Leary v. Manstan et al

Filing 70

ORDER. Defendants' motion for summary judgment (Doc. # 41 ) is GRANTED. The Clerk is directed to close this case. Signed by Judge Jeffrey A. Meyer on 7/15/2015. (Norman, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOSEPH LEARY,
Plaintiff,
v.
ROY MANSTAN, FREDERIC FRESE,
WESTHOLME PUBLISHING, LLC,
Defendants.
No. 3:13-cv-00639 (JAM)
FREDERIC FRESE, ROY MANSTAN,
Counter Claimants,
v.
JOSEPH LEARY,
Counter Defendant.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This copyright case involves two non-fiction works about the so-called “Turtle,” a
Revolutionary War-era submarine built by a farmer from Connecticut named David Bushnell.
The life of David Bushnell and his invention of the Turtle has captured the imagination of
several writers.1 Plaintiff Joseph Leary is the author and copyright owner of an unpublished
manuscript on this subject, and so are defendants Frederic Frese and Roy Manstan, who wrote a
later book published by defendant Westholme Publishing, LLC.
Plaintiff principally contends that defendants’ book infringes on his copyright in the
unpublished manuscript. I conclude that there is no genuine issue of fact to support this claim. It
1

The record reflects at least eleven books about David Bushnell and the Turtle, see Doc. #41-11
at 43, including an illustrated children’s book, see June Swanson (ill. Mike Eagle), David Bushnell and
His Turtle: The Story of America’s First Submarine (1991).

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is true that the two works are about much of the same basic subject matter, but there is no claim
that defendants engaged in verbatim copying or close paraphrasing of plaintiff’s work. Copyright
law otherwise affords only narrow protection to works of history, and subsequent authors may
utilize the same facts, theories, and concepts contained in prior works so long as they do not
copy another author’s particular original manner of expression. In view of this rigorous standard
and my comparison of the two works at issue in this case, I conclude that no reasonable jury
could find that defendants’ book infringes plaintiff’s copyright in the manuscript. Accordingly, I
will grant defendants’ motion for summary judgment.
BACKGROUND
The Turtle—or the American Turtle, as it is sometimes called—is a fascinating historical
curiosity. Well over a century before the advent of modern submarine warfare, David Bushnell
built this one-man wooden submersible to conduct underwater attacks on the British naval fleet
along American shores. Founding fathers like George Washington and Benjamin Franklin were
aware of and supported Bushnell’s efforts. Ultimately, the Turtle never accomplished its goal of
destroying British ships. But in many ways the project was a success: the Turtle was the first
submersible vessel used in a war, its revolutionary screw propeller design is still in use today,
and Bushnell discovered how to make gunpowder explode underwater.
The history of David Bushnell and the Turtle submarine has long intrigued plaintiff
Joseph Leary. In the 1970s, plaintiff worked with defendant Frederic Frese to build a working
replica of the submarine. The replica was launched with much fanfare in 1977, and today it is on
display at the Connecticut River Museum in Essex. While working on the 1977 replica, plaintiff
researched information about Bushnell and the various techniques that Bushnell used to build the
Turtle. Plaintiff’s research has continued in the ensuing decades, and over the years plaintiff has

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incorporated his discoveries into an ever-evolving (and as–yet–unpublished) manuscript weaving
together a biography of Bushnell, historical information about the Turtle, and plaintiff’s
experiences building the replica.
At some point in the intervening decades, plaintiff gave Frese a copy of a version of his
manuscript, which was then titled The Famous Water Machine from Connecticut.2 That version
began with the following dedication: “This work is inspired by and dedicated to Frederic Frese . .
. without whom I would know absolutely nothing about David Bushnell or submarines.” Doc.
#53-6 at 3. In 2002, plaintiff applied for and was granted federal copyright registration with
respect to a subsequent version of the manuscript, which had by then been retitled David
Bushnell and the American Turtle. Plaintiff continues to work on the manuscript, and he intends
to publish it once it is completed.
The 1977 replica of the Turtle would not turn out to be the only replica of Bushnell’s
submarine.3 Over two decades later, in the early 2000s, the National Maritime Historical Society
became interested in building another replica of the Turtle. The Society asked plaintiff to
participate in the project, and plaintiff, in turn, asked Frese to join. Defendant Roy Manstan, an
engineer from the Naval Undersea Warfare Center, was also brought in to assist with the
building of another Turtle replica. The replica was to be built as part of a student education
project at a high school in Old Saybrook, Connecticut.
Plaintiff’s involvement with the second Turtle replica project was short-lived. Through a

