Jonathan Pink — Entertainment, Internet and New Media Partner at Lewis Brisbois, LLP Rotating Header Image

Ka-Pow! No Infringement for Adventure Novelists

Ka-Pow! The District Court in Hawaii ruled recently that the adventure novel Treasure of Khan by Clive Cussler and Dirk Cussler (the nineteenth Cussler yarn to feature the character Dirk Pitt) does not infringe plaintiff’s novel, Gold of Khan, about Marco Polo’s lost treasure. (Doody v. Penguin Group (USA) Inc., D. Haw., No. 08-cv-00285-JMS-BMK, 11/23/09.) Specifically, the court found that there was no substantial similarity between the protectable elements plaintiff’s work those in the Cussler novels. From a plaintiff’s perspective, this amounts to a superhero body slam.

As an aside, you will recall that copyright protection does not extend to ideas or facts. 17 U.S.C. Section 102(b). It does, however, protect the original expression of ideas or facts. Also, mere themes and bare plots are not protected. Midas Productions, Inc. v. Baer, 437 F. Supp. 1388, 1390 (C.C. Cal. 1977). There is also agreement among the circuit courts of appeal that stereotyped characters are not protected by copyright; a character must be sufficiently fleshed out to constitute more than an idea, or more than a stock character. Walt Disney Productions v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); Miller v. Universal City Studios, 650 F. 2d 1365 (5th Cir. 1981); but see the widely criticized, Ninth Circuit “fleshing out” and “story being told” tests in e.g. Metro-Goldwyn-Meyer, Inc. v. American Honda Motor Co., Inc., 900 F. Supp., 1287, 1296 (C.D. Cal 1995 (James Bond character protected because a James Bond story without 007 is not a Bond story).

Ok, back to our regularly scheduled programming: The Court in Doody also rejected the plaintiff’s argument that the substantial similarity analysis should be based on a comparison of the plaintiff’s work with the defendants’ books as a whole. The Court said that “[t]o accept Plaintiff’s proposition would mean that ‘hardly any drama since the Garden of Eden could survive the charge of plagiarism.” (Quoting Rose v. Connelly, 38 F. Supp. 54 (S.D.N.Y. 1941).

Jonathan Pink is a commercial litigator with a specialty in high-stakes trademark, trade dress, copyright, patent and trade secret disputes. He is resident in Bryan Cave’s Irvine (Orange County) and Los Angeles offices.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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