Ackerman v. Pink et al

Filing 58

OPINION AND ORDER re: 46 MOTION to Dismiss . filed by Maya Rogers, Marv Studios Ltd., The Tetris Company, Apple Inc., AI Productions Ltd., Access Industries, Inc., FB Commissioning Ltd., Noah Pink. For the foregoing reas ons, Defendants motion to dismiss is GRANTED in full. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 3/6/2025) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DANIEL ACKERMAN,
Plaintiff,
-v.NOAH PINK; APPLE INC.; ACCESS
INDUSTRIES, INC.; A.I. FILM PRODUCTION
LIMITED; MARV STUDIOS LTD.; MAYA
ROGERS; FB COMMISSIONING LTD.; and
THE TETRIS COMPANY,

23 Civ. 6952 (KPF)
OPINION AND ORDER

Defendants.
KATHERINE POLK FAILLA, District Judge:
Plaintiff Daniel Ackerman (“Plaintiff”) is the author and copyright holder
of the non-fiction book, The Tetris Effect: The Game That Hypnotized The World
(the “Book”). Plaintiff filed the instant action against Noah Pink, Apple Inc.,
Access Industries, Inc., AI Productions Ltd., Marv Studios Ltd., Maya Rogers,
FB Commissioning Ltd., and The Tetris Company (collectively, “Defendants”),
alleging that Defendants used Plaintiff’s Book — without his knowledge,
authorization, or consent — to create the film Tetris (the “Film”). Plaintiff
brings claims for (i) copyright infringement against all Defendants; (ii) unfair
competition against Maya Rogers, The Tetris Company, and Noah Pink; and
(iii) tortious interference with business relations against Maya Rogers and The
Tetris Company.
Before the Court is Defendants’ motion to dismiss Plaintiff’s Amended
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the

reasons set forth in the remainder of this Opinion, the Court grants
Defendants’ motion in full.
BACKGROUND 1
A.

Factual Background
1.

The Parties

Plaintiff Daniel Ackerman is a technology and video game journalist and
the author of the non-fiction Book at issue in this case. (AC ¶¶ 2, 8).
Defendants are individuals and companies that contributed to creating and
distributing the Film at issue in this case. Defendant Noah Pink, a Canadian
citizen, is credited as the screenwriter for the Film. (Id. ¶¶ 9-10). Defendant
Apple Inc., a Delaware corporation, is the distributor and platform for the Film,
which is currently available on Apple TV+. (Id. ¶ 11). Defendant Access
Industries, Inc., a New York corporation, is a producer of the Film. (Id. ¶ 12).
Defendant A.I. Film Production Limited (improperly named in this lawsuit as AI
Productions Ltd.), a subsidiary of Access Industries, Inc., is a producer of the
Film. (Id. ¶ 13; see Def. Br. 1). Defendant Marv Studios Ltd., an English
1

This Opinion draws its facts from the Amended Complaint (“AC” (Dkt. #43)), the wellpleaded allegations of which are taken as true for purposes of this Opinion. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court also relies, as appropriate, on
certain of the exhibits attached to the Declaration of Tal Dickstein (“Dickstein Decl.,
Ex. [ ]” (Dkt. #47)), namely, a copy of Plaintiff’s copyrighted work (Dickstein Decl., Ex. A
(“Book”)), and Defendants’ allegedly infringing work (id., Ex. B (“Film”)), which the Court
may properly consider on this motion. See Effie Film, LLC v. Pomerance, 909 F. Supp.
2d 273, 298 (S.D.N.Y. 2012) (“It is well established that courts may take judicial notice
of the works at issue in a copyright case.”).
For ease of reference, the Court refers to Defendants’ memorandum of law in support of
their motion to dismiss as “Def. Br.” (Dkt. #48); to Plaintiff’s memorandum of law in
opposition to the motion to dismiss as “Pl. Opp.” (Dkt. #55); and to Defendants’ reply
memorandum of law in further support of the motion to dismiss as “Def. Reply” (Dkt.
#57). References to the Film are presented using the convention
“[hour]:[minute]:[second].”

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private limited company, is also a producer of the Film. (AC ¶ 14). Likewise,
Defendant FB Commissioning Ltd., an English private limited company, is a
producer of the Film. (Id. ¶ 15). Defendant The Tetris Company, a Nevada
corporation, is the manager and licensor of the Tetris brand to third parties.
(Id. ¶ 16). Finally, Defendant Maya Rogers, a resident of Hawaii and Nevada, is
the CEO of The Tetris Company, and an Executive Producer of the Film. (Id.
¶ 17).
2.

Creation of the Book and the Film

The allegations in the Amended Complaint construct a timeline for the
respective creations of the Book and the Film. According to Plaintiff, he began
the creative process for his Book between March and April 2014. (AC ¶ 18).
He emailed his literary agent, Kristen Neuhaus, a list of non-fiction book ideas,
including an idea for a “book on Tetris and its association to the Soviet Union
and media baron Robert Maxwell.” (Id. ¶ 19). Throughout April and May 2014,
Plaintiff created a “list of the main historical figures [he] would highlight in his
book on Tetris, and a roadmap as to how numerous characters and events …
would be portrayed in the book,” and he drafted an overview, chapter outline,
and book proposal that “specifically told the Tetris story based on a Cold War
thriller with a political intrigue angle.” (Id. ¶¶ 22-28). In October 2014, trade
magazine Publisher’s Marketplace ran a “blurb” of Plaintiff’s book, including its
title and a brief synopsis. (Id. ¶ 34). By February 2015, Plaintiff had arranged
interviews with “some of the key players and characters of the Tetris story,”
including Alexey Leonidovich Pajitnov, who created Tetris; Henk Rogers, who
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secured the rights to distribute Tetris for home consoles and handheld devices
from the Soviet Union; and Defendant Maya Rogers, Henk’s daughter and
current CEO of The Tetris Company, which was founded by Henk and Pajitnov.
(Id. ¶ 35; Book 215-28, 241-42). Plaintiff conducted most of those interviews
from April to August 2015. (AC ¶ 36). As part of those meetings, on April 14,
2015, Plaintiff held a conference call with Sean Maggard (who handled public
relations for The Tetris Company through public relations company Zebra PR)
and Maya Rogers. (Id. ¶¶ 35-36, 39).
Plaintiff completed the first draft of the Book in August 2015. (AC ¶ 38).
In July 2016, Plaintiff’s representatives sent Zebra PR a pre-publication copy of
the Book. (Id. ¶ 39). Plaintiff alleges that Zebra PR, in turn, provided the prepublication copy to The Tetris Company and Maya Rogers. (Id.). As a result of
this series of events, Defendants had knowledge of the Book beginning in 2014
(id. ¶ 56), access to a pre-publication copy by July 2016 (id. ¶ 39), and
knowledge of the Book’s publication on September 6, 2016, which was many
years before the Film’s 2023 premiere (id. ¶¶ 52, 56).
On September 1, 2016, The Tetris Company sent a cease-and-desist
letter to Plaintiff’s agent regarding Plaintiff’s pursuit of film and television
opportunities for his Book. (AC ¶ 42; Dickstein Decl., Ex. C (the “Cease-andDesist Letter”)). The Cease-and-Desist Letter recites that: (i) The Tetris
Company “controls all rights” in the video game Tetris; (ii) Pajitnov and Henk
Rogers “did not at any time accord [Plaintiff] any right to depict the Book, their
life stories, or any of [The Tetris Company-]owned trademarks, copyrights and
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other intellectual property in connection with any audiovisual works”; (iii) The
Tetris Company “has no interest in pursuing any motion picture/television
project based on the Book”; and (iv) to the contrary, any such project “would
directly conflict with other [The Tetris Company-]sanctioned audiovisual
projects, including a project involving the life stories of Pajitnov and Rogers
that [was then] under development.” (Cease-and-Desist Letter). The letter
requested that Plaintiff therefore “cease and desist from any further
development or shopping of any audiovisual project based upon the Book.”
(Id.). As a result of the letter, Plaintiff’s agent withdrew from pursuing film and
television opportunities for Plaintiff. (AC ¶ 43). Further, film and television
producers that had shown interest in optioning Plaintiff’s Book for a film or
television project would not do so unless The Tetris Company would license its
IP for the project. (Id. ¶ 45). According to Plaintiff, Maya Rogers directed “[T]he
Tetris Company [to] refuse[] to license any of the Tetris intellectual property,
such as its name and image, for any motion picture or television project based
on [Plaintiff’s Book].” (Id. ¶¶ 41, 46).
Not only did Defendants prevent Plaintiff from developing his Book into a
film; according to Plaintiff, they copied from his Book to produce their own film.
In particular, Plaintiff alleges that Maya Rogers, together with Defendant Pink,
used the manuscript of Plaintiff’s Book to create a screenplay and ultimately
turn the Book into a Film, without Plaintiff’s knowledge or consent and without
any optioning or licensing rights. (AC ¶¶ 39-40, 47). After Plaintiff viewed the
trailer for the Film on or about March 23, 2023, Apple and the other
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Defendants were alerted that there was a “substantial similarity” between
Plaintiff’s Book and the Film, and in his own cease-and-desist letter Plaintiff
demanded that the Film not be broadcast until legal concerns were addressed.
(Id. ¶ 57). Nevertheless, the Film premiered on March 31, 2023, on Apple TV.
(Id. ¶ 58).
3.