2

The manuscript that was allegedly given to Frese is dated 1996, see Doc. #53-6 at 4, but other
evidence indicates that plaintiff actually gave the manuscript to Frese several years later, see Doc. #41-11
at 29–30.
3
Others have also built “Turtle” replicas. See Randy Kennedy, An Artist and His Sub Surrender
in Brooklyn, N.Y. Times, Aug. 4, 2007, available at
http://www.nytimes.com/2007/08/04/arts/design/04voya.html?_r=0 (last accessed June 29, 2015), and
Judy Campbell, Turtle Lives Again as Replica Surfaces at Academy, America’s Navy (Apr. 14, 2003),
http://www.navy.mil/submit/display.asp?story_id=6852.

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series of events that are not entirely clear, plaintiff was allegedly “effectively . . . remove[d] . . .
from the project.” Doc. #41-11 at 98.
The project successfully went forward, however, and Manstan and Frese worked with
high school students and others to build another Turtle replica. Frese and Manstan then wrote a
book about the Turtle submarine, Bushnell, and their own experiences building a Turtle replica.
Their book—titled Turtle: David Bushnell’s Revolutionary Vessel—was published by defendant
Westholme Publishing, LLC, in 2010. Sometime after it was published, plaintiff found
defendants’ book online and he purchased a copy of it. After reading the book, plaintiff “felt
betrayed” because he believed that he “recognized [his] writing” in defendants’ book. Doc. #4111 at 109.
Thereafter, plaintiff initiated this lawsuit. In his complaint, plaintiff contends that
defendants’ book infringes on his copyright in the unpublished manuscript and he also claims
that defendants’ conduct violates the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn.
Gen. Stat. § 42-110a et seq. Defendants have moved for summary judgment.
DISCUSSION
The principles governing a motion for summary judgment are well established. Summary
judgment may be granted only “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of
material fact ‘exists for summary judgment purposes where the evidence, viewed in the light
most favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s
favor.’” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (quoting Guilbert v.
Gardner, 480 F.3d 140, 145 (2d Cir. 2007)). The evidence adduced at the summary judgment

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stage must be viewed in the light most favorable to the non-moving party and with all
ambiguities and reasonable inferences drawn against the moving party. See, e.g., Tolan, 134 S.
Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d Cir. 2013). All in all, “a
‘judge’s function’ at summary judgment is not ‘to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.’” Tolan, 134 S. Ct. at 1866
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
To prevail on a copyright infringement claim, “two elements must be proven: (1)
ownership of a valid copyright, and (2) copying of constituent elements of the work that are
original.” Feist Publications, Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S. 340, 361 (1991). There is
no dispute in this case that plaintiff owns a valid copyright in his unpublished manuscript. To
satisfy the second element, plaintiff “must also show copying by defendants. . . . Copying may
be inferred where a plaintiff [1] establishes that the defendant had access to the copyrighted work
and [2] that substantial similarities exist as to protectible material in the two works.” Walker v.
Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986). For purposes of this motion only,
defendants have conceded they had access to plaintiff’s manuscript.4 See Doc. #41-1 at 5. This
leaves just one question: whether a triable issue of fact remains that the two works are
substantially similar.
The substantial similarity inquiry often involves questions of fact. Nevertheless, a district
court may “resolve [the substantial similarity] question as a matter of law [when] . . . the
similarity between two works concerns only non-copyrightable elements of the plaintiff’s work,
or because no reasonable jury, properly instructed, could find that the two works are substantially

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It appears to be undisputed that defendants had access to at least one version of plaintiff’s
manuscript, but there is no indication as to how they might have obtained access to the copyrighted 2002
version. I need not concern myself with this factual ambiguity in view of defendants’ concession
regarding access to the manuscript.

