Dunn v. Brown et al

Filing 32

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered adopting Report and Recommendations 28 ; granting 17 Motion for summary judgment. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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JOHN F. DUNN,
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also known as JACK DUNN,
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Plaintiff,
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v.
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DAN BROWN and
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SIMON AND SCHUSTER, INC.,
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Defendants.
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_______________________________________)

Civil Action No.
10-11383-FDS

MEMORANDUM AND ORDER ON
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
SAYLOR, J.
This is a case alleging copyright infringement. On August 12, 2010, plaintiff John F.
Dunn, proceeding pro se, brought this action against defendants Dan Brown and Simon and
Schuster, Inc. The complaint alleges that plaintiff is the author of a book entitled The Vatican
Boys, and that defendants infringed on plaintiff’s copyright by writing and publishing a novel
entitled Angels and Demons. The matter was referred to Chief United States Magistrate Judge
Kenneth P. Neiman pursuant to 28 U.S.C. § 636(b)(1) for findings and recommendations. On
August 16, 2011, the Chief Magistrate Judge issued a Report and Recommendation
recommending that defendants’ motion for summary judgment be granted. Plaintiff timely filed an
objection to the Report and Recommendation on August 29, 2011.
In substance, plaintiff makes two objections to the Chief Magistrate Judge’s Report and

Recommendation. First, plaintiff contends that the Chief Magistrate Judge did not sufficiently
analyze the text of the two books with regard to his claims of direct copying and substantial
similarity. Second, he contends that the Chief Magistrate Judge inappropriately relied on Dunn v.
Brown, 517 F. Supp. 2d 541 (D. Mass. 2007) (“Dunn I”).
Upon de novo review, the Court adopts the Report and Recommendation of the Chief
Magistrate Judge.
I.

The Sufficiency of the Textual Analysis
Plaintiff first contends that the Chief Magistrate Judge did not sufficiently analyze the text

of the two novels with regard to his direct copying and substantial similarity claims. While the
Report and Recommendation did not systematically compare and analyze each line of both books,
the Chief Magistrate Judge did provide representative examples of the type of textual similarities
plaintiff contends amount to direct copying in violation of his copyright. Report and
Recommendation at 8-9. The Chief Magistrate Judge concluded that these types of similarities
were de minimis and not subject to copyright protection. Report and Recommendation at 9; see
also Herzog v. Castle Rock Entmt., 193 F.3d 1241, 1257 (11th Cir. 1999). Similarly, the Chief
Magistrate Judge provided examples of what plaintiff contends amount to substantial similarities
between the two books, concluding that such similarities were not substantial, but were
“inherently subjective and unreliable.” Report and Recommendation at 10 (quoting Herzog, 193
F.3d at 1257).1

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This conclusion by the Chief Magistrate Judge illustrates the underlying flaw in plaintiff’s probability
analysis. While plaintiff correctly explains the formula to determine the probability of randomly selecting the same
order of six distinct items, plaintiff does not account for the ease of manipulating that formula by subjectively and
unreliably defining each distinct item.

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The Chief Magistrate Judge appropriately considered and analyzed the alleged direct
textual copying and substantial similarities between the novels and concluded that plaintiff’s
copyright was not violated. The Report and Recommendation will not be rejected simply because
the Chief Magistrate Judge did not specifically refute every “tediously minute similarit[y]”
presented. Id.
II.

Reliance on Dunn 1
Plaintiff further contends that the Chief Magistrate Judge inappropriately relied on analysis

from Dunn I. In that case, plaintiff brought an almost identical copyright claim alleging
substantial similarities between The Vatican Boys and The DaVinci Code, which was dismissed on
summary judgment.
As a general matter, it is entirely appropriate for judges to rely on relevant precedent,
especially precedent that has substantial legal and factual similarities to the case before them. This
is particularly relevant here, where plaintiff had previously brought nearly a identical claim against
the same defendants regarding a book allegedly involving the same characters and same related
plot elements. The Chief Magistrate Judge did not simply adopt all of the reasoning of Dunn I in
lieu of conducting an analysis of the claims before him. Rather, he appropriately considered Dunn
I while analyzing plaintiff’s current claims, and applied its legal analysis when presented with
similar facts. Id. Thus, the Chief Magistrate Judge’s reliance on Dunn I was entirely appropriate
in the present circumstances.
III.

Conclusion
For the foregoing reasons, and upon de novo review, petitioner’s objections to the Report

and Recommendation of the Chief Magistrate Judge are overruled, and the Report and
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Recommendation is accepted by the Court pursuant to 28 U.S.C. § 636(b)(1). Defendant’s
Motion for Summary Judgment is GRANTED,
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: September 26, 2011

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