The Copyrighted Work: Plaintiff’s The Tetris Effect

The copyrighted work at issue in this case is Plaintiff’s Book. Plaintiff
registered the Book with the United States Copyright Office on September 26,
2016. (AC ¶ 65; Dkt. #1-1).
The 264-page Book is about Tetris, a video game created by Pajitnov, a
Soviet computer researcher and programmer who was working at the Russian
Academy of Sciences (the “RAS”). (See Book 30). The Book explains that
Pajitnov, after years at the RAS, was able to obtain regular access to his own
Electronica 60 computer, a system that was dated at the time but still allowed
him to experiment. (Id. at 30-31). Pajitnov was “vaguely aware of the growing
phenomenon of video games,” and thought that he could somehow use
computers as a tool to create new puzzles like the ones he enjoyed as a child.
(Id.). In search of inspiration, he walked the aisles of a famous toy store in
Moscow and was drawn to something that was familiar to him: a set of
pentomino puzzle pieces. (Id. at 32). Over the course of six days, using the
alphanumeric keys on his computer keyboard to create makeshift puzzle pieces
that he called “Tetrominoes,” he created the first version of Tetris. (Id. at 33).

6

But that is not where Plaintiff’s Book begins. Instead, the Book throws
the reader into the February 21, 1989 unauthorized business trip of Henk
Rogers, a Dutch video game designer and entrepreneur who was “one of three
competing Westerners descending on Moscow nearly simultaneously” in
pursuit of “the greatest cultural export in the history of the USSR” — the
government-controlled technology, Tetris. (Book 3-4). In the first chapter,
Plaintiff also introduces the two other competitors: Kevin Maxwell, “the
privileged son of a hard-charging UK media mogul[, Robert Maxwell,]” and
Robert Stein, “a self-made software magnate with a street hustler’s flair.” (Id.
at 6). Setting the stage for this three-way race, the Book informs the reader
that the Westerners were travelling “behind the feared Iron Curtain” at a time
when “[s]ecret police ears were still everywhere,” but foreign money was gaining
increased influence. (Id. at 4).
The Book tells the story of how the three Westerners were leveraged
against each other by Electronorgtechnica (“ELORG”), the state-owned
organization controlling Soviet computer software and hardware, and its thenvice chairman, Evgeni Nikolaevich Belikov, in the fierce negotiations for the
rights to different versions of Tetris, namely, computer, home console, arcade,
and handheld rights. (See Book 3-12, 129-35, 177-235). But it does not do so
in a linear fashion. The narrative jumps around in time, conveying in detail
the backgrounds of the individuals and companies that came to be involved in
the race for Tetris, including Alexey Pajitnov (see id. at 13-20, 29-36), Henk
Rogers (see id. at 21-28, 37-51), Robert Stein (see id. at 91-94), Robert Maxwell
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(see id. at 101-10), and Nintendo’s Hiroshi Yamauchi, Minoru Arakawa, and
Howard Lincoln (see id. at 167-75).
With particular respect to Rogers’s background, the Book describes his
early life, his decision to move to Japan, and his development of the roleplaying game, The Black Onyx, which became the best-selling computer game
in Japan in 1984. (See Book 21-28, 37-51). In other chapters, the Book
explains how Tetris spread around the world prior to the three-way race for
licensing rights in 1989, largely because Stein, the first person who
corresponded with the Soviet Union to try to monetize Tetris, had liberally
construed the rights he first negotiated from the Soviet Union in his favor and
repeatedly acted without prior authorization. (See id. 89-99, 109-28, 131-47).
In another chapter, the Book provides background on the rivalry between Atari
Games and Nintendo, and Nintendo’s success with games such as Mario and
Donkey Kong. (See id. 167-75, 201-04). Along with that side-story, the Book
covers Nintendo’s ultra-secret development of the Game Boy — a new kind of
handheld gaming console — and shows how the Game Boy became intertwined
with Tetris. (Id. at 167-75). Arakawa, the president of Nintendo of America,
showed Rogers a Game Boy prototype. (Id. at 168, 170). Rogers pitched the
idea that Nintendo should sell Tetris in a package with the Game Boy because
“mothers, fathers, brothers, sisters,” rather than just adolescent and teenage
boys, would then pick up the handheld console. (Id. at 170-71). But that
meant that Rogers would need to acquire the Tetris handheld rights on behalf

8

of Nintendo, while others like Maxwell and Stein were also seeking legitimate
contracts with ELORG for various Tetris rights.
Separately, in “bonus” chapters, placed at the end of each of the three
parts of the Book, the Book provides information about playing Tetris and why
it is so addictive to players (see Book 73-85); the programming behind Tetris
and other iconic video games (see id. at 149-59); and academic and medical
research on Tetris (see id. at 229-35). In a similar vein, small, in-line gray
boxes with facts about Tetris are scattered throughout the Book. (See, e.g., id.
at 173 (stating that “[t]he Nintendo World store in New York has on display a
Game Boy handheld that was badly burned in a 1990s Gulf War bombing” that
“is still powered on and playing Tetris”)).
As noted, the primary narrative of the Book focuses on how the rights to
Tetris came to be officially licensed from the Soviet Union during the Cold War
and disseminated throughout the world. But it also bounces through time,
telling the stories of those who drove the development of video games in the
1970s and 1980s and the technology available at the time; providing
information about Tetris gameplay, its effects on users, and its potential
medical uses in bonus chapters; and offering an array of Tetris facts.
4.

