Marquardt v. King et al

Filing 11

MOTION to Dismiss 1 Complaint with Brief In Support by Stephen King, Simon & Schuster Global Services, Inc.. (Attachments: # 1 Brief, # 2 Declaration of Elizabeth A. McNamara)(Freeman, Christopher) Modified on 2/15/2011 to correct linkage on docket (fap).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROD MARQUARDT,
Plaintiff,
Civil Action No.
1:10-CV-03946-JEC

v.
STEPHEN KING and
SIMON & SCHUSTER, INC.,
Defendants.

DEFENDANTS STEPHEN KING AND SIMON & SCHUSTER, INC.’S
MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION TO DISMISS THE COMPLAINT
DAVIS WRIGHT TREMAINE LLP
Elizabeth McNamara (admitted pro hac vice)
1633 Broadway 27th floor
New York, New York 10019
Phone [phone]
Fax [phone]
CARLTON FIELDS, P.A.
Walter H. Bush (Bar No. 098825)
Christopher B. Freeman (Bar No. 140867)
1201 West Peachtree Street, Suite 3000
Atlanta, Georgia 30309
[phone]
Attorneys for Defendants
Peter A. Herbert (admitted pro hac vice)
Co-Counsel for Defendant Stephen King

18283396.3

TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ...............................................................................1
STATEMENT OF FACTS ........................................................................................3
I.

The Two Works.....................................................................................4
A.

Keller’s Den ................................................................................4

B.

Duma Key....................................................................................8

ARGUMENT...........................................................................................................12
I.

DISMISSAL IS REQUIRED WHERE THE PARTIES’ WORKS
ARE NOT SUBSTANTIALLY SIMILAR ........................................12
A.

B.

II.

Copyright Infringement Requires Substantial Similarity of
Protectible Expression and Cannot Be Premised On Facts,
Ideas or Stock Elements............................................................13
The Court May Dismiss Plaintiff’s Claims as a Matter of
Law, Without Discovery, Based on the Lack of Substantial
Similarity Between the Works..................................................20

DUMA KEY AND KELLER’S DEN ARE COMPLETELY
DISSIMILAR ......................................................................................22
A.

The Plots, Themes, Characters, Settings, Pace and
Language of the Two Works are Completely Different ...........22
1.
2.

Characters .......................................................................27

3.

Setting.............................................................................28

4.
B.

Plot..................................................................................22

Dialogue, Mood, Pace ....................................................29

Marquardt’s Chart of Random Similarities Cannot Establish
“Substantial Similarity” for Purposes of Copyright
Infringement..............................................................................30
i

18283396.3

CONCLUSION........................................................................................................35

ii
18283396.3

TABLE OF AUTHORITIES
Page(s)
CASES
Allen v. Scholastic, Inc.,
No. 10 Civ. 5335 (SAS), 2011 WL 43448 (S.D.N.Y. Jan. 6, 2011) ..................21
Bateman v. Mnemonics, Inc.,
79 F.3d 1532 (11th Cir. 1996) ............................................................................12
Beal v. Paramount Pictures Corp.
806 F.Supp. 963 (N.D. Ga 1992) , aff'd, 20 F.3d 454 (11th Cir. 1994) ......passim
Berkic v. Crichton,
761 F2d 1289 (9th Cir. 1985) .............................................................................19
Brown v. Perdue,
No. 04 Civ. 7417 (GBD), 2005 WL 1863673 (S.D.N.Y. Aug. 4, 2005),
aff’d, 177 Fed. Appx. 121 (2d Cir. 2006)...........................................................21
BUC Int’l Corp. v. Int’l Yacht Council Ltd.,
489 F.3d 1129 (11th Cir. 2007) ..........................................................................15
Computer Assocs. Int’l, Inc. v. Altai, Inc.,
982 F.2d 693 (2d Cir.1992) ................................................................................17
Dellar v. Samuel Goldwyn, Inc.,
150 F.2d 612 (2d Cir. 1945) .................................................................................2
Dunn v. Brown et al.,
517 F. Supp. 2d 541 (2007) ................................................................................21
Evans v. Wallace Berrie & Co.,
681 F. Supp. 813 (S.D. Fla. 1988)......................................................................16
Harper & Row Publishers, Inc. v. Nation Enters.,
471 U.S. 539 (1985)............................................................................................15
Herzog v. Castle Rock Entm’t,
193 F.3d 1241 (11th Cir. 1999) ...................................................................passim
iii
18283396.3

Kouf v. Walt Disney Pictures & Television,
16 F.3d 1042 (9th Cir.1994) ...............................................................................19
Leigh v. Warner Bros., Inc.,
212 F.3d 1210 (11th Cir. 2000) ..........................................................................20
Lil’ Joe Wein Music, Inc. v. Jackson,
245 Fed. Appx. 873 (11th Cir. 2007) ...........................................................13, 14
Litchfield v. Spielberg,
736 F.2d 1352 (9th Cir.1984) .............................................................................19
Metal Morphosis, Inc. v. Acorn Media Publishing, Inc.,
639 F. Supp. 2d 1367 (N.D. Ga. 2009).................................................................3
MiTek Holdings, Inc. v. Arce Engineering Co., Inc.,
89 F. 3d 1548 (11th Cir. 1996) ...........................................................................17
Nichols v. Universal Pictures Corp.,
45 F.2d 119 (2d Cir. 1930) .................................................................................15
O’Neill v. Dell Publ’g Co.,
630 F.2d 685 (1st Cir. 1980)...............................................................................20
Polsby v. St. Martin’s Press, Inc.,
8 Fed. Appx. 90 (2d Cir. 2001)...........................................................................20
Reyher v. Children’s Television Workshop,
533 F. 2d 87 (2d Cir. 1976) ................................................................................18
Scott v. Meyer,
No. 09 Civ. 06076 (ODW), 2010 WL 2569286 (C.D. Cal. June 21, 2010).......21
Starobin v. King,
137 F. Supp. 2d 93 (N.D.N.Y. 2001)...........................................................passim
Walker v. Time Life Films, Inc.,
784 F.2d 44 (2d Cir.), cert. denied, 476 U.S. 1159 (1986) ......................3, 17, 31
Warner Bros. Inc. v. American Broadcasting Cos.,
720 F.2d 231 (2d Cir.1983) ................................................................................19

iv
18283396.3

Williams v. Crichton,
84 F.3d 581 (2d Cir. 1996) .....................................................................16, 19, 30

STATUTES
17 U.S.C. § 102(b) ...................................................................................................15

