Marquardt v. King et al
Filing
30
ORDER granting 11 Defendants' Motion to Dismiss. Signed by Judge Julie E. Carnes on 8/9/11. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROD MARQUARDT,
Plaintiff,
CIVIL ACTION NO.
v.
1:10-CV-3946-JEC
STEPHEN KING AND SIMON &
SCHUSTER GLOBAL SERVICES, INC.,
Defendants.
ORDER
This case is before the Court on a motion to dismiss [11] filed
by defendants, the author Stephen King and his publishing company,
Simon & Shuster Global Services, Inc.
For the reasons set out
below, the Court grants defendants’ motion to dismiss.
I.
INTRODUCTION
Plaintiff Marquardt has brought this copyright infringement
action under the Copyright Act of 1976 (17 U.S.C. §§ 101 et seq.).
Plaintiff alleges that defendant Stephen King, in effect, stole from
plaintiff’s original literary work, Keller’s Den, when King created
his own 2008 novel, Duma Key.
Specifically, using the nom-de-plume “Rod Morgan,” Plaintiff
published his first and only novel Keller’s Den in 2002 with America
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House Book Publishers.
America House distributed the book in
printed
versions
and
electronic
through
including Amazon and Barnes & Noble.
online
booksellers,
Shortly after publication,
Plaintiff sent a copy of Keller’s Den to King’s publisher and codefendant, Simon & Schuster, Inc., purportedly in the hopes that
King would read the novel and write a blurb for the cover.
& Schuster, however,
Simon
returned the book and informed Plaintiff that
King did not accept other authors’ books for review.
In 2008, King published Duma Key, one of some forty novels he
has published since the 1970s. Duma Key appeared under the Scribner
imprint of Simon & Schuster. Upon reading Duma Key, Plaintiff avers
that he became convinced that certain elements of the novel were so
similar to Keller’s Den that King must have copied Plaintiff’s work.
That is, Plaintiff alleges that Duma Key is substantially similar
to plaintiff’s Keller’s Den in “plot, plot devices, structure,
sequence
of
events,
setting,
characters,
characterizations,
character function and relationships.” (Compl. [1] at ¶ 12.) He
provides a lengthy list of analogous details found in both novels.
(See Compl. [1] at ¶ 12 and Pl.’s Supplemental Resp. [24] at 8-44.)
Plaintiff focuses most on plot similarities, alleging that the
key plot idea for King’s Duma Key came from Keller’s Den. Plaintiff
alleges that King copied his idea of a character gaining a sudden,
uncanny
ability
to
paint
as
a
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result
of
contact
with
some
supernatural
being.
(Compl.
[1]
at
¶
12(c),
(kkk).)
The
supernatural being shapes the subject-matter of the paintings, often
to depict things previously unknown to the character.
(Compl. [1]
at ¶ 12(f).) Further, bad things start to happen to the painter and
to other characters who come into contact with the paintings.
Defendants,
who
will
hereinafter
be
referred
to
in
the
singular, as “King,” have moved to dismiss this action pursuant to
FED. R. CIV. P. 12(b)(6), arguing that the only similarities between
the two works “are abstract ideas, stock elements and random
similarities isolated from the expressive context in which they
appear, none of which are protected by copyright.” (Defs.’ Mot. to
Dismiss [11] at 1.)
For the reasons set out below, the Court has concluded that the
similarities alleged between the two books clearly fail the Eleventh
Circuit’s test for “substantial similarity,” which requires the
alleged similarities of copyright-protected material to be such that
“an average lay observer would recognize the alleged copy as having
been appropriated from the copyrighted work.” Original Appalachian
Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.
1982)(quoting Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558
F.2d 1090, 1092-93 (2d Cir. 1977)).
Thus, because Plaintiff fails
to state a claim upon which relief may be granted, the Court grants
King’s motion to dismiss Plaintiff’s copyright action.
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II.
Applicable Law
A.
Elements of Copyright Infringement
To succeed on a copyright infringement action, the plaintiff
must show that he holds a valid copyright to the elements of the
work alleged to be copied, and that there was actual copying of
those elements.
Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc.,
499 U.S. 340, 361 (1991); Beal v. Paramount Pictures Corp., 20 F.3d
454, 459 (11th Cir. 1994).
