Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 1 of 49
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`Case 1:O8—cv—O4297—GBD—THK Document 38
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`1
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`DOCUMENT
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`, ELECFRONICALLY F(lLED
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`.
`:
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`Report and
`Recommendation
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`ERIC MYRIECKES,
`
`Plaintiff,
`
`—against—
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`TERI WOODS; TERI WOODS PUBLISHING, LLC;
`and CURTIS SMITH,
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`Defendants.
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`_ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __x
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`TO: HON. GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
`FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
`
`Plaintiff,
`
`proceeding
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`pro
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`sg,
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`brings
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`this
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`copyright
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38
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`1
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`DOCUMENT
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`, ELECFRONICALLY F(lLED
`
`.
`:
`
`Report and
`Recommendation
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`ERIC MYRIECKES,
`
`Plaintiff,
`
`—against—
`
`TERI WOODS; TERI WOODS PUBLISHING, LLC;
`and CURTIS SMITH,
`
`Defendants.
`
`_ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __x
`
`TO: HON. GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE.
`FROM: THEODORE H. KATZ, UNITED STATES MAGISTRATE JUDGE.
`
`Plaintiff,
`
`proceeding
`
`pro
`
`sg,
`
`brings
`
`this
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`copyright
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`
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`I.
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`Background
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`Plaintiff contends that Defendants copied from a novel he
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`wrote,
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`titled Street Games,
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`as
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`the basis
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`for
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`a
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`second work
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`published by TWP titled Deadly Reigns. Plaintiff alleges that,
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`in
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`early 2005, he sent an original manuscript of his book,
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`then called
`
`“White Heat,” to TWP
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`to be considered for‘ publication.
`
`(gee
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`Amended Complaint, dated June 16, 2008 (“Am. Compl.”)
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`fl 15.) After
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`changing"
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`the title, Plaintiff obtained copyright ownership of
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`Street Games
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`in August of the same year.
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`Street Games was then
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`published, distributed, and sold in the United States.
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`(fiee id; flfl
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`16-18.)
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`I
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`Deadly Reigns, according to Plaintiff, is substantially copied
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`
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`competition against Smith. However, as recommended by this Court's
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`Report and Recommendation dated March 10, 2009, by Order dated
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`March 31 the District Court dismissed each of Plaintiff's claims
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`against Smith because they are preempted by section 301 of
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`the
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`Copyright Act.1
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`Plaintiff filed his Amended Complaint in June 2008. Woods and
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`TWP, believing they had not been properly served with process, did
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`not appear in the case until November, when Plaintiff moved for a
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`default judgment against them. They opposed the entry of default,
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`and cross—moved to dismiss the Amended Complaint.
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`The gravamen of Defendants’ motion is that Plaintiff cannot
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`show that Deadly Reigns
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`and Street Games are “substantially
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`similarity,” they assert, “is not present as a matter of
`
`law.”
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`(gdy at 9.) According to Woods and TWP, their motion “turns on the
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`Court's analysis of
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`the similarity or
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`lack thereof between the
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`parties’ works,” copies of which they provide as exhibits.
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`(Lg; at
`
`9 & Ex. G.)
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`As noted in the Court's Order of January 13, 2009, Woods and
`
`TWP’s motion effectively contends that
`
`there can be no issue of
`
`material fact that would allow a reasonable jury to conclude that
`
`Deadly Reigns
`
`infringes Plaintiff's copyright
`
`in Street Games.
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`Thus,
`
`though styled as a motion to dismiss,
`
`in substance the motion
`
`seeks summary judgment on Plaintiff's copyright claims.
`
`gee Fed.
`
`R. Civ. P. 56(c)
`
`(requiring a party moving for summary judgment to
`
`
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`12(d)
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`(instructing that, where “matters outside the pleadings are
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`presented to and not excluded by the court” on a motion to dismiss,
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`“the motion must be treated as one for summary judgment under Rule
`
`56,” after giving parties a “reasonable opportunity to present all
`
`material that is pertinent to the motion”); Gusler v. Fischer, 580
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`F. Supp. 2d 309, 313-14 (S.D.N.Y. 2008)
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`(converting a Rule 12(b)(6)
`
`motion to dismiss a copyright
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`infringement action into a Rule 56
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`motion); Mallery v. NBC Universal,
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`Inc., No. 07 Civ. 2250 (DLC),
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`2007 WL 4258196, at *2 (S.D.N.Y. Dec. 3, 2007)
`
`(converting a motion
`
`to dismiss into a motion for summary judgment to address the merits
`
`of
`
`the parties’
`
`arguments
`
`concerning
`
`“whether
`
`the
`
`alleged
`
`similarities relate to noncopyrightable elements and whether any
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`
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`and to submit any additional materials upon which he wished to
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`rely. After granting Plaintiff several extensions of
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`time,
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`it
`
`received his supplemental submission on March 23, 2009.
