Green v. Harbach
Filing
26
ORDER AND OPINION GRANTING MOTION TO DISMISS re: 11 MOTION to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). filed by Chad D Harbach. For the reasons state above, Defendant's motion to dismiss is granted. The Clerk shall terminate the motion (Dkt. No. 11), enter judgment for Defendant, dismissing the Complaint, and mark the case closed. Oral argument, scheduled for July 19, 2018, is cancelled. (Signed by Judge Alvin K. Hellerstein on 7/9/2018) (ne)
Case 1:17-cv-06984-AKH Document 26 Filed 07/09/18 Page 1 of 13
USDCSDNY
·DOCUMENT
UNITED STATES DISTRIC T COURT
SOUTHE RN DISTRIC T OF NEW YORK
-------------------------------------------------------------- X
ELECTR ONICAL LY, FltED
DOC#:
- - - - ~ • ........-----OATE' FrLLP·
CHARLE S C. GREEN,
ORDER AND OPINIO N
GRANT ING MOTIO N TO
DISMIS S
Plaintiff,
-againstCHADD . HARBAC H,
17 Civ. 6984
Defendants.
-------------------------------------------------------------- X
ALVIN K. HELLER STEIN, U.S.D.J.:
Plaintiff Charles C. Green, the author of Bucky's 9th (Bucky's), filed this action for
copyrigh t infringement, see 17 U.S.C. § 101 et seq., on Septembe r 14, 2017 against Defendan t
Chad D. Harbach, the author of The Art of Fielding (TAOF), alleging that Harbach
misappro priated Green's creative efforts in authoring a work "substant ially similar" to Bucky's. 1
The Complain t, which incorporates by reference the two works,2 alleges that TOAF and Bucky's
share a common premise, setting, plot and structure, and the Complain t includes examples from
the works allegedly indicating such shared content. Defendan t now moves to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6), see Dkt. No. 11, on the basis of a single dispositive issue, arguing that
the two works are not "substant ially similar" and therefore do not support a claim for copyright
infringement. 3 Having reviewed the two works and the parties' briefing, I find that the works are
not substantially similar, and grant Defendan t's motion.
1 The
Complaint contains two counts, one for "Damages for Copyright Infringement" (Count I), and one for
"Injunctive Relief' (Count II).
2
A complete copy of Bucky's is attached as Exhibit B to the Declaration of Elizabeth A. McNamara. See
Dkt. No.
13. A complete copy of the TOAFwas provided to the Court as Exhibit A. Id
3
Defendant does not contest that "access" has been adequately alleged in the Complaint.
1
r
Case 1:17-cv-06984-AKH Document 26 Filed 07/09/18 Page 2 of 13
LEGAL STANDARD
To establish copyright 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
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,361 (1991). In the absence of direct
evidence, copying is proven by showing "(a) that the defendant had access to the copyrighted
work and (b) the substantial similarity of protectible material in the two works." Kregos v.
Associated Press, 3 F.3d 656, 662 (2d Cir. 1993).
In determinin g whether two works are substantially similar, the "underlyin g issue" is
"whether a lay observer would consider the works as a whole substantially similar to one
another." Williams v. Crichton, 84 F.3d 581,590 (2d Cir. 1996). The question is whether an
"ordinary observer, unless he set out to detect the disparities, would be disposed to overlook
them, and regard [the] aesthetic appeal as the same." Peter F Gaito Architecture, LLC v.
Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) (quoting Yurman Design, Inc. v. PAJ, Inc.,
262 F.3d 101, 111 (2d Cir.2001). A court must "examine the similarities in such aspects as the
total concept and feel, theme, characters, plot, sequence, pace, and setting of the" works in
question. Williams, 84 F.3d at 588. "[T]he determinat ion of the extent of similarity that will
constitute a substantial, and hence infringing, similarity presents one of the most difficult
questions in copyright law, and one that is the least susceptible of helpful generalizations."
Gaito Architecture, 602 F.3d at 63 (quoting 4-13 Nimmer on Copyright§ 13.03 (2009)).
