UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NORTH CAROLINA
`CHARLOTTE DIVISION
`3:19-cv-277-MOC-DCK
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`FREDA J. DAY,
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`Plaintiff,
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`ORDER
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`vs.
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`OPRAH WINFREY, et al.,
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`Defendants.
`___________________________________ )
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`THIS MATTER is before the Court on a Motion for Summary Judgment filed by
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`Defendants Harpo Productions, Lionsgate Entertainment Corporation, Oprah Winfrey Network,
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`LLL, and Oprah Winfrey. (Doc. No. 44). The Court held a hearing on the motion on December
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`16, 2020, and then again on February 17, 2021. The parties were allowed to file supplemental
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`briefs following the December 16 hearing. This matter is ripe for disposition.
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`I.
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`BACKGROUND
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`A. Plaintiff’s Copyright Infringement Claim
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`This is a copyright infringement action in which Plaintiff alleges that Defendants have
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`infringed the copyright of Plaintiff’s memoir, written in 1999, and hereinafter referred to as “the
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`Book.” (Compl., Doc. No. 1, ¶ 2). Plaintiff alleges that the Book is “based on [her] life
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`experiences” and was “granted copyright protection” in April 2003 and was published in 2005.
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`She also alleges that her publisher created a “CD disk” related to the Book. (Id. ¶ 4). Plaintiff
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`does not allege that the CD was ever registered with the Copyright Office. Plaintiff alleges that
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`she sent the Book by certified mail to “Defendant Winfrey” in 2009. (Compl., Doc. No. 1, ¶ 23).
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`Plaintiff alleges that Defendants were all involved in some capacity with the production or
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`broadcast of Greenleaf, a television show that aired on Oprah Winfrey’s network “OWN,” which
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`Plaintiff alleges infringes on the Book. (Id., ¶¶ 2, 9–12).
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`B. Summary of the Book
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`The Book, titled From the Greenleaf to Greener Pastures: A Memoir, is a lengthy
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`memoir of Plaintiff’s life, essentially an autobiography. Plaintiff was born around 1960. The
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`Book was written in 1999 and describes Plaintiff’s life up until that time. Plaintiff was one of
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`ten children. Plaintiff’s father operated a café called The Green Leaf. Plaintiff’s father died
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`when she was around four years old.
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`The Book describes Plaintiff’s life as a child, living with her multiple siblings in a modest
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`home maintained by her mother. The Book describes Plaintiff’s adolescence, her early
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`romances, and her college experiences. The vast majority of the Book deals with Plaintiff’s
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`relationship with a man named Ed, whom she eventually marries. Ed is an alcoholic and habitual
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`drug user, is usually unemployed, and is physically and mentally abusive to Plaintiff. The Book
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`describes how Plaintiff and Ed lived in poverty (often getting by on food stamps and without
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`electricity) and how Plaintiff and Ed were evicted more than a dozen times from various
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`apartments. Plaintiff describes a series of low paying and unfulfilling clerical jobs she had with
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`various governmental agencies, schools, and hospitals, from which she was either fired or quit.
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`Plaintiff describes how she and Ed had frequent run-ins with the law and how they were arrested
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`and jailed from time to time on minor charges. Plaintiff describes raising three children she had
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`with Ed. Throughout the Book, Plaintiff discusses her strong faith in God and was generally
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`optimistic that her life would get better. Plaintiff states on several occasions that she rarely
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`attended church. Her faith in God was personal, not institutional. At the end of the Book, in
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`1999, when she was around thirty-nine years old, Plaintiff describes how she applied for and
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`obtained a teaching job in North Carolina. The Book ends at that point, with Plaintiff stating
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`how she believed she would be moving on to a better life.
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`The Book is structured chronologically. The first chapter addresses the story of
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`Plaintiff’s mother, how she met Plaintiff’s father (who was married to another woman), and the
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`ten children they had together. The Book thereafter chronicles Plaintiff’s life from childhood
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`through adulthood sequentially as it occurred. Along the way, the Book presents hundreds of
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`short anecdotes and stories about Plaintiff and Ed, their extended family members, and their
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`friends.