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`II. Default Judgment Against Woods and TWP is Unwarranted
`
`Plaintiff asserts entitlement
`
`to a default
`
`judgment against
`
`Woods
`
`and. TWP because they failed to respond to the Amended
`
`Complaint within the twenty-day time period established by Rule
`
`l2(a).
`
`He contends that he served process on Woods and TWP in
`
`August 2008, more than two months before they first appeared in the
`
`case by moving to dismiss, on November 4. However, even assuming
`
`that both Woods and TWP were properly served in August as Plaintiff
`
`alleges,
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`they have satisfied the standard for defeating a default
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`
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`Terry Woods
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`in Opposition to Plaintiff's Motion for Default
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`Judgment, dated Nov. 4, 2008 (“Woods Aff.”)
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`1 2.) Although Woods
`
`did receive copies of the summons and Amended Complaint that day,
`
`she believed they had arrived by mail.
`
`( ee Woods Aff.
`
`fl 2.)
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`Woods
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`informed John Pelosi, Esq.
`
`(“Pelosi"),
`
`counsel
`
`for
`
`herself and TWP, about
`
`the lawsuit,
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`and told him the that
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`the
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`summons had been mailed to her.
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`Pelosi wrote a letter to the
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`District Court on September 2, copying Plaintiff.
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`(_§§ Affidavit
`
`of John Pelosi, Esq.,
`
`in Opposition to Motion for Default Judgment
`
`and in Support of Motion to Dismiss, dated Nov. 4, 2008 (“Pelosi
`
`Aff.”) Ex. D.)
`
`The letter claimed that Plaintiff's “attempts thus
`
`far to serve [Woods and TWP] have been insufficient.”
`
`(Pelosi Aff.
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`
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`been personally delivered to Braithwaite, rather than sent
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`in the
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`mail. Nevertheless, Woods failed to immediately inform Pelosi.
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`Woods believed that Plaintiff was required to deliver the service
`
`papers directly to her,
`
`and not merely a TWP employee, before
`
`either she or TWP was obligated to respond.
`
`(ggg Woods Aff.
`
`fl 5.)
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`Pelosi did not discover that Braithwaite had signed for the summons
`
`until he received a copy of Plaintiff's motion for a default
`
`judgment on October 28, 2008.
`
`(_ee Pelosi Aff.
`
`fl 7.)
`
`B.
`
`Discussion
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`Although TWP does not dispute that it was properly served,4
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`Woods argues that Plaintiff has not satisfied the requirements for
`
`effecting service on her under Rule 4 of the Federal Rules of Civil
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`
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`Assuming, for purposes of argument,
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`that Plaintiff properly served
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`both Woods and TWP when he claims he did, he is nevertheless not
`
`entitled to a default judgment against either.6
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`“[T]he entry of a judgment by default [is a] drastic remed[y],
`
`and should be applied only in extreme circumstances." Marfia v.
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`T.C. Ziraat Bankasi New York Branch, 100 F.3d 243, 249 (2d Cir.
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`1996)
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`(quoting Independent Prods. Corp. v. Loew's Inc., 283 F.2d
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`730,
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`733
`
`(2d Cir. 1960)).
`
`Thus, doubt about whether a default
`
`judgment
`
`is warranted “should be
`
`resolved in favor of
`
`the
`
`defaulting party." Enron Oil Corp. v Diakuhara, 10 F.3d 90, 96 (2d
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`
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`Cir. 1993).