Furthermore, it is "a principle fundamental to copyright law" that "a copyright does not
protect an idea, but only the expression of an idea." Kregos, 3 F.3d at 663. "Similarly, scenes a
faire, sequences of events that necessarily result from the choice of a setting or situation, do not
enjoy copyright protection." Williams, 84 F.3d at 587 (internal quotation marks omitted)
2
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(Walker v. Time Life Films, Inc., 784 F.2d 44, 50 (2d Cir. 1986)). Therefore, when a court
"determin e[s] that a work contains both protectible and unprotectible elements, [it] must take
care to inquire only whether the protectible elements, standing alone, are substantially similar."
Williams, 84 F.3d at 588 (internal quotation marks omitted) (citing Knitwaves, Inc. v. Lollytogs
Ltd., 71 F.3d 996, 1002 (2d Cir.1995)).
A court must also "recogniz e that dissimilarity between some aspects of the works will
not automatically relieve the infringer ofliabilit y, 'for no copier may defend the act of plagiarism
by pointing out how much of the copy he has not pirated." ' Id. (quoting Rogers v. Koons, 960
F.2d 301, 308 (2d Cir. 1992). "It is only where the points of dissimilarity exceed those that are
similar and those similar are-whe n compared to the original work-o f small import
quantitatively or qualitatively that a finding of no infringement is appropriate." Rogers, 960 F.2d
at 308.
Finally, "[t]he question of substantial similarity is by no means exclusively reserved for
resolution by a jury" and the Second Circuit has "repeated ly recognized that, in certain
circumstances, it is entirely appropriate for a district court to resolve that question as a matter of
law, either because the similarity between two works concerns only non-copyrightable elements
of the plaintiffs work, or because no reasonable jury, properly instructed, could find that the two
works are substantially similar." Gaito Architecture, 602 F.3d at 63 (internal quotation marks
omitted) (quoting Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231,240 (2d Cir. 1983)).
"Thus, where, as here, the works in question are attached to a plaintiffs complaint, it is entirely
appropriate for the district court to consider the similarity between those works in connection
with a motion to disi:niss, because the court has before it all that is necessary in order to make
such an evaluation." Id. at 64. On such a motion to dismiss, see Fed. R. Civ. P. 12(b)(6), a
3
Case 1:17-cv-06984-AKH Document 26 Filed 07/09/18 Page 4 of 13
Court may consider the documents or works incorporated in the complai nt by referenc
e, see
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007), and these works
supersede contrary descriptions of them found in the compliant.
THE TWO WORKS
Bucky's 9th
Bucky's 9th tells the story of Kenesaw "Bucky " Bucks a former star pitcher at Princeton
University who dropped out of Princeto n and fell into a degenerative life upon the unexpec
ted
suicidal death of his father, Orville "Thund er" Bucks, a former NFL quarterback. The
novel
begins with Bucky, after three years of alcoholism, meeting Willie Chance, a former teamma
te
and friend of Thunder, who encourages Bucky to matriculate and play baseball for the
Hill
College for the Deaf, a small college located in the suburbs of Philadelphia. Willie had
spent
five years in prison in connection with a game-fixing scandal, and now coaches Hill's
baseball
team, the Oaks.
The college anticipates cutting the team's funding and, at the behest of science professo
r
Robert Goodnig ht (the nemesis in Bucky's), building a science center on the site of the
baseball
field. To keep the team, president Elaine Miller tells Willie that he must tum around the
Oaks
and its dismal record. Fearing that funding for his job will soon cease, Willie seeks Bucky's
talent.
Bucky, in turn, haunted by the legacy and death of his father, the details of which Bucky
knows little about, agrees to play for Willie and Hill College, seeing it as an opportunity
to learn
from Willie about the death of his father. Thunde r committed suicide on the day Willie
was
released from prison. To play for Hill-a college for deaf persons -Willie creates a fraudule
nt
student identity for Bucky, Harold "Bucky " LaMar, and Bucky agrees to feign deafness
and join
the team.
