Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`JOSEPH LEARY,
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`Plaintiff,
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`v.
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`No. 3:13-cv-00639 (JAM)
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`ROY MANSTAN, FREDERIC FRESE,
`WESTHOLME PUBLISHING, LLC,
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`Defendants.
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`FREDERIC FRESE, ROY MANSTAN,
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`Counter Claimants,
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`v.
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`JOSEPH LEARY,
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`Counter Defendant.
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`ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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`This copyright case involves two non-fiction works about the so-called “Turtle,” a
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`Revolutionary War-era submarine built by a farmer from Connecticut named David Bushnell.
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`The life of David Bushnell and his invention of the Turtle has captured the imagination of
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`several writers.1 Plaintiff Joseph Leary is the author and copyright owner of an unpublished
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`manuscript on this subject, and so are defendants Frederic Frese and Roy Manstan, who wrote a
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`later book published by defendant Westholme Publishing, LLC.
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`Plaintiff principally contends that defendants’ book infringes on his copyright in the
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`unpublished manuscript. I conclude that there is no genuine issue of fact to support this claim. It
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`1 The record reflects at least eleven books about David Bushnell and the Turtle, see Doc. #41-11
`at 43, including an illustrated children’s book, see June Swanson (ill. Mike Eagle), David Bushnell and
`His Turtle: The Story of America’s First Submarine (1991).
`1
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`Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 2 of 15
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`is true that the two works are about much of the same basic subject matter, but there is no claim
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`that defendants engaged in verbatim copying or close paraphrasing of plaintiff’s work. Copyright
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`law otherwise affords only narrow protection to works of history, and subsequent authors may
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`utilize the same facts, theories, and concepts contained in prior works so long as they do not
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`copy another author’s particular original manner of expression. In view of this rigorous standard
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`and my comparison of the two works at issue in this case, I conclude that no reasonable jury
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`could find that defendants’ book infringes plaintiff’s copyright in the manuscript. Accordingly, I
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`will grant defendants’ motion for summary judgment.
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`BACKGROUND
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`The Turtle—or the American Turtle, as it is sometimes called—is a fascinating historical
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`curiosity. Well over a century before the advent of modern submarine warfare, David Bushnell
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`built this one-man wooden submersible to conduct underwater attacks on the British naval fleet
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`along American shores. Founding fathers like George Washington and Benjamin Franklin were
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`aware of and supported Bushnell’s efforts. Ultimately, the Turtle never accomplished its goal of
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`destroying British ships. But in many ways the project was a success: the Turtle was the first
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`submersible vessel used in a war, its revolutionary screw propeller design is still in use today,
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`and Bushnell discovered how to make gunpowder explode underwater.
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`The history of David Bushnell and the Turtle submarine has long intrigued plaintiff
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`Joseph Leary. In the 1970s, plaintiff worked with defendant Frederic Frese to build a working
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`replica of the submarine. The replica was launched with much fanfare in 1977, and today it is on
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`display at the Connecticut River Museum in Essex. While working on the 1977 replica, plaintiff
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`researched information about Bushnell and the various techniques that Bushnell used to build the
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`Turtle. Plaintiff’s research has continued in the ensuing decades, and over the years plaintiff has
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`2
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`Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 3 of 15
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`incorporated his discoveries into an ever-evolving (and as–yet–unpublished) manuscript weaving
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`together a biography of Bushnell, historical information about the Turtle, and plaintiff’s
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`experiences building the replica.
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`At some point in the intervening decades, plaintiff gave Frese a copy of a version of his
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`manuscript, which was then titled The Famous Water Machine from Connecticut.2 That version
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`began with the following dedication: “This work is inspired by and dedicated to Frederic Frese . .
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`. without whom I would know absolutely nothing about David Bushnell or submarines.” Doc.
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`#53-6 at 3. In 2002, plaintiff applied for and was granted federal copyright registration with
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`respect to a subsequent version of the manuscript, which had by then been retitled David
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`Bushnell and the American Turtle. Plaintiff continues to work on the manuscript, and he intends
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`to publish it once it is completed.
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`The 1977 replica of the Turtle would not turn out to be the only replica of Bushnell’s
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`submarine.3 Over two decades later, in the early 2000s, the National Maritime Historical Society
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`became interested in building another replica of the Turtle. The Society asked plaintiff to
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`participate in the project, and plaintiff, in turn, asked Frese to join. Defendant Roy Manstan, an
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`engineer from the Naval Undersea Warfare Center, was also brought in to assist with the
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`building of another Turtle replica. The replica was to be built as part of a student education
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`project at a high school in Old Saybrook, Connecticut.