OTHER AUTHORITIES
Melville B. Nimmer & David Nimmer, Nimmer on Copyright (2003)..................... 16

v
18283396.3

PRELIMINARY STATEMENT
Plaintiff Rod Marquardt’s (“Marquardt” or “Plaintiff”) claim of copyright
infringement fails as a matter of law because the works in issue are so vastly
dissimilar in every aspect of literary expression that no court or jury could
reasonably conclude that Stephen King’s work is infringing. The only thing that
Plaintiff’s novel Keller’s Den has in common with King’s novel Duma Key is that
each book involves the idea of an evil supernatural force that influences the
protagonist’s art (although this idea is expressed differently). It is beyond dispute
that ideas are not the subject of copyright protection and that only a finding of
“substantial similarity” of copyrightable expression contained within the two
works, when viewed as a whole, can support an infringement claim. In this case,
beyond ideas common to the horror genre and other nonprotectible elements, the
books are strikingly dissimilar in every other discernable and relevant way – from
the stories to the characters, themes, setting and the like.
Plaintiff attempts to overcome this reality by including a chart of
comparisons between the two works in his Complaint which purports to show that
the novels are substantially similar. (Cplt ¶ 12 [Doc. No. 1].) But as even a
cursory review of the Complaint, the chart, and the two works reveals, Duma Key
and Keller’s Den have nothing in common. If Marquardt’s chart exhibits anything,
1
18283396.3

it is a fundamental misapprehension of copyright law. Because the Copyright Act
does not protect ideas, stock elements or so-called “scenes à faire” that necessarily
flow from ideas or settings, a plaintiff must show copying of original “expression”
of ideas. Thus, in a case such as this, Marquardt must show that there is sufficient
similarity of plot, themes, dialogue, mood, setting, pace and characters, to contend
that the works are “substantially similar.” He cannot randomly extract noncopyrightable elements from the respective works, divorced from their actual
expression, and compare them on this abstract level. Instead, the Court need only
compare the two novels as a whole to conclude that there is no substantial
similarity between Duma Key and Keller’s Den and Plaintiff cannot state a
copyright claim.
At bottom, this lawsuit is a classic example of “that obsessive conviction, so
frequent among authors and composers, that all similarities between their works
and any others which appear later must inevitably be ascribed to plagiarism.”
Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612, 613 (2d Cir. 1945). A simple
reading of the two books leads to but one conclusion: the novels are not
substantially similar. Since this conclusion may be readily determined by the court
as a matter of law, this Court should dismiss the Complaint with prejudice pursuant
to Rule 12(b)(6).
2
18283396.3

STATEMENT OF FACTS
In ruling on a motion to dismiss, a district court may consider matters
outside the pleadings where (1) they are central to the plaintiff’s claim, and (2)
their authenticity is not challenged. Metal Morphosis, Inc. v. Acorn Media
Publishing, Inc., 639 F. Supp. 2d 1367, 1374 (N.D. Ga. 2009). Here, Plaintiff
cannot challenge the authenticity of the two books or their centrality to his claim.
Thus, in order to dispose of this action, the Court need look no further than the
Complaint and the two books themselves.1 Walker v. Time Life Films, Inc., 784
F.2d 44, 51-52 (2d Cir.), cert. denied, 476 U.S. 1159 (1986).
According to his Complaint, Plaintiff is an author who published his work
Keller’s Den under the pseudonym “Rod Morgan” in April 2002. (Cplt ¶¶ 5, 9.)
Defendant Stephen King is one of the most universally well-regarded storytellers
of our time. Over the past thirty-five years, Stephen King has written countless
best sellers, many of which have been adapted for motion pictures and television.
His literary works include Carrie, Salem’s Lot, The Shining, Pet Sematary,
Thinner, Misery, The Green Mile, The Stand, Dreamcatcher, The Dark Tower, and,
most recently, Full Dark No Stars. On January 22, 2008, Scribner, an imprint of
defendant Simon & Schuster, first published King’s novel Duma Key. (Cplt ¶ 10.)
1

Keller’s Den and Duma Key are Exhibits A and B, respectively, to the Declaration of Elizabeth
McNamara (“McNamara Decl.”), filed herewith.

3
18283396.3

On December 6, 2010, nearly three years after Duma Key was originally
published, Marquardt filed this Complaint for copyright infringement, alleging that
Duma Key infringed the copyright in his self-published book, Keller’s Den. The
Complaint asserts a single count for copyright infringement, but seeks varied relief,
including a preliminary and permanent injunction, a declaratory judgment, an
accounting and damages. (Cplt ¶¶ 17-25.)
I.

The Two Works
A.

Keller’s Den

Plaintiff’s Keller’s Den is a 254-page tale of ancestral curses, demonic
possession and the redemptive power of the Catholic Church, narrated in the third
person. Keller’s Den opens in June, 1690, on the island of Keventhe, which is
ruled by King Toveh Savov and Queen Ursula. (Keller’s Den, Preamble.) When
he is not governing, Savov paints pictures. As king, Savov decreed that the excess
population would be burned at the stake for the good of the larger community.
Thad, the King’s son, who opposes the brutal policies of his father, abandons the
island, forms an army of his own and recaptures Keventhe. (Id.) While Thad
stands idly by, two of Thad’s soldiers rape his pregnant mother and burn Savov
alive for his evil deeds. Before Savov dies, he places a curse on the entire
bloodline so that Thad and his descendants will be destined to kill others, including
those they love most. (Id. at 9-10.)
4
18283396.3

Keller’s Den then leaps forward 500 years into the twenty-first century and
the life of Martin Keller (“Martin”), the latest descendant of Thad. (The rest of the
novel takes place over a few days.) Martin is a handsome and successful
stockbroker on Florida’s Wall Street, and a hobby painter. (Keller’s Den, chs. 1, 8,
16, 24.) Over the course of the book, Martin paints two pictures that greatly
exceed his prior efforts, each of which is mysteriously signed with his
grandfather’s initials “JAK” rather than his own. (Id. at 40, 225.) While painting
these, Martin becomes so absorbed that he takes leave of his everyday life and
enters the painting itself. In one instance, Martin becomes a stallion leading a pack
of horses away from a cavalry who intend to kill those in excess of the needs of the
community. (Id. chs. 3, 5.)2 In another, Martin becomes a deep-sea diver who
drowns (and is actually found drowned on the floor of his den). (Id. chs. 42, 44.)
Questioning his sanity, Martin meets with his father Joe, who brutally killed
Martin’s mother and has been confined to a psychiatric ward for the past 26 years.
(Id. chs. 10, 13, 19, 22-23.) Joe reveals that murder is a family business: years
ago, Martin’s grandfather Jack Keller (or “JAK”), an accomplished artist,
barricaded the doors of a crowded church and set it on fire while Joe and his
mother were inside. (Id. ch. 23.) The fire killed 39 people, including Martin’s
2

Someone then paints a second painting of Martin’s fiancée engaged in sexual acts with his
grandfather on top of this painting. (Id. at 58.)