The Allegedly Infringing Work: Defendants’ Tetris

The allegedly infringing work at issue in this case is Defendants’ Film.
The nearly-two-hour motion picture opens with the words “THIS IS BASED ON
A TRUE STORY,” written in a pixelated font reminiscent of 1980s video games.
(Film 0:00:43). The true story is that of Henk Rogers’s pursuit of Tetris.
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The opening scene of the Film depicts Rogers at the Consumer
Electronics Show (“CES”) in Las Vegas, selling the rights to the video game Go.
(See Film 0:00:53-0:02:06). Rogers’s character narrates the scene, explaining
that “Go didn’t go as planned,” but that its failure paved the way to the “best
thing to ever happen to us” — Tetris. (See id. at 0:01:29-0:01:46). The next
scene reveals that Rogers is not simply narrating a story, but rather is
explaining what happened at CES to a bank manager. (See id. at 0:02:06). He
says that he tried Tetris at CES and begins explaining how the game works.
(See id. at 0:02:06-0:02:19). Rogers then informs the bank manager that, after
trying Tetris, he licensed the rights to the game in Japan for PC, game
consoles, and arcade. (See id. at 0:03:40-0:04:01). Indeed, he assures the
bank manager that this was a great investment because Tetris — “the perfect
game,” as he calls it — is already a hit in Russia. (See id. at 0:03:24-0:03:26,
0:04:04-0:04:09). He delves into its creation by Pajitnov; its growing popularity
in Russia, where people were already exchanging floppy disks with the game on
them; and Stein’s efforts to monetize the game by corresponding with the
Soviet Union and selling the distribution rights to the Maxwells. (See id. at
0:04:21-0:08:06). Rogers then explains that the day before he came to the
bank, he went to Nintendo, where he snuck in to meet with CEO Yamauchi and
ultimately declined an offer to sell the rights he had licensed at CES. (See id.
at 0:08:12-0:10:00).
Rogers asks the bank manager for an additional loan of $3 million to
create Nintendo cartridges and arcade machines. (Film 0:11:14-0:11:38). After
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literally betting his house on the success of the game, explaining the deal to his
wife, and showing the game to his children (including Maya Rogers), Rogers is
told by Kevin Maxwell that the arcade rights Rogers licensed have been sold to
another company operating in Japan. (See id. at 0:11:55-0:13:25, 0:15:350:16:41). These events are all narrated by Rogers’s character and depicted on
screen, as the Film moves back and forth in time between the conversation at
the bank and the events leading up to it.
The Film also depicts the moment Nintendo revealed the Game Boy to
Rogers (see Film 0:18:57-0:22:05), as well as Rogers’s subsequent attempt to
purchase the rights to Tetris for handheld devices from Stein, an attempt that
was thwarted when it is revealed that Stein plans to cut out Rogers and sell the
handheld rights to Atari, Nintendo’s rival (see id. at 0:22:12-0:28:05), all of
which lead to Rogers’s decision to go to Moscow on a tourist visa to attempt to
get the licensing rights to Tetris for handheld devices. (See id. at 0:28:060:28:41).
The bulk of the Film is dedicated to Rogers’s trips to Moscow, including
the tumultuous negotiations at ELORG among Belikov, Rogers, Stein, and
Kevin Maxwell (see, e.g., Film 0:28:45-0:47:27), and the friendship that Rogers
develops with Pajitnov (see, e.g., id. at 0:52:37-1:00:46). In addition to
portraying those real-life events, the Film also includes a sub-plot involving
KGB agents chasing down Rogers, including fictional agent Valentin Trifonov
and Rogers’s translator, who tries to ensnare Rogers in a “honeypot” scheme.

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(See, e.g., id. at 1:02:37-1:03:40). 2 This sub-plot (spoiler alert) culminates in a
car chase through Moscow, with the Film’s heroes (Rogers and his backers at
Nintendo) getting away with the prize — the handheld, console, and arcade
rights to Tetris. (See id. at 1:39:10-1:47:16).
The Film ends with Rogers’s reunion with his family; the release of Game
Boy in Japan; and Pajitnov’s eventual relocation to the United States with his
family. (See Film 1:47:27-1:51:10). Several “where are they now”-style screens
explain that Rogers and Pajitnov went on to found The Tetris Company, of
which Maya Rogers later became CEO; Stein continued to license games but
never forgot the loss of Tetris; Robert Maxwell died under mysterious
circumstances after it was discovered that he had stolen millions from pension
funds; and Kevin Maxwell was arrested, declared bankruptcy, and was
ultimately acquitted of fraud charges. (See id. at 1:51:11-1:51:50). A coda
depicts Tetris being played, and the fact that “[w]ith over half a billion copies
sold, [Tetris] continues to be one of the most popular games of all time.” (Id. at
01:51:52).
B.

Procedural Background
Plaintiff initiated this action by filing the original complaint on August 7,

2023. (Dkt. #1). That complaint brought claims for copyright infringement,
unfair competition, and tortious interference with business relations. It

2

A “honeypot” or “honey trap” scheme in this context is one in which an individual feigns
interest in the target to induce the target to enter into a relationship, in order to obtain
information from or influence over the target. See generally Rochelle Cooper Dreyfuss &
Orly Lobel, Economic Espionage as Reality or Rhetoric: Equating Trade Secrecy with
National Security, 20 LEWIS & CLARK L. REV. 419, 437 & n.98 (2016).

12

included a so-called “sampling” of “glaring similarities” between the Book and
the Film. (Id. at 10-14). On December 12, 2023, Defendants requested a premotion conference regarding their anticipated motion to dismiss the original
complaint, arguing that (i) Plaintiff’s copyright infringement claim failed as a
matter of law; (ii) his unfair competition claim was preempted by the Copyright
Act and failed to state a claim; and (iii) his tortious interference claim was
barred by the statute of limitations and failed to state a claim. (Dkt. #30).
Plaintiff opposed Defendants’ request to file a motion to dismiss. (Dkt. #36).
On January 10, 2024, the Court held a pre-motion conference and
ordered the parties to submit a letter informing the Court whether Plaintiff
would amend the complaint, and if so, proposing a schedule for the filing of an
amended complaint and Defendants’ anticipated motion to dismiss. (See
January 10, 2024 Minute Entry). On January 19, 2024, Plaintiff indicated that
he would amend his complaint, after which Defendants would file their motion
to dismiss. (Dkt. #40). The Court endorsed Plaintiff’s letter and set the briefing
schedule for Defendants’ motion to dismiss. (Dkt. #41).
On February 26, 2024, Plaintiff filed the Amended Complaint, which
alleged the same three claims, but included what was styled by Plaintiff as an
“exhaustive analysis and examination of the film and book” that “outlines the
substantial similarities between the two works.” (Dkt. #43). On March 29,
2024, Defendants filed their motion to dismiss the Amended Complaint. (Dkt.
#46). On May 17, 2024, Plaintiff filed his opposition to the motion to dismiss.

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(Dkt. #55). And on June 14, 2024, Defendants filed their reply in further
support of their motion to dismiss. (Dkt. #57).
DISCUSSION
Plaintiff asserts claims for (i) copyright infringement under the Copyright
Act, 17 U.S.C. §§ 106 and 501, against all Defendants; (ii) unfair competition
against Defendants Maya Rogers, The Tetris Company, and Noah Pink; and
(iii) tortious interference with business relations against Defendants Maya
Rogers and The Tetris Company. The Court sets forth the applicable legal
standards for a motion to dismiss before assessing each of Plaintiff’s claims in
turn.
A.