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`“[W]here
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`a defendant opposes
`
`a plaintiff's motion for
`
`a
`
`default judgment
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`(or moves to set aside a default judgment under
`
`Fed. R. Civ. P. 55(c))
`
`the district court should consider three
`
`factors: 1) whether, and to what extent,
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`the default was willful;
`
`2) whether defendants have a meritorious defense; and 3) whether
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`vacating the judgment would cause prejudice to the plaintiff.”
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`Credit Lyonnais Sec.
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`(USA), Inc., v. Alcantara, 183 F.3d 151, 154
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`(2d Cir. 1999).
`
`Finding that a default was willful “requires something more
`
`than mere negligence,
`
`such as egregious or deliberate conduct,
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`although the degree of negligence in precipitating a default is a
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`obligated to respond.
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`(_§§ Pelosi Aff. Exs. D-E.)
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`Of course, when Woods first received the summons,
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`it would
`
`have been prudent for her to clarify the manner of delivery. Woods
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`could have Simply asked Braithwaite, her assistant, exactly how it
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`had arrived. Without question, once Braithwaite told Woods
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`in
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`September that a United States Marshal had personally delivered the
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`documents, Woods should have informed Pelosi.
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`This would have
`
`allowed a timely determination that, at a minimum,
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`TWP had been
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`properly served. Yet, Woods affirms on behalf of herself and TWP
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`that she “take[s] this matter very seriously," and wishes to defend
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`the case on the merits.
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`(Woods Aff.
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`fl 6.) This provides sufficient
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`evidence of good faith to preclude finding that the delay resulted
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`
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`whether there is a likelihood that
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`[a defense] will carry the day,
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`but whether
`
`the evidence submitted,
`
`if proven at
`
`trial, would
`
`constitute a complete defense.” Pecarsky v. Galaxiworld.com, Ltd.,
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`249 F.3d 167,
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`173
`
`(2d Cir.
`
`2001)
`
`(quoting Enron Oil Corp. v.
`
`Diakuhara,
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`10 F.3d 90,
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`98
`
`(2d Cir. 1993)). Woods and TWP have
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`thoroughly’ briefed.
`
`their arguments
`
`that Plaintiff cannot
`
`show
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`copyright infringement as a matter of law, and that his state law
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`claims are preempted.
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`If proven at trial, these contentions would
`
`establish a complete defense to each of Plaintiff's claims.“ Thus,
`
`the second factor also weighs against entering a default judgment.
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`ggg Pecarsky, 249 F.3d at 174 (concluding that the defendant raised
`
`a meritorious defense because
`
`its arguments would preclude
`
`
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`remedy.
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`It also may result
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`in the loss of evidence, create
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`increased difficulties of discovery, or provide greater opportunity
`
`for fraud and collusion.” Green, 420 F.3d at 110 (quotation marks
`
`and citation omitted); accord Davis v. Musler, 713 F.2d 907, 916
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`(2d Cir. 1983).
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`Plaintiff fails to identify‘ any actual prejudice he will
`
`suffer if a default judgment is not entered.
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`He first decries the
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`“tedious” need to proceed with discovery in the case if his motion
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`is denied, and the consumption of his time and resources.
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`(See
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`Pl.’s Reply fl 19.) However,
`
`the lost convenience of winning a case
`
`without having to prove it is not prejudice.
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`The purpose of
`
`granting a default
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`judgment
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`is to provide a remedy when a party
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`
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`upon default.
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`(geg Pl.’s Reply flfl 20, 22-23.) However, he does
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`not claim that Woods and TWP are insolvent, or suggest any reason
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`that he could not adduce sufficient proof to allow for the accurate
`
`estimation of damages in lost
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`revenues and goodwill, were he to
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`prevail at trial. Thus, sales of allegedly infringing works during
`
`the delay caused by Woods and TWP cannot “thwart
`
`[any]
`
`recovery or
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`remedy” to which Plaintiff would be entitled if he were to succeed
`
`on the merits.
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`_§§ green, 420 F.3d at 110; Atlantic Recording
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`Corp. v. Brennan, 534 F. Supp. 2d 278, 282 (D. Conn. 2008)
`
`(denying
`
`a motion for default judgment on copyright infringement claims, and
`
`noting that the plaintiff's claims to injunctive relief based on
`
`allegations
`
`of
`
`infringement were
`
`insufficient
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`to establish
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`III. State Law Claims
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`Plaintiff asserts New York state law claims
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`for unfair
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`competition against Woods and TWP.