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`C. Summary of the Television Series Titled “Greenleaf”
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`Greenleaf is a fictional television series set in the present. It is the story of a large,
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`affluent African-American church in Memphis, Tennessee, its leader Bishop Greenleaf (a man in
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`his 60s), and his family. Bishop Greenleaf and his wife Mae have been married for 44 years, and
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`they have four children. At the beginning of the show, it is revealed that one of them, Faith, has
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`committed suicide. The other three children are:
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`1. Grace – a woman in her 40’s who left the church and her family 20 years earlier to
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`pursue a career as a television journalist. She has a teenage daughter and is a single mother. She
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`is the main character and protagonist of Greenleaf.
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`2. Jacob – a man in his mid-30s who works in the church as an assistant pastor to his
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`father. He is married and has two children, one of whom is a teenager who becomes friends
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`with Grace’s daughter.
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`3. Charity – a woman in her late 20’s or early 30’s who is in the church choir, is married
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`and wants to have children.
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`3
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`Greenleaf begins with Grace and her daughter returning to Memphis from their home in
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`Phoenix to attend Faith’s funeral. Grace agrees to stay in Memphis after the funeral, ostensibly
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`to work in the church, but her real reason for staying is to try to prove that her uncle (Mae’s
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`brother) is molesting young girls. Indeed, Grace’s uncle molested Faith as a young girl, and this
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`ultimately led to her suicide. This is the primary storyline of the first season of Greenleaf, but
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`there are multiple subplots as well.
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`In the first season the following subplots are featured:
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`a. Grace, who is a talented preacher in her own right, becomes more and more involved
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`in church affairs and starts counselling parishioners and leading services on her own. (Episodes
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`102, 105, 106 and 113).
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`b. Jacob and his wife have marital difficulties because he was having an affair; eventually
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`they go to counseling and reconcile. (Episodes 101–106).
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`c. Jacob is put on leave by Bishop Greenleaf, which alienates him and causes him to join
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`a rival church. (Episodes 105 and 111–13).
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`d. Charity’s husband, Kevin, becomes attracted to a man who helps run a homeless
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`shelter at the church; Charity begins to suspect that her husband might be gay. (Episodes 102,
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`103, 105, 106 and 109–13).
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`e. A police officer and church member accidentally shoots an innocent teenager, becomes
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`ostracized by the church (the Bishop ignores him fearing congregation backlash), and is
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`eventually killed in the church parking lot. (Episodes 102, 104 and 108).
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`The show explores the relationships and career aspirations of all of the Greenleaf family
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`members, as well as contemporary social issues such as the Black Lives Matter movement,
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`sexual abuse, and the role of formal religion in the contemporary African-American community.
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`Significantly, and in stark contrast to the Book, the fictional Greenleaf family does not live in
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`poverty. Rather, they live a life of luxury and privilege, residing in a mansion and working at a
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`sleek, modern, contemporary church complex. Nor is Greenleaf a biography. It does not trace
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`the steps of anyone’s 40-year journey to adulthood. Its characters come to the first episode of the
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`show fully formed and developed.
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`The following facts are undisputed on summary judgment:
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`1. The only submission to any of the Defendants that Plaintiff can recall is a purported
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`submission by certified mail to Defendant Winfrey in 2009. (Shephard Decl., Ex. A, Response
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`to Interrogatory No. 1).
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`2. Even though Plaintiff claims to have submitted the Book to Defendant Winfrey in
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`2009 by certified mail, Plaintiff has no receipt or other evidence to confirm that fact. (Shephard
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`Decl., ¶ 7); (Shephard Decl., Ex. C, Request No. 10).
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`3. Plaintiff has no recollection of whether her alleged submission of the Book was
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`accompanied by a transmittal letter. (Shephard Decl., Ex. A, Response to Interrogatory No. 4).
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`No transmittal letter has been produced. (Shephard Decl., ¶ 7).
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`4. The address to which Plaintiff claims to have sent the Book to Defendant Winfrey was
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`not used by Defendants in 2009 when the Book was allegedly sent. (Nordman Decl., ¶ 4). The
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`address was not used by Defendants until 2015. (Id.).
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`5. There is no record of the Book in submission logs maintained by Ms. Winfrey’s
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`companies where submitted material, if reviewed and considered, is recorded. (Nordman Decl.,
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`¶ 6); (Declaration of Cindy Iwaki (“Iwaki Decl.”), ¶ 4).
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`6. The person who actually created Greenleaf, Craig Wright,1 came up with the name
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`Greenleaf. (Declaration of Craig Wright (“Wright Decl.”), ¶ 4–6). In part, the name was a
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`reference to a short story of the same name written by Flannery O’Connor in or about 1965.
