Case 1:14-cv-01644-ENV-LB Document 4 Filed 05/30/14 Page 1 of 6 PageID #: 9
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`KENNETH ENG,
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`BROOKLYN OFFICE
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`-against-
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`L'PONI BALDWIN,
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`Plaintiff,
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`Defendant.
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`--------------------------------------------------------------x
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`VITALIANO, D.J.,
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`MEMORANDUM & ORDER
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`14-cv-1644 (ENV)
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`On March 10, 2014, plaintiff Kenneth Eng, who is self-represented, initiated
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`this lawsuit against defendant L'Poni Baldwin, alleging copyright infringement.
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`Eng's application to proceed in forma pauperis is granted, but, for the reasons that
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`follow, his complaint is dismissed without prejudice and with leave to replead within
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`30 days.
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`Background1
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`In April 2005, Eng published his novel "Dragons: Lexicon Triumvirate,"
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`which chronicles the adventures of the dragon Dennagon, whose travails see him
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`traveling across time and space between the dragon kingdom of Drake might (also
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`"Dragonworld") and medieval Earth in pursuit of "the Lexicon," an artifact of
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`untold power. Eng's work juxtaposes fantasy with futuristic science fiction as it pits
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`1 Background facts are drawn from the allegations in plaintiff's complaint, which are
`deemed true for the purposes of this decision. The Court also takes judicial notice of those
`literary works upon which Eng's complaint relies, and deems them incorporated by
`reference. See, e.g., Int'/ Audiotext Network v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995); Gottlieb
`Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 630 n.1(S.D.N.Y.2008).
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`1
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`humans and dragons alike against robot-dragon hybrids called "technodragons,"
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`over whom the wicked dragon lord Drekkenoth reigns supreme. Eng's imaginings
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`place dragons even in the void of space, where "space dragons" roam freely. 2
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`Apparently, Baldwin shares Eng's fascination with dragons, and has penned
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`a number of her own works about mythical wyrms in untraditional scenarios. Her
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`writings, which are available for purchase online at a nominal fee, appear to have
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`been penned over the course of many years and released serially since 2012 in a
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`digital "bookazine" or "subscription book" of Baldwin's creation called "The
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`Society on Da Run." A frequent subject in Baldwin's expansive body of fiction is
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`"space dragons," or "alien dragons," who rule an intersolar empire of planets and,
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`who, over the course of human history, take an interest in Earth. Eng now claims
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`that Baldwin has infringed on his copyright by incorporating "space dragons,"
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`"dragon gods," "cybernetic dragons," a meeting of dragons and futuristic
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`technology, advanced civilizations of dragons, extraterrestrials battling dragons,
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`and dragons with weapons into her work. 3
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`Standard of Review
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`A civil action complaint must provide "a short and plain statement of the
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`claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This rule
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`2 Eng also avers that, in another work, a comic book appropriately entitled "Dragons vs.
`Aliens," publication date unknown, he devised the concept of dragons waging war with
`extraterrestrials, as well.
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`3 Eng adds that his "[r]esearch indicates that [Baldwin] is black," and because he styles
`himself as "a well-known Asian Supremacist," he believes that she has copied his work out
`of malice. (Compl. ~III).
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`2
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`does not require a plaintiff to provide "detailed factual allegations" in support of his
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`or her claims in order to survive a motion to dismiss, Bell At/. Corp. v. Twombly, 550
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`U.S. 544, 555 (2007), but it does demand "more than an unadorned, the-defendant-
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`unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).
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`Indeed, mere conclusory allegations or "naked assertions" will not survive a motion
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`to dismiss without at least some "further factual enhancement" providing substance
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`to the claims alleged. Twombly, 550 U.S. at 557.
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`When a plaintiff proceeds without legal representation, a court must regard
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`that plaintiff's complaint in a more liberal light, affording the pleadings of a pro se
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`litigant the strongest interpretation possible. See Erickson v. Pardus, 551 U.S. 89, 94
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`(2007); Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (per
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`curiam). Even so, a court must dismiss an in forma pauperis complaint if it "(i) is
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`frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or
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`(iii) seeks monetary relief against a defendant who is immune from such relief." 28
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`U.S.C. § 1915(e)(2)(B).
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`Discussion
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`In order to state an actionable claim of copyright infringement, an owner4 of
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`4 As a threshold matter, Eng has not alleged that he possesses a valid copyright in
`"Dragons: Lexicon Triumvirate." A certificate of registration from the United States
`Register of Copyrights constitutes prima facie evidence of valid ownership of a copyright,
`see 17 U.S.C. § 410(c), and copyright holders are generally required to register their works
`before they are entitled to sue for infringement. See Reed Elsevier, Inc. v. Muchnick, 559
`U.S. 154, 163 (2010). This requirement, however, is not jurisdictional. Id. at 157. Although
`Eng's failure to prove that he holds a registered copyright is grounds for the Court to
`dismiss this action without prejudice, his claims must also fail as a matter of law, for the
`reasons which are discussed below.