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`(ggg Am. Compl.
`
`flfl 37-48.)
`
`Defendants contend that these claims are preempted by the Copyright
`
`Act,
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`and Inust
`
`therefore be dismissed.
`
`For
`
`the reasons
`
`fully
`
`explained in the Court's March 10 Report
`
`and Recommendation,
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`Defendants are correct.
`
`(gee Report and Recommendation, No.
`
`08
`
`Civ.
`
`4297
`
`(GBD)(THK),
`
`dated March
`
`10,
`
`2009
`
`(“Smith R&R”).)
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`Plaintiff's claims are predicated on what
`
`is known as “reverse
`
`passing off,” in which “the alleged infringer sells the plaintiff's
`
`products as its own.”
`
`Integrative Nutrition,
`
`Inc. v. Academy of
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`Healing Nutrition, 476 F. Supp. 2d 291, 297 (S.D.N.Y. 2007).
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`Such
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`
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`T
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`IV. Copyright Claims
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`A.
`
`for
`Legal Standard
`Infringement Claims
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`Summary
`
`Judgment
`
`on Copyright
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`Summary judgment is appropriate when there is no genuine issue
`
`of material fact to be tried, and the moving party is entitled, as
`
`a matter of law,
`
`to judgment in its favor.
`
`See Celotex Corp. v.
`
`Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986);
`
`Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 98-99 (2d Cir.
`
`2003). The moving party bears the burden of demonstrating that its
`
`opponent cannot prevail as a matter of law.
`
`_g§ Adickes v. S. H.
`
`Kress
`
`& Co.,
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`398 U.S.
`
`144,
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`157,
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`90 S. Ct. 1598,
`
`1608
`
`(1970);
`
`Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000).
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`If “a
`
`
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`substantial similarity of protectible material in the two works.’”
`
`Williams,
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`84 F.3d at 587
`
`(quoting Kregos v. Associated Press,
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`3
`
`F.3d 656,
`
`662
`
`(2d Cir.
`
`1993)).
`
`A showing of
`
`“substantial
`
`similarity” requires proving both “(i)
`
`that
`
`it was protected
`
`expression in the earlier work that was copied and (ii) that the
`
`amount
`
`that was copied is ‘more than de minimis.’"
`
`Tufenkian
`
`Im ort Ex ort Ventures
`
`Inc. v. Einstein Moom'
`
`Inc.,
`
`338 F.3d
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`127, 131 (2d Cir. 2003)
`
`
`(quoting Castle Rock Entm’t
`Inc. v. Carol
`
`Pub. Group,
`
`Inc.,
`
`150 F.3d 132,
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`137-38
`
`(2d Cir. 1998));
`
`see
`
`Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74-75 (2d
`
`Cir. 1997)
`
`(explaining that the “degree of similarity” between two
`
`works must be “quantitatively and qualitatively sufficient
`
`to
`
`
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`court should adopt the perspective of an “ordinary lay observer."
`
`ee Walker v. Time Life Films, Inc.,
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`784 F.2d 44, 51 (2d Cir. 1986)
`
`(explaining that
`
`the “ordinary observer"
`
`test
`
`is a customary
`
`formulation); Williams,
`
`84 F.3d at 588 (defining the issue to be
`
`decided as “whether,
`
`in the eyes of the average lay observer,
`
`the
`
`[defendant's] works are substantially similar to the protectible
`
`expression" in the plaintiff's works). Unsurprisingly, “numerous
`
`differences tend.
`
`to ‘undercut substantial similarity." Warner
`
`Bros.,
`
`Inc. v. Am. Broad. Cos., 720 F.2d 231, 241 (2d Cir. 1983)
`
`(quotation marks and citation omitted).
`
`“When . .. a work contains both protectible and unprotectible
`
`elements,
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`[a court] must
`
`take care to inquire only whether “the
`
`
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`protected, since otherwise the [author] could prevent
`
`the use of
`
`his ‘ideas,’ to which, apart from their expression, his property is
`
`never extended." Williams,
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`84 F.3d at. 588
`
`(quoting Zechariah
`
`Chafee, Reflections on the Law of Copyright, 45 Colum. L. Rev. 503,
`
`513 (1945)).