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`Plaintiff’s involvement with the second Turtle replica project was short-lived. Through a
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`2 The manuscript that was allegedly given to Frese is dated 1996, see Doc. #53-6 at 4, but other
`evidence indicates that plaintiff actually gave the manuscript to Frese several years later, see Doc. #41-11
`at 29–30.
`3 Others have also built “Turtle” replicas. See Randy Kennedy, An Artist and His Sub Surrender
`in Brooklyn, N.Y. Times, Aug. 4, 2007, available at
`http://www.nytimes.com/2007/08/04/arts/design/04voya.html?_r=0 (last accessed June 29, 2015), and
`Judy Campbell, Turtle Lives Again as Replica Surfaces at Academy, America’s Navy (Apr. 14, 2003),
`http://www.navy.mil/submit/display.asp?story_id=6852.
`3
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`series of events that are not entirely clear, plaintiff was allegedly “effectively . . . remove[d] . . .
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`from the project.” Doc. #41-11 at 98.
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`The project successfully went forward, however, and Manstan and Frese worked with
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`high school students and others to build another Turtle replica. Frese and Manstan then wrote a
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`book about the Turtle submarine, Bushnell, and their own experiences building a Turtle replica.
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`Their book—titled Turtle: David Bushnell’s Revolutionary Vessel—was published by defendant
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`Westholme Publishing, LLC, in 2010. Sometime after it was published, plaintiff found
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`defendants’ book online and he purchased a copy of it. After reading the book, plaintiff “felt
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`betrayed” because he believed that he “recognized [his] writing” in defendants’ book. Doc. #41-
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`11 at 109.
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`Thereafter, plaintiff initiated this lawsuit. In his complaint, plaintiff contends that
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`defendants’ book infringes on his copyright in the unpublished manuscript and he also claims
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`that defendants’ conduct violates the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.
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`Gen. Stat. § 42-110a et seq. Defendants have moved for summary judgment.
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`DISCUSSION
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`The principles governing a motion for summary judgment are well established. Summary
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`judgment may be granted only “if the movant shows that there is no genuine dispute as to any
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`material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
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`see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of
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`material fact ‘exists for summary judgment purposes where the evidence, viewed in the light
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`most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s
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`favor.’” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Guilbert v.
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`Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). The evidence adduced at the summary judgment
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`stage must be viewed in the light most favorable to the non-moving party and with all
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`ambiguities and reasonable inferences drawn against the moving party. See, e.g., Tolan, 134 S.
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`Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). All in all, “a
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`‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine the truth of
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`the matter but to determine whether there is a genuine issue for trial.’” Tolan, 134 S. Ct. at 1866
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`(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
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`To prevail on a copyright infringement claim, “two elements must be proven: (1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original.” Feist Publications, Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S. 340, 361 (1991). There is
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`no dispute in this case that plaintiff owns a valid copyright in his unpublished manuscript. To
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`satisfy the second element, plaintiff “must also show copying by defendants. . . . Copying may
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`be inferred where a plaintiff [1] establishes that the defendant had access to the copyrighted work
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`and [2] that substantial similarities exist as to protectible material in the two works.” Walker v.
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`Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986). For purposes of this motion only,
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`defendants have conceded they had access to plaintiff’s manuscript.4 See Doc. #41-1 at 5. This
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`leaves just one question: whether a triable issue of fact remains that the two works are
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`substantially similar.
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`The substantial similarity inquiry often involves questions of fact. Nevertheless, a district
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`court may “resolve [the substantial similarity] question as a matter of law [when] . . . the
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`similarity between two works concerns only non-copyrightable elements of the plaintiff’s work,
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`or because no reasonable jury, properly instructed, could find that the two works are substantially
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`4 It appears to be undisputed that defendants had access to at least one version of plaintiff’s
`manuscript, but there is no indication as to how they might have obtained access to the copyrighted 2002
`version. I need not concern myself with this factual ambiguity in view of defendants’ concession
`regarding access to the manuscript.