As copying is difficult to prove
directly, courts--including the Eleventh Circuit--have employed a
two-part test for determining whether one can infer that copying
occurred. See, e.g., Original Appalachian Artworks, 684 F.2d at 829.
First, the court asks whether the defendant had access to the
plaintiff’s work. Id. Second, it asks whether “the defendant’s work
is substantially similar to the plaintiff’s.” Id.
The test of substantial similarity itself has two independent
prongs.
The
objective
test”
expression.”
works
of
in
question
being
must
satisfy
“substantially
the
similar
“extrinsic,
in
protected
Lil' Joe Wein Music, Inc. v. Jackson, 245 Fed. Appx.
873, 877 (11th Cir. 2007).
That is, a plaintiff cannot prevail if
he seeks to protect only uncopyrightable elements.
Further, under
the extrinsic test, expert testimony may be considered. Id. (citing
Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1257 (11th Cir.
1999)).
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Second,
the
plaintiff
must
also
meet
the
burden
of
the
“intrinsic, subjective test,” which requires a showing that“a
reasonable
jury
would
find
that
the
works
are
substantially
similar.” Id. Stated another way, the test asks whether “an average
lay observer would recognize the alleged copy as having been
appropriated from the copyrighted work.”
Artworks, 684 F.2d at 829.
extrinsic/intrinsic
Original Appalachian
Too much should not be made of the
distinction,
however,
ultimately merge into a single inquiry:
as
“the
two
tests
whether a reasonable jury
could find the [two works] substantially similar at the level of
protected expression.” Oravec v. Sunny Isles Luxury Ventures, L.C.,
527 F.3d 1218, 1224 n.5 (11th Cir. 2008).
For purposes of his motion to dismiss, King concedes that
Plaintiff has a valid copyright to Keller’s Den and that King had
access to the novel.
Nor does King challenge, at this point,
Plaintiff’s satisfaction of the extrinsic test of substantial
similarity.
Thus, the only question at issue for King’s motion to
dismiss is whether the two works satisfy the intrinsic test of
substantial similarity.
B.
Applying the Intrinsic Test of Substantial Similarity
Under the intrinsic test, “‘[s]ubstantial similarity’ exists
where ‘an average lay observer would recognize the alleged copy as
having been appropriated from the copyrighted work.’”
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Original
Appalachian Artworks, 684 F.2d at 829.
In applying this standard,
the Eleventh Circuit disfavors the use of catalogs of similar
elements, as “such lists are ‘inherently subjective and unreliable,’
particularly where the list contains random similarities...[because]
[m]any such similarities could be found in very dissimilar works.”
Beal, 20 F.3d at 460 (quoting and affirming Beal v. Paramount
Pictures, 806 F. Supp. 963, 967 n.2 (N.D. Ga. 1992).
That is, in determining substantial similarity, a court seeks
to mimic the mental process that typically occurs when a person
reads.
A reader of a novel does not, as she is reading, typically
expend her energy compiling mental lists of the various dates,
places, characters, and events set out in the book. Reading is not
akin to playing a parlor game.
Thus, the lay person reads novels,
not as aggregates of facts, but as coherent wholes.
For this
reason, the Eleventh Circuit favors an approach that better captures
what a lay reader actually experiences, and therefore it analyzes
the works at issue in terms of holistic categories, such as “plot,
characterization, mood, pace, and settings.”
Beal v. Paramount
Pictures, 806 F. Supp. 963 at 967-69.
Failure to meet this intrinsic test for substantial similarity
has long been recognized by the Eleventh Circuit as fatal to a
plaintiff’s claim.
Castle
Rock
Entm’t,
E.g., Beal, 806 F. Supp. at 967; Herzog v.
193
F.3d
1241,
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1257
(11th
Cir.
1999).
Understanding how the Eleventh Circuit actually applies what seems
to be a rather abstract test is illustrative in analyzing the
present case.
In Beal, which involved a complaint for copyright
infringement similar to Plaintiff’s, the Eleventh Circuit affirmed
the district court’s summary judgment for the defendant for lack of
substantial similarity under the intrinsic test. That is, the court
adjudged the defendant’s movie Coming to America insufficiently
similar in protected expression to the plaintiff’s book The Arab
Heart, despite both books sharing the common idea of an African
prince leaving his kingdom to come to America, where he ends up
falling in love with an American woman, eventually marrying her, and
bringing her back to his kingdom.