`
`In addition, so-called scenes a_§ai;§, or “sequences of events
`
`that
`
`‘necessarily result
`
`from the
`
`choice
`
`of
`
`a
`
`setting or
`
`situation'"
`
`in a work of
`
`fiction,
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`“do not
`
`enjoy copyright
`
`protection." Williams, 84 F.3d at 587-88 (quoting Walker, 784 F.2d
`
`at 51).
`
`“Similarly,
`
`there is no copyright protection for familiar
`
`‘stock figures’ borrowed from the public domain."
`
`Littel v.
`
`Twentieth Century Fox Film Corp., No. 89 Civ. 8526 (DLC), 1995 WL
`
`
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`novel[s] with sex and excessive violence” (Am. Compl.
`
`1 24.),
`
`the
`
`Court read both Street Games and Deadly Reigns.
`
`It now concludes
`
`that no reasonable trier of fact could find that the two works are
`
`substantially similar for purposes of copyright law.
`
`Plaintiff's claim arises from the fact
`
`that, broadly, both
`
`books tell stories about undercover agents falling in love with
`
`drug dealers.
`
`They share a number of narrative features that
`
`follow from this premise, along with a handful of character and
`
`setting details. Of course, even assuming that Defendants actually
`
`borrowed some of these ideas from the “White Heat" manuscript for
`
`use in Deadly Reigns, copyright law did not forbid them from doing
`
`so.
`
`“As
`
`the Second Circuit has explained,
`
`there is a difference
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 21 of 49
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 21 of 49
`
`131, or unprotected stock characters and 1 §._ L SE
`
`Williams, 84 F.3d at 587-88.
`
`1.
`
`Plot and themes
`
`Both Street Games and Deadly Reigns proceed from the premise
`
`that
`
`the FBI assigns a female undercover agent
`
`to target a male
`
`drug kingpin whose associates
`
`have murdered law enforcement
`
`officers. Plaintiff asserts, fairly, that both are built on themes
`
`of “the power struggle associated with being a leader in the drug
`
`business," and “a beautiful
`
`[woman's]
`
`temptations as an undercover
`
`federal agent" assigned to insinuate herself into the personal life
`
`of a charismatic drug kingpin.
`
`(Am. Compl.
`
`fi 23.) At a general
`
`level
`
`of
`
`abstraction,
`
`each presents
`
`two major
`
`storylines
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 22 of 49
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 22 of 49
`
`id;; see also Crane v. Poetic Prods., Ltd., 593 F. Supp. 2d 585,
`
`595 (S.D.N.Y. 2009)
`
`(“To the extent that both works are about Pope
`
`John Paul I's succession and death, such basic plot ideas are not
`
`[protectible], even if they were not historical facts.")
`
`(internal
`
`quotation marks omitted); Williams,
`
`84 F.3d at 587-88
`
`(listing
`
`unprotected story features that “flow from the uncopyrightable
`
`concept of a dinosaur zoo”); Alexander v. Haley, 460 F. Supp. 40,
`
`45
`
`(S.D.N.Y.
`
`1978)
`
`(denying copyright claim and comparing two
`
`“amalgams of fact and fiction derived from the sombre history of
`
`black slavery in the United States," each of which “purport[ed] to
`
`be at
`
`least
`
`loosely based on the lives of
`
`the author's own
`
`forbears”).
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 23 of 49
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 23 of 49
`
`Philadelphia,
`
`sends two men named Amir and Silk to Johnstown to
`
`encroach on Limbo's market.
`
`(See id. ch. 23.)
`
`Limbo rejects Amir
`
`and Silk's proposal that they rent a section of Limbo's territory
`
`(see id.), but the duo begins selling cocaine in Johnstown anyway
`
`(see id. at 218-20).
`
`Subsequently, Limbo deploys an operative to
`
`murder Silk and his family at their home in Philadelphia.
`
`(gee id;
`
`at 221-27.) With his posse, Limbo then storms into a cottage where
`
`Amir is having sex with a woman, and shoots him in the head after
`
`calling" Sadiq on the telephone so that he can listen to the
`
`execution.
`
`(§§§ lg; ch. 33.)
`
`Sadiq retaliates by sending three men to ambush Murdock,
`
`Limbo's
`
`second in command, with a fusillade of gunfire on the
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 24 of 49
`
`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 24 of 49
`
`struggle” has
`
`two major dimensions.
