Feldman v. Rhimes et al

Filing 99

Judge Richard G. Stearns: ORDER entered granting 57 Motion to Dismiss; finding as moot 62 Motion to Dismiss for Lack of Jurisdiction; granting 68 Motion to Dismiss for Failure to State a Claim. "For the foregoing reasons, defendants motions to dismiss are ALLOWED with prejudice. The Clerk is directed to enter judgment for the defendants and close this case." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-12030-RGS
DEBRA FELDMAN
v.
SHONDA RHIMES et al.
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTIONS TO DISMISS
December 16, 2014
STEARNS, D.J.
In this copyright action, plaintiff author Debra Feldman alleges that
the 2011 ABC television medical drama, Off the Map, 1 infringes the two
books and two manuscripts in her Overlap quadrilogy, and in particular,
the unpublished The Red Tattoo.

The court, having considered the

allegations of the Amended Complaint, the excerpts of The Red Tattoo and
a companion manuscript Days of Grace submitted by Feldman, and having
reviewed, yes, watched (albeit with diminishing anticipation) all thirteen

Off the Map aired for thirteen episodes in early 2011 to generally
unappreciative reviews. The series was canceled in May of 2011.
1

episodes of Off the Map,2 finds that Feldman has failed to make a plausible
claim of probative similarity between her works and defendants’ creation.
To survive a motion to dismiss, the “[f]actual allegations [of a
complaint] must be enough to raise a right to relief above the speculative
level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “To establish
infringement, two elements must be proven: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the work that are
original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991).
To show actionable copying and therefore satisfy Feist’s second
prong, a plaintiff must first prove that the alleged infringer
copied plaintiff's copyrighted work as a factual matter; to do
this, he or she may either present direct evidence of factual
copying or, if that is unavailable, evidence that the alleged
infringer had access to the copyrighted work and that the
offending and copyrighted works are so similar that the court
may infer that there was factual copying (i.e., probative
similarity).
Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 813 (1st Cir. 1995),
aff’d 516 U.S. 233 (1996).
Although the inquiry at this stage is usually limited to the (assumed
true) allegations of a complaint, the court may consider “documents central
to plaintiffs’ claim; or [] documents sufficiently referred to in the
complaint.” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d
30, 33 (1st Cir. 2001). Here, both the asserted and allegedly infringing
works are integral to the claims and the Amended Complaint.
2
2

To determine whether probative similarity exists between two works,
“the Court should ask whether an average lay observer would recognize the
alleged copy as having been appropriated from the copyrighted work. . . .
In doing so, the Court should note similarities and dissimilarities in such
aspects as the total concept and feel, theme, characters, plot, sequence,
pace, and setting.” Blakeman v. The Walt Disney Co., 613 F. Supp. 2d 288,
304-305 (E.D.N.Y. 2009) (internal quotation marks omitted).
To the extent that the copyrighted work and the allegedly
infringing work exhibit probative similarities from which actual
copying might be inferred, the ensuing analysis must address
the question of substantial similarity (and, thus, determine
whether wrongful appropriation occurred). While a finding of
substantial similarity vel non derives from an examination of
the juxtaposed works as a whole, that examination must focus
on what aspects of the plaintiff’s work are protectible under
copyright laws and whether whatever copying took place
appropriated those [protected] elements.
Johnson v. Gordon, 409 F.3d 12, 19 (1st Cir. 2005) (internal quotation
marks omitted).
“In the case of literary works, it is axiomatic that copyright protection
only extends to the expression of the author’s idea, not to the idea itself.”
Warner Bros. Inc. v. Am. Broad. Cos., Inc., 654 F.2d 204, 208 (2d Cir.
1981); see also Johnson, 409 F.3d at 19 (“[C]opyright law protects original