Beal, 806 F. Supp. at 967-69; 20
F.3d at 460-64.
The court found crucial dissimilarities in that the plots
diverged, the events that led each prince to leave his kingdom for
America were different, the plot complications in America were
different, and the resolutions of the stories were different.
The
court likewise found the characterization in each work to be
different, in that The Arab Prince featured an unrepentant womanizer
as a prince, whereas Coming to America featured an idealistic, purehearted prince. Likewise, the settings were different. The African
kingdom in Coming to America was an idyllic paradise, whereas the
kingdom in The Arab Prince was racked by war.
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Further, in Coming
to America, the prince lives in Queens, New York; in The Arab
Prince, the prince studies at the Georgia Institute of Technology
in Atlanta.
Thus, despite a broadly similar idea underlying both works, the
lay reader would not find the works substantially similar, and the
intrinsic test was not met.
The Court will use a similar approach
to analyze, and compare, the two works at issue.
III. DISCUSSION
Analyzing Keller’s Den and Duma Key through the Beal categories
of “plot, characterization, mood, pace, and settings,” it becomes
quickly obvious that they share no substantial similarity that would
be recognized by a lay reader.
A.
Plot
Plaintiff’s work, Keller’s Den is essentially a religious
allegory of fall and redemption.
hundred
year-old
family
curse
The major plot device is a three
that
allows
a
malevolent
force
(suggested to be Satan) to possess its members, causing them to
commit heinous acts.
The curse arose out of an intra-familial
fight, in which members of the Keller clan crucified and burned
alive the family patriarch, Savov.
In his dying moments, Savov
abandoned his religious faith and “vowed revenge, unaware that his
promise had subjugated him to a dark force where his unsettled
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spirit would embark on a sinister path of kindred torment.” (Notice
of Ex. A and Ex. B [12], Ex. A at 10.)
The protagonist of the novel, Martin Keller, is the latest
Keller to suffer from the curse.
The curse first manifests itself
when Martin takes up painting--rapidly and mysteriously becoming
proficient in rendering realistic scenes--and then begins having
hallucinatory experiences in which he is transported into the scenes
of his paintings, in one instance almost drowning when he is taken
into an underwater diving scene.
The curse soon drives Keller to
do terrible things, including rape and murder, before he manages to
defeat the curse with the help of his newfound religious faith,
thereby bringing redemption to the Keller line.
This redemption is
symbolized at the end of the novel with the birth of Keller’s son,
who is presumably the first Keller to be free of the family curse
in three centuries.
Defendant
Stephen
psychological novel.
King’s
book,
Duma
Key,
is
primarily
a
Its plot centers upon Edgar Freemantle, who
runs a successful Minnesota construction firm until a crane falls
on him, causing him to lose his right arm and leaving him braindamaged.
At
his
psychiatrist’s
suggestion,
Edgar
moves
from
Minnesota to the Florida island of Duma Key, where he takes up
painting as therapy for the depression brought upon him by the
accident.
He quickly demonstrates an uncanny skill at it, having
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never shown much artistic proficiency before moving to Duma Key.
Edgar often composes his surreal paintings while in a daze induced
by his brain damage (and, as later becomes apparent, an evil spirit
that inhabits the island). The depictions--not understood at first-end up revealing things about his ex-wife (that she had developed
a romantic relationship with their accountant), daughter (that she
is engaged), and the island, itself (that it is haunted).
His paintings also have the power to change reality.
In one
instance, Edgar is able to remove a bullet lodged in a friend’s
brain by painting a picture with it removed.
The paintings,
however, have a malign effect on those to whom Edgar gives them, as
their
possessors
either
die
or
are
driven
to
kill
others.
Gradually, it becomes clear that Edgar’s paintings have released
Perse, the evil spirit of the island, whom Edgar must then confront.
He succeeds in vanquishing Perse after investigating the island’s
mysteries and learning of her weakness (submersion in fresh water).
Thus, the plots, while sharing the idea of a mysterious,
dangerous painting skill, express that idea quite differently.
In
Keller’s Den, the idea is expressed in the context of a religious
allegory of possession and salvation. In Duma Key, the idea appears
in the context of a psychological mystery.
Accordingly, the
painting skill functions differently as a plot device in the two
books.
