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 (9^th Cir. 1978); Miller v. Universal City Studios, 650 F. 2d 1365 (5^th 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.