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`Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 6 of 15
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`similar.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010)
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`(internal quotation marks omitted). Put differently, summary judgment is proper when the lack of
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`substantial similarity is “so clear as to fall outside the range of disputed fact questions requiring
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`resolution at trial.” Kregos v. Associated Press, 3 F.3d 656, 663 (2d Cir. 1993) (internal
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`quotation marks omitted). The Court makes this assessment by engaging in a “detailed
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`examination of the works themselves.” Williams v. Crichton, 84 F.3d 581, 583 (2d Cir. 1996)
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`(internal quotation marks omitted). “[T]he works themselves supersede and control contrary
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`descriptions of them . . . including any contrary allegations, conclusions or descriptions of the
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`works contained in the pleadings.” Gaito Architecture, 602 F.3d at 64 (citation and internal
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`quotation marks omitted).5
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`In a copyright infringement action, “[t]he standard test for substantial similarity . . . is
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`whether an ordinary observer, unless he set out to detect the disparities [between the two works],
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`would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Id. at 66
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`(some alterations in original) (internal quotation marks omitted). This test is often referred to as
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`the “ordinary observer test” because it “ask[s] whether an average lay observer would recognize
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`the alleged copy as having been appropriated from the copyrighted work.” Ibid. (internal
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`quotation marks omitted).
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`But a court must apply this test carefully, ever mindful that not all elements of a
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`copyrighted work are protectable. Indeed, “[o]ften . . . a work’s aesthetic appeal will be due
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`largely to unprotected elements. In these cases, we must be more discerning, [and] ignor[e] those
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`aspects of a work that are unprotectable as we apply the test . . . .” Zalewski v. Cicero Builder
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`5 Moreover, expert testimony is generally “irrelevant” to the inquiry. Laureyssens v. Idea Grp.,
`Inc., 964 F.2d 131, 140 (2d Cir. 1992). For this reason, I have considered but do not place particular
`weight on the expert reports submitted by the parties. Instead, I rely on my detailed review of the two
`works to determine the existence of substantial similarity.
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`Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014) (some alterations in original) (internal quotation
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`marks omitted).
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`Which aspects of a work of history (like plaintiff’s manuscript) are protectable and which
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`are unprotectable? Historical facts and events are not protected. See Rosemont Enters., Inc. v.
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`Random House, Inc., 366 F.2d 303, 306–07 (2d Cir. 1966). Neither are interpretations of
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`historical events, such as theories, plots, or explanatory hypotheses. See Hoehling v. Universal
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`City Studios, Inc., 618 F.2d 972, 974, 978–79 (2d Cir. 1980). The only thing that copyright law
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`protects is the non-fiction author’s original expression—that is, the author’s particular manner of
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`selecting, coordinating, excerpting, modifying, and arranging various public domain
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`components. See, e.g., id. at 974 (recognizing that “the scope of copyright protection in historical
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`accounts is narrow indeed, embracing no more than the author’s original expression of particular
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`facts and theories already in the public domain”); Feist Publications, 499 U.S. at 348–49
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`(“Factual compilations . . . may possess the requisite originality” for copyright protection
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`because the author “typically chooses which facts to include, in what order to place them, and
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`how to arrange the collected data,” but this protection is “thin” because “a subsequent compiler
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`remains free to use the facts contained in another’s publication to aid in preparing a competing
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`work, so long as the competing work does not feature the same selection and arrangement.”).6
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`The Second Circuit has recently underscored this distinction between non-protection for
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`facts and protection for peculiar expression:
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`A fundamental rule of copyright law is that it protects only “original works of
`authorship,” those aspects of the work that originate with the author himself. 17
`U.S.C. § 102(a). Everything else in the work, the history it describes, the facts it
`mentions, and the ideas it embraces, are in the public domain free for others to
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`6 The rule denying copyright protection to historical facts and interpretations is not without its
`critics. See Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 293–96 (S.D.N.Y. 2012) (discussing
`judicial and scholarly criticism). Of course, I remain bound by Second Circuit and Supreme Court
`precedent on this subject.
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`draw upon. It is the peculiar expressions of that history, those facts, and those
`ideas that belong exclusively to their author. See 17 U.S.C. § 102(b). Thus, any
`author may draw from the history of English-speaking peoples, but no one may
`copy from A History of the English–Speaking Peoples. Any artist may portray the
`Spanish Civil War, but no one may paint another Guernica. And anyone may
`draw a cartoon mouse, but there can be only one Mickey.
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`Zalewski, 754 F.3d at 102 (footnotes omitted).7 Thus, anyone may write a book about the Turtle
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`submarine, David Bushnell, and his or her experiences building a replica of the Turtle, but no
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`one may “bodily appropriate” plaintiff’s particular expressive treatment of these subjects. See
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`Hoehling, 618 F.2d at 980 (“In works devoted to historical subjects, it is our view that a second
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`author may make significant use of prior work, so long as he does not bodily appropriate the
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`expression of another.”).
