Eng v. Baldwin

Filing 6

MEMORANDUM AND ORDER: For these reasons, plaintiffs amended complaint is dismissed with prejudice. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status i s denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to enter judgment accordingly for defendant and to close this case. Ordered by Judge Eric N. Vitaliano on 6/24/2014. c/m to pltf (Fernandez, Erica)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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KENNETH ENG,

FILED

u.s. °'~~tg'ifO!OFF1ce

* JUN 30 2014 *
• -'R'r F..IJ.N y

BROOKLYN OFFICE
Plaintiff,
MEMORANDUM & ORDER
-against14-cv-1644 (ENV)
L'PONI BALDWIN,
Defendant.

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VITALIANO, D.J.,
On March 10, 2014, plaintiff Kenneth Eng, who is self-represented, initiated
this lawsuit against defendant L'Poni Baldwin, alleging copyright infringement. Eng
claimed, in conclusory fashion, that Baldwin's works, published serially online
under the name "The Society on Da Run," illegally infringed on ideas eJtpressed in
his own novel, "Dragons: LeJticon Triumvirate." On May 19, 2014, the Court
dismissed Eng's complaint without prejudice, and with leave to amend within 30
days, if he could state facts to plausibly support a claim of copyright infringement in
good faith. On June 5, 2014, Eng filed an amended complaint, which restated his
original allegations, and added a single paragraph containing racial epithets and
further conclusory allegations.
Eng's additions by no means cure the deficiencies of his original complaint,
which attacked Baldwin's works for conceptual similarities shared with his own
fiction. Eng did not, and does not, point to any protectable expression of his ideas
that Baldwin has appropriated. Rather, he continues to harp, instead, on

.

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unprotectable ideas that the works have in common. See Mattel, Inc. v. Azrak-

Hamway Inat'I, Inc., 724 F.2d 357, 360 (2d Cir. 1983); Nichols v. Universal Pictures
Corp., 45 F.2d 119, 121 (2d Cir. 1930). In his amended complaint, Eng points to the
fact that dragons in Baldwin's stories evolved from dinosaurs, or emerged from a
similar period in the Earth's pre-history, as did dragons in his own novel. This is not
an original idea, let alone a protectable expression of an idea. Eng's observation that
Baldwin's works are influenced by themes seen in Japanese anime is similarly of no
moment. As was the case with Eng's earlier pleadings, his amended complaint fails
to allege any fact upon which an actionable claim of copyright infringement against
Baldwin could possibly rest. Any further attempt to amend would be futile.
Conclusion
For these reasons, plaintiff's amended complaint is dismissed with prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would
not be taken in good faith and therefore in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment accordingly for defendant
and to close this case.
}

SO ORDERED.
Dated:

Brooklyn, New York
June 24, 2014

s/Eric N. Vitaliano
ERIC N. VITALIANO
United States District Judge

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