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`Case 1:O7—cv—O7063—BSJ Document 38 Filed 01/08/09 Page 1 of 25
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`USDC SDNY
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`DOCUMENT
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`.ELEC'FRONICALLY FILED
`J a?‘ (‘-5 -
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`____________________________________ __X
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`ROGER R. CRANE, JR.,
`
`Plaintiff,
`
`V.
`
`POETIC PRODUCTS LIMITED,
`
`Defendant.
`____________________________________ __X
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`POETIC PRODUCTS LIMITED,
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`Coanterclaimant,
`
`V.
`
`ROGER G. CRANE, JR.,
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`Counterdefendant.
`____________________________________ __X
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`O7 Civ. 7063 (3SJ)(FM)
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`OPINION and ORDER
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`Case 1:O7—cv—O7063—BSJ Document 38 Filed 01/08/09 Page 1 of 25
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`USDC SDNY
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`DOCUMENT
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`u
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`.ELEC'FRONICALLY FILED
`J a?‘ (‘-5 -
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`____________________________________ __X
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`ROGER R. CRANE, JR.,
`
`Plaintiff,
`
`V.
`
`POETIC PRODUCTS LIMITED,
`
`Defendant.
`____________________________________ __X
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`POETIC PRODUCTS LIMITED,
`
`Coanterclaimant,
`
`V.
`
`ROGER G. CRANE, JR.,
`
`Counterdefendant.
`____________________________________ __X
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`O7 Civ. 7063 (3SJ)(FM)
`
`OPINION and ORDER
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`
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`Case 1:O7—cv—O7063—BSJ Document 38 Filed 01/08/09 Page 2 of 25
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`Plaintiff's authorship, marketing, and distribution of The Last
`
`1:
`Con ession in the United States. Plaintiff moved for summary
`
`judgment on his declaratory judgment claim.
`
`For the reasons set
`
`forth below, Plaintiff's motion is granted in part and denied in
`
`part, and Defendant's counterclaims are dismissed.
`
`BACKGROUND
`
`Plaintiff Roger R. Crane, Jr.,
`
`is an attorney who resides
`
`and practices law in New York. Crane is the author and U.S.
`
`copyright owner of The Last Confession (“The Last Confession” or
`
`“TLC”).
`
`(Compl.
`
`T 5.)
`
`The Last Confession is a fictional
`
`two-
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`act play based on the historic events surrounding the succession
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`
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`Name” or “IGN”), authored by David A. Yallop.
`
`(Defendant's
`
`Answer, Counterclaims, and Demand for a Jury Trial
`
`(“Def.
`
`Answer”)
`
`1% 2, 6-7.)
`
`In God's Name is a factual investigation
`
`of the circumstances surrounding the death of Pope John Paul
`
`in 1978.
`
`The book contains biographical details of the Pope's
`
`life, as well as extensive documentation of the financial and
`
`political corruption that plagued the Vatican in the 1970s.
`
`The
`
`synopsis on the back cover describes IGN as a “classic work of
`
`investigative writing .
`
`.
`
`.
`
`.” Yallop describes the book as
`
`\\
`
`the product of nearly three years’
`
`intensive research,” and
`
`\\
`s_a_es that all the information, all the details, all the
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`genuine issue as to any material fact and that the moving party
`
`is entitled to a judgment as a matter of law.”
`
`Fed. R. Civ. P.
`
`56(c).
`
`The moving party must “demonstrate the absence of a
`
`genuine issue of material fact.” Celotex Corp. v. Catrett, 477
`
`U.S. 317, 323 (1986).
`
`If the moving party does so successfully,
`
`the non—moving party must present “specific facts showing that
`
`there is a genuine issue for trial.” Fed. R. Civ. P. 56(c).
`
`The party opposing summary judgment cannot rely on “conclusory
`
`statements or on contentions that the affidavits supporting the
`
`motion are not credible.” Ying Jang Gan v. City of N.Y., 996
`
`F.2d 522, 535 (2d Cir. 1993). Nonetheless,
`
`the court must draw
`
`
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`\
`on the interpretation of historical facts, which ‘whether or not
`
`it originated with [the plaintiff],
`
`is not protected by his
`
`copyright and can be freely used by subsequent authors”).