Motions to Dismiss Pursuant to Federal Rule of Civil Procedure
12(b)(6)
When considering a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), a court must “draw all reasonable inferences in Plaintiff[’s]
favor, assume all well-pleaded factual allegations to be true, and determine
whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A court adjudicating a motion to dismiss under Rule 12(b)(6) “may review
only a narrow universe of materials.” Goel v. Bunge, Ltd., 820 F.3d 554, 559
(2d Cir. 2016). This narrow universe includes “facts stated on the face of the
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complaint” and “documents appended to the complaint or incorporated in the
complaint by reference.” Id. (internal quotation marks omitted); accord United
States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021). In a
copyright action, where the disputed works are attached to or incorporated by
reference in the complaint, a district court can “consider the similarity between
those works in connection with a motion to dismiss, because the court has
before it all that is necessary in order to make such an evaluation.” Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir. 2010);
see also Canal+ Image UK Ltd. v. Lutvak, 773 F. Supp. 2d 419, 427 (S.D.N.Y.
2011) (considering the film and musical at issue in deciding defendants’ motion
to dismiss even where plaintiff did not attach a copy of the film or musical to
its complaint and did not expressly incorporate either work by reference). On
this motion, the Court considers the disputed works that are referenced in and
are integral to the Amended Complaint, namely, Plaintiff’s Book (Dickstein
Decl., Ex. A) and Defendants’ Film (id., Ex. B). (See AC ¶¶ 1, 2, 52, 59). The
Court also considers the Cease-and-Desist Letter sent by counsel to The Tetris
Company to Plaintiff, because it is both referred to in and integral to the
Amended Complaint. (Dickstein Decl., Ex. C; see AC ¶ 42).
B.

Copyright Infringement
1.

Applicable Law
a.

Substantial Similarity Analysis

To state a claim for copyright infringement, “a plaintiff with a valid
copyright must demonstrate that: [i] the defendant has actually copied the
15

plaintiff’s work; and [ii] the copying is illegal because a substantial similarity
exists between the defendant’s work and the protectible elements of plaintiff’s.”
Peter F. Gaito, 602 F.3d at 63 (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99
(2d Cir. 1999)). 3 As for the first prong, a plaintiff “may prove copying by direct
evidence, or by showing that the defendant had access to the plaintiff’s work
and that the works are similar enough to support an inference that the
defendant copied the plaintiff’s work.” Hines v. W Chappell Music Corp., No. 20
Civ. 3535 (JPO), 2021 WL 2333621, at *2 (S.D.N.Y. June 8, 2021) (quoting
Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir. 1994));
accord A&E Television Networks, LLC v. Big Fish Ent., LLC, No. 22 Civ. 7411
(KPF), 2023 WL 4053871, at *6 (S.D.N.Y. June 16, 2023).
When addressing the second prong of the copyright infringement
analysis, the Second Circuit has cautioned that “questions of non-infringement
have traditionally been reserved for the trier of fact.” Peter F. Gaito, 602 F.3d at
63. But “where the court has before it all that is necessary to make a
comparison of the works in question, it may rule on substantial similarity as a
matter of law on a Rule 12(b)(6) motion to dismiss.” King Zak Indus., Inc. v.
Toys 4 U USA Corp., No. 16 Civ. 9676 (CS), 2017 WL 6210856, at *4 (S.D.N.Y.
Dec. 8, 2017) (quoting Effie Film, LLC v. Pomerance, 909 F. Supp. 2d 273, 29091 (S.D.N.Y. 2012)). That is because, in those circumstances, “only a visual

3

The “idea/expression or fact/expression dichotomy” is the principle that copyright
protection applies to expression but does not extend to ideas or facts, because “[t]he
primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the
Progress of Science and useful Arts.’” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499
U.S. 340, 349-50 (1991) (quoting U.S. CONST. art. I, § 8, cl. 8).

16

[and aural] comparison of the works,” rather than “discovery or fact-finding,” is
necessary. Peter F. Gaito, 602 F.3d at 64; see also Walkie Check Prods., LLC v.
ViacomCBS Inc., No. 21 Civ. 1214 (KPF), 2022 WL 2306943, at *6 (S.D.N.Y.
June 27, 2022). If the reviewing court “determines that the two works are not
substantially similar as a matter of law” based on that comparison — “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” — the court
“can properly conclude that the plaintiff’s complaint, together with the works
incorporated therein, do not plausibly give rise to an entitlement to relief.”
Peter F. Gaito, 602 F.3d at 63-64 (internal quotation marks omitted).
In the Second Circuit, “[t]he standard test for substantial similarity
between two items 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, 602 F.3d at 66 (quoting Yurman Design,
Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001)). In applying this “ordinary
observer test,” courts consider whether “an average lay observer would
recognize the alleged copy as having been appropriated from the copyrighted
work.” Id. (quoting Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002
(2d Cir. 1995)). But where the works at issue “have both protectible and
unprotectible elements, [the court’s] analysis must be more discerning” and the
court “must attempt to extract the unprotectible elements from [its]
consideration and ask whether the protectible elements, standing alone, are
17

substantially similar.” Id. (internal quotation marks omitted); accord Lee v.
Warner Media, LLC, No. 23-8067, 2025 WL 516933, at *1-2 (2d Cir. Feb. 18,
2025) (summary order).
At the same time, courts are not “required to dissect [the works] into
their separate components, and compare only those elements which are in
themselves copyrightable.” Peter F. Gaito, 602 F.3d at 66. Rather, courts must
be “principally guided ‘by comparing the contested design’s ‘total concept and
overall feel’ with that of the allegedly infringed work.’” Id. (quoting Tufenkian
Imp./Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir.
2003)). That comparison is informed by a court’s “good eyes and common
sense.” Id. (quoting Hamil Am., 193 F.3d at 102). Ultimately, the “inquiry
necessarily focuses on whether the alleged infringer has misappropriated the
original way in which the author has selected, coordinated, and arranged the
elements of his or her work.” Id. (internal quotation marks omitted).
Finally, “‘scènes à faire,’ which involve ‘incidents, characters or settings
which are as a practical matter indispensable, or at least standard, in the
treatment of a given topic’ are ‘not copyrightable as a matter of law,’” Effie Film,
909 F. Supp. 2d at 292 (quoting Hoehling v. Universal City Studios, Inc., 618
F.2d 972, 979 (2d Cir. 1980)), and therefore do not factor into the substantial
similarity analysis. That is because the Second Circuit has recognized that “it
is virtually impossible to write about a particular historical era or fictional
theme without employing certain ‘stock’ or standard literary devices.”
Hoehling, 618 F.2d at 979; see also Walker v. Time Life Films, Inc., 784 F.2d 44,
18

50 (2d Cir. 1986) (finding that “[f]oot chases and the morale problems of
policemen, not to mention the familiar figure of the Irish cop,” were
unprotectable scènes à faire).
b.