In Keller’s Den, it is little more than a manifestation of
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Martin’s demonic possession. In Duma Key, it is employed to connect
Edgar to the island’s history and its other inhabitants.
B.
Characterization
Martin Keller is, it seems, an otherwise ordinary and decent
person possessed to do evil things by his family curse.
His
psychology is only thinly developed in the book, as he experiences
the world in a rather clipped, typical fashion:
his sex life is
presented as a simple cycle of desire and satisfaction; his fits of
demonic possession send him into a pure, sadistic rage; after such
fits he feels nothing but puzzlement and remorse.
of the other characters in Keller’s Den.
The same is true
Martin’s grandfather, who
murdered dozens in an arson attack, and his father, who stabbed
Martin’s mother to death, serve to illustrate the moral corruption
the curse brings to the Kellers.
as
the
steadfast
companion,
His girlfriend, Janet, stands by
waiting
for
Martin
through
his
tribulations. Father Sherman, representing the Catholic Church, is
the stalwart opponent of Martin’s demonic possessor.
None of these characters, however, shows any depth, or even
idiosyncrasy, of personality. Such thin characterization is typical
of allegorical works, which are well-served by generic characters
who do not clutter the allegorical message.
On the other hand, Edgar Freemantle is a man deeply depressed
as a result of his accident.
He narrates the novel in the first
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person point of view, and thus the reader shares in his depressing
thoughts, as well as the mental limitations caused by his brain
damage.
This device gives the novel a twist on the classical
psychological mystery.
Admittedly, the unreliable narrator is a
stock in trade of such stories, but usually because the reader
cannot trust the narrator’s honesty or sanity.
Henry James’ The
Turn of the Screw is a paradigm of this narration device.
In Duma
Key, however, the narrator is unreliable because of the mental fog
that often obscures his thinking.
This means that much of the
reader’s work involves coming to terms with Edgar’s mind as an
imperfect
lens
relationships
through
with
his
which
to
ex-wife
and
understand
daughter,
as
his
troubled
well
as
the
mysterious events on the island.
The characterization in the two novels is thus quite different.
Martin is the everyman, representing the typical situation of
humanity in a fallen world, albeit it in extreme form.
The reader
encounters Martin, as well as the rest of the characters in the
novel, as set-pieces in a well-trod allegory of original sin and
rebirth through faith.
In contrast, Edgar is a protagonist in the
tradition of the psychological novel.
As such, the depth and
atypicality of his character is essential to the book’s literary
effect, as the reader interprets the events in the novel from the
particular vantage point of Edgar’s psyche.
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C.
Mood and Pace
Although both novels belong generally to the horror genre, they
offer very different moods and pacing.
by action than suspense.
Keller’s Den is driven more
It proceeds at a rapid pace, with short
chapters (some as short as half a page) and narration that jumps
among characters, almost always to one involved in some scene with
dramatic action.
The lack of suspense is reinforced by the fact
that all the major themes of the story are presented at the outset.
The third-person omniscient narration of the novel assures that the
reader will recognize these things immediately.
The Prologue
introduces the reader to the curse, and the first sentence of
Chapter 1 (“Something intrinsic and peculiar stirred within the soul
of Martin Keller.”) indicates to the reader that Martin is its next
victim.
(Notice of Ex. A and Ex. B [13], Ex. A at 11.)
When
Plaintiff has Martin discover the nature of his affliction, he does
so directly and efficiently, by having the elevator on which Martin
is riding take a sudden descent into hell, where a demon tells him
all about the Keller curse.
Likewise, when plot complications
emerge, they are quickly resolved, as is the case when Martin rapes
his secretary, and later that day is forgiven by her, all within the
space of twelve pages.
The minimal character development, short
chapters, and conventional plot, free of suspenseful misdirections,
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allows Plaintiff to push the 254-page story to its conclusion at a
rapid pace.
In contrast, Duma Key is a novel that creates suspense, fear,
and mystery through the exploration of the protagonist’s psychology.
It proceeds at a gradual pace, as Edgar wrestles with his past and
his disability, and slowly learns the story of the island and its
evil spirit.