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`(Id.).
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`II.
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`STANDARD OF REVIEW
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`Summary judgment shall be granted “if the movant shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
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`56(a). A factual dispute is genuine “if the evidence is such that a reasonable jury could return a
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`verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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`A fact is material only if it might affect the outcome of the suit under governing law. Id.
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`The movant has the “initial responsibility of informing the district court of the basis for
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`its motion, and identifying those portions of the pleadings, depositions, answers to
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`interrogatories, and admissions on file, together with the affidavits, if any, which it believes
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`demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
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`317, 323 (1986) (internal citations omitted).
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`Once this initial burden is met, the burden shifts to the nonmoving party. The nonmoving
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`party “must set forth specific facts showing that there is a genuine issue for trial.” Id. at 322 n.3.
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`The nonmoving party may not rely upon mere allegations or denials of allegations in his
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`pleadings to defeat a motion for summary judgment. Id. at 324. The nonmoving party must
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`1 Mr. Wright is named as a defendant in this action but has never been served. Mr. Wright
`attests in his sworn Declaration that, before the filing of this lawsuit, never saw, read, or even
`heard of the Book. (Wright Decl., ¶ 5).
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`present sufficient evidence from which “a reasonable jury could return a verdict for the
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`nonmoving party.” Anderson, 477 U.S. at 248; accord Sylvia Dev. Corp. v. Calvert Cty., Md.,
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`48 F.3d 810, 818 (4th Cir. 1995).
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`When ruling on a summary judgment motion, a court must view the evidence and any
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`inferences from the evidence in the light most favorable to the nonmoving party. Anderson, 477
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`U.S. at 255. “‘Where the record taken as a whole could not lead a rational trier of fact to find for
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`the nonmoving party, there is no genuine issue for trial.’” Ricci v. DeStefano, 129 S. Ct. 2658,
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`2677 (2009) (quoting Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
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`III. DISCUSSION
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`A. COPYRIGHT INFRINGEMENT—GENERAL ELEMENTS
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`To prevail in a copyright infringement action, a plaintiff must establish (i) ownership of a
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`copyright in a work and (ii) copying by defendant of original elements of the work. Feist
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`Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). Because proof of actual
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`copying is difficult to establish, a plaintiff may prove copying by establishing that (i) the
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`defendant had access to plaintiff’s copyrighted work and (ii) the works at issue are substantially
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`similar. Towler v. Sayles, 76 F.3d 579, 582 (4th Cir. 1996). Both access and substantial
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`similarity are required to prevail in a copyright claim. Id. at 583. If either is lacking, the claim
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`will fail.
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`Defendants first contend that they are entitled to summary judgment because Plaintiff has
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`not raised a genuine issue of disputed fact as to whether any of the Defendants had access to the
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`Book. The Court agrees. To prevail on a claim of copyright infringement, “a plaintiff must
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`show that a defendant had a reasonable opportunity to view or copy the work at issue.” Moore v.
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`Lightstorm Entm’t, 992 F. Supp. 2d 543, 550 (D. Md.), aff’d, 586 F. App’x 143 (4th Cir. 2014).
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`“To prove access, the plaintiff must show that the defendant had an opportunity to view or copy
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`the work. The ‘mere possibility’ of such an opportunity is not enough. It must be ‘reasonably
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`possible’ that the defendant had access to the copyrighted work.” Bldg. Graphics, Inc. v. Lennar
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`Corp., 708 F.3d 573, 577 (4th Cir. 2013) (citations omitted). A plaintiff may not establish access
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`to her work through mere speculation and conjecture. Moore, 992 F. Supp. 2d at 550; see also
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`Bldg. Graphics, Inc., 708 F.3d at 580 (granting summary judgment in favor of defendant where
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`evidence of access was derived from “inferences built upon inferences”); Eaton v. Nat’l Broad.
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`Co., 972 F. Supp. 1019, 1025 (E.D. Va. 1997) (“[H]ypothetical possibilities [that someone may
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`have forwarded a script to a senior executive] are mere conjectures insufficient to create a
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`genuine issue of material fact.”).
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`i.
