Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 14-12030-RGS
`
`DEBRA FELDMAN
`
`v.
`
`SHONDA RHIMES et al.
`
`MEMORANDUM AND ORDER ON DEFENDANTS’
`MOTIONS TO DISMISS
`
`December 16, 2014
`
`
`STEARNS, D.J.
`
`
`
`In this copyright action, plaintiff author Debra Feldman alleges that
`
`the 2011 ABC television medical drama, Off the Map,1
` infringes the two
`
`books and two manuscripts in her Overlap quadrilogy, and in particular,
`
`the unpublished The Red Tattoo. The court, having considered the
`
`allegations of the Amended Complaint, the excerpts of The Red Tattoo and
`
`a companion manuscript Days of Grace submitted by Feldman, and having
`
`reviewed, yes, watched (albeit with diminishing anticipation) all thirteen
`
`
`1 Off the Map aired for thirteen episodes in early 2011 to generally
`
`unappreciative reviews. The series was canceled in May of 2011.
`
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`
`CIVIL ACTION NO. 14-12030-RGS
`
`DEBRA FELDMAN
`
`v.
`
`SHONDA RHIMES et al.
`
`MEMORANDUM AND ORDER ON DEFENDANTS’
`MOTIONS TO DISMISS
`
`December 16, 2014
`
`
`STEARNS, D.J.
`
`
`
`In this copyright action, plaintiff author Debra Feldman alleges that
`
`the 2011 ABC television medical drama, Off the Map,1
` infringes the two
`
`books and two manuscripts in her Overlap quadrilogy, and in particular,
`
`the unpublished The Red Tattoo. The court, having considered the
`
`allegations of the Amended Complaint, the excerpts of The Red Tattoo and
`
`a companion manuscript Days of Grace submitted by Feldman, and having
`
`reviewed, yes, watched (albeit with diminishing anticipation) all thirteen
`
`
`1 Off the Map aired for thirteen episodes in early 2011 to generally
`
`unappreciative reviews. The series was canceled in May of 2011.
`
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 2 of 12
`
`episodes of Off the Map,2
` finds that Feldman has failed to make a plausible
`
`claim of probative similarity between her works and defendants’ creation.
`
`
`
`To survive a motion to dismiss, the “[f]actual allegations [of a
`
`complaint] must be enough to raise a right to relief above the speculative
`
`level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To establish
`
`infringement, two elements must be proven: (1) ownership of a valid
`
`copyright, and (2) copying of constituent elements of the work that are
`
`original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
`
`(1991).
`
`To show actionable copying and therefore satisfy Feist’s second
`prong, a plaintiff must first prove that the alleged infringer
`copied plaintiff's copyrighted work as a factual matter; to do
`this, he or she may either present direct evidence of factual
`copying or, if that is unavailable, evidence that the alleged
`infringer had access to the copyrighted work and that the
`offending and copyrighted works are so similar that the court
`may infer that there was factual copying (i.e., probative
`similarity).
`
`Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995),
`
`aff’d 516 U.S. 233 (1996).
`
`
`2 Although the inquiry at this stage is usually limited to the (assumed
`true) allegations of a complaint, the court may consider “documents central
`to plaintiffs’ claim; or [] documents sufficiently referred to in the
`complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d
`30, 33 (1st Cir. 2001). Here, both the asserted and allegedly infringing
`works are integral to the claims and the Amended Complaint.
`2
`
`
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 3 of 12
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`
`
`To determine whether probative similarity exists between two works,
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`“the Court should ask whether an average lay observer would recognize the
`
`alleged copy as having been appropriated from the copyrighted work. . . .
`
`In doing so, the Court should note similarities and dissimilarities in such
`
`aspects as the total concept and feel, theme, characters, plot, sequence,
`
`pace, and setting.” Blakeman v. The Walt Disney Co., 613 F. Supp. 2d 288,
`
`304-305 (E.D.N.Y. 2009) (internal quotation marks omitted).
`
`To the extent that the copyrighted work and the allegedly
`infringing work exhibit probative similarities from which actual
`copying might be inferred, the ensuing analysis must address
`the question of substantial similarity (and, thus, determine
`whether wrongful appropriation occurred). While a finding of
`substantial similarity vel non derives from an examination of
`the juxtaposed works as a whole, that examination must focus
`on what aspects of the plaintiff’s work are protectible under
`copyright laws and whether whatever copying took place
`appropriated those [protected] elements.
`
`
`Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005) (internal quotation
`
`marks omitted).
`
`“In the case of literary works, it is axiomatic that copyright protection
`
`only extends to the expression of the author’s idea, not to the idea itself.”