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similar.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010)
(internal quotation marks omitted). Put differently, summary judgment is proper when the lack of
substantial similarity is “so clear as to fall outside the range of disputed fact questions requiring
resolution at trial.” Kregos v. Associated Press, 3 F.3d 656, 663 (2d Cir. 1993) (internal
quotation marks omitted). The Court makes this assessment by engaging in a “detailed
examination of the works themselves.” Williams v. Crichton, 84 F.3d 581, 583 (2d Cir. 1996)
(internal quotation marks omitted). “[T]he works themselves supersede and control contrary
descriptions of them . . . including any contrary allegations, conclusions or descriptions of the
works contained in the pleadings.” Gaito Architecture, 602 F.3d at 64 (citation and internal
quotation marks omitted).5
In a copyright infringement action, “[t]he standard test for substantial similarity . . . is
whether an ordinary observer, unless he set out to detect the disparities [between the two works],
would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Id. at 66
(some alterations in original) (internal quotation marks omitted). This test is often referred to as
the “ordinary observer test” because it “ask[s] whether an average lay observer would recognize
the alleged copy as having been appropriated from the copyrighted work.” Ibid. (internal
quotation marks omitted).
But a court must apply this test carefully, ever mindful that not all elements of a
copyrighted work are protectable. Indeed, “[o]ften . . . a work’s aesthetic appeal will be due
largely to unprotected elements. In these cases, we must be more discerning, [and] ignor[e] those
aspects of a work that are unprotectable as we apply the test . . . .” Zalewski v. Cicero Builder

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Moreover, expert testimony is generally “irrelevant” to the inquiry. Laureyssens v. Idea Grp.,
Inc., 964 F.2d 131, 140 (2d Cir. 1992). For this reason, I have considered but do not place particular
weight on the expert reports submitted by the parties. Instead, I rely on my detailed review of the two
works to determine the existence of substantial similarity.

6

Dev., Inc., 754 F.3d 95, 102 (2d Cir. 2014) (some alterations in original) (internal quotation
marks omitted).
Which aspects of a work of history (like plaintiff’s manuscript) are protectable and which
are unprotectable? Historical facts and events are not protected. See Rosemont Enters., Inc. v.
Random House, Inc., 366 F.2d 303, 306–07 (2d Cir. 1966). Neither are interpretations of
historical events, such as theories, plots, or explanatory hypotheses. See Hoehling v. Universal
City Studios, Inc., 618 F.2d 972, 974, 978–79 (2d Cir. 1980). The only thing that copyright law
protects is the non-fiction author’s original expression—that is, the author’s particular manner of
selecting, coordinating, excerpting, modifying, and arranging various public domain
components. See, e.g., id. at 974 (recognizing that “the scope of copyright protection in historical
accounts is narrow indeed, embracing no more than the author’s original expression of particular
facts and theories already in the public domain”); Feist Publications, 499 U.S. at 348–49
(“Factual compilations . . . may possess the requisite originality” for copyright protection
because the author “typically chooses which facts to include, in what order to place them, and
how to arrange the collected data,” but this protection is “thin” because “a subsequent compiler
remains free to use the facts contained in another’s publication to aid in preparing a competing
work, so long as the competing work does not feature the same selection and arrangement.”).6
The Second Circuit has recently underscored this distinction between non-protection for
facts and protection for peculiar expression:
A fundamental rule of copyright law is that it protects only “original works of
authorship,” those aspects of the work that originate with the author himself. 17
U.S.C. § 102(a). Everything else in the work, the history it describes, the facts it
mentions, and the ideas it embraces, are in the public domain free for others to
6

The rule denying copyright protection to historical facts and interpretations is not without its
critics. See Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 293–96 (S.D.N.Y. 2012) (discussing
judicial and scholarly criticism). Of course, I remain bound by Second Circuit and Supreme Court
precedent on this subject.