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`ACCESS
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`Here, Plaintiff has simply not raised a genuine issue of disputed fact as to whether
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`Defendants obtained access to the Book. First, Plaintiff alleges that she “submitted a copy of the
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`book by certified mail to ‘Defendant Winfrey’ in 2009.” (Doc. No. 1, ¶ 23). In discovery,
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`Defendants served interrogatories asking if this was the only submission to Defendants. Plaintiff
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`responded that she “can’t recall” any others. (Shephard Decl., ¶ 3–4; Shephard Decl., Ex. A,
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`Response to Interrogatory No. 1). Defendants also served interrogatories asking what address
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`was used for the alleged 2009 submission to Defendant Winfrey. (Shephard Decl., ¶ 5). Plaintiff
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`responded that “it was the same address used in the summons in which a copy of my complaint
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`was mailed.” (Shephard Decl., Ex. A, Response to Interrogatory No. 3). The summons to
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`defendant Winfrey was mailed to 1041 Formosa Ave., Hollywood, California, which is the
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`corporate address of defendant OWN, LLC (of which Defendant Winfrey is an officer).
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`(Shephard Decl., ¶ 6; Shephard Decl., Ex. B). OWN, LLC, however, did not begin working
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`from that office until 2015. (Nordman Decl., ¶ 4). Thus, Plaintiff’s verified statements in
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`discovery that she sent her book to Defendant Winfrey in 2009 at the 1041 Formosa Avenue
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`address cannot establish access because it is undisputed that OWN was not yet even doing
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`business at that address at the time of the alleged submission.2
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`Significantly, while Plaintiff alleged in the Complaint that the Book was sent to
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`Defendant Winfrey by certified mail, in response to interrogatories asking about the whether she
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`had a receipt evidencing the alleged certified mailing, Plaintiff stated that “I’m not sure of its
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`location.” (Shephard Decl., Ex. A, Response to Interrogatory No. 6). No certified mail receipt
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`was produced in response to Defendants’ request for production of documents which requested
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`it. (Shephard Decl., ¶ 7; Shephard Decl., Ex. C, Request No. 10).
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`Second, Defendants have produced evidence on summary judgment showing that, even if
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`there were evidence of a transmittal of the Book addressed to Defendant Winfrey at OWN, the
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`Book would never have made its way to Defendant Winfrey because of OWN’s long-standing
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`policy that unsolicited submissions of material are never forwarded to Ms. Winfrey or anyone
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`else. Instead, they are returned to the sender by OWN’s legal department. (Nordman Decl., ¶ 5).
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`Another entity affiliated with Ms. Winfrey, Harpo Productions, has the same policy. (Iwaki
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`Decl., ¶ 3).
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`Third, Defendants have produced evidence showing that, when there are submissions of
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`material from authorized sources that OWN considers for possible use, those submissions are
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`entered and noted in a submission log. (Nordman Decl., ¶ 6). OWN’s submission log has no
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`2 In contravention of what she said in her interrogatory responses, Plaintiff alleged in her
`Complaint that she sent the Book to “Oprah Winfrey Studios located in Chicago, IL.” (Compl.,
`Doc. No. 1, ¶ 3). There is no entity named Oprah Winfrey Studios. Defendant Harpo
`Productions, Inc., one of Ms. Winfrey’s companies, is in Chicago.
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`entry for or reference to the Book or any other submission by Plaintiff. (Id.). Harpo Productions
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`has the same procedure, and its submission log has no entry for or reference to Plaintiff or her
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`Book. (Iwaki Decl., ¶ 4).
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`Fourth, as Defendants note, in any event, Defendant Winfrey did not create the show
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`Greenleaf. Craig Wright, who was named as a defendant in this action but who has never been
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`served, was the creator of Greenleaf. (Wright Decl., ¶ 4). Mr. Wright has submitted his own
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`sworn affidavit, attesting that before the filing of this litigation, he had never seen, read, or heard
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`of the Book, nor did he ever discuss Plaintiff’s Book with Ms. Winfrey or anyone else. (Id., ¶ 5).
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`In sum, Plaintiff has produced no evidence on summary judgment raising a genuine
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`dispute of fact as whether any of the named Defendants had access to the Book before the
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`alleged copyright; thus, her copyright infringement claim fails on this ground alone.
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`ii.