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`In light of this legal framework, it is evident to me that no reasonable fact finder could
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`conclude that defendants’ book is substantially similar to plaintiff’s unpublished manuscript.
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`To begin with, it is undisputed that defendants’ book contains no verbatim copying of plaintiff’s
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`manuscript. Nor does the book contain any close paraphrasing. This is significant, because
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`“absent wholesale usurpation of another’s expression, claims of copyright infringement where
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`works of history are at issue are rarely successful.” Id. at 974. A review of the reported cases
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`from this Circuit demonstrates this point. As best I can tell, there is only one reported case within
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`7 Plaintiff contended at oral argument that a lower threshold for substantial similarity applies in
`cases involving unpublished works. I am not convinced. The two cases that plaintiff relies on to advance
`this argument—Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and
`Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (2d Cir. 1977)—are inapposite. Both
`cases are legally distinguishable because they are about the fair use doctrine. It is true that the
`“unpublished nature of the work . . . figure[s] prominently in fair use analysis.” Harper & Row
`Publishers, 471 U.S. at 553. But fair use is an “affirmative defense” to a claim of copyright infringement,
`see id. at 561, and defendants have not raised a fair use defense in their motion for summary judgment.
`And I do not reach the issue, either, because I find that there is no substantial similarity in the first place.
`Moreover, the cases are readily factually distinguishable from the present case. Both cases involved
`substantial verbatim copying of the plaintiff’s work. Id. at 548 (noting that the defendant “lift[ed]
`verbatim quotes of the author’s original language . . . constituting some 13% of the . . . article);
`Wainwright Securities, 558 F.2d at 96 (noting that the defendant “appropriated almost verbatim the most
`creative and original aspects of the [plaintiff’s] reports”). In this case, by contrast, there is no verbatim
`copying or even close paraphrasing.
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`the Second Circuit in recent years where a party prevailed on a copyright claim involving the
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`alleged infringement of a non-fiction book, and in that case the infringing book “copied between
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`25-30 percent of [the earlier book] verbatim or through close paraphrase.” Robinson v. Random
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`House, Inc., 877 F. Supp. 830, 836 (S.D.N.Y. 1995). The absence of any verbatim copying or
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`close paraphrasing weighs against a finding of substantial similarity.
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`I recognize, of course, that substantial similarity may exist even in the absence of obvious
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`copying, and that protection is available for the “association, presentation, and combination of
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`the ideas and thought which go to make up the [author’s] literary composition.” Salinger v.
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`Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1987) (alteration in original) (internal quotation
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`marks omitted). And there is no doubt that the works at issue in this case share some significant
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`subject-matter similarities. Both plaintiff and defendants have built replicas of David Bushnell’s
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`Turtle submarine, and they have both chosen to write books that incorporate information about
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`their experiences building the respective replicas, historical information about the Turtle, and
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`biographical information about David Bushnell. The parties share similar experiences and
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`interests, and it is these similar experiences and interests that gave rise to two works about the
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`same thing. But I cannot say—and no reasonable fact finder could say—that these two works of
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`non-fiction are substantially similar for copyright infringement purposes.
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`Most fundamentally, the two works adopt different approaches to similar subject matter.
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`Plaintiff’s manuscript is principally a work of history. The great majority of the manuscript is
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`devoted to the history of the Turtle itself—the idea for an underwater submersible, the
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`construction of the device, its missions in the New York harbor, and so forth. The manuscript
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`also includes detailed biographical information about Bushnell himself, including anecdotes
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`about Bushnell’s early life, his experiences with the Turtle, his other activities during the
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`Revolutionary War, and his life following the war. Additionally, the manuscript contains
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`information about post-Turtle developments in underwater warfare. True, the manuscript
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`includes passages about plaintiff’s personal experiences with Frese building, launching, and
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`testing the first Turtle replica. But this information is set forth mostly in just two of the book’s
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`eleven chapters (Chapters 4 and 7), and it comprises less than 20% of the book. The overriding
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`focus of plaintiff’s manuscript is on the history of David Bushnell, the Turtle, and early
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`submarines.
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`By contrast, defendants’ book is principally focused on the technical aspects of designing
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`and building the Turtle—both David Bushnell’s original submersible and defendants’ replica.