Historical Works and Works of Historical Fiction

“Works of history and historical fiction present unique complexities for
substantial similarity analysis.” Effie Film, 909 F. Supp. 2d at 293. The
Second Circuit has previously grappled with those complexities and ruled that
historical facts and “interpretation[s] of an historical event … are not
copyrightable as a matter of law.” Hoehling, 618 F.2d at 978. In Hoehling, the
Court explained:
A grant of copyright in a published work secures for its
author a limited monopoly over the expression it
contains. The copyright provides a financial incentive
to those who would add to the corpus of existing
knowledge by creating original works. Nevertheless, the
protection afforded the copyright holder has never
extended to history, be it documented fact or
explanatory hypothesis. The rationale for this doctrine
is that the cause of knowledge is best served when
history is the common property of all, and each
generation remains free to draw upon the discoveries
and insights of the past. Accordingly, the scope of
copyright in historical accounts is narrow indeed,
embracing no more than the author’s original
expression of particular facts and theories already in
the public domain … . [A]bsent wholesale usurpation of
another’s expression, claims of copyright infringement
where works of history are at issue are rarely
successful.
Id. at 974 (emphasis added).
As it happens, the claim of copyright infringement in Hoehling was
unsuccessful. 618 F.2d at 980. The Second Circuit found that “all three
19

authors” — the plaintiff, the author of a book about the Hindenburg (the illfated airship constructed in Germany during Hitler’s reign), and the
defendants, another author and a movie studio — “relate[d] the story of the
Hindenburg differently [in each of their works].” Id. More pointedly, the Court
rejected the plaintiff’s claims that specific facts that he had obtained were
copied by the defendants, stating that the defendants “had the right to avail
[themselves] of the facts contained in [plaintiff’s] book and to use such
information, whether correct or incorrect, in [their] own … work[s].” Id. at 979
(emphasis added) (internal quotation marks omitted). The remainder of the
purported similarities were deemed to be “random duplications of phrases and
sequences of events.” Id.
The Second Circuit has since reiterated that where an author’s work is
“an account of actual events … proof of infringement [is] more difficult [than in
cases involving fiction], because copyright protection in this circuit does not
extend to facts or to true events, even if they are discovered through original
research.” Walker, 784 F.2d at 49. “So long as [subsequent authors do] not
appropriate the [prior author’s] unique expression of … facts,” they are “free to
avail themselves of any facts contained in [the earlier work].” Id.
2.

The Court Dismisses Plaintiff’s Copyright Infringement Claim
Because There Is No Substantial Similarity Between the Works
at Issue

For purposes of this motion, Defendants do not contest that they had
access to Plaintiff’s Book. (See Def. Br. 27 (not disputing Plaintiff’s allegation
that he voluntarily sent the public relations representative for The Tetris
20

Company a pre-publication copy of the Book)). Rather, they argue that
Plaintiff’s copyright infringement claim must fail because (i) Plaintiff is seeking
to hold Defendants liable for copying facts and events that are unprotectable
and (ii) apart from those unprotectable elements, Plaintiff has not identified any
substantial similarity between his Book and Defendants’ Film. Having
conducted a comparison of the full works at issue in this case, the Court
concludes, first, that the Book contains both unprotectable and protectable
elements, and second, that Plaintiff’s Book and Defendants’ Film are not
substantially similar. Accordingly, Plaintiff has not plausibly alleged a claim
for copyright infringement.
a.

Plaintiff’s Book Contains a Mix of Unprotectable and
Protectable Elements

The Court begins by determining that it must utilize the “more
discerning” test in conducting the substantial similarity analysis in this case.
Plaintiff describes his Book as “a compelling narrative non-fiction book in the
style of a Cold War spy thriller,” in which he “not only applied the historical
record, but also layered [in] his own original research” to tell the story of “Tetris
and its association to the Soviet Union and media baron Robert Maxwell.”
(AC ¶¶ 2, 19 (emphasis added)). As a work of non-fiction, the Book necessarily
includes unprotectable facts. See Walker, 784 F.2d at 49. But even where a
work is comprised entirely of unprotectable elements like facts, the “sum total”
of the author’s “artistic choices … constitutes a protectable work under
copyright law.” Walkie Check Prods., 2022 WL 2306943, at *9 (citing Yurman,

21

262 F.3d at 109 (“Copyright law may protect a combination of elements that
are unoriginal in themselves.”)). Because Plaintiff’s Book is comprised of both
unprotectable and protectable elements, the “more discerning” ordinary
observer test is the appropriate test to determine whether Defendants’ Film is
substantially similar to Plaintiff’s Book. See Peter F. Gaito, 602 F.3d at 66.
b.

There Is No Substantial Similarity Between the Works at
Issue as a Matter of Law

Plaintiff’s Book and Defendants’ Film tell the stories of the same real
people and cover, in part, the same time period. Consequently, it is
unsurprising that there are similarities between the two works. Indeed, since
Plaintiff’s Book is a work of non-fiction, Defendants were entitled to use the
facts contained in his Book in the making of their Film, so long as they did not
copy his unique expression of those facts. See Walker, 784 F.2d at 49. In
conducting the substantial similarity inquiry, the Court must therefore
examine whether Defendants misappropriated the way Plaintiff “selected,
coordinated, and arranged” the facts in his Book, and “the similarities in such
aspects as the total concept and feel, theme, characters, plot, sequence, pace,
and setting.” See Effie Film, 909 F. Supp. 2d at 292 (first quoting Knitwaves,
71 F.3d at 1004, then quoting Williams v. Crichton, 84 F.3d 581, 588 (2d Cir.
1996)). Under either analysis, the Court finds no substantial similarity.
In arguing that Defendants have infringed his copyright in the Book,
Plaintiff provides what he deems to be “an exhaustive analysis and examination
of the [F]ilm and [B]ook, which outlines the substantial similarities between the
two works.” (AC ¶ 59(a)-(mm)). While the Court has carefully reviewed that
22

analysis (along with the works themselves), the Court groups Plaintiff’s
arguments for ease of analysis, rather than marching seriatim through each of
the purported similarities identified by Plaintiff. As explained below, those
similarities relate to uncopyrightable material. Further, because the Court’s
substantial similarity analysis must be “principally guided” by the “total
concept and overall feel” of the works as examined by the Court through use of
its “good eyes and common sense,” Peter F. Gaito, 602 F.3d at 66 (internal
quotation marks omitted), the Court concludes with a discussion about the
overall concept and feel of the works.
i.

Plaintiff’s Claims of Similarity

Most of the purported substantial similarities identified by Plaintiff are
unprotectable elements because they concern facts, real people, and historical
events. (See, e.g., AC ¶ 59(a), (b), (h), (i), (j), (k), (l), (m)). To take one example,
Plaintiff argues that the scene in the Film wherein Nintendo’s Arakawa
introduces Rogers to the Game Boy is substantially similar to his Book’s
discussion of the development of the Game Boy and Rogers’s exposure to it.
(See id. ¶ 59(j)). Plaintiff highlights that both works refer to the Game Boy, its
revolutionary use of only four standard batteries to provide users with hours of
gameplay, and its secret development in Nintendo’s lab. (Id.; see Book 167-75;
Film 0:18:57-0:22:05). But Nintendo’s development of the Game Boy, and
Arakawa’s decision to show the Game Boy to Rogers, are facts, as evidenced by
Plaintiff’s description of those events in his non-fiction Book.

23

What is more, the Film does not misappropriate the Book’s unique
expression of those facts. In the Book, Plaintiff describes the Game Boy as the
“secret” of Hiroshi Yamauchi, Nintendo’s president, and the “signature
creation” of Gunpei Yokoi, and explains that it was being developed in the
“depths of Nintendo’s oldest idea lab, named R&D1.” (Book 167). Plaintiff
provides descriptions of Yamauchi and Yokoi, as well as Arakawa, the
president of Nintendo of America and Yamauchi’s son-in-law, and some of their
previous successes, including the Game & Watch series, Donkey Kong, and the
Mario Bros. series. (Id. at 167-69). The Book goes on to describe that Arakawa,
while “[h]osting Rogers in Kyoto … could not help but offer his friend[, Rogers,]
an early look at the Game Boy hardware.” (Id. at 170). When Rogers saw the
Game Boy, “the wheels started turning in his head,” because it was unlikely
that any competitors had ever considered licensing the rights for Tetris for a
handheld console like the Game Boy. (Id.). In the Book, Rogers pitched Tetris
to Arakawa and is quoted as saying, “[i]f you want everyone to play, mothers,
fathers, brothers, sisters,” Nintendo should package Tetris with the Game Boy.
(Id. at 171). Further, the Book discusses how Arakawa was already aware of
(and impressed by) Tetris when Rogers pitched it for the Game Boy, as Arakawa
had seen it months earlier at CES in 1988. (Id.). Arakawa had put his “inhouse engineers to work producing their own prototype version of Tetris to
work with the Game Boy hardware” and had begun “forming a plan to find
someone outside the company” who could get the handheld rights to Tetris.
(Id. at 174-75). He had also informed Howard Lincoln, Nintendo’s counsel, that
24