5
18283396.3

grandmother; Joe survived with severe burns. (Id. chs. 23, 39.) Jack was later
executed for his horrific crime. (Id. ch. 23.) Joe further tells Martin of his belief
that they are both victims of a “bloodline gone bad.” (Id.)
As Martin learns more about his past, he becomes convinced that his
grandfather is the center of the evil force that is controlling all of the living Keller
relatives. (Id. chs. 23-24.) Over a day or two, Jack’s control of Martin’s mind
grows exponentially in all spheres of his life, including his job. (See, e.g., id. chs.
16, 26, 28, 32.) During these episodes, Martin rapes his secretary and, in separate
incidents, attacks and then murders one of his co-workers (although somehow
these offenses are never discovered). (Id. chs. 26, 28, 32.) On another occasion,
the elevator at Martin’s office transports him to hell where he meets one of the
devil’s disciples, who shows him the genesis of the curse. (Id. at 170-76.)
Struggling to overcome the fate that the curse has visited upon him, Martin
returns to the Catholic Church (which he had abandoned, disillusioned, after his
mother’s murder), hoping that an exorcism will rid him of the demons. (Keller’s
Den, ch. 36.) A kindly Priest, Father Sherman, listens to Martin’s tale and
immediately recognizes the hallmarks of a true case of demonic possession. (Id.
chs. 36-37.) He encourages Martin to come back to the Church and to accept Jesus
as his savior. (Id. at 197-201; 227-28.) After Martin drowns in his den, Father
6
18283396.3

Sherman miraculously arrives at Martin’s house and performs an exorcism-type
ritual to bring Martin back to life. (Id. ch. 44.) (Unfortunately, Jack then kills the
priest while he is driving home.) (Id. ch. 45.) Shortly after this time, Martin’s
father drowns in the bathtub, apparently as the result of a stroke, leaving Martin to
contend with the ancestral curse. (Id. ch. 48.)
With the help of his deceased father’s ghost, Martin suddenly realizes that
his neighbor, Mrs. Baxter, is a descendant of Queen Ursula. (Keller’s Den, ch 50.)
His father believes that Mrs. Baxter was directly appointed by Savov to oversee the
300 ancestral spirits that have followed the lineage of Thad and make sure that
Martin cooperates with Savov’s plan for him. (Id.) Martin’s father believes that
the death of Mrs. Baxter could be the key to putting an end to the curse for all time.
(Id.) A fiery confrontation ensues and Martin (impliedly with the help of God and
the “angel Kellers”) vanquishes Mrs. Baxter. (Id. ch 51.) In the hospital at the end
of the book, Martin reflects on his renewed faith. (Id.)
Throughout all of the above events, which span less than a one-week period,
Martin has the support of his fiancée, Janet. While Janet is concerned for Martin’s
mental state, she remains deeply in love with him and committed to their
relationship. (Id. chs. 21, 33, 41, 46.) In the Epilogue, we learn that Janet is
pregnant – a fact that has unclear implications for the future of the curse.
7
18283396.3

B.

Duma Key

Duma Key is a 607-page thriller with a richly textured, multi-layered plot
and complex, likeable characters. It is narrated (in hindsight) by Edgar Freemantle
(“Edgar”), the former owner of a construction company who met with a near-fatal
accident when a crane fell on his truck, severing an arm, crushing his skull and
leaving him permanently incapacitated. (Duma Key, ch. 1.) Edgar’s marriage of
25 years dissolves while he is struggling to deal with the loss of his arm and
memory and the constant pain of his injuries, leaving him with thoughts of suicide.
(Id.) After his psychologist suggests he spend a year in a radically different
geographical location and resume an activity he formerly enjoyed (id. at 17),
Edgar, who once dreamed of attending art school, moves from Minnesota to Duma
Key, an undeveloped splinter off the Florida coast with a long history of attracting
artists (including Salvador Dalí), and begins to sketch again. (Id. ch. 2.)
Edgar soon realizes that he, like others with his type of brain injury, has
developed extraordinary skills, including psychic and artistic abilities. (Id. ch. 4.)
Edgar’s psychic abilities sometimes manifest themselves through his art,
particularly when he is holding an object that belongs to a particular person. (Id. at
66-67, 107-12; 437-45.) These skills seem to be magnified on Duma Key. (Id. at
130, 164.) Edgar meets Wireman on the beach, a compatible spirit and the
8
18283396.3

caregiver of Elizabeth Eastlake, the elderly woman who owns all the properties on
the island. (Id. ch. 5.) Through the support and encouragement of Wireman, and
to a lesser extent Elizabeth and Edgar’s part-time assistant, Jack, Edgar is able to
regain his sense of self and a new, albeit very different, life after his accident. In a
strange quirk of fate, Edgar, Wireman and Elizabeth (the only full-time inhabitants
of Duma Key) have all suffered the same type of traumatic brain injury. (See id. at
226-29, 399-400.) Wireman also shares Edgar’s psychic abilities (id. at 160-65),
and Elizabeth, like Edgar, became an art prodigy after a terrible accident at age 2
and essentially drew herself back to life (although she has not painted anything
since she was 4 years old). (Id. at 95, 399-401, 459-64.) The novel is interspersed
with flashbacks to Elizabeth’s childhood, hinting at the tragic events that led her to
stop painting. (See id. at 1, 31-32, 95-96, 151-52, 209-11, 285-86, 365-68, 407-08,
471-72, 559-66.)
While Edgar’s paintings are always surreal and somewhat frightening,
certain of them develop a power of their own. One night, Edgar paints a child
molester, whose image has haunted him from the evening news, without a nose or
mouth. Edgar is later shocked to learn that the man suddenly stopped breathing in
his cell. (Id. ch. 9.) Sensing that he has somehow caused this to happen, Edgar
begins to experiment, creating a picture from MRI images of Wireman’s brain that
9
18283396.3

somehow heals his wounds. (Id. ch. 10.) (We later learn that both Elizabeth and
Edgar are visited by the same malevolent muse, “Perse,” who infuses some of their
pictures with supernatural powers. As a child, Elizabeth caused a storm to happen
by painting it, in an effort to please her father, who was a diver. The storm brought
treasure from the bottom of the ocean to the surface, including Perse, in the form of
a small china doll.) (Id. at 209-11, 427-41; 460-61.)
Edgar’s artistic talents (and productivity) grow over the course of months,
ultimately culminating in a large-scale exhibition of his work in one of the area’s
well-known galleries toward the end of the novel. (Id. ch. 13.) One image that
reappears with frequency on the canvas is that of a derelict ship near the shore of
Duma Key. These pictures also feature a figure that could be a young girl or doll,
almost always from the back, heading toward the ship (Edgar calls them his “Girl
and Ship” series). (See, e.g., id. at 313, 387-92.) After seeing (and seeming to
recognize) these images, Elizabeth Eastlake dies, leaving Edgar and Wireman with
a cryptic message: “Drown her back to sleep.” (Id. at 385-403.) Edgar and
Wireman soon realize the power of the paintings of the ship, as those who purchase
these paintings seem destined for death and destruction. (Id. at 455-58, 467, 47884, 487-91.)