4
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At Hill College, Bucky rooms with the initially hostile pitcher, Al Pagano, and finds
himself isolated from the other deaf students and his teammates. Bucky finds companionship
and begins a relationship with the school's 24-year-old Assistant Dean of Students, Julie
Ross.
The relationship is marred by Bucky's constant need to conceal his true identity as a hearing
person in a college for the deaf.
With Bucky on the team, the Oaks began to win and ultimately make it to the
championship, with the players gaining respect for Bucky and confidence in themselves.
Bucky's teammates discover that he is not deaf, and Bucky has a strained relationship with
some
of the other players, especially the shortstop Tischler. The strife is ultimately settled when
Bucky
and Tischler together vandalize the field of their arch-rivals, Alice Deal.
Bucky also speaks to Willie about his father's death, who reveals that Thunder caused
Willie's imprisonment by leaking to a journalist the latter's role in the game-fixing. Willie
reveals that Bucky can make it up to him by helping Hill College win the championship.
Bucky's drama heightens when Professor Goodnight becomes aware of Bucky's false
identity and threatens to expose him before the Oaks are expected to play Alice Deal in the
championship. Julie also learns of Bucky's secret. Instead of attending the championship
game,
Bucky decides to reconcile with Julie and speak with her in her apartment. Julie feels betrayed
but encourages Bucky to leave and do what is important to him-w in the championship.
Bucky arrives at the ninth inning of the championship game, with the Oaks down by one
run, a man on first, and two outs. Bucky takes the plate, pinch hits, and racks up two strikes.
The pitcher and catcher call a conference, disclosing that Bucky had vandalized Alice Deal's
field. The next pitch hits Bucky in the head and Bucky gets on base. Bucky's walk is
insufficient to win the game and the Oaks lose on the next play.
5
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Despite their loss, the Oak's celebrate their achievements and a wealthy alumnus,
inspired by the game, saves the team with a large donation. While Professor Goodnight
speaks
to President Miller about Bucky's false identity, Miller reacts calmly and relates that there
will
be no consequences for either Willie or Bucky. Bucky's ends with Bucky and Julie mending
their relationship and starting a family together.
The Art of Fielding
The Art of Fielding tells the story of Henry Skrimshander and his joining the baseball
team of Westish College, a liberal arts college located on the western shore of Lake Michiga
n.
TAOF is about Henry's development in Westish from relative obscurity into a nationally
recognized and recruited shortstop.
TAOF begins with Mike Schwartz, a rising sophomore at Westish, who notices Henry
playing baseball during Mike's summer vacation. Impressed by Henry's talent, Mike recruits
Henry to play baseball at Westish and promises to be his guide and mentor. Henry, who
at the
time had no ambitions to attend college, agrees.
At Westish, Henry shares a room with the amiable Owen Dunne, a gay black student who
is also a member of Westish 's baseball team, the Harpooners. Mike trains Henry incessan
tly, and
over the course of two years, helps Henry become the Harpooner's star shortstop player,
bringing
the historically bad team consistent victories.
Things take a turn for the worse, however, when Henry throws an errant ball into the
dugout and badly injures Owen. Feeling guilty and losing his confidence, Henry falls into
despair and becomes unable to successfully play shortstop. Mike, in turn, questions his own
future after receiving consistent rejections on his applications to law school, becoming depende
nt
on pain killers intended to treat knee pain.
6
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In the meantime, Guert Affenlight, the popular about-60-year-old bachelor and president
of Westish, finds romantic interest in Owen, and the two soon begin a homosexual relationship,
meeting daily, on and off campus. Further, Guert's daughter, Pella, has returned to Westish,
deciding to separate from her husband (David), and to begin working and taking classes at
Westish College. Mike and Pella begin a romantic relationship.
Even though Henry slowly, and then ultimately and entirely, loses his ability to play
baseball, the Harpooners continue to play well and eventually make it to the championship to be
played in South Carolina. Henry, who had quit the team, is not expecting to play. Henry also
engages romantically with Pella, creating a rift in Henry and Mike's relationship. Professional
baseball recruiters continue to pester Henry, further deepening his anxiety surrounding his
baseball playing and talent.