`
`Hoehling also holds that scenes a faire (stock or standard
`
`literary devices used by many authors depicting a particular
`
`historical period) are not copyrightable as a matter of law.
`
`;g; at 979.
`
`Hoehling, however, must be read alongside Feist
`
`Publications,
`
`Inc. v. Rural Telephone Service Co., 499 U.S. 340
`
`(1991).
`
`In Feist,
`
`the Supreme Court held that while copyrights
`
`do not apply to facts themselves, “thin” copyright protection
`
`
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`and arrangement of its theories and facts — is protectable.l
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`To
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`determine whether PPL’s copyright to IGN’s expression has been
`
`infringed by The Last Confession,
`
`the Court must decide whether
`
`The Last Confession is substantially similar to the protectable
`
`elements of Tgfl.
`
`B.
`
`Substantial similarity test
`
`To establish copyright
`
`infringement,
`
`a party must show (1)
`
`ownership of a valid copyright and (2) copying of constituent
`
`elements of the work that are original.
`
`See Feist, 499 U.S. at
`
`361. Plaintiff does not dispute that PPL owns a valid copyright
`
`to In God's Name. Therefore,
`
`in order to prevail on its
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`
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`in the eyes of an ordinary lay observer, The Last Confession is
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`substantially similar to the protectable expression in in God's
`
`Name.
`
`:d.; Fisher—Price,
`
`Inc. V. Well—Made Toy Mfg. Corp., 25
`
`F.3d 119, 123 (2d Cir. 1994).
`
`In general,
`
`the question of substantial similarity is a
`
`close question of fact;
`
`therefore, “summary judgment has
`
`traditionally been frowned upon in copyright litigation.”
`
`Hoehling, 618 F.2d at 977. Yet,
`
`summary judgment may be granted
`
`when any similarity concerns non—protectable elements or
`
`no
`
`\\
`
`reasonable trier of fact could find the works substantially
`
`similar.” Walker V. Time Life Films, 784 F.2d 44, 48
`
`(2d Cir.
`
`
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`from defendant's biography “merely recount factual events with
`
`little or no similarity in style or form of expression”).
`
`The law in this Circuit is clear that the substantial
`
`similarity must be between protectable elements. Williams,
`
`84
`
`F.3d at 588 (“When we determine that a work contains both
`
`protectable and unprotectable elements, we must
`
`take care to
`
`inquire only whether
`
`‘the protectable elements, standing alone,
`
`are substantially similar.’”)
`
`(quoting Knitwaves,
`
`Inc. v.
`
`Lollytogs Ltd., 71 F.3d 996,
`
`lOO2
`
`(2d Cir.
`
`l995)).
`
`To decide
`
`this motion,
`
`the Court need only compare the two works
`
`themselves without having to consider any extrinsic evidence.
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`
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`comparisons,
`
`the following seven examples are representative of,
`
`and are the strongest of,
`
`PPL’s claims.
`
` Example In God's Name The Last Confession
`
`
`PP. 48-49:
`P.
`ll:
`
`1
`
`Eventually,
`
`a collection of BENELLZ: Albino, it's good
`
`to see you.
`(Yallop the letters was published
`Decl.,
`in book form, Illustrissimi book.
`Ex.
`4 —-the most illustrious
`
`" enjoyed your
`
`at 2-3) ones.
`
`LUC AN
`
`You did? Thank
`
`you. It was just some
`
`The book is a delight.
`
`letters.
`
`P.
`
`l48:
`
`He quoted Mark Twain, Jules
`Verne and the ltalian poet
`Trilussa.
`
`(Smiling.) but
`BENELL:: Yes
`to Mark Twain, Jules Verne
`
`very illustrious.
`
`P. 25:
`
`P.
`
`l2:
`
`
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`One of the injustices that
`
`mine. Many priests objected
`to giving communion to the
`prostitutes and the
`
`Luciani continuously worked
`to eliminate in Venice
`
`handicapped. These
`creatures do not
`
`concerned a widely
`prevalent attitude towards
`the subnormal and the
`
`handicapped. Not only the
`
`mayor and city officials
`showed indifference, but
`Luciani found the same
`
`understand,
`
`they said. So
`
`after mass I asked a young
`
`girl who was afflicted with
`a terrible spinal disease
`if she knew what she had
`
`‘Yes:
`received. She said,
`Jesus.’