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`SUBSTANTIAL SIMILARITY
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`a. Extrinsic Test
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`The Court further finds that, even if Plaintiff could raise a genuine factual dispute as to
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`whether Defendants had access to the Book, Defendants are entitled to summary judgment
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`because the works at issue are simply not substantially similar. In determining whether two
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`works are substantially similar in protected expression, a plaintiff must satisfy both an
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`“extrinsic” (or “objective”) test and an “intrinsic” (or “subjective”) test. Dawson v. Hinshaw
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`Music Inc., 905 F.2d 731, 733 (4th Cir. 1990) (citing Litchfield v. Spielberg, 736 F.2d 1352,
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`1355 (9th Cir. 1984); see also Lyons P’ship, L.P. v. Morris Costumes, Inc., 243 F.3d 789, 801
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`(4th Cir. 2001). The extrinsic test examines the specific objective elements of the works at issue.
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`To satisfy the extrinsic test, the works at issue must be similar in plot, theme, dialogue, mood,
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`setting, pace, characters, and sequence of events. Towler, 76 F.3d at 584. However, only
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`copyrightable elements of the plaintiff’s work can be infringed. Universal Furniture Int’l, Inc. v.
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`Collezione Europa USA, Inc., 618 F.3d 417, 436 (4th Cir. 2010) (per curiam).
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`Before comparing the works, courts must “‘isolate the protectable expression’ in the
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`copyrighted work in order to determine whether there are substantial similarities between that
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`protected expression and the defendant’s work.” Comins v. Discovery Commc’ns, Inc., 200 F.
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`Supp. 2d 512, 518 (D. Md. 2002) (quoting Whitehead v. Paramount Pictures Corp., 53 F. Supp.
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`2d 38, 47 (D.C. Cir. 1999)). Where a plaintiff fails to satisfy the extrinsic test, a claim for
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`copyright infringement should be dismissed as a matter of law. Copeland v. Bieber, 789 F.3d
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`484, 490 n.1 (4th Cir. 2015) (“[A] district court may grant a motion to dismiss or summary
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`judgment under the extrinsic prong alone.”); see also Tessler, 2008 WL 5781733, at *4. Here,
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`applying the extrinsic test, the Court finds as a matter of law that none of the constituent
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`elements of the Book–its plot, theme, dialogue, mood, setting, pace, characters, and sequence of
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`events–bear any similarity (let alone substantial similarity) to Greenleaf. The Court will discuss
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`each element in order.
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`Plot. First, as to plot, because the Book is a memoir, it does not really have a plot. It is
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`merely Plaintiff’s presentation of her life story: a child is raised by a single parent, lives a life of
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`poverty, marries an unemployed alcoholic, is abused both emotionally and physically by her
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`husband, raises three children while being serially evicted from more than a dozen residences,
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`has numerous run-ins with the law, has a series of unfulfilling jobs from which she is fired or
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`quits, and eventually moves to North Carolina in 1999, where she hopes to begin a better life.
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`None of this happens in the Greenleaf television series.
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`In contrast with the Book, the Greenleaf television series is a fictional piece about a
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`present day African-American church, its bishop, and his family. The first season primarily
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`focuses on the quest of its main character (daughter Grace Greenleaf) to stop a serial child
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`molester. Beyond that, the drama focuses on the church’s internal affairs, the bishop’s
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`relationship with his congregation, and each child’s participation in preaching and managing the
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`church. The Book has none of those elements as part of its plot. That is, here is no church at the
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`center of the Book’s story, there is no bishop, there is no family of adult children vying for
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`influence within a church, and there is no pursuit of a serial child molester, which is the central
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`plot of the first season of Greenleaf.
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`Given these stark differences, there is simply no substantial similarity as to plot. In her
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`complaint, Plaintiff contends that the Book is about “scandalous relationships, abortion,
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`debilitating poverty, and [Plaintiff’s] tumultuous marriage,” and how “through it all, she
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`[Plaintiff] finds the faith to pursue her dreams by turning to God.” (Compl., ¶ 20). First, that is
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`not a plot description and it is not protectible. Scandalous relationships, a tumultuous marriage,
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`abortion, and faith in God are “general ideas” or broad “themes” and are simply “not eligible for
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`copyright protection.” Moore, 992 F. Supp. 2d at 555. Second, what Plaintiff describes is not at
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`all the plot of Greenleaf. For example, the claimed prevailing “plot” of Plaintiff’s work–that is,
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`people living in and surviving debilitating poverty–is completely absent from Greenleaf. The
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`Greenleaf family is portrayed as extremely wealthy and live a life of luxury and privilege. The
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`show never suggests (much less depicts) any of them overcoming poverty or economic hardship
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`of any kind.