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`Indeed, well over half of defendants’ book is devoted to extended scientific discussions of
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`various design and construction challenges facing builders of the Turtle—the propulsion system
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`(Chapter 7), the shape of the hull (Chapter 8), creating a hatch (Chapter 9), devising an
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`underwater explosion mechanism (Chapter 11), etcetera—and to detailed information about
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`operational tests of defendants’ Turtle replica (Chapters 12–18).
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`It is true that defendants’ book incorporates a good deal of historical information
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`throughout, and the book does contain biographical information about Bushnell himself. But this
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`information mainly serves as context and orientation for discussions about the myriad technical
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`challenges that Bushnell and defendants encountered when building the Turtle. And this
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`technical focus is not surprising given that the book was written by a mechanical engineer
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`(Manstan) and a technical arts teacher (Frese). In short, the respective works have obviously
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`differing focuses and approach the material from different angles.
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`Plaintiff also contends that defendants have copied the structure of his manuscript, and he
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`makes much of the fact that both works employ “flash-backs” and “flash-forwards” as they
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`transition back and forth between the Revolutionary War era, when the original Turtle was built,
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`and modern times, when the respective replicas were built. Of course, a “flash-back” or “flash-
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`forward” is nothing more than a standard storytelling device, and plaintiff enjoys no copyright
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`protection in the usage of these devices. He does enjoy copyright protection in the particular
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`manner with which he deploys these devices to structure his manuscript. But no reasonable juror
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`could conclude that defendants have bodily appropriated the structure of plaintiff’s manuscript in
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`view of the different ways that the two works are structured.
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`Plaintiff’s book is mostly a chronological historical account: a thorough description of the
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`history of the Turtle, a biography of the entirety of David Bushnell’s life, and a mini-treatise on
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`the history of underwater vessels both pre- and post-Turtle. The book weaves in various
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`discussions about the building of the replica throughout, but just two chapters can be fairly
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`characterized as “flash-forwards” to the 1970s: Chapter Four, which discusses how the replica
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`was built, who helped with the construction of the replica, and the publicity surrounding the
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`replica; and Chapter Seven, which describes the various dives that the Turtle replica made.
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`Plaintiff’s manuscript is structured as a narrative, and it is apparent that the aim is to tell a
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`compelling story. Information concerning the Turtle replica is largely background information,
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`and is of interest only to the extent that it informs what we know about Bushnell and how he
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`built the original Turtle.
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`Defendants’ book utilizes a markedly different structure. The book is divided into four
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`parts. Like the early pages of plaintiff’s manuscript, Part One of defendants’ book focuses in part
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`on background information about pre-Turtle submersibles and Bushnell’s early life. This section
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`also introduces the Turtle and its various components. While this portion is somewhat similar to
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`the beginning of plaintiff’s manuscript, the rest of defendants’ book is structured differently. Part
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`Two of the book turns to a detailed discussion about each aspect of the Turtle: how Bushnell
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`might have solved each technical challenge, and how the authors (and their students) solved each
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`technical challenge when building the replica. Part Three then exhaustively documents the
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`various technical challenges that defendants encountered when testing their replica. The last and
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`shortest section, Part Four, returns to the historical record as it details the circumstances leading
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`to the Turtle’s three attacks on British ships as well as the attacks themselves—material that
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`plaintiff covers in the middle of his manuscript.
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`Unlike plaintiff’s manuscript, defendants’ book is largely not structured as a narrative at
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`all. Rather, the majority of the book is structured like a technical manual: a series of extended
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`descriptions of how to construct each part of the Turtle. The structure of the two books is not
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`substantially similar.
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`Plaintiff also claims that defendants copied an original idea from his manuscript. Both
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`works theorize that Isaac Doolittle, a New Haven clockmaker who built America’s first printing
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`press, may have assisted Bushnell in making the hatch for the Turtle submarine. See Doc. #41-4
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`(Pl.’s Manuscript) at 47; Doc. #41-7 (Defs.’ Book) at 34, 36. According to plaintiff, he came up
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`with this “original analysis” himself, and defendants copied it. Doc. #53 at 21. Even assuming
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`that the theory about Doolittle making the hatch originated with plaintiff, this argument is
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`meritless because theories about historical events are not protectable under the Copyright Act as
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`a matter of law. See Hoehling, 618 F.2d at 978. In Hoehling, the Second Circuit held that an
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`author’s hypothesis that a particular individual destroyed the Hindenburg was “an historical
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`interpretation” that was “not protected by [the author’s] copyright and can be freely used by
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`subsequent authors.” Id. at 979. Just like a theory concerning who destroyed the Hindenburg,
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`plaintiff’s hypothesis about who made the Turtle’s hatch is a historical interpretation that is not
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`protectable by copyright.