10
18283396.3

As Edgar and Wireman’s awareness of Perse grows, they realize that the
secret to finding and defeating her must lie in Elizabeth’s childhood. (Id. at 45966, see generally chs. 17-20.) Elizabeth spent her childhood in Heron’s Roost, an
abandoned house located further down the beach. The old family home is
surrounded by overgrown foliage that, together with the demons of Elizabeth’s
childhood, protect the house from intruders. (Id. at 503-521.) Edgar comes to
believe that if they could enter Heron’s Roost and find the drawings that Elizabeth
painted as a child, those drawings would unlock the secret to where Perse is
hidden. (Id. at 528-42, 547-57.) Edgar, Wireman and Jack then embark upon a
terrifying journey to Heron’s Roost, where they are confronted by the nightmares
that both Edgar and Elizabeth have drawn to life, and realize the true extent of
Perse’s powers. (Id. at 557-90.)
Comparing the two works in issue, it could not be more apparent that the
copyrightable expression of these entirely different stories is in all respects
dissimilar, thereby compelling, as a matter of law, the summary dismissal of
Plaintiff’s claim of infringement.

11
18283396.3

ARGUMENT
I.
DISMISSAL IS REQUIRED WHERE THE PARTIES’
WORKS ARE NOT SUBSTANTIALLY SIMILAR
This motion turns on a single issue: the absence of substantial similarity of
protected expression between Keller’s Den and Duma Key. The application of
well-settled Eleventh Circuit law dictates the dismissal of this action. Indeed, by
simply reading the respective works it becomes readily apparent that the only
similarity between Keller’s Den and Duma Key is the non-copyrightable idea of a
malevolent force that influences the art of a living person; however, when viewing
the copyrightable content of the two works – that is, the manner in which each
author developed and expressed this idea in the plots’ sequences of events, the
characters around which the stories unfold, and the dialogue, setting, tone and pace
of the work – it is beyond dispute that no similarity whatsoever exists, much less
the “substantial similarity” required to sustain a claim of infringement.3
To state a claim for copyright infringement, Marquardt must prove “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original.” Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th
Cir. 1996). Plaintiff bears the burden of proof as to both elements. In the absence
3

The comparison of randomly selected similarities taken out of the context in which they appear
has been found to be an “illegitimate” methodology for determining copyright infringement.
Starobin v. King, 137 F. Supp. 2d 93 (N.D.N.Y. 2001), discussed infra.

12
18283396.3

of direct evidence of copying – which Marquardt has not and could not allege – the
second element of the test requires Plaintiff to prove that (i) defendant had
“access” to the copyrighted work and (ii) “that the defendant’s work is
substantially similar to the plaintiff’s protected expression.” Beal v. Paramount
Pictures Corp. 20 F.3d 454, 459 (11th Cir. 1994). Even assuming arguendo that
the ownership and access requirements are satisfied,4 Marquardt’s claims must be
dismissed in their entirety because he cannot show that the respective works are
substantially similar in their protected expression.
A.

Copyright Infringement Requires Substantial Similarity of Protectible
Expression and Cannot Be Premised on Facts, Ideas or Stock Elements
The Eleventh Circuit employs an extrinsic/intrinsic analysis to test for

substantial similarity. See Lil’ Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx.
873, 877 (11th Cir. 2007); Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1257
(11th Cir. 1999). The extrinsic test asks whether, “as an objective matter, the
works are similar in protected expression.” Herzog, 193 F.3d at 877. “[U]nder the
intrinsic test, a court will determine whether, upon proper instruction, a reasonable
jury could find that the works are substantially similar.” Id. In the context of
4

Other than the conclusory allegation that his work was and is for sale in various venues,
Plaintiff pleads no facts to support a finding of actual access or of widespread distribution to
presume access. (Cplt ¶ 9.) Nonetheless, should the Court deny this motion in any part, access
will be fiercely contested, as Stephen King never heard of Rod Marquardt or Rod Morgan until
he read about the commencement of this lawsuit in a trade publication, and, to this date, has
never seen the Plaintiff’s book.

13
18283396.3

works of fiction, the inquiry focuses on articulable similarities between the plot,
mood, characterization, pace, setting and sequence of events in the two works.
Beal, 20 F.3d at 460. The question of substantial similarity can be decided as a
matter of law either where “the similarity between two works concerns only noncopyrightable elements of the plaintiff's work,” or where “no reasonable jury,
properly instructed, could find that the works are substantially similar.” Herzog,
193 F.3d at 1247. This action is subject to dismissal on either ground.
“Where [comparing] works that contain both protectible and unprotectible
elements, [the Court’s] inspection must be more discerning” and “attempt to
extract the unprotectible elements from … consideration and ask whether the
protectible elements, standing alone, are substantially similar.” Lil’ Joe Wein, 245
Fed. Appx. at 877 (quotation marks omitted). Courts in the Eleventh Circuit have
been stringent in dissecting protected and unprotected elements. See Herzog, 193
F.3d at 1248-49, 1257; Beal v. Paramount Pictures, Corp. 806 F. Supp. 963, 96669 (N.D. Ga 1992), aff’d, 20 F.3d 454 (11th Cir. 1994). Thus, in exercising its
gatekeeper function by analyzing the works at issue, the Court must separate out
the protectible expression from the unprotectible expression, and then take into
consideration only the protectible expression. In performing that function, several
fundamental principles must be applied.
14
18283396.3

First, “[i]t is an axiom of copyright law that the protection granted to a
copyrightable work extends only to the particular expression of the idea and never
to the idea itself.” Herzog, 193 F.3d at 1248; Harper & Row Publishers, Inc. v.
Nation Enters., 471 U.S. 539, 547 (1985) (“[N]o author may copyright facts or
ideas.”); 17 U.S.C. § 102(b). “[T]he idea of hunting a formidable whale at the lead
of an eccentric captain is not protected by copyright law. The expression of this
idea as it is encapsulated in the novel Moby Dick, however, is protected by
copyright.” BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129, 1143 (11th
Cir. 2007). As Judge Learned Hand explained:
Upon any work … a great number of patterns of
increasing generality will fit equally well, as more and
more of the incident is left out. . . . [T]here is a point in
this series of abstractions where they are no longer
protected, since otherwise the [author] could prevent the
use of his ‘ideas,’ to which, apart from their expression,
his property is never extended.
Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cited in
Herzog, 193 F.3d at 1248-49. Thus, in deciding a motion to dismiss a claim
involving copyright infringement, “the court must decide if the similarities
between the works involve similar expressions of ideas, as opposed to the mere
articulation of similar general themes.” Beal, 806 F. Supp. at 966.