`will not abandon
`
`them.
`
`prejudice among some of his
`parish priests. When he
`
`went to give First
`
`Communion to a large group
`
`of handicapped people at St
`
`Pius X in Marghera he had
`
`to cope with a delegation
`
`of protesting priests who
`argued that he should not
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`
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`Roman Catholic Church which
`
`had grown increasingly dark
`
`and sombre during the last
`
`years of Paul Vl.
`PP. 58-59:
`
`P. 32:
`
`(Yallop
`Decl.,
`Ex.
`4
`
`at 33-
`
`35)
`
`The Latin American
`
`cardinals were not the only
`
`group to formulate a
`document that amounted to a
`
`job description. A week
`
`a group of
`earlier,
`Catholics calling
`themselves CREP (Committee
`
`for the Responsible
`
`Election of the Pope) held
`a Press conference in the
`
`Columbus Hotel, Rome. The
`brave man chosen to field
`
`SUENENS:
`. And then
`.
`.
`there is CREEP
`
`BEVELLZ: What is creep?
`
`SUENENS: Committee for the
`
`Responsible Election of the
`Pope.
`
`BENELL .
`
`assume it
`
`doesn't include any
`cardinals.
`
`questions from over 400
`
`reporters was Father Andrew
`
`SUENENS: Correct
`
`Listen to their criteria.
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`
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`from the slightest taint of
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`financial organizational
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`wheeling and dealing.’
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`P. 303:
`
`6
`
`P. 34:
`
`He dreamt of a Church which GANTIN: What we need is a
`
`Christ to drive the money-
`lenders from the temple.
`
`(Yallop would dispense with the
`Decl., wealth, power and prestige
`Ex.
`4
`that it had acquired
`
`at 38)
`
`through Vatican
`
`Incorporated; of a Church
`which would get out of the
`
`market place and reject the
`moneylenders where the
`
`message of Christ had
`become tainted
`
`P. 70:
`
`7
`
`P. 105:
`
`There was no doubt
`
`GANTIN:
`
`In the last
`
`(Yallop whatsoever in the minds of
`
`conclave we left feeling
`
`
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`substantially similar coordination of facts.
`
`The sharing of a
`
`similar viewpoint by l§fl’s author
`
`(“The book is a delight”) and
`
`by a character in Egg (“I enjoyed your book”) are not
`
`substantially similar in expression, as the latter statement is
`
`an opinion by one of the play’s characters and the former is an
`
`opinion by the author in a non—fiction book.
`
`In Example 2, Egg dramatizes £§fi’s description of Luciani’s
`
`refusal to own a boat and corresponding need to rely on the fire
`
`brigade’s boat
`
`to get around Venice. While this detail is
`
`indeed a vivid illustration of Luciani’s humility, it is a
`
`historical fact, and E£§’s dramatization of this fact, while
`
`
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` f
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`real people, and are therefore historical facts that are not
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`protectable by copyright.
`
`In Example 4, both Igfi and Egg use the phrase “open the
`
`windows,” but
`
`the former work describes Pope John Paul
`
`I opening
`
`the windows of the Papal Apartments to let fresh air into the
`
`Catholic Church, while the latter work has a character employ
`
`that phrase to describe what Pope John Paul II and the Second
`
`Vatican Council had hoped to achieve.
`
`T£C’s use of a common
`
`metaphor to depict the hopes and actions of a different
`
`character can hardly be described as substantially similar to
`
`I§fi’s use of that phrase.
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`
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`The Prologue to TGN states that “while the dialogue within this
`
`book is reconstructed, it is not fabricated.”
`
`TGN, at xvii.
`
`As
`
`long as IGN presents this dialogue as fact, it is not
`
`protectable by copyright.
`
`See Rokeach v. Avco Embassy Pictures
`
`Corp.,
`
`l97 U.S.P.Q.
`
`l55,
`
`l6l
`
`(S.D.N.Y.
`
`l978); Suid V. Newsweek
`
`Magazine, 503 F. Supp.
`
`l46,
`
`l48 (D.D.C.