`
`Warner Bros. Inc. v. Am. Broad. Cos., Inc., 654 F.2d 204, 208 (2d Cir.
`
`1981); see also Johnson, 409 F.3d at 19 (“[C]opyright law protects original
`
`
`
`3
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 4 of 12
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`expressions of ideas but it does not safeguard either the ideas themselves or
`
`banal expressions of them.”).
`
`The [] scènes à faire doctrine[] limit[s] the availability of
`copyright protection even for expression. . . . The doctrine of
`“scènes à faire” “denies copyright protection to elements of a
`work that are for all practical purposes indispensable, or at least
`customary, in the treatment of a given subject matter.” . . . Beal
`v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)
`(describing scènes à faire as “stock scenes that naturally flow
`from a common theme,” such as “foot chases and the morale
`problems of policemen, not to mention the familiar figure of the
`Irish cop” in police fiction).
`
`
`Harney v. Sony Pictures Television, Inc., 704 F.3d 173, 181 n.8 (1st Cir.
`
`2013).
`
`Weighing their “total concept and feel, theme, characters, plot,
`
`sequence, pace, and setting,” no reasonable lay observer would recognize
`
`Off the Map as derivative in any respect of The Red Tattoo. Off the Map is
`
`a medical procedural drama set in a clinic in a jungle region of an
`
`unidentified South American country. Each episode features exotic
`
`accidents and diseases and their unorthodox treatments by a heroic band of
`
`mostly expatriate doctors working in extreme conditions. In the first
`
`episode (Saved by the Great White Hope), Dr. Ben Keeton (“one of the
`
`greatest humanitarians of our time,” episode 1) and Dr. Lily Brenner
`
`(“control freak,” episode 2 – Smile. Don’t kill anyone) come to the rescue
`
`
`
`4
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 5 of 12
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`of a man (Ed) stranded on a zipline after crashing into a tree. To free Ed,
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`Drs. Keeton and Brenner zipline out to where he is entangled in the
`
`zipline’s reeling mechanism. Dr. Brenner, while dangling from the zipline,
`
`manages to cut through the mangled flesh of Ed’s arm. Ed later undergoes
`
`surgery and is found to be in need of a blood transfusion. Ed’s rare blood
`
`type being in short supply, the innovative Dr. Keeton rushes from the
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`operating room, climbs a coconut tree with a machete, and hacks down an
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`armload of green coconuts. Ed is given a coconut water transfusion and his
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`life is saved. Other examples of unusual medical challenges include a man
`
`caught in a green anaconda’s vise, which conveniently serves as a
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`tourniquet to staunch his internal bleeding from a shattered hip (episode
`
`2); a man suffering from a prolonged priapism caused by a banana spider
`
`bite (episode 4 – On the Mean Streets of San Miguel); an underwater
`
`amputation (episode 5 – I’m Here); treating acute appendicitis and viral
`
`meningitis after the clinic’s dispensary has been robbed and completely
`
`ransacked (episode 6 – It’s Good); a black market kidney transplant
`
`(episode 11 – Everything’s As It Should Be); and a female doctor (Dr. Ryan
`
`Clark) who suffers from Chagas disease (resulting from a childhood bite by
`
`an assassin bug) and who ultimately requires a heart transplant (multiple
`
`episodes).
`
`
`
`5
`
`
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`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 6 of 12
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`Despite the fractured nature of her submitted excerpts – Feldman has
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`offered the court 55 pages of the 229+ page Red Tattoo manuscript with
`
`numerous breaks in continuity, as well as redacted sentences and
`
`paragraphs on most pages – it is evident that The Red Tattoo is not a jungle
`
`medical melodrama. The Red Tattoo tells stories set in different times and
`
`places, see e.g., id. at 57 (Detroit – 1905), id. at 74 (Brookline – 1991), and
`
`id. at 115 (Boston Memorial – 2005), involving characters who travel
`
` See id. at 53 (“Had she lived during Dori’s lifetime or
`through time.3
`
`Cathy’s or even Bubbie’s, Penicillin and its cousins might have saved
`
`Rachel, but those drugs didn’t exist in her own Time or the Time to which
`
`she traveled.”). Feldman contends that a clinic in Bali (Indonesia), a
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`location briefly mentioned in The Red Tattoo, is the inspirational source of
`
`the South American jungle clinic in Off the Map. However, the generalized
`
`concept of an underequipped tropical clinic is not copyrightable, and The
`
`Red Tattoo offers scant description of the Bali clinic other than to say it is
`
`“next to the market” and “merely a way-station” where “rinsing [a patient’s]
`
`
`3 In the Days of Grace excerpt, it is made clear that Reweavers travel
`in time – or Overlap, hence the title of Feldman’s opus – in order to “touch
`the past so that the future might be repaired.” Id. at 3. Reweavers suffer
`from vivid nightmares of the past.