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draw upon. It is the peculiar expressions of that history, those facts, and those
ideas that belong exclusively to their author. See 17 U.S.C. § 102(b). Thus, any
author may draw from the history of English-speaking peoples, but no one may
copy from A History of the English–Speaking Peoples. Any artist may portray the
Spanish Civil War, but no one may paint another Guernica. And anyone may
draw a cartoon mouse, but there can be only one Mickey.
Zalewski, 754 F.3d at 102 (footnotes omitted).7 Thus, anyone may write a book about the Turtle
submarine, David Bushnell, and his or her experiences building a replica of the Turtle, but no
one may “bodily appropriate” plaintiff’s particular expressive treatment of these subjects. See
Hoehling, 618 F.2d at 980 (“In works devoted to historical subjects, it is our view that a second
author may make significant use of prior work, so long as he does not bodily appropriate the
expression of another.”).
In light of this legal framework, it is evident to me that no reasonable fact finder could
conclude that defendants’ book is substantially similar to plaintiff’s unpublished manuscript.
To begin with, it is undisputed that defendants’ book contains no verbatim copying of plaintiff’s
manuscript. Nor does the book contain any close paraphrasing. This is significant, because
“absent wholesale usurpation of another’s expression, claims of copyright infringement where
works of history are at issue are rarely successful.” Id. at 974. A review of the reported cases
from this Circuit demonstrates this point. As best I can tell, there is only one reported case within
7

Plaintiff contended at oral argument that a lower threshold for substantial similarity applies in
cases involving unpublished works. I am not convinced. The two cases that plaintiff relies on to advance
this argument—Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985), and
Wainwright Sec., Inc. v. Wall St. Transcript Corp., 558 F.2d 91 (2d Cir. 1977)—are inapposite. Both
cases are legally distinguishable because they are about the fair use doctrine. It is true that the
“unpublished nature of the work . . . figure[s] prominently in fair use analysis.” Harper & Row
Publishers, 471 U.S. at 553. But fair use is an “affirmative defense” to a claim of copyright infringement,
see id. at 561, and defendants have not raised a fair use defense in their motion for summary judgment.
And I do not reach the issue, either, because I find that there is no substantial similarity in the first place.
Moreover, the cases are readily factually distinguishable from the present case. Both cases involved
substantial verbatim copying of the plaintiff’s work. Id. at 548 (noting that the defendant “lift[ed]
verbatim quotes of the author’s original language . . . constituting some 13% of the . . . article);
Wainwright Securities, 558 F.2d at 96 (noting that the defendant “appropriated almost verbatim the most
creative and original aspects of the [plaintiff’s] reports”). In this case, by contrast, there is no verbatim
copying or even close paraphrasing.

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the Second Circuit in recent years where a party prevailed on a copyright claim involving the
alleged infringement of a non-fiction book, and in that case the infringing book “copied between
25-30 percent of [the earlier book] verbatim or through close paraphrase.” Robinson v. Random
House, Inc., 877 F. Supp. 830, 836 (S.D.N.Y. 1995). The absence of any verbatim copying or
close paraphrasing weighs against a finding of substantial similarity.
I recognize, of course, that substantial similarity may exist even in the absence of obvious
copying, and that protection is available for the “association, presentation, and combination of
the ideas and thought which go to make up the [author’s] literary composition.” Salinger v.
Random House, Inc., 811 F.2d 90, 98 (2d Cir. 1987) (alteration in original) (internal quotation
marks omitted). And there is no doubt that the works at issue in this case share some significant
subject-matter similarities. Both plaintiff and defendants have built replicas of David Bushnell’s
Turtle submarine, and they have both chosen to write books that incorporate information about
their experiences building the respective replicas, historical information about the Turtle, and
biographical information about David Bushnell. The parties share similar experiences and
interests, and it is these similar experiences and interests that gave rise to two works about the
same thing. But I cannot say—and no reasonable fact finder could say—that these two works of
non-fiction are substantially similar for copyright infringement purposes.
Most fundamentally, the two works adopt different approaches to similar subject matter.
Plaintiff’s manuscript is principally a work of history. The great majority of the manuscript is
devoted to the history of the Turtle itself—the idea for an underwater submersible, the
construction of the device, its missions in the New York harbor, and so forth. The manuscript
also includes detailed biographical information about Bushnell himself, including anecdotes
about Bushnell’s early life, his experiences with the Turtle, his other activities during the