`
`First, Damian plans
`
`to
`
`relinquish leadership of a “commission” of drug dealers from the
`
`southern United States, as well as suppliers from Central and South
`
`America,
`
`to focus on his legitimate businesses.
`
`(_ee DR ch. 9.)
`
`The commission was designed to allocate the supply of drugs and
`
`keep the peace among regional kingpins.
`
`Damian's announcement
`
`sparks a battle among the members who seek to replace him, because
`
`his withdrawal threatens to reduce revenue for everyone by closing
`
`off distribution channels.
`
`(§ee gee chs. 6, 9.)
`
`Second, Damian and Dante's estranged sister Princess, who is
`
`based in Florida, used to chair the commission. However, she was
`
`ousted as the leader for waging territorial wars against the other
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 25 of 49
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 25 of 49
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`for Dante, she explains, and therefore a liability.
`
`(ggg id; ch.
`
`34.) Princess then accepts control of Damian and Dante's drug
`
`operations in exchange for peace and a cut of the profits.
`
`(gge
`
`id; ch. 36.)
`
`Plaintiff is correct that the second major storyline in both
`
`books commences with an undercover agent meeting her target in a
`
`nightclub.
`
`However,
`
`the two narratives veer apart after that
`
`point.
`
`Early in Street Games,
`
`FBI
`
`agent
`
`Jayme
`
`Johansen
`
`(“Johansen”), posing as a woman named Rhapsody, makes contact with
`
`Limbo at the nightclub where he and his cohorts are meeting.
`
`She
`
`sends a bottle of champagne from the bar to Limbo’s private room,
`
`but does not meet him in person that night.
`
`(_ee SG ch. 1.)
`
`The
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 26 of 49
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`
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`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 26 of 49
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`Limbo also harbors doubts about Johansen. While Limbo asks a
`
`private investigator named Spenser to check Johansen’s background,
`
`she covers her tracks well enough that Spenser does not uncover her
`
`ploy until the end of the book, so Limbo has no inkling of her true
`
`identity.
`
`(gee id; chs. 9, 62.) Nevertheless, racial tension and
`
`jealousy interfere with Limbo’s ability to trust
`
`Johansen
`
`completely.
`
`Limbo and his ex-wife Elixir are black, and some of
`
`his acquaintances, professing loyalty to Elixir, criticize him for
`
`dating Johansen, who is white.
`
`(ggg id; at 142-43, 273.) When
`
`Murdock adopts this attitude,
`
`the two friends have a falling out,
`
`which remains unresolved until the hospital scene noted above.
`
`(ggg
`
`i_CL at 276-79.)
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 27 of 49
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`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 27 of 49
`
`when FBI agent Grace Moore, posing as a banker named Jonel McNeal,
`
`introduces herself to Damian Reigns at one of
`
`the nightclubs he
`
`owns.
`
`(See DR ch. 3.)
`
`Damian, who is not married,
`
`immediately
`
`asks Moore out, and begins dating her in the next chapter.
`
`(See
`
`id. chs. 3-4.)
`
`The storyline then unfolds along two dimensions
`
`that are absent from Street Games. First, although both Moore and
`
`Damian are black, and there is no racial tension between the two,
`
`Dante is immediately suspicious of her, and the book follows his
`
`detective work as he picks apart her bogus background story. His
`
`sleuthing succeeds in blowing her cover about halfway through the
`
`book. He arranges for Moore and Damian to have dinner with him and
`
`a friend who graduated from the college that Moore claims to have
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 28 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 28 of 49
`
`hatches a plan to “turn her” to work in his favor.
`
`(§§§ id; at
`
`162.)
`
`He explains to Dante, “I'm going to get her to fall in love
`
`with me,” and then “she's going to defend me against
`
`[the FBI].
`
`She'll go back to them and swear up and down that we're squeaky
`
`clean."
`
`(id;) Through charm and guile, Damian attempts to delude
`
`Moore into believing that he has been unfairly made a scapegoat by
`
`the FBI.
`
`As Plaintiff alleges, part of
`
`this campaign includes
`
`“wining and dining” her.
`
`(see Am. Compl.
`
`fl 27.).
