Case 3:13-cv-01717-AWT Document 38 Filed 05/07/14 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`YOLANDA B. ACKER,
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`STEPHEN KING,
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`REPLY MEMORANDUM IN FURTHER SUPPORT OF MOTION TO DISMISS
`AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6), OR IN THE
`ALTERNATIVE, FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56
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`Defendant Stephen King (“King”) hereby submits this reply memorandum in further
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`support of his motion pursuant to Federal Rule of Civil Procedure 12(b)(6) for an order
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`dismissing the Amended Complaint, or in, the alternative, for summary judgment under Rule 56.
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`Plaintiff’s opposition papers do not alter the inescapable reality that, as a matter of law,
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`King’s novel, Doctor Sleep, is not substantially similar to her short story, The Haunting of Addie
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`Longwood, and therefore, her copyright claim must be dismissed. As set forth in King’s opening
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`Memorandum of Law, it is well settled that copyright law does not protect generic ideas or the
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`stock scenes à faire that are “as a practical matter indispensable, or at least standard, in the
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`treatment of a given topic.” Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.
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`1980). (See Defendant’s Memorandum of Law in Support of Motion to Dismiss Plaintiff’s
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`Amended Complaint or, in the Alternative, for Summary Judgment, Dkt. No. 34 (“Def. Mem.”)
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`at 11-14.) But all that Plaintiff’s work and Doctor Sleep share are broad, unprotectible ideas and
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`stock characters and situations common to countless works from the horror and suspense genres.
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`That is not enough to plead a claim for copyright infringement.
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`Civil Action No. 13-CV-1717 (AWT)
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`X
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`- against -
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`Plaintiff,
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`Defendant.
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`Case 3:13-cv-01717-AWT Document 38 Filed 05/07/14 Page 2 of 5
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`Plaintiff’s opposition papers make this point even more apparent. Her only response to
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`King’s substantive arguments is to state that “[the] fact still remains both characters are 12 year
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`old girls with psychic abilities, at some point in the end of the story they both help reveal a secret
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`and save the town.” (Plaintiff’s Response to Motion to Dismiss (Dkt. No. 37) (“Pl. Opp.”) at 4.)
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`As an initial point, the works establish that even this thumbnail description of the plots is
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`inaccurate. As set forth in more detail in King’s opening Memorandum of Law, the characters in
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`Doctor Sleep do not “reveal a secret and save the town”; they use their psychic powers to battle a
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`roaming band of supernatural beings to the death at the villains’ headquarters, thousands of miles
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`away from the town where the protagonists live. (See Def. Mem. at 20.) But even if Plaintiff’s
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`description of both works were accurate, she describes nothing more than a stock character (a 12
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`year old girl with psychic abilities) and a standard plotline (a hero helping to reveal a secret and
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`save a town). The law is clear that “[g]eneral plot ideas are not protected by copyright law; they
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`remain forever the common property of artistic mankind.” Berkic v. Crichton, 761 F.2d 1289,
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`1293 (9th Cir. 1985). To grant Plaintiff copyright protection over these generic elements would
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`give her a monopoly over vast swathes of several genres of fiction.1
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`Plaintiff devotes the rest of her opposition to quibbling with details about Defendant’s
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`characterization of her story and the procedural history of this case. In particular, she appears to
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`interpret Defendant’s statement that her Amended Complaint “attached certain documents . . .
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`that had not been in the record of the case previously” (Def. Mem. at 3) as an argument that
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`those attachments were inappropriate. On the contrary, Plaintiff was free to add whatever
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`documents she deemed appropriate to her amended pleading. However, an examination of those
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`1 Plaintiff also states that “Jessica’s psychic abilities aren’t limited as was stated in the report, she uses her gift to
`communicate with Addie Longwood, the deceased girl who needs her help to come together to save the town.”
`Whether or not that is the case, the characters of Jessica and Abra (in Doctor Sleep) are significantly different
`characters, and are similar only at the broadest and most abstract level. (See Def. Mem. at 20-22.)