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`Plaintiff further complains that defendants’ book contains a passage about David
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`Bushnell’s early life and upbringing that closely tracks a passage in his manuscript. Compare
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`Doc. #41-4 (Pl.’s Manuscript) at 14–15, with Doc. #41-6 (Defs.’ Book) at 49–50. The passages
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`do indeed share similarities, which is unsurprising given that they both are brief descriptions of
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`what little is known of Bushnell’s early life. But plaintiff does not enjoy any copyright protection
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`in particular facts about Bushnell’s life or the sequential retelling of such facts. See, e.g., Arica
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`Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992) (holding that copyright law does not
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`protect the chronological narration of historical events because such ordering is “devoid of
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`creativity”); Robinson, 877 F. Supp. at 836 (“[B]ecause the retelling of history necessarily
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`proceeds in a certain chronological order, an author cannot hold a copyright in the sequence of
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`the story’s elements.”). Any similarity between these two passages concerns only the non-
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`copyrightable elements of plaintiff’s passage, and therefore such similarities may not form the
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`basis for a finding of substantial similarity.
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`Plaintiff advances numerous other arguments concerning alleged similarities between
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`particular aspects of the respective works. I have considered all these arguments, and find them
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`to be without merit—either because the alleged similarities involve non-copyrightable elements
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`of plaintiff’s manuscript, or because no reasonable jury could find the manner of expression to be
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`substantially similar.
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`I can see why plaintiff would be frustrated about the publication of a book that covers
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`similar subject matter as his unpublished manuscript. But no reasonable jury could find that
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`plaintiff’s manuscript and defendants’ book are substantially similar for copyright purposes in
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`view of the narrow protection afforded to non-fiction accounts. In the absence of any genuine
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`Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 14 of 15
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`issue of material fact, I will grant defendants’ motion for summary judgment as to plaintiff’s
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`copyright infringement claim.
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`Plaintiff’s CUTPA claim also fails. CUTPA prohibits the use of “unfair methods of
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`competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
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`Conn. Gen. Stat. § 42-110b(a). Here, it is difficult to discern which of defendants’ acts or
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`practices are alleged to be unfair or deceptive, because plaintiff’s complaint does not contain any
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`factual allegations that are specific to the CUTPA claim. To the extent that the CUTPA claim is
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`based on defendants’ alleged copying of plaintiff’s manuscript, that claim is preempted by the
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`Copyright Act. See Kregos, 3 F.3d at 666 (holding that “unfair-competition and misappropriation
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`claims, based solely on the copying of the protected expression . . . are preempted by [17 U.S.C.]
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`§ 301”).
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`In his memorandum in opposition to defendants’ summary judgment motion, plaintiff
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`contends that his CUTPA claim is “based on the authorized use of [his] manuscript by
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`Defendants.” Doc. #53 at 22. This argument is without merit, because consulting a manuscript
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`that one has been given when writing a non-fiction book is not actually deceptive, nor does it
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`offend public policy. See Langan v. Johnson & Johnson Consumer Companies, Inc., __ F. Supp.
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`3d __, 2015 WL 1476400, at *2 (D. Conn. 2015) (noting that CUTPA claims can be based on
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`either actually deceptive practices or violations of public policy, and detailing requirements for
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`both types of claims). Because there is no factual or legal basis for a viable CUTPA claim, I will
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`grant defendants’ motion for summary judgment on this claim.
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`CONCLUSION
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`The story of David Bushnell and his Revolutionary War-era submarine is a captivating
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`episode in American history. It is little wonder that plaintiff, defendants, and other authors have
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`Case 3:13-cv-00639-JAM Document 70 Filed 07/15/15 Page 15 of 15
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`written about the topic. Copyright law permits authors who do write about Bushnell and the
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`Turtle to write about common facts so long as they do not appropriate the particular expression
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`used by another author. Defendants’ book uses many of the same facts and some of the same
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`ideas and concepts as discussed in plaintiff’s manuscript, but the book does not appropriate
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`plaintiff’s expression. No reasonable jury could find otherwise.
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`For this reason, defendants’ motion for summary judgment (Doc. #41) is GRANTED.
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`The Clerk is directed to close this case.
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`It is so ordered.
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`Dated at New Haven this 15th day of July 2015.
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`/s/ Jeffrey Alker Meyer
`Jeffrey Alker Meyer
`United States District Judge
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`15