15
18283396.3

Second, copyright excludes scenes à faire, which are “sequences of events
which necessarily follow from a common theme” or “incidents, characters, or
settings that are indispensable or standard in the treatment of a given topic.”
Herzog, 193 F.3d at 1248; Beal, 806 F. Supp. at 966-67. For example, “the choice
of writing about vampires leads to treating killings, macabre settings, and choices
between good and evil.” 4 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright § 13.03[B][4] at 13-78.7 (2003)); see also Herzog, 193 F.3d at 1248
(“Such similarities as using a sand dollar as currency, foods made of seaweed,
seahorses for transportation and places made of oysters or mother of pearl are not
protected similarities of expression, but are more accurately characterizations that
naturally follow from the common theme of an underwater civilization.”) (citing
Evans v. Wallace Berrie & Co., 681 F. Supp. 813, 817 (S.D. Fla.1988)).
Third, mere lists of abstract similarities divorced from the actual content of
two works – such as a random coincidence of names or common isolated events –
are “inherently subjective and unreliable,” because “many such similarities could
be found in very dissimilar works.” Beal, 806 F. Supp. at 967 & n.2; Herzog, 193
F.3d at 1257 (same); see also Williams v. Crichton, 84 F.3d 581, 590 (2d Cir.
1996) (describing lists of specific similarities as “inherently subjective and
unreliable”); Walker, 784 F.2d at 50 (noting the “difficulty of comparing unified
16
18283396.3

artistic works on the basis of such scattered analogies”); Starobin v. King, 137 F.
Supp. 2d 93, 97 (N.D.N.Y. 2001) (“comparing works of artistic expression … by
dissection neglects to pay proper attention to the works as a whole”). This is
particularly true when the “similarities” are not copyrightable.
In recognition of the necessarily close parallels in abstract ideas and literary
conventions in many works of creative fiction, the standard for establishing the
substantial similarity of such works is a demanding one. It requires that a
copyright plaintiff demonstrate that the defendant author has “appropriated the
‘fundamental essence or structure’ of plaintiff’s work.” MiTek Holdings, Inc. v.
Arce Engineering Co., Inc., 89 F. 3d 1548, 1552 n.5 (11th Cir. 1996) (quoting
Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 701 (2d Cir.1992)).
“[G]eneral similarities in theme between the two works are not copyrightable.”
Beal, 806 F. Supp. at 967-68 (focusing on “plot, characterization, mood, pace and
setting of two works” to determine if “an average lay observer would recognize the
alleged copy as having been appropriated from the copyrighted work”). Instead,
“the essence of infringement lies in taking not a general theme but its particular
expression through similarities of treatment, details, scenes, events and
characterization.” Reyher v. Children’s Television Workshop, 533 F. 2d 87 (2d

17
18283396.3

Cir. 1976); see also Herzog, 193 F.3d at 1258-62 (analyzing the characters, theme,
plot, setting, mood and pace of the two works).
Recognizing these basic principles, courts have had no problem disposing of
copyright claims where the alleged similarities, as here, were limited to abstract,
unprotected ideas or stock elements, or mere coincidences, notwithstanding
laundry lists of supposed similarities. Consider, for example, Herzog v. Castle
Rock Entertainment, where the Eleventh Circuit affirmed dismissal of a copyright
action notwithstanding plaintiff’s allegations that the two works:
use flashback sequences to shift from the present to the
past; take place in rural, “redneck” towns with histories
of racial tension that are dominated by corrupt public
officials; make reference to land obtained as a result of
massacres; have powerful citizens who conspire to hide
the truth of the murders until their secrets are uncovered
by the film’s protagonists; use the device that deaths
were due to foul play instead of natural causes; use the
consequences of a prank to set in motion a chain of
events and revelations central to the secrets of the town
and its residents; recount the massacre of Indians via
flashbacks of the witnesses; use a key-ring/ring to
identify the victims…mention black Seminole Indians;
have evil sheriffs who blackmail townspeople and are
killed; have prominent businesswomen who harbor
secrets central to the plot; and have old-timers who help
solve the mysteries by telling the protagonists about the
town’s history.
193 F.3d at 1257. The Eleventh Circuit rejected this long list of alleged
similarities, finding it “inherently subjective and unreliable,” and dismissed
18
18283396.3

plaintiff’s copyright claims, finding they went to noncopyrightable elements and
that no jury could find the works substantially similar. Id. Similarly, this Court
had no trouble dismissing a copyright infringement claim where the two works
involved the “generalized theme of a foreign prince coming to the United States,”
including “domineering kings, arranged marriages, ... abundant wealth,” and a
protagonist who ultimately married an American woman, but which were
otherwise very different in their expression of these stock ideas and themes. Beal,
806 F. Supp. at 967-68.5
In short, random lists of supposed “similarities” extracted from two works
cannot substitute for the necessary comparison of the respective works “as a
whole” to see if they are similar in protected expression. Williams v. Chrichton, 84
F.3d 581, 590 (2d Cir. 1996).

5

See also Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985) (insufficient similarity even
though both works “deal with criminal organizations that murder healthy young people, then
remove and sell their vital organs to wealthy people in need of organ transplants,” who are
ultimately exposed by a “young professional who courageously investigates” the criminal
organization; “No one can own that basic idea for a story. General plot ideas are not protected
by copyright law; they remain forever the common property of artistic mankind.”); Kouf v. Walt
Disney Pictures & Television, 16 F.3d 1042 (9th Cir.1994) (insufficient similarity where both
screenplays featured individuals using scientific formulas which shrink people to miniscule
proportions); Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231 (2d Cir.1983)
(insufficient similarity where both works centered on white male “superhero” who wore tight
costume and cape, flew with arms extended, led double life, and rescued innocent people from
evil-doers); Litchfield v. Spielberg, 736 F.2d 1352, 1354-55 (9th Cir.1984) (insufficient
similarity where both works concerned alien with extraordinary powers who befriended child,
was welcomed into family, adopted human habits, thwarted evil-doers, and then returned to his
own planet).

19
18283396.3

B.

The Court May Dismiss Plaintiff’s Claims as a Matter of Law, Without
Discovery, Based on the Lack of Substantial Similarity Between the
Works
No factual record is required for this Court to compare the two books and

determine whether there is similarity of protected expression. A simple reading
and comparison of Keller’s Den and Duma Key exposes the utter lack of similarity
between any protected elements. Discovery would not inform this analysis. For
this reason, courts in this and other circuits readily dispose of claims on motions to
dismiss on a determination of a lack of substantial similarity. Leigh v. Warner
Bros., Inc., 212 F.3d 1210, 1213 (11th Cir. 2000) (concluding that because
dismissal on motion is based on an ordinary observer’s comparison of the actual,
published works, discovery is not necessary). As the First Circuit held in O’Neill
v. Dell Publ’g Co., an analogous case involving utterly dissimilar novels, “[i]t is
difficult to understand how additional evidence, whatever it might be, could
change the written words of the two novels.” 630 F.2d 685 (1st Cir. 1980); see
also Polsby v. St. Martin’s Press, Inc., 8 Fed. Appx. 90, 92 (2d Cir. 2001)
(discovery “not necessary for a comparison of the works in order to assess
whether, as to the protectible elements, they are substantially similar”).
In particular, courts have not hesitated to grant early dismissal when, as here,
the Complaint targets authors or works of some renown but the basis for the claim
is entirely lacking. See, e.g., Allen v. Scholastic, Inc., No. 10 Civ. 5335 (SAS),
20
18283396.3