`
`l980)
`
`(“The author of a
`
`factual work may not, without an assignment of copyright, claim
`
`copyright
`
`in statements by others and reported in the work since
`
`the author may not claim originality as to those statements.”).
`
`In Example 6, both igg and [£9 paraphrase a frequently
`
`quoted passage from the New Testament’s Book of Matthew:
`
`“And
`
`
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`such an “infinitesimal portion” of each work Cannot be said to
`
`constitute copyright infringement.
`
`See Gardner, 391 F. Supp. at
`
`944
`
`(observing that three passages that may have been copied
`
`“comprise[d] an infinitesimal portion of each publication” and
`
`were not su 'icient to sustain a finding of copyright
`
`infringement).
`
`In assessing Example 7 and the works in general, Tabachnik
`
`v. Dorsey is instructive. Tabachnik concerned the alleged
`
`copyright
`
`infringement of the plainti
`
`"’s doctoral dissertation
`
`by the defendant's book on the same historical subject.
`
`The
`
`Court found that “[a]lthough [defendant] does state some of the
`
`
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`selection, arrangement, and coordination of facts surely does
`
`not extend to the presentation of historical events in the order
`
`in which they took place.
`
`b. Plot,
`
`theme, and total concept and feel
`
`When examining two works of fiction, courts in the Second
`
`Circuit will generally compare such elements as plot,
`
`theme, and
`
`total concept and feel.
`
`See, e.g., Williams,
`
`84 F.3d at 588-91
`
`(finding that the novel and film versions of Jurassic Park were
`
`not substantially similar to earlier copyrighted children's
`
`novels in total concept and feel,
`
`theme, setting, characters,
`
`time sequence, plot, and pacing); Brown v. Perdue, No.
`
`04 Civ.
`
`
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`or plots, are not protectable under the Copyright Act. §ee
`
`Hoehling, 618 F.2d at 978-79 (2d Cir. 1980).
`
`Even if such
`
`interpretations were protectable,
`
`a comparison of the two works’
`
`plot,
`
`theme, and total concept and feel demonstrates that the
`
`two works are not substantially similar.
`
`TEE is an investigation into the death of Pope John Paul
`
`I
`
`that uses facts to support the author's theory that the Pope was
`
`murdered.
`
`The book also documents the Pope's early life and
`
`rise through the ranks of the Roman Catholic Church, as well as
`
`the political and financial intrigues that surrounded the Church
`
`in the 1960s and 1970s.
`
`By contrast, TEC is a fictional two-act
`
`
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`Further,
`
`the protagonist of TLC is Cardinal Benelli, who figures
`
`only as a minor character in IGN. Benelli is on-stage in the
`
`majority of
`
`the scenes in TLC, and it is his perspective that
`
`dominates the play.
`
`IGN,
`
`in contrast,
`
`focuses primarily on the
`
`figure of Pope John Paul I.
`
`The di "erence in main characters
`
`is critical evidence of a lack of substantial similarity.
`
`See,
`
`e.g., Flaherty, 388 F. Supp. 2d at 287-88 (finding no
`
`substantial similarity where,
`
`among other elements,
`
`the
`
`protagonist
`
`in each work was di "erent).
`
`The Last Confession also has several
`
`themes, most notably
`
`the tension between religious devotion and human ambition, as
`
`
`
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`91
`
`(2d Cir. 1976)
`
`(“Copyrights .
`
`.
`
`. do not protect thematic
`
`concepts or scenes which necessarily must follow from certain
`
`similar plot situations.”).
`
`Due to these substantial
`
`differences in plot and theme, as well as the different mediums
`
`each author uses (non—fiction book versus fictional play),
`
`the
`
`two works cannot be said to be substantially similar in total
`
`concept and feel to support a finding of copyright
`
`infringement,
`
`even if l§§’s historical interpretations were protectable.
`
`See
`
`Brown, NO.
`
`04 Civ. 7417 (GED), 2005 U.S. Dist. LEXIS 15995, at
`
`*32 (“Where there is a marked difference in total concept and
`
`feel,
`
`summary judgment is appropriate.").
`
`
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`impressions of them, are the real test for claims of
`
`infringement.” Walker, 784 F.2d at 5l.