For most of the novel, the reader cannot even be sure
that there is anything supernatural at work, due to the possibility
that any unusual event has a rational explanation obscured by
Edgar’s mental condition. Only late in the 607-page novel is Perse,
the evil spirit of the island revealed, at which point the story
shifts to a pace more akin to the dramatic action style employed
throughout Keller’s Den.
Further restraining the pace and heightening the suspenseful
mood are the numerous lengthy diversions from the action of the
narrative, including explorations of the lives of Edgar’s Duma Key
neighbors, such as Elizabeth Eastlake, an old lady who, albeit
stricken with Alzheimer’s Disease, knows more about Duma Key and
Perse than anyone, and Wireman, an ex-lawyer turned caretaker to
Eastlake.
D.
Settings
Finally, the novels are set in very different locations.
Keller’s Den takes place primarily in upscale, urban Miami.
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As
Martin is a successful stockbroker, the story unfolds in high-rise
office buildings, yachts, and Martin’s fancy home, though there are
scenes
set
in
institution.
less
glamorous
locations,
including
a
mental
In contrast, Duma Key is set primarily on a small,
sparsely inhabited island on Florida’s Gulf Coast. Edgar’s vacation
residence, “Salmon Point,” is a quaint, pink-painted cabin he
nicknames
“Big
Pink.”
In
fact,
little
on
the
island
seems
contemporary, but rather the site is stuck in some bygone, even
primordial, era, as illustrated by the fact that the island’s
vegetation grows at an unnaturally rapid rate, threatening to
swallow the man-made structures. The novel is bookended with scenes
set in Minnesota, which is likewise far from the urban Miami of
Keller’s Den.
Thus, while both works feature the idea of a newly discovered
painting skill connected to some ancient evil, each work expresses
that idea in very different ways.
At the risk of judging books by
their covers, it is notable that Keller’s Den features a burning
cross superimposed on a painter’s canvas, whereas Duma Key features
a stormy beach scene with seemingly random objects (including a
tennis ball, frog, and harpoon-gun) leaping from a canvas hovering
over the shore. Such contrasting images capture well the dissimilar
structures and feelings evoked by
the two texts.
Keller’s Den is
an unsubtle narrative: transparent and direct in its literary
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devices and message, all of which stand out much like the flaming
cross on the cover.
Duma Key, on the other hand, is a mystery that
strews puzzle-pieces throughout the novel, only showing how they fit
together after the reader is deep within the work.
In short, Keller’s Den and Duma Key clearly fail to meet the
Eleventh Circuit’s intrinsic test for substantial similarity.
IV.
Appropriateness of Dismissal Pursuant to Rule 12(b)(6)
There is some dispute between the parties as to whether the
court should grant a Rule 12(b)(6) motion to dismiss on the basis
of the intrinsic test, even where the court has found the plaintiff
to have failed that test.
Plaintiff argues that the question of substantial similarity
is better left to a jury.
In addition, he notes that the Eleventh
Circuit has yet to affirm a 12(b)(6) dismissal on the basis of the
intrinsic test.
Defendant King, however, argues that there is no reason to
await a summary judgment motion before dismissing the action, and
notes that there are good reasons for dismissing the action without
discovery.
First, King cites to numerous courts in other circuits
that have granted 12(b)(6) dismissals for failing the intrinsic
test. (See, e.g., cases cited in Defs.’ Reply Mem. of Law [23] at
5-9.)
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Second, the Eleventh Circuit has affirmed summary judgment,
often with only minimal discovery permitted, on the basis of the
intrinsic test.
See Herzog, 193 F.3d at 1247 (“[N]on-infringement
may be determined as a matter of law on a motion for summary
judgment, either because 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 similar.”).
Third, the nature of the intrinsic test is such that discovery
is irrelevant, as there is nothing to discover that could reasonably
inform
a
decision
as
to
substantial similarity.
whether
a
lay
reader
would
discern
Because both novels are included in the
pleadings, and the intrinsic test looks only at the works in
question,
no
additional
facts
relevant to the intrinsic test.
produced
at
discovery
would
be
Thus, notwithstanding the lack of
Eleventh Circuit precedent, this Court concludes that dismissal
pursuant to
Rule 12(b)(6) is warranted, and the Court grants the
defendants’ Motion to Dismiss [11].
CONCLUSION
For the above reasons, the Court GRANTS defendants’ Motion to
Dismiss [11].
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SO ORDERED, this 9th day of August, 2011.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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