he planned to ask Rogers “to track down the Russian rights on their behalf.”
(Id. at 175).
By contrast, in the Film, Rogers takes a business trip to Nintendo’s
offices in Seattle, Washington. (See Film 0:19:00). There, Arakawa and
Lincoln introduce themselves to Rogers and force him to sign an NDA because
they “don’t trust [him].” (Id. at 0:19:09-0:19:39). Then, Arakawa and Lincoln
reveal the Game Boy. (Id. at 0:19:45). Rogers asks whether they will package
the Game Boy with Mario and Arakawa responds, “Yes, it’s our best brand.”
(Id. at 0:20:55-0:20:59). Rogers does some quick programming, shows
Arakawa and Lincoln Tetris on the Game Boy, and tells them, “Gentlemen, if
you wanna sell a couple hundred thousand Game Boys to little kids, package
them with Mario. But if you want to sell millions of Game Boys to absolutely
everyone, young and old, around the world, package it with Tetris.” (Id. at
0:21:10-0:22:40). Arakawa and Lincoln look at one another, and then Rogers,
and ask him, “[c]an you get us the rights?” (Id. at 0:21:57-0:22:04).
While the two works cover the same topic (Nintendo’s development of the
Game Boy) and the same event (Arakawa’s showing Rogers the Game Boy for
the first time), the expression of these facts is markedly different in the Book
and the Film. The Book provides additional information about the people
involved and other games produced by Nintendo, like Donkey Kong, which are
not discussed or alluded to in the Film. And the Film deviates from the facts
presented in the Book by depicting the meeting as having occurred in Seattle,
not Kyoto, and making it seem like Rogers introduced Arakawa to Tetris, and
25

that the two did not have a preexisting relationship. The Film’s portrayal
makes Rogers the visionary, playing into its overall narrative that Rogers is the
hero, whereas the Book indicates that, with regard to handheld rights for the
Game Boy, Arakawa had the master plan to conscript Rogers into acquiring
handheld rights on Nintendo’s behalf.
Other purported substantial similarities that Plaintiff identifies include
the use of Pajitnov’s middle name in both the Book and the Film (AC ¶ 59(c)),
and the way Robert Stein’s character is portrayed (id. ¶ 59(g)). But “the
prohibition on copyrighting historical facts necessarily extends to control over
interpretations of a historical [figure].” Effie Film, 909 F. Supp. 2d at 310.
“The bar for substantial similarity in a character” is especially high “where
characters in a disputed work are based on actual historical figures.” Id.
(internal quotation marks omitted). Therefore, the Film’s use of Pajitnov’s
middle name and its accurate-to-real-life portrayal of Stein’s appearance do not
constitute substantial similarities in the copyright infringement analysis.
Plaintiff attempts to salvage his copyright infringement claim by noting
that certain factual events discussed in his Book and portrayed in Defendants’
Film were discovered through his original research. (See e.g., AC ¶ 59(a), (j),
(ee)). For example, Plaintiff identifies the section in his Book wherein he
describes that Pajitnov invited Rogers to his Moscow apartment after a
negotiation session at ELORG, and Pajitnov showed Rogers his original
programming work. (AC ¶ 59(ee); Book 185). Plaintiff points out that the Film
also depicts the programmers’ first meeting and their time together at
26

Pajitnov’s apartment. (AC ¶ 59(ee); Film 0:38:25-0:41:08, 0:52:10-0:57:32). In
his Amended Complaint, Plaintiff explains that he learned that Rogers was
invited to Pajitnov’s home through an interview that he conducted with Pajitnov
and argues that the Film “uses the scene in a substantially similar wa[y] as
depicted in the [B]ook.” (AC ¶ 59(ee)). However, the argument fails.
As previously discussed, factual events are unprotectable elements. That
Plaintiff explains how he came to learn of this factual event does not change
the analysis. In this Circuit, “true events” are not entitled to copyright
protection, “even if they are discovered through original research.” See Walker,
784 F.2d at 49. Only the expression of a true event is protectable. See id.
Here, the scene in the Film expresses the factual event differently than in the
Book. The Book simply states that Pajitnov and Rogers ended up toasting
“their good fortune at meeting each other the traditional Russian way, with
vodka.” (Book 185). In the Film, Rogers and Pajitnov first spend time together
in Pajitnov’s apartment, and later drink together at an illegal night club, where
they sing and dance to American music and drink with Levi’s-jean-wearing
Russians who express their desire for freedom. (Film 0:52:10-1:00:43).
Whereas the Book expresses the programmers’ friendship as being established
through Rogers’s adoption of a Russian custom, the Film expresses it as a
cross-cultural event and extension of American influence in the Soviet Union.
Similarly, Plaintiff claims that the Film’s opening scene is substantially
similar to Chapter 13 of his Book. (AC ¶ 59(a)). Both the Film and Book
portray the Computer Electronics Show in Las Vegas. In the Book, Plaintiff
27

describes a “cacophony of lights and sounds,” “[l]ong halls” and “a sea of tents,
tables, signs, and booths.” (Book 137). Plaintiff claims that “[t]his description
of CES from [his Book] was created by [him] for the [B]ook, and is based on his
experience from years of going to CES, and what CES was like from [his] own
experience and original expression.” (AC ¶ 59(a)). Plaintiff highlights that the
Film also depicts the “lights and sounds of Las Vegas” and the “interior of the
bustling Las Vegas Convention Center during the annual CES.” (Id.; see also
Film 0:00:53-0:02:49). But Plaintiff’s claim that the Film’s CES scene is
substantially similar to his Book fails for three reasons. First, as with
Plaintiff’s other claimed similarities, this one arises from a historical fact —
CES is an annual show for computer games, and in 1988, Tetris was being
exhibited there. (See Book 137-40). Second, the scene in the Film and the
chapter in the Book each express the fact differently. In the Book, Rogers is
described as being “far from … knocked out” by his first experience playing
Tetris at CES. (Id. at 139). But, setting to the side his own indifference, Rogers
noticed that there was a constant line for the game, and perceived a potential
business opportunity there. (Id. at 137-40). In contrast, in the Film, Rogers is
introduced to the game by his sales representative who has been drawn away
from their Go sales booth by Tetris. (Film 0:01:30-0:02:05). Excited by the
game, she urges Rogers to try Tetris. Based on that experience at CES,
Rogers’s character later emphatically describes Tetris as “the most beautiful
thing [he] had ever seen.” (Id. at 0:02:50). Both works describe the same
factual event (Rogers’s trying Tetris for the first time), but the Film sets the
28

scene up differently than the Book by utilizing a fictional sales associate
character to draw Rogers over to the Tetris booth. Further, the Film deviates
from Rogers’s reported initial reaction, making it seem like Rogers instantly fell
in love with the game. Third, the “lights and sounds of Las Vegas” are scènes à
faire; they are stock elements that would typically be used in a work depicting
“Sin City.”
Finally, as for Plaintiff’s claim that the Film is substantially similar to his
Book because both employ Cold War themes (see AC ¶ 59(n)), the Court finds
that the Film’s use of Cold War references constitutes unprotectable scènes à
faire. It would be “virtually impossible” to write or create a film about the
monetization of a product coming out of the Soviet Union in the 1980s without
including Cold War elements like state surveillance, honeypot schemes, and
the like. See Hoehling, 618 F.2d at 979. Much like the antagonists in the Book
and the Film who tried to assert rights over versions of Tetris that they did not
actually have prior to the ELORG negotiations, Plaintiff is seeking to assert a
right to the history of Tetris, the real-life people who contributed to its
distribution in the West, and its historical association with the Soviet Union
and the Cold War, which he cannot do.
ii.