Soon before the championship game, Guert has a reckoning of his own when the college
administration learns of his affair with Owen and presents him with an ultimatum to either resign
or be exposed. Guert, who had bought a plane ticket to attend the championship game, meets
with Henry, gives him the ticket, and encourages him to play.
Henry arrives at the championship game, and while initially hiding, is noticed by Owen.
Henry takes the position as the first base coach, but Mike and Owen learn that Guert has died of
a heart attack (suspected as a suicide). Owen, crippled by this deadly fact, recoils and is unable
to play. Bottom of the ninth, two outs, down by one and a man on first, Henry then pinch hits for
Owen. Henry takes two strikes on identical sliders, and then encourages the pitcher to throw a
high and tight pitch by standing back. The pitcher delivers a fastball and Henry leans into the
ball, knowing he currently lacked the talent to hit it. Henry gets hit by the ball, takes a walk, and
scores the game winning run.
7
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Back on campus, Pella, Mike, Henry, and Owen exhume Guert's body and move it to
Lake Michigan. Pella enrolls in fall semester classes, and Mike takes an assistant coaching job at
Westish. Henry rejects an offer to play professionally and decides to play for Westish during his
semor year.
THE COMPLAINT
The Complain t alleges that between 1994 and 2008 Green created multiple iterations of
Bucky's and its precursors and submitted said works to various literary agents for potential
publication. Complain t at ,r,r 11-13. 4 TAOF, which Harbach began working on in 2000, was
published in 2011.
According to the Complaint, "there are extensiv e-and substanti al-simila rities between
Bucky's and TA OF in terms of their premise and setting, plot/structure, content, idiosyncratic
authorial choice, and the near-exact timing of events (including stand-alone details, scene,
sequencing, and recurrent themes)."
,r 22.
Attached to the Complain t is an Appendix, further
containing three addenda, highlighting examples of the alleged similarities.
The Complain t highlights various categories of similarities between the two works. 5
First, regarding the "premise and setting," the Complain t alleges that the works "share certain
conventions that are common to sports narratives, such as the tale of a perennial and
disadvantaged underdog which defeats its long-superior rivals and is led by a talented, but
troubled, prodigy."
,r 23.
The two works also allegedly share the same "unconve ntional premise
and setting: a small, obscure and financially struggling (yet academic ally proud) liberal arts
4 In evaluating
the sufficiency of a complaint under Rule 12(b)(6), the Court must construe the complaint in a light
most favorable to the nonmoving party, accept well-pleaded facts as true, and draw all inferences in the
nonmoving
party's favor. Patane v. Clark, 503 F.3d 106, 111 (2d Cir. 2007). To survive a Rule 12(b)(6) motion, the
complaint
must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Bell Atlantic
Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
5 Defendant'
s and Plaintiffs papers on this motion to dismiss further describe the alleged similarities between the
two works. See Dkt. No. 17, Appendices 1-4. Because the two works are incorporated by reference in the
Complaint, the works themselves form the basis of the Court's review for substantial similarity.
8
Case 1:17-cv-06984-AKH Document 26 Filed 07/09/18 Page 9 of 13
school whose athletic teams compete in the lowest collegiate ranks, Division III, and thus do not
have the benefit of athletic scholarships." Id
Second, regarding the "plot and structure," the Complaint alleges four similarities
between the plots of the two works, which the Complaint refers to as "core narratives" and
designated as: (1) the Baseball Prodigy-Comes-of-Age-Plot; (2) the Recruiter-Mentor Plot; (3)
the Illicit-Romance Plot; and (4) the Intergenerational Plot."
~
25.
Third, the Complaint alleges that the two works have "startlingly" shared content evident
in the final scenes of the works when the "prodigy" returns from his absence and joins the game
in the 9th inning as a pinch-hitter, only to be beaned by the opposing pitcher. The Complaint
refers to this as the "Baseball Climax and Denouement."