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`Characters. Next, the Book’s characters are not substantially similar to Greenleaf’s
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`characters. The primary “characters” in the Book are Plaintiff (raised by a single mother,
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`marries an abusive man, lives a life of poverty, and ultimately overcomes it), Ed (Plaintiff’s
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`alcoholic, drug addicted, abusive, unemployed husband) and Plaintiff’s mother (who raised ten
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`children by herself despite limited financial means of her own). There are no corresponding
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`characters in Greenleaf. Greenleaf’s primary characters are Grace (estranged from her family for
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`years, but returns home after her sister commits suicide, seeks to get her uncle arrested for being
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`a child molester, and becomes a pastor at her father’s church) and Bishop Greenleaf (a man in his
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`late 60’s who leads a contemporary African-American congregation).
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`In her complaint, Plaintiff alleges that several characters in Greenleaf are in part based on
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`Plaintiff herself: “The main character Freda [Plaintiff], life changes has been transformed onto
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`those represented by all of the sisters in the Greenleaf TV show [sic].” (Compl., ¶ 21). In
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`describing these supposed similarities, Plaintiff alleges that Charity Greenleaf (the Bishop’s
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`youngest daughter) shares Plaintiff and Ed’s “marital problems in their twenties,” that Grace
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`Greenleaf is “an aspiring journalist” similar to Plaintiff, and that Plaintiff and Ed’s “marital woes
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`in their thirties” are similar to those of Kerrise, the wife of Jacob Greenleaf. (Compl., ¶ 22).
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`These alleged similarities simply cannot establish copyright infringement.
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`First, “[i]t is well-established that ‘[c]opyright law provides very limited protection to
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`characters presented in a creative work. Basic character types are not copyrightable.’” Eaton,
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`972 F. Supp. at 1027-28 (quoting Jones v. CBS, Inc., 733 F. Supp. 748, 753 (S.D.N.Y. 1990)
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`(finding it insufficient to establish infringement where the plaintiff's work contained a “conjure
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`lady” and the defendant’s work contained “Sister Sadie, a voodoo practitioner”)). In other
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`words, two characters sharing the supposed “trait” of having had “marital problems” is not
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`sufficiently unique or novel to establish similarity for purposes of copyright analysis. See Levi
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`v. Twentieth Century Fox Film Corp., No. 3:16CV129, 2018 WL 1542239, at *7 (E.D. Va. Mar.
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`29, 2018) (finding that characters that share “basic character traits” but that are not “uniquely
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`developed” and “novel” in their portrayal are not substantially similar).
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`Second, even if these were actionable similarities, it is improper to “pick[] and choose[]
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`traits of different people instead of comparing parallel characters.” Moore, 992 F. Supp. 2d at
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`557; see also Eaton, 972 F. Supp. at 1028 (improper to contrast two ostensibly similar characters
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`where one was “the main character” of one work and the other was simply a “secondary
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`character” in the other). For these reasons, Plaintiff has simply not shown that the characters in
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`the two works are substantially similar.
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`Theme. Next, the Book’s theme appears to be that people can overcome major adversity
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`in their lives if they persevere and have faith in God. Greenleaf contains no such theme. Rather,
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`the themes in Greenleaf appear to be that “crime does not pay” and the exploration of
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`contemporary issues in the African-American religious and social experience (such as the Black
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`Lives Matter storyline of season one). That the Book occasionally refers to Plaintiff’s faith in
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`God and Greenleaf involves a church does not make them substantially similar.
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`Moreover, Plaintiff’s faith as reflected in the Book is deeply personal and is not practiced
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`in a formal church setting as in Greenleaf, nor is the Book about a large affluent family-run
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`church or the moral and ethical struggles of its Bishop and his adult children. As repeatedly
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`stated in the Book, Plaintiff rarely attended church. For example, she states in the book, “I didn’t
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`even attend church regularly,” (Book, p. 228); “My interaction with God came about regardless
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`of the fact that Momma never took all of us to church as a family,” (Id., p. 245); “At that time in
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`my life, I didn’t even have a church home, though I’d experienced firsthand the power of
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`prayer,” (Book at p. 307); and “[despite] the few times we did attend church, I assured her that
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`the only thing left for solace was to continuously keep praying,” (Id., p. 331). Additionally, the
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`concept of faith is not protectible by copyright, and that the two works each address faith in
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`Case 3:19-cv-00277-MOC-DCK Document 56 Filed 05/12/21 Page 14 of 19
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`totally different ways does not make them substantially similar. Eaton, 972 F. Supp. at 1027
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`(“general ideas, themes, or plots are not eligible for copyright protection”).