Total Concept and Overall Feel of the Two Works

Having determined that none of the specific similarities identified by
Plaintiff amounts to a substantial similarity between the two works because
they concern unprotectable elements, the Court zooms out and more broadly
examines whether there are “similarities in such aspects as the total concept
29

and feel, theme, characters, plot, sequence, pace, and setting” between the
works at issue. See Effie Film, 909 F. Supp. 2d at 292 (internal quotation
marks omitted). As discussed, the two works share many of the same
characters, plot points, and settings. They both feature Rogers and Pajitnov as
major characters and depict the negotiation sessions at ELORG. But the Court
finds that the total concept and feel of the works differ substantially.
Plaintiff’s work, by its own account, presents “[t]he complex history of
Tetris” by relying on the historical record and information gleaned from
interviews he conducted. (Book 247-49). Told in a third-person narration
style, the Book reads like a comprehensive account of the history of the game
Tetris. The three-way race among Rogers, Stein, and Kevin Maxwell for the
rights to license Tetris is certainly the overarching story driving the plot
forward. That story is presented in a way that is at times suspenseful. But the
Book also takes care to provide extensive detail about the real people involved
in the race for the rights to Tetris and the burgeoning world of videogaming into
which Tetris was born. Whole chapters are dedicated to providing that
background. (See Book 13-20 (Chapter 2, describing Pajitnov’s background),
21-28 (Chapter 3, describing Rogers’s background), 29-36 (Chapter 4,
describing how Pajitnov and Rogers each worked to gain greater access to
computers throughout their early lives), 37-51 (Chapter 5, describing Rogers’s
first big gaming success, The Black Onyx), 53-71 (Chapter 6, describing
Pajitnov’s work troubleshooting the early versions of Tetris)). The sequence of
the Book is therefore sporadic; many of the events do not happen in order.
30

Further, Plaintiff intersperses so-called “Bonus” chapters, which do not
advance the story of the race to the Soviet Union for the rights to Tetris
whatsoever. (See id. at 73-85 (Chapter 7, describing the addictive nature of
Tetris), 149-59 (Chapter 14, discussing Tetris’s programming and the
mathematics behind it, and comparing Tetris to other video games like PacMan), 229-35 (Chapter 22, discussing the use of Tetris as a medical treatment
for people with PTSD)). Similarly, the Tetris facts interspersed throughout the
Book in small gray boxes break up the story and reinforce an informative tone,
not unlike a Wikipedia article. (See, e.g., id. at 173).
In contrast, the Film is largely confined to the three-way race for the
rights to Tetris. The tone of the Film is not informative. Rather, it is
suspenseful, action-packed, and clearly dramatized. As discussed, the Film
begins with Rogers’s explanation to a bank manager (a fictional character not
mentioned in the Book) of his plan to monetize Tetris in Japan. After attending
CES and becoming instantly mesmerized by Tetris, Rogers thinks he has
bought the rights to the game for console and arcade in Japan and is pleading
for additional funding to make this venture work. He literally bets his house
on it (without first consulting his wife). (See Film 0:11:55-0:13:25). The rest of
the Film largely proceeds as a linear narrative of the three-way race: Rogers is
told by Kevin Maxwell that the arcade rights have been sold to someone else,
and then Rogers’s offer to buy handheld rights from Stein (in front of Robert
Maxwell and Kevin Maxwell) is thwarted, leading Rogers to decide to go to the
Soviet Union himself. (See id. at 0:15:35-0:28:41). While in the Soviet Union,
31

Rogers is surveilled, threatened, and physically assaulted by members of the
KGB. (See, e.g., id. at 1:01:32-1:02:06). His translator, a real-life character, is
depicted as an undercover member of the KGB, who tries to seduce Rogers to
capture a compromising photo of him. (See id. at 1:16:40). Back in Japan,
Rogers’s family is also threatened by members of the KGB. (See id. at 1:00:491:01:58). As the negotiation sessions at ELORG carry on, Trifonov (a purely
fictional character) works in the background to try to steer the Tetris rights into
the hands of the Maxwell family, because that deal would result in his receiving
a large bribe. (See, e.g., id. at 0:48:45-0:51:06). The Film culminates in a
high-speed car chase through Moscow as Trifonov tries to stop Rogers,
Arakawa, and Lincoln from boarding their flight out of the Soviet Union with
the worldwide rights to Tetris for home consoles and handheld devices. (See
id. at 1:39:10-1:47:16).
Ultimately, the Court finds that Defendants’ Film is not substantially
similar to Plaintiff’s Book and that Plaintiff has failed to allege that Defendants
misappropriated the way he selected, coordinated, and arranged the facts in
his Book. Where the Book’s tone is informative, the Film’s is suspenseful and
dramatic, at times deviating from the true facts underlying the story and going
so far as to invent an entire KGB subplot, which takes up significant screen
time, to create that theatrical effect. While the Book jumps through time to
provide as much background and context as possible for the people and events
it portrays, the Film proceeds largely chronologically. And while the Book
breaks up the overarching story to provide general information about the Tetris
32

game itself, the Film consistently pushes the three-way-race narrative forward,
using KGB threats and violence, car chases, and crescendoing American music
to create a fast-paced rendering of the story. Review of both Plaintiff’s specific
claims of similarity and the full works themselves satisfies this Court that the
Film is far from a “wholesale usurpation of another’s expression” that would be
actionable in a copyright case involving a historical work and a work of
historical fiction. See Hoehling, 618 F.2d at 974. Plaintiff’s copyright
infringement claim is dismissed with prejudice. 4 The Court now turns to
Plaintiff’s unfair competition and tortious interference claims.
C.

Unfair Competition
1.

Applicable Law

“[T]he essence of an unfair competition claim is that the defendant has
misappropriated the labors and expenditures of another and has done so in
bad faith.” Carson Optical, Inc. v. Prym Consumer USA, Inc., 11 F. Supp. 3d
317, 329 (E.D.N.Y. 2014) (alteration in original) (internal quotation marks
omitted). But state-law claims are preempted by the Copyright Act when
“[i] the particular work to which the state law claim is being applied falls within
the type of works protected by the Copyright Act under [17 U.S.C. §§ 102 and
103],” and “[ii] the state law claim seeks to vindicate legal or equitable rights

4

The Court has also considered Plaintiff’s argument that Defendants’ motion to dismiss
should be denied because they have not produced the screenplay underlying the Film.
(Pl. Opp. 8-10, 16). But such production is not required for the Court to rule as a
matter of law on the issue of substantial similarity. In fact, the Second Circuit has
stated that “the finally released version of [a] film [is] the best and most relevant
evidence on substantial similarity.” Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d
Cir. 1986).