2011 WL 43448 (S.D.N.Y. Jan. 6, 2011) (dismissal of copyright claim alleging
that Harry Potter and the Goblet of Fire infringed plaintiff’s children’s book);
Scott v. Meyer, No. 09 Civ. 06076 (ODW), 2010 WL 2569286 (C.D. Cal. June 21,
2010) (dismissal of copyright claim against author and publisher of Twilight series
arising out of plaintiff’s work that also included vampires, with an award of costs
and attorneys’ fees); Brown v. Perdue, No. 04 Civ. 7417 (GBD), 2005 WL
1863673 (S.D.N.Y. Aug. 4, 2005), aff’d, 177 Fed. Appx. 121 (2d Cir. 2006)
(dismissal of copyright action against author and publisher of The Da Vinci Code
arising out of another religious thriller); Dunn v. Brown et al., 517 F. Supp. 2d 541,
543 (D. Mass. 2007) (same); Starobin v. King, 137 F. Supp. 2d 93 (N.D.N.Y.
2001) (dismissal of copyright lawsuit against Stephen King’s book, Desperation,
arising out of another horror novel, based on a 16 page list of non-contextual
incidental similarities).
In sum, this Court should simply read the two works and compare them.
After stripping the books of their abstract ideas, and stock horror elements, only
one conclusion can reasonably be reached: there is no similarity between
expression in the works and Marquardt’s claims of copyright infringement must be
dismissed.

21
18283396.3

II.
DUMA KEY AND KELLER’S DEN ARE COMPLETELY DISSIMILAR
Plaintiff fails to offer any support for his contention that the books are
substantially similar beyond stock elements and themes and random coincidences.
His failure is dictated by the fact that Duma Key is radically different from Keller’s
Den in plot, theme, characters, setting, time sequence, style and tone. The most
cursory review of the two books reveals how vastly different they are.
A.

The Plots, Themes, Characters, Settings, Pace and Language of the Two
Works Are Completely Different
1.

Plot

As is evident from the description of the two works, the plots are entirely
dissimilar, both in their elements and their sequence, other than the abstract (and
unprotectible) idea of a malevolent force that influences the art of a human subject.
Many of the plot and thematic developments Marquardt identifies in support of his
substantial similarity claims are not only entirely common to the genre (and are
therefore unprotectible) but they are handled in a distinctly different manner in
each book. Marquardt surely cannot claim protection for the idea of a human
subject whose actions are influenced by, or who hears the voice of, a supernatural
force or presence. Supernatural (or “horror”) literature has a rich and extensive
pedigree and the common fact that each of these books includes a supernatural

22
18283396.3

force – even one that influences art – does not advance Plaintiff’s claims. (See
Cplt ¶ 12 (v); (kkk).)
Overarching Structure and Sequence: Duma Key is built around Edgar’s
quest to put his life back together after a horrendous accident that destroyed his
body and the world as he knew it. It is because of the accident and the resulting
brain injury – something he mysteriously shares with the island’s other inhabitants
– that Edgar has developed the artistic and psychic abilities that render him (and
Elizabeth) susceptible to a malevolent force like Perse. There, King weaves hints
of the horror to come through Edgar’s first-hand depiction of his recovery and his
months on the island. But the work is much more than a traditional horror novel; it
is a tale of growth and friendship, as often sad as it is terrifying. The ominous and
supernatural nature of Duma Key, the horrors lurking in the pasts of its few
inhabitants and the nature of the “evil force” at work on the island are revealed
over the course of many months, culminating in a battle for the island and their
lives. In order to survive, Edgar must see the world through the eyes of 4-year old
Elizabeth Eastlake, uncovering the mysteries of her past and using her memories to
find and defeat Perse at the end of the novel. (See supra at 8-11.)
In stark contrast, the story in Keller’s Den is driven by an ancestral curse
that affects all members of the Keller bloodline. Martin is possessed by the spirit
23
18283396.3

of his grandfather (an artist) for no more than a week, during which time Martin
creates two paintings signed with his grandfather’s initials, rapes his secretary and
murders a colleague. Within a day, and on scant evidence, Martin goes from an
apparently rational person with a healthy degree of skepticism to one who
unquestionably believes in demonic possession and ancestral curses. There is little
sense of suspense, and little mystery. Numerous plot lines are left hanging – for
example, the rape and murders are seemingly without repercussion or the
discovery of the bodies. Martin ultimately seeks the help of God to exorcise the
malevolent spirit and break the hereditary chain of evil. (See supra at 4-8.)
The Malevolent Force. In any horror novel, the nature of the evil or
malevolent force is a critical structural element of the plot. In Keller’s Den, the
evil is an ancestral curse, which manifests itself in the demonic spirit of Martin’s
grandfather, who possesses both Martin and his father, Joe, causing them to do
unspeakable acts. (Keller’s Den ch. 23.) With the help of his father’s spirit and
God, Martin is ultimately able to free himself from the grip of Jack and the curse.
(Id. ch. 51.)
In Duma Key, the evil force has no relation to an ancestral curse and is not
specific to a particular family or bloodline. Perse is an ancient, evil force that is
embodied in a small china figurine. (Duma Key at 488.) She gains in strength and
24
18283396.3

substance as Elizabeth, and later Edgar, draw her, imbuing their art with a
malevolent force of her own. (See, e.g., id., ch. 9.) As she gains in power, Perse
leads various secondary characters to their deaths, after which they then join Perse
as zombie-like creatures on her “ship of the dead.” (Id. at 431-33, 445-51, 55966.) Unlike the supernatural force in Plaintiff’s work, Perse does not possess
Edgar and cause him to engage in acts of violence and is not defeated with the help
of God. Edgar, Jack and Wireman ultimately “defeat” Perse by following the
memories of 4-year-old girl (Elizabeth) and “drowning her to sleep” in fresh water,
which immobilizes her. (Id. ch. 20.)
The Role of Religion in the Plot Keller’s Den conveys a strong imperative
to have faith in Jesus and be saved. By coming back to the Church and accepting
Jesus as his savior, Martin is able to find the strength to defeat the demons that the
ancestral curse inflicts upon him. The power of God is seen when Father Sherman
is able to bring Martin back from the dead by performing an exorcism and when
Martin is able to use God’s love to keep his grandfather Jack at bay. (Id. chs. 3637, 44, 51.) The novel ends with Martin reflecting on his renewed faith: “Yes,
Martin. There is a God.” (Id. at 252.) There is no such imperative to have faith
in Duma Key. In fact, religion does not play any role in the story.