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`Case 3:13-cv-01717-AWT Document 38 Filed 05/07/14 Page 3 of 5
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`documents—in particular her manuscript—demonstrates that her copyright claim fails as a
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`matter of law.2
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`Plaintiff’s opposition papers do not remotely salvage her claims, nor could they.3 Even a
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`cursory review of the two works in issue reveals that there is no similarity of protectible
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`expression between them, and accordingly, the court may dismiss Plaintiff’s complaint with
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`prejudice at the pleading stage. See Currin v. Arista Records, Inc., 724 F. Supp. 2d 286, 290 (D.
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`Conn. 2010) (“[A] court must attempt to extract the unprotectible elements from [its]
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`consideration and ask whether the protectible elements, standing alone, are substantially
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`similar.” (quoting Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1002 (2d Cir. 1995))); Peter F.
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`Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010) (“[I]t is entirely
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`appropriate for the district court to consider the similarity between [two] works in connection
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`with a motion to dismiss, because the court has before it all that is necessary in order to make
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`such an evaluation.”). Even if the Court were to convert the motion to dismiss to a motion for
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`summary judgment under Rule 56, there are no genuine disputes as to any material facts, and
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`King is entitled to judgment as a matter of law.
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`2 Plaintiff, likely due to her inexperience with the court’s electronic filing system, also appears to be particularly
`concerned about the heading that is automatically printed on documents filed electronically with the court. Needless
`to say, Defendant has not altered her submissions in any way. The supposed inaccuracies that Plaintiff identifies in
`Defendant’s summary of her work (the family’s last name, and Jessica’s father’s full name) are drawn directly from
`the documents Plaintiff attached to her Amended Complaint. (See Dkt. No. 27-2 at 3 (“Michael Reed Thompson”)
`and 6 (“Mom’s French toast was the tradition of the Johansen family”).)
`3 Plaintiff’s opposition does not address the fact that her “perjury” claim fails because there is no private right of
`action for perjury. See Chien v. Commonwealth Biotechnologies, Inc., No. 3:12CV1378 (AWT), 2013 WL
`4482750, at *8 (D. Conn. Aug. 21, 2013).
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`Case 3:13-cv-01717-AWT Document 38 Filed 05/07/14 Page 4 of 5
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`Dated: Middletown, Connecticut
`May 7, 2014
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`Respectfully submitted,
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`SHAPIRO LAW OFFICES, LLC
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`/s/ Jonathan M. Shapiro
`Jonathan M. Shapiro (ct24075)
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`104 Court Street
`Middletown, Connecticut 06457
`Telephone: (860) 347-3325
`Facsimile: (860) 347-3874
`Email: jshapiro@shapirolawofficesct.com
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`DAVIS WRIGHT TREMAINE LLP
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`/s/ Elizabeth A. McNamara
`Elizabeth A. McNamara (phv ct14667)
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`1633 Broadway
`New York, New York 10019-6708
`Phone (212) 489-8230
`Fax (212) 489-8340
`Email: lizmcnamara@dwt.com
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`Attorneys for Defendant Stephen King
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`Case 3:13-cv-01717-AWT Document 38 Filed 05/07/14 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the date set forth below a copy of the foregoing was served by
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`CMECF and/or mail on anyone unable to accept electronic filing. Notice of this filing will be sent
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`by email to all parties by operation of the Court’s electronic filing system or by mail to anyone
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`unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access
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`this filing through the Court’s CM/ECF System. I hereby further certify that a copy of the
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`foregoing has been served, via regular United States mail, postage prepaid, this 7th day of May,
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`2014, upon:
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`Yolanda B. Acker
`23 Elizabeth St., Second Floor
`Waterbury, Connecticut 06704
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`and
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`Yolanda B. Acker
`c/o Mary Acker
`241 Kingsborough Second Walk, Apt. 4B
`Brooklyn, NY 11233
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`/s/ Elizabeth A. McNamara
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` Elizabeth A. McNamara
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