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`Mood and Setting. The mood of the Book is bleak: abject poverty, abusive
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`relationships, lost jobs, arrests, evictions, and having to move almost every year. The Book takes
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`the reader starkly into the terribly challenging life Plaintiff endured until she was almost forty
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`years old. Virtually every scene in the Book occurs someplace where Plaintiff and her family are
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`living near or below the poverty line. The mood of Greenleaf, by contrast, is of intrigue and
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`mystery, revealing power struggles within the powerful and wealthy Greenleaf family, and the
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`quest to bring a serial molester to justice. Moreover, unlike the poverty which permeated
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`Plaintiff’s life and is portrayed in the Book, the primary characters in Greenleaf lead a life of
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`luxury, wealth, and privilege. Most of the action in Greenleaf takes place in the lavish Greenleaf
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`family mansion and the modern sleek church complex where the Greenleaf family members
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`work, not the impoverished neighborhoods where the Book takes place. Thus, the mood and
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`setting are not substantially similar.
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`Pace and Sequence. Next, the Book covers the first 40 years of Plaintiff’s life. In fact,
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`it begins with a lengthy story of the life of Plaintiff’s mother before Plaintiff was even born. The
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`primary action covered by the Book starts in 1960 and ends in 1999. By contrast, Greenleaf does
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`not cover decades of time. The events portrayed take place in a matter of months. Nor is it set in
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`the past. Greenleaf is set in the present and its fictional storyline addresses contemporary social
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`and legal issues. Thus, the pace and sequence of the two works are not substantially similar.
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`Dialogue. For dialogue to be deemed substantially similar, there must be “extended
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`similarity” throughout the two works. Moore, 992 F. Supp. 2d at 557–58 (quoting Olson v. Nat’l
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`Broad. Co., Inc., 855 F.2d 1446, 1450 (9th Cir. 1988)). There is no such similarity here.
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`Case 3:19-cv-00277-MOC-DCK Document 56 Filed 05/12/21 Page 15 of 19
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`Plaintiff has not cited any protectable dialogue that she wrote in the Book that appears in
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`Greenleaf. In her Complaint, Plaintiff points to instances where portions of scripture are
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`referenced in both works, including such common place occurrences as the recitation of Psalm
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`23 (“The Lord is my Shepherd”) at a funeral. (Complaint, pg. 8–9 of 23, Episode 1, Section III
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`Comparison). Plaintiff cannot claim copyright over one of the most well-known and often-
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`quoted Biblical verses. A list of common idioms and quotations from other sources is not
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`evidence of substantial similarity. See Staggs v. West, PJM 08-728, 2009 WL 2579665, at *3
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`(D. Md. Aug. 17, 2009) (“However, each of these allegedly identical phrases contain common
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`words or phrases–such as ‘good life’–that simply are not copyrightable.”) (quoting Darden v.
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`Peters, 488 F.3d 277, 286 (4th Cir. 2007)).
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`The fact that part of the title of the Book includes the words “The Green Leaf” is not
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`actionable either. Titles are not protected by copyright. Comins, 200 F. Supp. 2d at 518); Hayes
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`v. Rule, No. 1:03cv1196, 2005 WL 2136946, at *8 (W.D.N.C. Aug. 19, 2005) (finding no
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`actionable similarity between two CDs named “Blood in My Eyes” and “Blood in My Eye”).
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`Moreover, the “Green Leaf” in the title of the Book (two words) refers to the name of the café
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`owned by Plaintiff’s father. By contrast, the word Greenleaf (one word) as the title of
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`Defendants’ television series is a family surname. Moreover, the Greenleaf name chosen by
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`Craig Wright for the title of the television series was based, in part, on the 1965 short story
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`“Greenleaf,” written by Flannery O’Connor. (Wright Decl., ¶ 6).
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`In sum, the Book and Greenleaf have profound differences in plot, theme, dialogue,
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`mood, setting, pace, characters, and sequence of events. To avoid summary judgment, Plaintiff
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`must show that each of the elements described above which form the basis of the extrinsic test
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`and show that specific protectable expressi