`
`
`
`
`6
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 7 of 12
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` Id. at
`nail in sterile solution was the extent of the center’s available aid.”4
`
`104. The clinic in Off the Map differs in each respect (assuming that such a
`
`sparse description is even eligible for copyright protection). The clinic in
`
`Off the Map is not next to a market, is the only medical facility available in
`
`the area it serves, and is able to perform sophisticated medical procedures
`
`including brain surgery, kidney transplant, and the implantation of a
`
`pacemaker.
`
`Feldman’s attempts to correlate the plots fare no better. She argues
`
`that episode 1 of Off the Map is derived from a motor scooter accident that
`
`takes place in The Red Tattoo. No reasonable observer, however, could
`
`agree. In The Red Tattoo, a man (Gil) and a woman (Dori) experience an
`
`accident when their motor scooter is cut off, causing it to overturn and skid
`
`4 The entirety of the paragraph that concerns the medical center
`reads:
`
`The local who hoisted the scooter rushed the injured man into a
`medic’s building next to the market. Against vigorous protests
`and not understanding who the girl was the locals made her
`wait outside frustrated and fretting. The medic center was
`merely a way-station and the injured man needed a hospital
`where his injured hand properly could be treated. Rinsing the
`nail in sterile solution was the extent of the center’s available
`aid, which was insufficient to remove the dirt now embedded in
`the delicate tissue that once was under his nail, ripped-up quick
`to cuticle in the fall. The injured man finally emerged from
`behind closed doors, his hand in a gauze bandage.
`
`Id. at 104.
`
`
`
`
`7
`
`
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`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 8 of 12
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`several meters. As a result, Gil suffers a torn fingernail and is treated at the
`
`local medical center. In Off the Map, Dr. Keeton and Dr. Brenner ride a
`
`motor scooter to the location of Ed’s zipline accident. There the parallel
`
`ends. There is no motor scooter accident and Ed’s injuries are considerably
`
`graver than a broken nail. After the intrepid doctors reach the scene, the
`
`motor scooter disappears and is not to be seen again.
`
`In another example of mind-bending comparison, Feldman contends
`
`that the treatment of a diabetic patient in The Red Tattoo provides the
`
`source of the storylines in episodes 1 and 9 of Off the Map. The personage
`
`of an uncooperative diabetic who deviates from his prescribed diet is, at
`
`best, a stock scènes à faire character. The Red Tattoo does not describe
`
`David (the errant diabetic patient) or his treatment in anything but
`
`unprotectable abstractions.5
`
` Moreover, neither the episode 1 nor the
`
`
`5 The entirety of the passage concerning David, the diabetic, reads as
`follows.
`
`Suddenly, David collapsed. Dori checked for vitals while Gede
`ran to the bathroom and rummaged through David’s medicine
`cabinet. He’s an insulin diabetic, Gede called out. And, an
`uncooperative patient. David lived on the edge eating things he
`knew he should not. That night was no exception and his
`diabetic shock could have degenerated into a coma from which
`David might never emerge. Why being there and Gede’s help
`and Jeep saved David’s life. Why and Gede spent several less
`exciting nights but always, at some point, checked in on David.
`
`
`
`
`
`8
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 9 of 12
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`episode 9 storylines in Off the Map involves the successful treatment of a
`
`diabetic patient. In episode 1 of Off the Map, the “uptight” (episode 2) Dr.
`
`Mina Minard is dismissive of an elderly woman who suffers from asthma.
`
`Dr. Minard misdiagnoses her ailment as a common cold in part because of
`
`a language barrier, and in part because the death of a previous patient has
`
`shaken her confidence in her diagnostic abilities. After the patient faints,
`
`however, Dr. Minard recognizes her mistake and gives the patient one of
`
`her personal inhalers. The grateful patient, in turn, gifts Dr. Minard with a
`
`chicken, which she names Dinner and keeps as a pet. In episode 9 (There is
`
`Nothing to Fix), Richie Salerno, the owner of a local dining spot, Mama
`
`Salerno’s Pizzeria, suffers from a posterior fungal infection that is a side
`
`effect of untreated diabetes. Salerno is rude, scathing, and heartless. Dr.
`
`Minard attempts to intimidate him into caring for his health, but the
`
`
`treatment-resistant Salerno settles the score by dying.6
`
`
`Id. at 113.