`
`PPL also attempts to draw parallels to Burgess v. Chase-
`
`Riboud, 765 F. Supp. 233 (E.J. Pa l99l), where the court held
`
`that the defendant's play about Thomas Jefferson's alleged love
`
`affair with one of his slaves, Sally Hemings,
`
`infringed the
`
`plaintiff's novel based on the same subject. Defendant's
`
`reliance on Burgess is misplaced, however, because the infringed
`
`work in that case was another work of fiction derived from the
`
`same set of historical facts, not a work of non~fiction that
`
`described those historical facts.
`
`The court found “the sheer
`
`
`
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`therefore dismisses Defendant's counterclaim of infringement.2
`
`With respect to Plaintiff's request for declaratory relief,
`
`the
`
`Court has discretion to grant such relief when it deems it
`
`appropriate.
`
`See 28 U.S.C.
`
`§ 220l(a). Declaratory judgments
`
`have been awarded in copyright cases in this Circuit before.
`
`See, e.g., Brown, No.
`
`04 Civ. 7417 (GBD), 2005 U.S. Dist. LEXIS
`
`15995, at *43. Because the Court finds Defendant's copyright
`
`infringement counterclaim meritless, it exercises its discretion
`
`and awards Plaintiff a declaratory judgment that Crane’s
`
`authorship, publication, and exploitation of rights in and to
`
`The Last Confession do not infringe any U.S. copyrights owned by
`
`
`
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`extraordinary remedy be used only after other means of
`
`redressing the injury sought to be avoided have been
`
`explored."); Dow Jones & Co. v. Harrods Ltd., 237 F. Supp. 2d
`
`394, 422 (S.D.N.Y. 2002)
`
`(“[T]he authority of federal courts to
`
`enjoin foreign lawsuits involving litigants within their
`
`jurisdiction .
`
`.
`
`. should be used sparingly and granted only
`
`with care and restraint.”).
`
`In this case, no foreign action has been brought, nor does
`
`Defendant make any counterclaims of U.K. copyright
`
`infringement
`
`in this forum. Granting equitable relief in the form of a
`
`declaratory judgment would thus not only of_end international
`
`C
`
`
`
`Case 1:07-cv-07063-BSJ Document 38 Filed 01/08/09 Page 24 of 25
`
`Case 1:O7—cv—O7063—BSJ Document 38 Filed 01/08/09 Page 24 of 25
`
`or equitable rights that are equivalent to one of the exclusive
`
`rights already protected by copyright
`
`law (known as the “general
`
`scope” requirement).
`
`See Briarpatch Ltd., L.P. v. Phoenix
`
`Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004); Silverstein v.
`
`Penguin Putnam, Inc., 522 F. Supp. 2d 579, 608 (S.D.N.Y. 2007).
`
`\\'
`The subject matter requirement is satisfied if the claim
`
`applies to a work of authorship fixed in a tangible medium of
`
`expression and falling within the ambit of one of the categories
`
`I
`of copyrightable works.’ Briarpatch, 373 F.3d at 305.
`
`The
`
`general scope requirement is met when the state right would be
`
`abridged by an act
`
`(reproduction, adaptation, distribution,
`
`
`
`Case 1:07-cv-07063-BSJ Document 38 Filed 01/08/09 Page 25 of 25
`
`Case 1:O7—cv—O7063—BSJ Document 38 Filed 01/08/09 Page 25 of 25
`
`Computer Assocs. Int’l ,
`
`Inc. v. Altai, Inc., 982 F.2d 693, 717
`
`(2d Cir. 1992); see also Silverstein, 522 F. Supp. 2d at 608-09;
`
`Orange Counter Choppers,
`
`Inc. v. Olaes Enters.,
`
`Inc., 497 F.
`
`Supp. 2d 541, 555 (S.D.N.Y. 2007).
`
`The Court therefore holds
`
`that Defendant's unfair competition counterclaim is preempted by
`
`the federal Copyright Act and must be dismissed.
`
`CONCLUSION
`
`For the reasons set forth above, Plaintiff's motion for
`
`summary judgment is granted with respect
`
`to U.S. copyright
`
`law
`
`and denied with respect to U.K. copyright
`
`law. Defendant's U.S.
`
`copyright
`
`infringement and unfair competition counterclaims are
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