantial similarity exists
`between Living and G-Free. See T-Peg, 459 F.3d at 112. The court
`finds that a rational factfinder would be compelled to conclude
`that no substantial similarity exists because any similarities
`arise out of elements of Living not protected by copyright law.
`Therefore, the motion for summary judgment is being allowed.
`Both Living and G Free are self-help books designed to assist
`people who have celiac disease. As one would expect, and as
`Hassett demonstrates through her exhibits, there are similarities
`between the two works. Both books, for example, list the symptoms
`of celiac disease (many of which are included in both books) and
`describe the particular symptoms experienced by the respective
`authors. Compare Living at 24-35, with G Free at 4-10, 16-17.
`Both works include lists of foods and other products likely to
`contain gluten. Compare Living at 60-67, 70-72, with G Free at 35-
`50. Both offer ideas to avoid contact with gluten in everyday
`life. Compare Living at 36-41, with G Free at 63-94. Both discuss
`problems related to children with celiac disease. Compare Living
`at 42-44, with G Free at 145-59. Both discuss a possible link
`between gluten consumption and autism. Compare Living at 42, with
`G Free at 199-205. Both note that children with Down syndrome are
`at increased risk for developing celiac disease. Compare Living at
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`43, with G Free at 32. However, even if these similarities create
`an impression of overall similarity, they will not establish
`substantial similarity if the "impression flows from similarities
`as to elements that are not themselves copyrightable." Johnson,
`409 F.3d at 19. 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. See Part
`III(B), supra (collecting cases). Once these unprotected elements
`are excised, a reasonable factfinder could not find substantial
`similarity.
`A. Unprotected Ideas
`Many of Hassett's purported similarities arise out of
`similarity of ideas, which are not protected by copyright law. See
`Feist, 499 U.S. at 348-49; Johnson, 409 F.3d at 19. For example,4
`Living includes the following passage:
`Overtime you purchase a new product even if you have
`
`4Hassett has submitted many examples of purported
`similarities, mostly in the form of individual sentences or
`fragments of sentences. The examples discussed in this Order
`are, in the court's view, among the most favorable to Hassett.
`The court has not further fragmented the examples presented by
`Hassett. See Johnson, 409 F.3d at 25 (noting that the district
`court did not engage in impermissible "[h]yper-dissection" when
`it did not further fragment the similarities presented by the
`plaintiff's expert). Indeed, the court presents its analysis
`using larger blocks of text than those presented by Hassett in
`order to discuss the purportedly similar material within the
`wider context of the two works. See id. In quotes from Living,
`all spelling and grammar errors are in the original text.
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`used it before you should still call and make sure it is
`gluten free. The reason being sometimes manufacturers
`will change the starch in a product and not change the
`label on the product or the label on the box that the
`product came out of. Call the company and ask for it in
`writing again and again and again if you have to. . . .
`Remember to always tell them that you have celiac and you
`have zero tolerance for gluten so you may not even have
`trace amounts. Also make sure they can identify where
`all the starches in a product are derived from. Also ask
`if it has been packaged on a belt where products
`containing wheat have been packaged. As well as has the
`belt been Cleaned in between packaging.
`Living at 38-39.5 Similarly, G Free states:
`Step 3: Call back periodically. Yes, it sounds like
`a hassle, but "better safe than sorry" is your new
`mantra, and following up with companies can pay off.
`Call back every so often to make sure any once-
`questionable foods are still gluten-free. Companies
`frequently change their manufacturing sites or acquire a
`new brand without altering their product labels. If you
`are buying chips, cereal, or any other grain-based food
`from a major company, you want to check that the product
`is not only G-free, but processed in G-free facilities as
`well. A corn chip could be riding down a clean conveyor
`belt one week, and dusted with wheat cracker residue the
`next. Even if you've been G-free for years, you may want
`to do these follow-ups on a regular basis.
`G-Free at 76-77.
`These passages embody a similar idea - the idea that a person
`with celiac disease should contact manufacturers from time to time
`to verify that gluten-free foods are still made without gluten and
`in a location that is not contaminated by wheat products. Beyond
`that idea, which is unprotected, the passages have a few individual
`words in common ("call" "belt" "label" "wheat"), but are otherwise
`
`5Elsewhere on page 38 of Living, Hassett also writes that
`"the belt a product is packaged on could contain wheat."