`
` 6
`
` The most ridiculous (and offensive) example is Feldman’s attempt
`to equate a boy who accidentally shoots a squirrel in the chest with a BB
`gun, killing it, to Dr. Tommy Fuller’s off-color remarks to Drs. Brenner and
`Minard that they should apply sunscreen before plying the local nude
`beaches to avoid prematurely shriveled chests. Feldman characterizes both
`vignettes as depicting “an ‘animal’ suffer[ing] a ‘tragic’ chest injury.” Am.
`Compl., Ex. A at 2 & 9.
`
`
`
`9
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 10 of 12
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`In terms of characters, Feldman employs a similar telescoping
`
`technique in which virtually every persona in Off the Map is espied in The
`
`Red Tattoo. To overcome the discrepancy between the two people involved
`
`in the motor scooter accident in The Red Tattoo and the three who are
`
`featured in the zipline rescue episode of Off the Map, Feldman equates the
`
`injured male scooter rider with both the doctor and the treated patient.
`
`Even less convincingly, The Red Tattoo character of Gede is alleged to be a
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`source for seven Off the Map characters. See Am. Compl., Ex. A at 2 (Dr.
`
`Tommy Fuller/Gede and Charlie (a young translator)/Gede), id. at 3 (Dr.
`
`Ben Keeton/Gede), id. at 5 (Dr. Otis Cole/Gede), id. at 9 (Dr. Lily
`
`Brenner/Gede); id. at 10 (Dr. Ryan Clark/Gede); and id. at 12 (Dr. Zita
`
`Alvarez/Gede). The characters’ supposedly shared biographical histories
`
`also diverge in relevant details. For example, while Dr. Brenner in Off the
`
`Map and Dori in The Red Tattoo have both lost their fiancés, Dr. Brenner’s
`
`fiancé perished in a bicycle accident while shopping for her favorite cereal,
`
`while Dori’s fiancé perished in a bomb blast when he would not leave a bar
`
`at Dori’s urging.
`
`Feldman’s attempts to draw comparisons to her other works are
`
`equally implausible. Feldman cites Days of Grace as the source for episode
`
`4 (On the Mean Streets of San Miguel) of Off the Map. In three pages of
`
`
`
`10
`
`
`
`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 11 of 12
`
`Days of Grace, the main character (Grace) travels back in time to a Nazi
`
`concentration camp where she attempts to win the trust of a woman
`
`prisoner. The woman, fearing that Grace is a Gestapo spy, offers Grace the
`
`clothes off her back. Grace learns that the prisoner had given up her infant
`
`son to another couple to ensure his safety. In Off the Map, Dr. Minard
`
`treats Abuelito, an elderly and much beloved teacher of local children, for
`
`advanced mouth cancer. While delirious, Abuelito confesses that he served
`
`as an SS guard in his youth and stole jewelry and other valuables from
`
`inmates in his charge. Dr. Minard stabilizes his condition and turns him
`
`over to the authorities. Other than illusions to Nazis, there is no
`
`resemblance between the two stories.
`
`The allegations of the Amended Complaint also reveal a lack of
`
`comparable original elements between Off the Map and Feldman’s An
`
`Ordinary Hero and The Comfort of Strangers. For example, Feldman
`
`compares the zipline accident in episode 1 of Off the Map to falling down a
`
`flight of stairs, Am. Compl. ¶ 112, a lake that lights up with florescent
`
`microorganisms to fireworks, id., a green anaconda to a spear, id., a ring to
`
`a bullet, id., and a selfless and giving couple who are in love to a pair of
`
`selfish and petty adolescents who detest one another. Id. ¶ 113.
`
`
`
`11
`
`
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`Case 1:14-cv-12030-RGS Document 99 Filed 12/16/14 Page 12 of 12
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`Because Feldman has utterly failed to meet her entry-level burden of
`
`showing some plausible probative similarity between her works and Off the
`
`Map, the Amended Complaint will be dismissed for “failure to state a
`
`[copyright] claim upon which relief can be granted.” Fed. R. Civ. P.
`
`12(b)(6).
`
`ORDER
`
`For the foregoing reasons, defendants’ motions to dismiss are
`
`ALLOWED with prejudice.7
`
` The Clerk is directed to enter judgment for the
`
`defendants and close this case.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`SO ORDERED.
`
`/s/ Richard G. Stearns
`__________________________
`UNITED STATES DISTRICT JUDGE
`
`
`7 Because the court finds that Feldman has not alleged a viable
`copyright claim, it is unnecessary to reach the alternative grounds of
`dismissal (such as the lack of plausible access to Feldman’s unpublished
`works) raised by defendants’ motions.
`12
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