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`3
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`a valid copyright claiming infringement must demonstrate that: "(1) the defendant
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`has actually copied the plaintiff's work; and (2) the copying is illegal because a
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`substantial similarity exists between the defendant's work and the protectable
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`elements of plaintiff's." Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir. 1999)
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`(internal quotations and emphasis omitted). In practice, the question of "actual
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`copying" by a defendant can be collapsed into the question of whether the
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`defendant's work is substantially similar to the plaintiff's, and whether the alleged
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`infringer had access to the protected work, so as to permit the inference of copying.
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`See Lewinson v. Henry Holt & Co., LLC, 659 F. Supp. 2d 547, 563 (S.D.N.Y. 2009)
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`(collecting cases).
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`Thus, the relevant inquiry here is whether Baldwin's works are substantially
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`similar to protected elements of Eng's works. See Peter F. Gaito Architecture, LLC,
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`v. Simone Development Corp., 602 F.2d 57, 62-63 (2d Cir. 2010) (resolution of
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`substantial similarity as a matter of law is appropriate at the motion to dismiss
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`phase). In considering whether works are substantially similar, the Court must ask
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`whether "an average lay observer would recognize the alleged copy as having been
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`appropriated from the copyrighted work," while keeping in mind that works may
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`consist of both protectable and unprotectable elements, and that only protectable
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`elements should be compared. Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d
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`Cir. 1995). Reflecting this understanding, it is axiomatic that "the protection
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`granted to a copyrightable work extends only to the particular expression of an idea
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`and never to the idea itself." Reyher v. Children's Television Workshop, 533 F.2d 87,
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`4
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`..
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`90 (2d Cir. 1976) (citing Mazer v. Stein, 347 U.S. 201, 217 (1954)). In fact, "the
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`essence of an infringement lies in taking not a general theme but its particular
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`expression
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`through similarities of
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`treatment, details,
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`scenes, events and
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`characterization." Id. at 91.
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`It is clear that Eng, as told by him in his complaint, has seized hold of
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`similarities between his ideas, as expressed in "Dragons: Lexicon Triumvirate," and
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`Baldwin's, as expressed in her own works. Far from being "original" in a legal
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`sense, the ideas which Eng purports to own are similarly common in the corpus of
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`American science fiction and fantasy. Moreover, plaintiff entirely fails to identify
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`how Baldwin's expressions are in any way substantially similar to his own, and even
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`the most cursory comparison of the works in question can make clear that the
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`authors express their common ideas quite differently. For instance, Eng alleges that
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`the "dragon gods" in Baldwin's stories are "identical" to what the character
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`Dennagon becomes in his own novel. But, where Eng's supreme dragon realized
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`singular, limitless power through contact with the titular Lexicon artifact, and made
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`himself one with eternity itself, the "dragon gods" of Baldwin's writings are many,
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`less-than-omnipotent, and preoccupied with mundane concerns.
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`In short,
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`expressions which Eng calls "identical" to his own are anything but. In identifying
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`only generalized concepts that his work and Baldwin's works share, Eng cannot
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`make out an action for infringement of material protected by the copyright laws.
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`See Mattel, Inc. v. Azrak-Hamway Inat'l, Inc., 724 F.2d 357, 360 (2d Cir. 1983);
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`Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
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`5
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`Conclusion
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`For the foregoing reasons, Eng has failed to state a claim of copyright
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`infringement upon which relief may be granted. These claims must be dismissed,
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`but without prejudice and with leave to amend, should Eng be able in good faith to
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`identify any protected expression in his work-rather than unprotectable ideas or
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`concepts-that defendant has allegedly infringed. Pursuant to this grant of leave,
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`plaintiff may file an amended complaint, but must do so within 30 days of the entry
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`on the docket of this Memorandum and Order. Should plaintiff decide to file an
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`amended complaint, it shall be captioned "Amended Complaint," and bear the same
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`docket number as this Order. Plaintiff is advised that the amended complaint will
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`completely replace the original complaint. If plaintiff fails to timely file an amended
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`complaint within 30 days of the entry of this Order on the docket, this case will be
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`dismissed with final judgment entered for defendant.
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`The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal would
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`not be taken in good faith and therefore inf orma pauperis status is denied for the
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`purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
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`SO ORDERED.
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`Dated:
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`Brooklyn, New York
`May 19, 2014
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`ERIC N. VITALIANO
`United States District Judge
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`6
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`/S/ Judge Eric N. Vitaliano