9

Revolutionary War, and his life following the war. Additionally, the manuscript contains
information about post-Turtle developments in underwater warfare. True, the manuscript
includes passages about plaintiff’s personal experiences with Frese building, launching, and
testing the first Turtle replica. But this information is set forth mostly in just two of the book’s
eleven chapters (Chapters 4 and 7), and it comprises less than 20% of the book. The overriding
focus of plaintiff’s manuscript is on the history of David Bushnell, the Turtle, and early
submarines.
By contrast, defendants’ book is principally focused on the technical aspects of designing
and building the Turtle—both David Bushnell’s original submersible and defendants’ replica.
Indeed, well over half of defendants’ book is devoted to extended scientific discussions of
various design and construction challenges facing builders of the Turtle—the propulsion system
(Chapter 7), the shape of the hull (Chapter 8), creating a hatch (Chapter 9), devising an
underwater explosion mechanism (Chapter 11), etcetera—and to detailed information about
operational tests of defendants’ Turtle replica (Chapters 12–18).
It is true that defendants’ book incorporates a good deal of historical information
throughout, and the book does contain biographical information about Bushnell himself. But this
information mainly serves as context and orientation for discussions about the myriad technical
challenges that Bushnell and defendants encountered when building the Turtle. And this
technical focus is not surprising given that the book was written by a mechanical engineer
(Manstan) and a technical arts teacher (Frese). In short, the respective works have obviously
differing focuses and approach the material from different angles.
Plaintiff also contends that defendants have copied the structure of his manuscript, and he
makes much of the fact that both works employ “flash-backs” and “flash-forwards” as they

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transition back and forth between the Revolutionary War era, when the original Turtle was built,
and modern times, when the respective replicas were built. Of course, a “flash-back” or “flashforward” is nothing more than a standard storytelling device, and plaintiff enjoys no copyright
protection in the usage of these devices. He does enjoy copyright protection in the particular
manner with which he deploys these devices to structure his manuscript. But no reasonable juror
could conclude that defendants have bodily appropriated the structure of plaintiff’s manuscript in
view of the different ways that the two works are structured.
Plaintiff’s book is mostly a chronological historical account: a thorough description of the
history of the Turtle, a biography of the entirety of David Bushnell’s life, and a mini-treatise on
the history of underwater vessels both pre- and post-Turtle. The book weaves in various
discussions about the building of the replica throughout, but just two chapters can be fairly
characterized as “flash-forwards” to the 1970s: Chapter Four, which discusses how the replica
was built, who helped with the construction of the replica, and the publicity surrounding the
replica; and Chapter Seven, which describes the various dives that the Turtle replica made.
Plaintiff’s manuscript is structured as a narrative, and it is apparent that the aim is to tell a
compelling story. Information concerning the Turtle replica is largely background information,
and is of interest only to the extent that it informs what we know about Bushnell and how he
built the original Turtle.
Defendants’ book utilizes a markedly different structure. The book is divided into four
parts. Like the early pages of plaintiff’s manuscript, Part One of defendants’ book focuses in part
on background information about pre-Turtle submersibles and Bushnell’s early life. This section
also introduces the Turtle and its various components. While this portion is somewhat similar to
the beginning of plaintiff’s manuscript, the rest of defendants’ book is structured differently. Part

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Two of the book turns to a detailed discussion about each aspect of the Turtle: how Bushnell
might have solved each technical challenge, and how the authors (and their students) solved each
technical challenge when building the replica. Part Three then exhaustively documents the
various technical challenges that defendants encountered when testing their replica. The last and
shortest section, Part Four, returns to the historical record as it details the circumstances leading
to the Turtle’s three attacks on British ships as well as the attacks themselves—material that
plaintiff covers in the middle of his manuscript.
Unlike plaintiff’s manuscript, defendants’ book is largely not structured as a narrative at
all. Rather, the majority of the book is structured like a technical manual: a series of extended
descriptions of how to construct each part of the Turtle. The structure of the two books is not
substantially similar.
Plaintiff also claims that defendants copied an original idea from his manuscript. Both
works theorize that Isaac Doolittle, a New Haven clockmaker who built America’s first printing
press, may have assisted Bushnell in making the hatch for the Turtle submarine. See Doc. #41-4
(Pl.’s Manuscript) at 47; Doc. #41-7 (Defs.’ Book) at 34, 36. According to plaintiff, he came up
with this “original analysis” himself, and defendants copied it. Doc. #53 at 21. Even assuming
that the theory about Doolittle making the hatch originated with plaintiff, this argument is
meritless because theories about historical events are not protectable under the Copyright Act as
a matter of law. See Hoehling, 618 F.2d at 978. In Hoehling, the Second Circuit held that an
author’s hypothesis that a particular individual destroyed the Hindenburg was “an historical
interpretation” that was “not protected by [the author’s] copyright and can be freely used by
subsequent authors.” Id. at 979. Just like a theory concerning who destroyed the Hindenburg,
plaintiff’s hypothesis about who made the Turtle’s hatch is a historical interpretation that is not