`
`He woos her with
`
`luxurious gifts, meals, and a Caribbean vacation-— although, unlike
`
`Limbo and Johansen, Moore
`
`and Damian do not become
`
`sexually
`
`intimate until they have seen each other many times.
`
`(ggd id; chs.
`
`7-8,
`
`16,
`
`18, 20-21, 24.)
`
`Furthermore,
`
`the cornerstone of his
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 29 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 29 of 49
`
`working for the FBI, but wants to give up her career to be with
`
`him.
`
`He tells her that he forgives her, and they decide to get
`
`married.
`
`(See id. ch. 38.) Grace only accepts the truth towards
`
`the end of the story, when she discovers cocaine hidden in one of
`
`Damian's industrial complexes.
`
`(gee id; ch. 41.)
`
`In sum,
`
`“at
`
`the most general
`
`level,” the two novels
`
`in
`
`question “tell the same story” of an undercover agent falling in
`
`love with a drug kingpin. Walker, 784 F.2d at 49. Yet, “in moving
`
`to the next level of specificity, differences in plot and structure
`
`far outweigh this general likeness," and preclude any possibility
`
`of substantial similarity.
`
`Idg; see Warner Bros., 720 F.2d at 241
`
`(explaining that “numerous differences" between two works impair a
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 30 of 49
`
`p
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 30 of 49
`
`with the Philadelphia carpetbaggers, even as subterfuge, or attempt
`
`to persuade them to do anything but go home.
`
`His face~to—face
`
`interactions with them consist solely of intimidation,
`
`thuggery and
`
`assault.
`
`(_eg SG chs. 23, 33.)
`
`Nothing in Street Games approximates the other engine of the
`
`power struggle storyline in Deadly Reigns: sibling rivalry between
`
`Princess
`
`and Dante.
`
`Street Games
`
`explores
`
`no
`
`intra—family
`
`conflict,
`
`and
`
`lacks
`
`any
`
`analogue
`
`for Princess
`
`and Dante's
`
`relationship.
`
`Each
`
`struggles
`
`in vain to have
`
`subordinates
`
`assassinate the other. When speaking in person, however,
`
`they both
`
`prefer to quip sardonically.9
`
`Finally, as of the end of Deadly Reigns,
`
`the power struggle
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 31 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 31 of 49
`
`she attempts to puzzle out his true nature.
`
`In Street Games, Limbo
`
`is not
`
`in a position to deceive Johansen, and she quickly casts
`
`aside her professional code to protect the homicidal thug with whom
`
`she is smitten.
`
`Thus,
`
`instead of having the characters stalk one
`
`another, Street Games creates momentum by foregrounding sexual
`
`episodes between Limbo and Johansen,
`
`interspersed with conflict
`
`between Limbo and those who urge him not to trust her, as well as
`
`his uneasy ruminations about her.
`
`(§§§ SG chs. 37-38, 55.)
`
`Furthermore,
`
`the finer plot mechanics of the two works belie
`
`Plaintiff's characterization of the parallels between the Damian-
`
`Moore
`
`storyline and the Limbo—Johansen storyline.
`
`Plaintiff
`
`stresses that both Limbo and Damian ask their “head[s] of security"
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 32 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 32 of 49
`
`afterthought, which the reader only learns about secondhand through
`
`a peripheral character.
`
`(§§§ SG ch. 62.) Moreover,
`
`the fact that
`
`Dante's investigation is fruitful, whereas Spenser’s does not pay
`
`off until the end of the book,
`
`launches the plot of Q§ad;y_3§igQ§
`
`into territory that Street Games does not explore.
`
`Limbo remains
`
`in the dark about Johansen. Damian, on the other hand,
`
`leverages
`
`his intelligence about Moore to sabotage the FBI’s surveillance of
`
`him.
`
`For this reason, any cosmetic similarity to the “wining and
`
`dining"
`
`in Street Games and Deadly Reigns masks a fundamental
`
`distinction. Damian is in control as he romances Moore, whereas
`
`Limbo, unaware that Johansen was sent to put him in jail,
`
`is more
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 33 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 33 of 49
`
`Plaintiff, Moore and Johansen’s dilemma is merely a variation on
`
`one of the “stock themes” of “police fiction:” the “morale problems
`
`of policemen.” Walker, 784 F.2d at 50.