3

expressions of ideas but it does not safeguard either the ideas themselves or
banal expressions of them.”).
The [] scènes à faire doctrine[] limit[s] the availability of
copyright protection even for expression. . . . The doctrine of
“scènes à faire” “denies copyright protection to elements of a
work that are for all practical purposes indispensable, or at least
customary, in the treatment of a given subject matter.” . . . Beal
v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)
(describing scènes à faire as “stock scenes that naturally flow
from a common theme,” such as “foot chases and the morale
problems of policemen, not to mention the familiar figure of the
Irish cop” in police fiction).
Harney v. Sony Pictures Television, Inc., 704 F.3d 173, 181 n.8 (1st Cir.
2013).
Weighing their “total concept and feel, theme, characters, plot,
sequence, pace, and setting,” no reasonable lay observer would recognize
Off the Map as derivative in any respect of The Red Tattoo. Off the Map is
a medical procedural drama set in a clinic in a jungle region of an
unidentified South American country.

Each episode features exotic

accidents and diseases and their unorthodox treatments by a heroic band of
mostly expatriate doctors working in extreme conditions.

In the first

episode (Saved by the Great White Hope), Dr. Ben Keeton (“one of the
greatest humanitarians of our time,” episode 1) and Dr. Lily Brenner
(“control freak,” episode 2 – Smile. Don’t kill anyone) come to the rescue
4

of a man (Ed) stranded on a zipline after crashing into a tree. To free Ed,
Drs. Keeton and Brenner zipline out to where he is entangled in the
zipline’s reeling mechanism. Dr. Brenner, while dangling from the zipline,
manages to cut through the mangled flesh of Ed’s arm. Ed later undergoes
surgery and is found to be in need of a blood transfusion. Ed’s rare blood
type being in short supply, the innovative Dr. Keeton rushes from the
operating room, climbs a coconut tree with a machete, and hacks down an
armload of green coconuts. Ed is given a coconut water transfusion and his
life is saved. Other examples of unusual medical challenges include a man
caught in a green anaconda’s vise, which conveniently serves as a
tourniquet to staunch his internal bleeding from a shattered hip (episode
2); a man suffering from a prolonged priapism caused by a banana spider
bite (episode 4 – On the Mean Streets of San Miguel); an underwater
amputation (episode 5 – I’m Here); treating acute appendicitis and viral
meningitis after the clinic’s dispensary has been robbed and completely
ransacked (episode 6 – It’s Good); a black market kidney transplant
(episode 11 – Everything’s As It Should Be); and a female doctor (Dr. Ryan
Clark) who suffers from Chagas disease (resulting from a childhood bite by
an assassin bug) and who ultimately requires a heart transplant (multiple
episodes).
5

Despite the fractured nature of her submitted excerpts – Feldman has
offered the court 55 pages of the 229+ page Red Tattoo manuscript with
numerous breaks in continuity, as well as redacted sentences and
paragraphs on most pages – it is evident that The Red Tattoo is not a jungle
medical melodrama. The Red Tattoo tells stories set in different times and
places, see e.g., id. at 57 (Detroit – 1905), id. at 74 (Brookline – 1991), and
id. at 115 (Boston Memorial – 2005), involving characters who travel
through time.3 See id. at 53 (“Had she lived during Dori’s lifetime or
Cathy’s or even Bubbie’s, Penicillin and its cousins might have saved
Rachel, but those drugs didn’t exist in her own Time or the Time to which
she traveled.”).