25
18283396.3

The Role of Art in the Plot Both novels are horror stories with
protagonists who paint. Yet again, the expression of this abstract idea could not be
more different. In Keller’s Den, Martin’s newfound artistic skills are the result of
demonic possession by his grandfather, Jack, a skilled artist. While painting,
Martin loses consciousness, entering into the work of art itself. (Id. chs. 3, 5, 42,
44.) We learn that the experiences that Martin has are influenced by events that
affected his ancestors many years before. (Id.) Further, these experiences are so
“real” that, after painting a scuba diver, Martin is found drowned in his den in front
of the picture. (Id. ch. 44.) Beyond the act of painting them, the paintings
themselves do not have any particular supernatural powers and Jack’s demonic
influence over Martin is not limited to the paintings. In fact, Jack possesses Martin
at various other points in the novel, leading him to rape and kill. (Id. chs. 26, 28,
32.)
By contrast, in Duma Key Edgar gains his exceptional artistic abilities (along
with psychic abilities) after a crane crushes his skull. While Edgar is completely
immersed in his art when painting, he is not possessed and does not enter the
images. Certain of Edgar’s works of art are inspired by, and infused with, a
“supernatural” power that they would not otherwise possess; however, Edgar’s
undeniable artistic and psychic abilities are not a result of demonic possession and
26
18283396.3

he is able to wield them to save Duma Key and defeat Perse. (Id. at 457, chs. 15,
17.) Moreover, the significance of art to the respective plots is distinct. It is
through Edgar’s paintings that Perse gains her strength and influence in Duma Key.
She is also able to manipulate those who own the paintings, leading to their deaths.
(Id. chs. 15-16.) Yet, in Keller’s Den, a general demonic possession is at work and
painting is but one of many means by which Martin is controlled. In short, from
any angle, it is clear that the two works tell very different stories.
2.

Characters

Marquardt’s claim fares no better when one considers the characters. The
primary characters in Keller’s Den are thinly-developed. Martin is revealed to be
an otherwise healthy, attractive and successful stockbroker whose life revolves
around his committed and supportive fiancée, his job on Wall Street, outings with
his wealthy clients and friends. (Id. chs. 1, 8, 16, 19.) Keller’s Den, which is told
in the third person, describes a week in Martin’s life in which he is briefly
possessed by an evil, demonic ancestor and saved by his renewed faith in God.
Martin’s fiancée, Janet, is “an object that cause[s] construction workers to drool on
their flannel shirts and howl like wolves.” (Id. at 35-36.) Although convinced that
Martin is mentally ill, she remains committed, supportive and deeply in love with
him – the perfect woman. (Id. chs. 21, 33, 41, 46.)
27
18283396.3

Throughout Duma Key, which Edgar narrates in the first person, the reader
gains a deep understanding of the complexities of the three primary characters and
their horrifying pasts, as well as insight into a panoply of human relationships.
Edgar, the protagonist, was married and living in Minnesota. He has been
permanently incapacitated by a near-fatal accident, loses his family and career, and
then retreats to Duma Key, alone, to regroup. (Duma Key, chs. 1-2.) Edgar does
not resemble Martin in any concrete way. Edgar’s primary companions are Duma
Key’s only other long-term inhabitants – Elizabeth Eastlake, a reclusive, wealthy
and fading patroness of the arts, and Wireman, the ex-lawyer who cares for
Eastlake and becomes Edgar’s close friend. (Id. chs. 5, 10.) Both Elizabeth and
Wireman have also suffered severe brain trauma and are susceptible to the force
that inhabits the island. Neither character has any counterpart in Keller’s Den.
3.

Setting

The settings and characters in the two books are completely different. While
both books are set in Florida (Cplt ¶ 12(j)), that is where the alleged similarity
ends. Keller’s Den is set in urban Miami where Martin grew up, although,
centered as it is around well-to-do housing subdivisions and Wall St. financial
services firms, it could be any major metropolitan city in the United States. (See
id. at 81-82, 149-51, 193.) Duma Key is initially set in Minnesota and then, as a
28
18283396.3

result of Edgar’s accident, moves to a barely-inhabited island off the Florida coast
with a number of unusual properties (birds fly upside down, foliage grows at an
alarming rate, the seashells whisper at high tide, and artists have been inexplicably
attracted to it for decades) and which is infested with an evil force that amplifies
the gifts of wounded people and spells doom for young women. (See id. chs. 1-2
and at 130, 164, 180-82.) The settings of these books have nothing in common.
4.

Dialogue, Mood, Pace

There are also deep differences in the dialogue, mood and pace between the
two works. Keller’s Den rapidly shifts from mundane normalcy to demonic
possession and acts of extreme evil and violence in a heart-beat. (See, e.g., chs. 26,
28.) The action draws on clichés of the genre (attacks by demons with glowing red
eyes, exorcisms, the power of faith and the specter of a Rosemary’s Baby-like
demon child). (See id. at 55, 172-74, 240.) The narrative and dialogue are often
confused, and the narration switches from one character to the next. (See, e.g., id.
chs. 8, 12, 19.)
Duma Key, by contrast, presents a world where the supernatural has
flourished over centuries on an island that has the power to selectively attract
people with psychic abilities. (Id. at 122, 160-65; 190.) Edgar Freemantle
provides a clear and cohesive narrative, with the benefit of hindsight, throughout
29
18283396.3

the book, interspersed with glimpses into relevant events from Elizabeth’s
childhood, told largely from her perspective. (See id. at 1, 31-32, 95-96, 151-52,
209-11, 285-86, 365-68, 407-08, 471-72, 559-66.) The scenes build slowly and
naturally and the dialogue is clever, believable, often humorous, and rife with pop
culture references. (See, e.g., id. ch. 5.) The supernatural elements of the plot
build slowly and logically over a considerable period of time (months), weaving
together a complex and coherent story that is both sad and chilling. In sum, it is
clear that there are no similarities of protectible expression in the plot, themes,
dialogue, mood, setting, pace, characters or sequence of events in the two works.
B.

Marquardt’s Chart of Random Similarities Cannot Establish
“Substantial Similarity” for Purposes of Copyright Infringement
Marquardt tries to mask the pervasive differences between the two novels by

relying on a lengthy chart of random and manufactured similarities scattered
throughout the works, taken in isolation from their expressive contexts in the
stories. As noted above, courts routinely reject such self-serving charts as an
unnecessary and improper substitute for the Court’s own review of the parties’
works as a whole. See Herzog, 193 F.3d at 1257; Beal, 806 F. Supp. at 967 & n.2.
“Such a scattershot approach cannot support a finding of substantial similarity
because it fails to address the underlying issue: whether a lay observer would
consider the works as a whole substantially similar to one another.” Williams, 84
30
18283396.3

F.3d at 590 (emphasis added) (describing lists of specific similarities as “inherently
subjective and unreliable”); Walker, 784 F.2d at 50 (noting the “difficulty of
comparing unified artistic works on the basis of such scattered analogies”);
Starobin, 137 F. Supp. 2d at 97 (“comparing works of artistic expression … by
dissection neglects to pay proper attention to the works as a whole,” citing
Walker).
Further, a simple reading of the books reveals that Marquardt’s charts are
shockingly misleading: they gloss over major aspects of the works, focus on the
most minor of details and misrepresent the two novels to fabricate the impression
that the books are similar. Just a few examples suffice to make this clear. While
there is a facial similarity if one only focuses on the fact that the sky was described
as “red” in both works (Cplt ¶ 12 (bbb)), an examination of the books reveals that
the context is completely different. Keller’s Den refers to an “angry red sky and
blood-soiled ground” when describing the aftermath of the fire and mass genocide
in the ancestral village of Keventhe (Keller’s Den at 5); while the language cited
by Marquardt from Duma Key describes the sunset in Edgar’s paintings: “It was
always sunset, and the light filling the west was always a titanic red anvil that
spread blood across the infected sky.” (Duma Key at 388-89.)