12

protectable by copyright.
Plaintiff further complains that defendants’ book contains a passage about David
Bushnell’s early life and upbringing that closely tracks a passage in his manuscript. Compare
Doc. #41-4 (Pl.’s Manuscript) at 14–15, with Doc. #41-6 (Defs.’ Book) at 49–50. The passages
do indeed share similarities, which is unsurprising given that they both are brief descriptions of
what little is known of Bushnell’s early life. But plaintiff does not enjoy any copyright protection
in particular facts about Bushnell’s life or the sequential retelling of such facts. See, e.g., Arica
Inst., Inc. v. Palmer, 970 F.2d 1067, 1075 (2d Cir. 1992) (holding that copyright law does not
protect the chronological narration of historical events because such ordering is “devoid of
creativity”); Robinson, 877 F. Supp. at 836 (“[B]ecause the retelling of history necessarily
proceeds in a certain chronological order, an author cannot hold a copyright in the sequence of
the story’s elements.”). Any similarity between these two passages concerns only the noncopyrightable elements of plaintiff’s passage, and therefore such similarities may not form the
basis for a finding of substantial similarity.
Plaintiff advances numerous other arguments concerning alleged similarities between
particular aspects of the respective works. I have considered all these arguments, and find them
to be without merit—either because the alleged similarities involve non-copyrightable elements
of plaintiff’s manuscript, or because no reasonable jury could find the manner of expression to be
substantially similar.
I can see why plaintiff would be frustrated about the publication of a book that covers
similar subject matter as his unpublished manuscript. But no reasonable jury could find that
plaintiff’s manuscript and defendants’ book are substantially similar for copyright purposes in
view of the narrow protection afforded to non-fiction accounts. In the absence of any genuine

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issue of material fact, I will grant defendants’ motion for summary judgment as to plaintiff’s
copyright infringement claim.
Plaintiff’s CUTPA claim also fails. CUTPA prohibits the use of “unfair methods of
competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.”
Conn. Gen. Stat. § 42-110b(a). Here, it is difficult to discern which of defendants’ acts or
practices are alleged to be unfair or deceptive, because plaintiff’s complaint does not contain any
factual allegations that are specific to the CUTPA claim. To the extent that the CUTPA claim is
based on defendants’ alleged copying of plaintiff’s manuscript, that claim is preempted by the
Copyright Act. See Kregos, 3 F.3d at 666 (holding that “unfair-competition and misappropriation
claims, based solely on the copying of the protected expression . . . are preempted by [17 U.S.C.]
§ 301”).
In his memorandum in opposition to defendants’ summary judgment motion, plaintiff
contends that his CUTPA claim is “based on the authorized use of [his] manuscript by
Defendants.” Doc. #53 at 22. This argument is without merit, because consulting a manuscript
that one has been given when writing a non-fiction book is not actually deceptive, nor does it
offend public policy. See Langan v. Johnson & Johnson Consumer Companies, Inc., __ F. Supp.
3d __, 2015 WL 1476400, at *2 (D. Conn. 2015) (noting that CUTPA claims can be based on
either actually deceptive practices or violations of public policy, and detailing requirements for
both types of claims). Because there is no factual or legal basis for a viable CUTPA claim, I will
grant defendants’ motion for summary judgment on this claim.
CONCLUSION
The story of David Bushnell and his Revolutionary War-era submarine is a captivating
episode in American history. It is little wonder that plaintiff, defendants, and other authors have

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written about the topic. Copyright law permits authors who do write about Bushnell and the
Turtle to write about common facts so long as they do not appropriate the particular expression
used by another author. Defendants’ book uses many of the same facts and some of the same
ideas and concepts as discussed in plaintiff’s manuscript, but the book does not appropriate
plaintiff’s expression. No reasonable jury could find otherwise.
For this reason, defendants’ motion for summary judgment (Doc. #41) is GRANTED.
The Clerk is directed to close this case.
It is so ordered.
Dated at New Haven this 15th day of July 2015.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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