DISCUSSION
Having reviewed the two relevant works in their entirety, I find that they are not
substantially similar, and do not therefore support a claim for copyright infringement. When
read in context, the portions or features of TOAF that are alleged to be similar to Bucky's are
either abstract ideas, scenes a faire, or triyial details insignificant to the either of the two works.
True, both works are about a struggling Division III baseball college team, and both works track
the baseball team's changed fortunes after the arrival of a new player. But that is the extent of
the similarities. The two works, for example, are entirely different as to why and how the new
player, Henry and Bucky respectively, arrived at the team and as to the nature of the new
player's professional and personal development. Bucky, for one, was previously a college
baseball star and returned to college baseball, after a fall into degenerative behavior, upon the
prompting of the middle-aged Coach Willie Chance who sought out Bucky's talent. Bucky's
return to baseball was part of his quest to understand the strange circumstances behind the death
of his father, a professional football player and friend of Chance, and much of Bucky's narrative
9
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surrounds Bucky's odd attempt to feign deafness in attending a college for deaf persons.
Henry,
by contrast, a skinny and innocent-like boy, turned to college baseball after 19-year old
Mike
Schwartz, first a stranger and then a friend to Henry, remarka bly noticed Henry's nascent
but
underde veloped talent one summer day during Mike's freshman year. Enrolling in Westish
College at Mike's prompting, Henry is thrown into college campus life, an environment
different
from Henry's (conservative) hometown, where he subsequently suffers from a crisis in
confidence that ultimately affects his baseball playing and personal relationships. TOAF,
infused
with a host of characters, like Owen, Pella, and Affenlight, is as much a novel about Henry's
develop ment as it is about the various campus-life characters who give context to Henry's
newfoun d life. It can hardly be said that the two works, taken as a whole, tell similar stories.
Still, Plaintif f drills down into particular scenes and points to portions or aspects of TOAF
that he argues are substantially similar to Bucky's. Plaintif fs arguments, which he analyzes
in
terms of "the total concept and feel, theme, characters, plot, sequence, pace, and setting"
of the
works, Williams, 84 F.3d at 588, are unpersuasive.
First, Plaintif f argues that the two works share a common "plot, sequence and pace,"
pointing to four common plot features alleged to be similar (i.e., (1) Basebal l Prodigy-Comes
-ofAge Plot; (2) Recruite r-Mento r Plot; (3) Illicit Romanc e Plot; and (4) Intergenerationa
l Plot).
These suppose d plot structures, however, fail to accurately characterize either of the works,
and
represent rather a strained attempt to impose structure where none is salient, evident, or
important to the works on the whole. For example, Bucky and Henry do not "come of
age" in
any similar way. Bucky's develop ment is in learning about his father's death and in the
saga
surrounding his feigned deafness; Henry's develop ment (and regression) is in navigati
ng college
10
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campus social life and in coming to terms with the notoriety, fame, and life incident to his
blossoming baseball talent.
The other supposed plot features fare no better. Mike and Willie, the respective
"recruiters" of Henry and Bucky, share little in common in terms of age, position on the team, or
relationship with Henry or Bucky, and, more importantly, play different roles in the overall
scheme of the book: Willie is a tragic figure, reckoning with a scarred past; Mike, while grieved
by a painful childhood, is an upbeat figured reckoning with his future after graduating from
Westish. Furthermore, the alleged similarity between the "illicit relationships" of Bucky and
Julie, and Owen and Guert, ends with the (unremarkable) fact that they both involve
administrator/student relationships. Every other aspect of these relationships are different. In
TAOFthe relationship was homosexual in nature; in Bucky's it was not. In TOAFthere was a
large age disparity; in Bucky's there was not. And, most importantly, in TOAF the relationship
involved the main character, Henry; in Bucky's it did not. Plaintiff here mixes and matches
characters and plot lines, choosing here not to compare Bucky to Henry but to compare Bucky to
Owen. The illicit relationship between Owen and Affenlight, both of whom are central
characters thoroughly developed throughout the TOAF, relates to an plot line independent from
Henry's, which, when understood in context, functions in an entirely different way than the
barely-"illicit" relationship between Bucky and 24-year-old Julie.