31
18283396.3

Likewise, both books feature a character who drowns in a bathtub and
becomes a ghost (hardly a novel idea in the horror genre) (Cplt ¶ 12 (uu)), but the
significance and expression of these events is totally different. In Keller’s Den,
Martin’s father, Joe, drowns in the bathtub after suffering a stroke and then
reappears (as do most, if not all, of Keller ancestors) to tell his son how to defeat
the curse. (Id. chs. 48, 50.) By contrast, Edgar’s daughter is murdered by a crazed
art critic who knocks her out and then drowns her in a bathtub of salt water, before
committing suicide. Perse is able to use the daughter’s spirit in an attempt to lure
Edgar to his doom. (Id. chs. 487-91, 594-99.)
The Complaint cites numerous other examples drawn from the horror genre
that are even more generic and less protectible,6 e.g., an elderly woman with a
mysterious past (Cplt. ¶ 12 (l)); principal characters having a premonition of evil
(id. ¶ 12 (ss)); a telepathic inference (id. ¶ 12 (tt)); a storm that knocks out the
power in the main character’s house (id. ¶ 12 (yy)); a main character who faints out
of fear and is awoken by the telephone (id. ¶ 12 (ee)); the mention of a Ouija board

6

Plaintiff also identifies numerous other non-protectible ideas, concepts, plot elements and
scènes à faire, common to works involving artists, such as the following: each main character, as
painter, stands before a blank canvas thinking of a subject to paint (Cplt ¶ 12 (b)); the act of
painting totally consumes the artist’s attention (id. ¶ 12 (a)); the artists can be so consumed when
painting that he is oblivious to their surroundings (id. ¶ 12 (d)); and the artist in both novels
paints a nude featuring the artist’s current (Keller’s Den) or former (Duma Key) lover (id. ¶ 12
(g)). A simple reading of the actual passages referenced reveals that the expression of these
ideas are not similar.

32
18283396.3

(id. ¶ 12 (ff)); a skeleton wearing tattered clothes (id. ¶ 12 (cc)); fleeing from a
place where one feels uneasy (id. ¶12 (e)); “words written by a ghost on a canvas”
(id. ¶ 12 (ii)); a “scary incident that occurs on the stairs at night in a storm” (id. ¶
12 (jj)); and secondary characters who respond to stories of “premonitions and
mysterious events” with skepticism (id. ¶ 12 (ss)). None of these abstract and
utterly common events are protectible. Still other supposed examples do not even
amount to similarities. Plaintiff cannot seriously contend that his claim is
advanced by an allegation that “Keller’s Den has Keller” while “Duma Key has
Garrison Keillor,” who is mentioned because the characters read from Good
Poems, a real book of poetry edited by Garrison Keillor; or that “Keller’s Den has
Steve Smith” while “Duma Key has Sandy Smith,” or that Keller’s Den has one
character named “John” while Duma Key has four. (Cplt. ¶ 12(lll).)
These kinds of incidental similarities that can be discovered by computer
tracing and matching procedures, viewed outside the literary context in which the
references appear, constitute unprotectible elements which do not support
Plaintiff’s claim. Whether taken individually or collectively, these incidental
similarities do not in any way inform a legitimate copyright infringement analysis.
This is not the first time that Stephen King has been faced with a meritless
claim of copyright infringement. Nor one that relied on a list of random
33
18283396.3

similarities extracted from the works. In Starobin v. King et al., 137 F. Supp. 2d
93 (N.D.N.Y. 2001), the plaintiff submitted a 16 page list of “correspondences” of
the kind alleged by Plaintiff here in an attempt to demonstrate that King’s book
Desperation infringed plaintiff’s copyright in Blood Eternal. The supposed
similarities included: hearing footsteps on the gravel versus hearing footsteps on
black tar; driver talks on a walkie-talkie versus author talks on a cellular phone;
tooth pulp like undigested meat versus raw tissue from mouth and nose like raw
meat; gull with blood drained out versus dog devoured by buzzards. After
observing that “it is wholly inappropriate to analyze the issue [of substantial
similarity] through such a line-by-line analysis,” id. at 97 (citation omitted), and
rejecting the comparison of artistic works “by dissection” rather than a
consideration of the works as a whole, the Starobin court found that none of the
alleged incidental similarities contained in the plaintiff’s lengthy list constituted
copyrightable expression. Accordingly, the court dismissed the action. It is
respectfully submitted that the same reasoning applies with equal force to the facts
here, mandating dismissal of Plaintiff’s claim.
In the end, Defendants submit that a simple reading King’s Duma Key and
Marquardt’s Keller’s Den – after stripping the works of their abstract ideas and
scènes à faire – reveals that no reasonable person could regard the two books as
34
18283396.3

similar, much less substantially so. Accordingly, Plaintiff’s Complaint alleging
copyright infringement claim should be summarily dismissed as a matter of law.
CONCLUSION
For the reasons stated herein, Defendants respectfully submit that the Court
should grant Defendants’ motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, and award Defendants their costs, attorneys’ fees and
such other and further relief as this Court deems just and proper.
Dated:

February 14, 2011

1633 Broadway, 27th Floor
New York, New York 10019
[phone]
[phone] (fax)

DAVIS WRIGHT TREMAINE LLP
/s/ Elizabeth A. McNamara
Elizabeth A. McNamara, pro hac vice
CARLTON FIELDS, P.A.

1201 West Peachtree Street
Suite 3000
Atlanta, Georgia 30309
[phone]
[phone] (fax)

/s/ Christopher B. Freeman
Walter H. Bush
Georgia Bar No. 098825
Christopher B. Freeman
Georgia Bar No. 140867
Attorneys for Defendants Stephen King
and Simon & Schuster, Inc.

5 Union Court
Gloucester, Massachusetts 01930
[phone]

PETER HERBERT, ESQ
/s/ Peter A. Herbert
Peter A. Herbert, pro hac vice
Co-Counsel for Stephen King
35

18283396.3

CERTIFICATE OF COMPLIANCE WITH LOCAL RULES
Pursuant to Local Rule 7.1(D), I hereby certify that this brief has been
prepared in Times New Roman font, size 14, in accordance with Local Rule 5.1.

/s/ Christopher B. Freeman
Christopher B. Freeman

36
18283396.3

CERTIFICATE OF SERVICE
This is to certify that I have this day served the within and foregoing
DEFENDANTS STEPHEN KING AND SIMON & SCHUSTER, INC.’S
MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION TO
DISMISS THE COMPLAINT by electronic notification through the Court’s
CM/ECF system as follows:
S. Quinn Johnson, Esq.
Johnson P.C.
3348 Peachtree Road, N.E.
Suite 700
Atlanta, Georgia 30326
This 14th day of February, 2011.

/s/ Christopher B. Freeman
Christopher B. Freeman

1
18283396.3