`
`Furthermore,
`
`in Qgagly
`
`Reigns, it is the pretense that Damian has been unfairly accused
`
`that relaxes Moore's emotional defenses.
`
`Johansen never has any
`
`doubt that Limbo is,
`
`in fact, a criminal, yet chooses to be with
`
`him anyway.
`
`The Court also notes that Street Games includes several plot
`
`threads for which Plaintiff does not identify any match in Deadly
`
`Reigns. Street Games follows Johansen as she temporarily shelves
`
`Limbo’s case to conduct a separate FBI undercover operation in West
`
`Virginia.
`
`(_§e SG chs. 35, 38.)
`
`The book also explores the
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 34 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 34 of 49
`
`26.)
`
`In light of the differences detailed above, “any resemblance
`
`between the plots" of Street Games and Deadly Reigns “at
`
`[the]
`
`level" Plaintiff describes “is limited to uncopyrigh[table] general
`
`concepts.” Flaherty v. Filardi, No. 03 Civ. 2167 (LTS)(HBP), 2009
`
`WL 749570, at *6
`
`(S.D.N.Y. Mar. 20, 2009)
`
`(discussing two works
`
`allegedly sharing a plot structure of “a protagonist loser in love
`
`casually looking for a social substitute from an on—line source who
`
`ends up becoming increasingly involved in the legal plight of the
`
`prisoner and who goes through a series of emotional experiences
`
`affecting the [protagonist's]
`
`.
`
`.
`
`.
`
`life after corresponding with
`
`the prisoner")
`
`(quotation marks and citation omitted).
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 35 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 35 of 49
`
`Plaintiff's novel replicates the hackneyed inner—city gang saga
`
`mise- n—scene of nihilistic thugs, crack fiends whose humiliation
`
`and self—abasement know no limits, drug—infested housing projects,
`
`and racist cops.
`
`Yet, ultimately, as in many such sagas,
`
`the
`
`street level narcotics trade serves as a dark reflection of
`
`the
`
`American dream, where socioeconomically disadvantaged characters
`
`like Limbo risk going to jail and getting shot in pursuit of money
`
`and fame.
`
`While this type of urban melodrama is familiar from movies
`
`such as New Jack City, Menace II Society,
`
`and Get Rich or Die
`
`Tryin’,
`
`the setting for Deadly Reigns indulges a layer of fantasy
`
`more akin to that of a James Bond movie, or Miami Vice. The book's
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 36 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 36 of 49
`
`subway tunnels and abandoned buildings,” and that “[d]efendants’
`
`motion picture,
`
`though equally violent, has a glitzy feel enhanced
`
`by
`
`shots of
`
`the
`
`jungle
`
`surrounding Los Angeles,
`
`the glass
`
`buildings, and the bright light of the city”); Kretschmer v. Warner
`
`BLOL, No. 93 Civ. 1730 (CSH), 1994 WL 259814, at *9 (S.D.N.Y. June
`
`8, 1994)
`
`(contrasting the “foreboding, portentous” mood of one work
`
`with the “softer” and “lightened” mood of another).
`
`Plaintiff
`
`stresses
`
`that
`
`both works
`
`contain
`
`“excessive
`
`violence” and “shootouts,” terms
`
`that, of course, are far too
`
`capacious
`
`to describe
`
`anything that might
`
`be protected by
`
`copyright.
`
`(See Am. Compl.
`
`fl 24.) However, even the violence in
`
`Deadly Reigns has a different
`
`feel
`
`than in Street Games.
`
`In
`
`
`
`Case 1:08-cv-04297-GBD-THK Document 38 Filed 04/07/09 Page 37 of 49
`
`
`
`Case 1:O8—cv—O4297—GBD—THK Document 38 Filed 04/07/09 Page 37 of 49
`
`torture and kill his victims.
`
`In terms of style,
`
`the gap between the two works
`
`is even
`
`broader.
`
`Leaving aside the fact that Deadly Reigns is much more
`
`coherent,
`
`lucid, and evenly paced than Street Games,
`
`the texture of
`
`the prose in Deadly Reigns is utterly different from Plaintiff's
`
`writing. The often unprintably profane, slang—heavy dialogue that
`
`pervades Street Games, establishes an inner—city gangster milieu:
`
`“What you tryin
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