Feldman contends that a clinic in Bali (Indonesia), a

location briefly mentioned in The Red Tattoo, is the inspirational source of
the South American jungle clinic in Off the Map. However, the generalized
concept of an underequipped tropical clinic is not copyrightable, and The
Red Tattoo offers scant description of the Bali clinic other than to say it is
“next to the market” and “merely a way-station” where “rinsing [a patient’s]

In the Days of Grace excerpt, it is made clear that Reweavers travel
in time – or Overlap, hence the title of Feldman’s opus – in order to “touch
the past so that the future might be repaired.” Id. at 3. Reweavers suffer
from vivid nightmares of the past.
3

6

nail in sterile solution was the extent of the center’s available aid.”4 Id. at
104. The clinic in Off the Map differs in each respect (assuming that such a
sparse description is even eligible for copyright protection). The clinic in
Off the Map is not next to a market, is the only medical facility available in
the area it serves, and is able to perform sophisticated medical procedures
including brain surgery, kidney transplant, and the implantation of a
pacemaker.
Feldman’s attempts to correlate the plots fare no better. She argues
that episode 1 of Off the Map is derived from a motor scooter accident that
takes place in The Red Tattoo. No reasonable observer, however, could
agree. In The Red Tattoo, a man (Gil) and a woman (Dori) experience an
accident when their motor scooter is cut off, causing it to overturn and skid
4

reads:

The entirety of the paragraph that concerns the medical center

The local who hoisted the scooter rushed the injured man into a
medic’s building next to the market. Against vigorous protests
and not understanding who the girl was the locals made her
wait outside frustrated and fretting. The medic center was
merely a way-station and the injured man needed a hospital
where his injured hand properly could be treated. Rinsing the
nail in sterile solution was the extent of the center’s available
aid, which was insufficient to remove the dirt now embedded in
the delicate tissue that once was under his nail, ripped-up quick
to cuticle in the fall. The injured man finally emerged from
behind closed doors, his hand in a gauze bandage.
Id. at 104.
7

several meters. As a result, Gil suffers a torn fingernail and is treated at the
local medical center. In Off the Map, Dr. Keeton and Dr. Brenner ride a
motor scooter to the location of Ed’s zipline accident. There the parallel
ends. There is no motor scooter accident and Ed’s injuries are considerably
graver than a broken nail. After the intrepid doctors reach the scene, the
motor scooter disappears and is not to be seen again.
In another example of mind-bending comparison, Feldman contends
that the treatment of a diabetic patient in The Red Tattoo provides the
source of the storylines in episodes 1 and 9 of Off the Map. The personage
of an uncooperative diabetic who deviates from his prescribed diet is, at
best, a stock scènes à faire character. The Red Tattoo does not describe
David (the errant diabetic patient) or his treatment in anything but
unprotectable abstractions. 5

Moreover, neither the episode 1 nor the

The entirety of the passage concerning David, the diabetic, reads as
follows.
5

Suddenly, David collapsed. Dori checked for vitals while Gede
ran to the bathroom and rummaged through David’s medicine
cabinet. He’s an insulin diabetic, Gede called out. And, an
uncooperative patient. David lived on the edge eating things he
knew he should not. That night was no exception and his
diabetic shock could have degenerated into a coma from which
David might never emerge. Why being there and Gede’s help
and Jeep saved David’s life. Why and Gede spent several less
exciting nights but always, at some point, checked in on David.
8

episode 9 storylines in Off the Map involves the successful treatment of a
diabetic patient. In episode 1 of Off the Map, the “uptight” (episode 2) Dr.
Mina Minard is dismissive of an elderly woman who suffers from asthma.
Dr. Minard misdiagnoses her ailment as a common cold in part because of
a language barrier, and in part because the death of a previous patient has
shaken her confidence in her diagnostic abilities. After the patient faints,
however, Dr. Minard recognizes her mistake and gives the patient one of
her personal inhalers. The grateful patient, in turn, gifts Dr. Minard with a
chicken, which she names Dinner and keeps as a pet. In episode 9 (There is
Nothing to Fix), Richie Salerno, the owner of a local dining spot, Mama
Salerno’s Pizzeria, suffers from a posterior fungal infection that is a side
effect of untreated diabetes. Salerno is rude, scathing, and heartless. Dr.
Minard attempts to intimidate him into caring for his health, but the
treatment-resistant Salerno settles the score by dying. 6