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`essentially dissimilar. For example, Living discusses the failure
`to change a product label after changing the starch in a product,
`while G Free discusses such a failure in the context of acquiring
`a new brand or shifting manufacturing facilities. Living discusses
`the possibility that a conveyor belt is contaminated, whereas, in
`G Free, it is the corn chip that becomes contaminated rather than
`the belt. Living emphasizes requesting written confirmation, while
`G Free does not. The differences between these two passages are
`not the sort of slight or trivial variations which would permit a
`finding of substantially similarity. See Segrets, 207 F.3d at 65.
`Rather, it is the points of similarity that are both qualitatively
`and quantitatively unimportant. See id.
`As another example, in Living, Hassett writes:
`Do not ever "double dip" This means use one knife
`for your butter, one for your condiments. If your knife
`is dirty get another one. For celiac's with severe cases
`that one crumb in your jelly could be your last.
`Living at 40. Similarly, in G-Free, Hasselbeck writes:
`It's important to label your spreads, too, so that
`family members know not to stick their crumb-encrusted
`knives in there. As with everything else in our kitchen,
`the entire family is welcome to all of my foods, but I
`have a strict policy against double-dipping - I will have
`your head if I see any breadcrumbs in my peanut butter or
`jelly!
`G Free at 67-68.6 Again, the passages embody a similar idea - the
`
`6On page 81 of G Free, Hasselbeck also notes that: "Butter
`is G-free, too, as long as you keep it away from crumb-
`contaminated knives! Ditto for margarines, creams, pure
`mayonnaises, and nut butters."
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`idea that a person with celiac disease should avoid gluten by
`keeping contaminated knives away from gluten-free spreads and
`jellies. However, beyond that unprotected idea, the passages are
`essentially dissimilar except for the use of a few individual words
`in both ("double-dip[ping]" "jelly").
`As a third example, in Living, Hassett writes:
`When sending your child to school, always pack your
`child a lunch. Make sure you go over celiac information
`with the teacher and the lunchroom people at the
`beginning of each school year. You might tell the
`teacher to come up with a signal when your child needs to
`use the bathroom because sometimes-celiac children must
`use the bathroom more frequently than other children.
`Living at 44.7 Similarly, in G Free, defendants state:
`At the start of each and every school year, you need
`to walk your child's teacher through the minutiae of a
`gluten-free diet. Make sure that the teacher understands
`the seriousness of the diet, and the potential
`consequences of not following it.
`G Free at 154; see also id. at 156 (suggesting meeting with "as
`many different people as possible - teachers, administrators,
`cafeteria staffers, and of course, your child's classmates and
`their parents").8 These passages both express a similar idea - the
`idea that, when a child has celiac disease, it is helpful to talk
`to staff at the school at the outset of every school year in order
`
`7On page 43 of Living, Hassett also writes: "Try to make
`your child's illness common knowledge for family members,
`teachers, doctors, friends the school nurse anyone who has
`contact with your child."
`8G Free also discusses working with cafeteria staff to
`establish an allergy-friendly menu on page 157.
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`to ensure that the child is not exposed to gluten. Beyond that
`idea, however, the passages are essentially dissimilar except for
`a few individual words or short phrases ("school year" "teacher"
`"make sure").
`As a fourth example, Hassett writes, in a section on avoiding
`gluten when receiving inpatient medical treatment:
`So the day of my surgery first did the soap that
`they make you wash with, does have gluten. Next, the
`soap they wash the pajamas you wear for the surgery
`because you can break out from that. Next, is the rubber
`gloves are you allergic to latex? I am, so that, needed
`to be addressed. Next is the IV bag what are they
`putting in it you need to know that every ingredient has
`not even a trace amount in it, if something with a trace
`amount of gluten in it was put in a needle an shot into
`my vein I know I would die. I call my Mother the gluten
`warden and I told all the hospital staff you have to get
`through the gluten warden to get to me. After everything
`we have been through, we check everything.