In much the same way, many of Plaintiffs arguments mix and match characters and plot
lines in his attempt to find similarity in the two works' respective plots. It is true that both works
have what Plaintiff vaguely refers to as an "intergenerational plot," both having some measure of
estrangement between a father and his child. Here again, however, Plaintiff chooses to compare
Bucky not to Henry but to Pella, another independent and central character whom is developed
11
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throughout TOAF as a wife of David, a lover of both Mike and Henry, and a daughter to Guert.
How Pella navigates between her father, her failing relationship with David, and her subsequent
burgeoning life at Westish College represents an important plot feature of the TOAF. The
Pella/Guert relationship is barely similar to Bucky's relationship with his father and his attempt
to understand the circumstances behind his father's death. 6
While the entirety of the two works are quite different, Plaintiff harps on one scene, his
self-proclaimed strongest argument, pointing to what he alleges to be the "climax" of both works
and which he alleges follows in both works in a "lockstep sequence of events." Opposition at
21. 7 According to Plaintiff, both novels climax when, with two outs and two strikes, the
"prodigy" pinch hits and gets beaned by the third pitch.
However, despite whatever facial similarities Plaintiff may point to, there is little in
common between how the two beaning scenes function in each novel's respective plot. Any
similarities are either not copyrightable abstract ideas, or, when understood in context, not
actually similar. For one, Henry and Bucky were absent from their respective games for entirely
different reasons: Henry, who for months despaired from playing baseball, returned for the
championship game at Guert's insistence; Bucky, on the other hand, missed only one game,
suffering no crisis in confidence, being busy with reconciling with Julie. Bucky arrives in the
ninth inning as the team's best player, and is intentionally beaned by the opposing team. Henry
arrives in the ninth inning as the team's lesser substitute, who is ultimately willing to sacrifice
himself by intentionally getting beaned. That the Oaks ultimately lose the game, whereas the
6
The supposed common "themes" identified by Plaintiff (David and Goliath; the Little Engine That Could; Christlike Resurrection and Self-Sacrifice) relate to unprotectible ideas. To the extent the themes relate to expression of
ideas, rather than ideas themselves, the two works are not substantially similar for the reasons identified throughout
this opinion.
7
According to Plaintiff: "It was Harbach's lifting of the scenes in the third act-which are the very essence of
Bucky's-tha t clearly transformed ... TOAF into a best seller." Opposition at 21.
12
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Harpooners win, further highlights the significant difference in meaning and importance of the
beaning scene in each respective work. In short, when read in context, none of Plaintiffs
allegations of substantial similarity hold up, the beaning scene included. 8
CONCLUSION
For the reasons state above, Defendant's motion to dismiss is granted. The Clerk shall
terminate the motion (Dkt. No. 11), enter judgment for Defendant, dismissing the Complaint, and
mark the case closed. Oral argument, scheduled for July 19, 2018, is cancelled.
SOORDERE D.
Dated:
m,_ k '(,~..,.;~--
July1_, 2018
New York, New York
AL VIN K. HELLERSTEIN
United States District Judge
8
Plaintiff also provides the court with various appendixes containing comparison charts, listing allegedly similar
parts of the two works, some (but not all) of which were highlighted in Plaintiffs main briefing. For example,
Plaintiff highlights that Bucky is called a "savior" and Henry a "messiah"; that both Mike and Willie consider(ed)
going to law school; and that both Julie and Pella had blue panties. See Appendix to Complaint. In this opinion, I
discuss the alleged similarities most supportive of Plaintiffs claims, as the vast majority of the remaining supposed
similarities are "random similarities scattered throughout the works," Williams, 84 F.3d at 581 (quoting Litchfieldv.
Spielberg, 736 F.2d 1352, 1356 (9th Cir. I 9.84)), adding little support to Plaintiffs claim of substantial similarity.
13
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