Id. at 113.
The most ridiculous (and offensive) example is Feldman’s attempt
to equate a boy who accidentally shoots a squirrel in the chest with a BB
gun, killing it, to Dr. Tommy Fuller’s off-color remarks to Drs. Brenner and
Minard that they should apply sunscreen before plying the local nude
beaches to avoid prematurely shriveled chests. Feldman characterizes both
vignettes as depicting “an ‘animal’ suffer[ing] a ‘tragic’ chest injury.” Am.
Compl., Ex. A at 2 & 9.
9
6

In terms of characters, Feldman employs a similar telescoping
technique in which virtually every persona in Off the Map is espied in The
Red Tattoo. To overcome the discrepancy between the two people involved
in the motor scooter accident in The Red Tattoo and the three who are
featured in the zipline rescue episode of Off the Map, Feldman equates the
injured male scooter rider with both the doctor and the treated patient.
Even less convincingly, The Red Tattoo character of Gede is alleged to be a
source for seven Off the Map characters. See Am. Compl., Ex. A at 2 (Dr.
Tommy Fuller/Gede and Charlie (a young translator)/Gede), id. at 3 (Dr.
Ben Keeton/Gede), id. at 5 (Dr. Otis Cole/Gede), id. at 9 (Dr. Lily
Brenner/Gede); id. at 10 (Dr. Ryan Clark/Gede); and id. at 12 (Dr. Zita
Alvarez/Gede). The characters’ supposedly shared biographical histories
also diverge in relevant details. For example, while Dr. Brenner in Off the
Map and Dori in The Red Tattoo have both lost their fiancés, Dr. Brenner’s
fiancé perished in a bicycle accident while shopping for her favorite cereal,
while Dori’s fiancé perished in a bomb blast when he would not leave a bar
at Dori’s urging.
Feldman’s attempts to draw comparisons to her other works are
equally implausible. Feldman cites Days of Grace as the source for episode
4 (On the Mean Streets of San Miguel) of Off the Map. In three pages of
10

Days of Grace, the main character (Grace) travels back in time to a Nazi
concentration camp where she attempts to win the trust of a woman
prisoner. The woman, fearing that Grace is a Gestapo spy, offers Grace the
clothes off her back. Grace learns that the prisoner had given up her infant
son to another couple to ensure his safety. In Off the Map, Dr. Minard
treats Abuelito, an elderly and much beloved teacher of local children, for
advanced mouth cancer. While delirious, Abuelito confesses that he served
as an SS guard in his youth and stole jewelry and other valuables from
inmates in his charge. Dr. Minard stabilizes his condition and turns him
over to the authorities.

Other than illusions to Nazis, there is no

resemblance between the two stories.
The allegations of the Amended Complaint also reveal a lack of
comparable original elements between Off the Map and Feldman’s An
Ordinary Hero and The Comfort of Strangers. For example, Feldman
compares the zipline accident in episode 1 of Off the Map to falling down a
flight of stairs, Am. Compl. ¶ 112, a lake that lights up with florescent
microorganisms to fireworks, id., a green anaconda to a spear, id., a ring to
a bullet, id., and a selfless and giving couple who are in love to a pair of
selfish and petty adolescents who detest one another. Id. ¶ 113.

11

Because Feldman has utterly failed to meet her entry-level burden of
showing some plausible probative similarity between her works and Off the
Map, the Amended Complaint will be dismissed for “failure to state a
[copyright] claim upon which relief can be granted.”

Fed. R. Civ. P.

12(b)(6).
ORDER
For the foregoing reasons, defendants’ motions to dismiss are
ALLOWED with prejudice.7 The Clerk is directed to enter judgment for the
defendants and close this case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

Because the court finds that Feldman has not alleged a viable
copyright claim, it is unnecessary to reach the alternative grounds of
dismissal (such as the lack of plausible access to Feldman’s unpublished
works) raised by defendants’ motions.
12
7