`Living at 73. Hasselbeck titled a section (directed at the
`companions of people with celiac disease) "Quality 3. Candor: Be a
`Gluten Guard" and writes:
`People with celiac disease must ultimately learn how
`to speak up for themselves and tell others - friends,
`waiters, in-laws - what they can and can't eat. But that
`does not mean you can't also speak up on their behalf
`every once in a while. . . . Sometimes, I will go into a
`restaurant on a mission, giving the waiter a long lecture
`on the life-or-death importance of keeping any gluten-
`contaminated items off my plate. . . . On other days,
`exhaustion sets in, and I won't feel like launching into
`yet another superdetailed explanation of my diet. I
`simply want to sit back in my chair like a normal person
`and order like everyone else for a change. On those
`nights, Tim has become a pro at advocating for me
`(especially when I am pregnant). . . . He will basically
`fill in the blanks of all the advisories I should be
`giving every time I sit down at a restaurant. Two
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`advocates are better than one!
`G Free at 163. Hasselbeck also refers to a "wingman" and "gluten
`guard" in a section about dining at weddings. See id. at 119.
`Again, the ideas here are similar - the idea that a person with
`celiac disease will be helped if a family member prevents gluten
`exposure at difficult moments. Beyond that, the expression is
`different. Hassett talks about a "gluten warden," while Hasselbeck
`talks about a "gluten guard" or "wingman." Hassett's discussion is
`focused on the hospital setting, while Hasselbeck's is directed at
`dining out. The similarities are minimal.
`Because these similarities arise out of unprotected ideas,
`they cannot, as a matter of law, demonstrate substantial
`similarity. See Johnson, 409 F.3d at 19. For example, in 1998, in
`Duffy v. Penguin Books USA Inc., the District Court for the
`Southern District of New York granted a defendant's motion for
`summary judgment where two works expressed similar ideas through
`dissimilar expression. See 4 F. Supp. 2d 268, 273-275 (S.D.N.Y.
`1998). In Duffy, plaintiff wrote books relating "to style and
`fashion for large sized women." See id. at 270-71. Plaintiff's
`book articulated a system of four categories, labeled H, O, A, and
`X, to describe a woman's body. Id. at 273. Defendant's book
`addressed a similar topic and used four similar categories, albeit
`without the same labels. Id. at 273. The court held that there
`was not substantial similarity because "the idea that women's
`
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`bodies come in one of four types is not copyright protectable."
`See id. The court explained that such an idea is "a common one
`that [defendant] and others are free to build upon, although not to
`express in precisely the same manner as [plaintiff]." Id. Here,
`just as in Duffy, defendants were free to express ideas about
`techniques to avoid ingesting gluten, provided that they did not do
`so in the same manner as Hassett. See id.; see also LaPine v.
`Seinfeld, No. 08-128, 2009 WL 2902584, at *8 (S.D.N.Y. Sept. 10,
`2009)(holding, in a case involving similar cookbooks for parents,
`that the idea of hiding vegetables in foods children enjoy is not
`copyrightable).
`B. Unprotected Short Phrases
`Other purported similarities offered by Hassett are short
`phrases, which are not protected by copyright law. See Johnson,
`409 F.3d at 24; CMM, 97 F.3d at 1519.
`For example, Hassett writes:
`A person with celiac disease should only shop in the
`outer isles of the supermarket. The reason being the
`only thing down the other isles is things you can't have.
`So why torture yourself. Especially if you just find out
`you have the disease.
`Living at 37. Hasselbeck, in a section called "Naturally G-Free
`Foods," writes:
`The foods on the outer aisles of the supermarket
`should be the foundation of your diet - of any diet,
`really, with or without gluten. Basic, natural foods
`that have kept humans going since long before the
`invention of sliced bread....
`
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`G Free at 78. The ideas expressed by the two passages are somewhat
`different - Hassett's idea is that people with celiac disease
`should never shop in certain parts of the supermarket due to the
`presence of gluten-containing products, while Hasselbeck's idea is
`that foods in certain parts of the supermarket are generally
`healthier and should constitute a large part of every person's
`diet. The passages are similar, however, because both contain the
`phrase "the outer [isles/aisles] of the supermarket." "It is
`axiomatic that copyright denies protection to 'fragmentary words or
`phrases," in part because they do not "involve an appreciable
`amount of text or the minimal level of creativity necessary to
`warrant copyright protection." See CMM, 97 F.3d at 1519, 20.
`Consequently, the single similarity between the two passages should
`be excluded, leaving only dissimilar material.
`As another example, Hassett writes:
`Osteoporosis - After years and years of having
`celiac disease I have osteoporosis. Have a bone density
`test. If you have celiac disease this is a must, demand
`it from your doctor. Believe me they won't do it if you
`don't ask.