33

that are equivalent to one of the bundle of exclusive rights already protected by
copyright law under 17 U.S.C. § 106.” Nat’l Basketball Ass’n v. Motorola,
Inc., 105 F.3d 841, 848 (2d Cir. 1997) (internal quotation marks omitted). “The
first prong of this test is called the ‘subject matter requirement,’ and the
second prong is called the ‘general scope requirement.’” Briarpatch Ltd., L.P. v.
Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004) (quoting Nat’l
Basketball Ass’n, 105 F.3d at 848).
For a work to meet the subject matter requirement, it “need not consist
entirely of copyrightable material … but instead need only fit into one of the
copyrightable categories in a broad sense.” Briarpatch Ltd., L.P., 373 F.3d at
305. “The general scope requirement is satisfied only when the state-created
right may be abridged by an act that would, by itself, infringe one of the
exclusive rights provided by federal copyright law.” Id. “Even if a claim
otherwise satisfies the general scope requirement, a claim is not preempted if it
‘include[s] any extra elements that make it qualitatively different from a
copyright infringement claim.’” ML Genius Holdings LLC v. Google LLC, No. 203113, 2022 WL 710744, at *3 (2d Cir. Mar. 10, 2022) (summary order)
(alteration in original) (quoting Briarpatch Ltd., 373 F.3d at 305). The Second
Circuit “take[s] a restrictive view of what extra elements transform an otherwise
equivalent claim into one that is qualitatively different from a copyright
infringement claim,” Briarpatch Ltd., 373 F.3d at 306, and “has broadly
precluded unfair competition claims involving misappropriation of a plaintiff’s
creative works, suggesting as a general position that such claims satisfy the
34

‘general scope’ requirement for preemption,” Wnet v. Aereo, Inc., 871 F. Supp.
2d 281, 292 (S.D.N.Y. 2012).
2.

The Court Dismisses Plaintiff’s Unfair Competition Claim
Because It Is Preempted by the Copyright Act

Plaintiff claims that Defendants Maya Rogers, The Tetris Company, and
Noah Pink “engaged in unfair competition through fraud or bad faith, and
misappropriated the labors and expenditures of [Plaintiff] for their own unjust
and unlawful gain, and at the expense of [Plaintiff]’s own opportunities.” (AC
¶ 84). Further, Defendants Maya Rogers and The Tetris Company are alleged
to have “refused to license any Tetris IP related to any film or television projects
being pursued or related to [Plaintiff’s B]ook.” (Id. ¶ 83).
This claim satisfies the two-prong test for preemption. Plaintiff’s Book
meets the subject matter requirement because it falls within the type of works
protected by the Copyright Act. The general scope requirement is also
satisfied, because Plaintiff’s unfair competition claim is based on his allegation
that Defendants misappropriated his copyrighted work. In ML Genius Holdings
LLC, the Second Circuit found a similar unfair competition claim preempted.
There, the claim was based on an allegation that the defendants had wrongfully
copied material from the plaintiff’s website. Like the present case, the plaintiff
there had also alleged “bad faith,” but the Second Circuit found that such
allegations did not transform an otherwise equivalent claim. See ML Genius
Holdings LLC, 2022 WL 710744, at *5. That was because the plaintiff had not
alleged that the defendants had misappropriated the fruits of plaintiff’s labors
through fraud or deception; he had alleged that they had misappropriated by
35

taking information from plaintiff’s public website and later engaged in deceptive
behavior. Id. The same analysis holds true here. While Plaintiff offers
conclusory allegations that Defendants used deception to obtain access to his
Book, he also plainly alleges in the Amended Complaint that he voluntarily
sent the Book to the PR company for The Tetris Company, and that the Book
was released approximately seven years before the Film was released. (AC
¶¶ 39, 52, 56). Accordingly, Plaintiff’s unfair competition claim is preempted.
Even if Plaintiff’s unfair competition claim were not preempted, it would
still be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). “[T]he
Court’s determination that there is no substantial similarity between the [two
works] precludes a finding under New York law … that the public will be
confused as to the identity of the [works], which is necessary for a finding of
unfair competition in New York.” Baker v. Coates, No. 22 Civ. 7986 (JPO)
(SLC), 2023 WL 6007610, at *22 (S.D.N.Y. July 26, 2023) (internal quotation
marks omitted), report and recommendation adopted, No. 22 Civ 7986 (JPO),
2023 WL 6289964 (S.D.N.Y. Sept. 27, 2023), aff’d, No. 23-7483, 2024 WL
5066467 (2d Cir. Dec. 11, 2024) (summary order). Here the Court has made
such a determination. The Court dismisses Plaintiff’s unfair competition claim
with prejudice.
D.

Tortious Interference with Business Relations
1.

Applicable Law

Under New York law, “[t]o prevail on a claim for tortious interference with
business relations … a plaintiff must show that ‘[i] the plaintiff had business
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relations with a third party; [ii] the defendant interfered with those business
relations; [iii] the defendant acted for a wrongful purpose or used dishonest,
unfair, or improper means; and [iv] the defendant’s acts injured the
relationship.” 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 261 (2d Cir. 2015)
(quoting Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 547 F.3d 115, 132 (2d
Cir. 2008)). “Unlike a claim for tortious interference with contract … a claim
for tortious interference with business relations requires a plaintiff to show, as
a general rule, that the defendant’s conduct ... amount[ed] to a crime or an
independent tort.” Id. at 262 (alteration in original) (internal quotation marks
and citation omitted). Finally, “[t]he statute of limitations for tortious
interference with business relationships is generally three years.” Gym Door
Repairs, Inc. v. Young Equip. Sales, Inc., 331 F. Supp. 3d 221, 239 (S.D.N.Y.
2018).
2.

The Court Dismisses Plaintiff’s Tortious Interference with
Business Relations Claim Because It Is Time-Barred

Defendants argue that Plaintiff’s claim for tortious interference with
business relations is time-barred, as Plaintiff alleges that his lawyer withdrew
from pursuing film and television opportunities after the Cease-and-Desist
Letter was sent to Plaintiff in 2016, and yet Plaintiff did not file suit until 2023.
(Def. Br. 28-29). In his opposition, Plaintiff offers no response whatsoever to
the argument that this claim should be dismissed, thereby abandoning the
claim. See Wright v. City of New York, No. 23 Civ. 3149 (KPF), 2024 WL
3952722, at *3 (S.D.N.Y. Aug. 27, 2024) (collecting cases for proposition that a
plaintiff’s failure to respond to an argument for dismissal amounts to
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abandonment of the claim). In any event, the Court agrees with Defendants
that this claim is time-barred. “The time on [a tortious interference] claim
begins to run when a defendant performs the action (or inaction) that
constitutes the alleged interference. It does not commence anew each time a
plaintiff is unable to enter into a contract, unless the defendant takes some
further step.” Thome v. Alexander & Louisa Calder Found., 890 N.Y.S.2d 16, 30
(1st Dep’t 2009). Plaintiff has not taken a further step beyond his 2016 ceaseand-desist letter.
Further, even if Plaintiff’s claim were not time-barred, it would still fail.
Defendants’ Cease-and-Desist Letter, incorporated by reference in the
Complaint, demonstrates that The Tetris Company requested that Plaintiff
cease and desist his pursuit of film and television projects because it conflicted
with the project the company itself was already pursuing. (See Cease-andDesist Letter). That is not a wrongful purpose. See Radiancy, Inc. v. Viatek
Consumer Prods. Grp., Inc., 138 F. Supp. 3d 303, 328 (S.D.N.Y. 2014), as
amended (Apr. 1, 2014) (“[A] trademark owner is entitled to advise others of his
trademark rights, to warn others that they or others are or may be infringing
his rights, to inform others that he is seeking to enforce his rights through legal
proceedings, and to threaten accused infringers and their customers with suit.”
(internal quotation marks omitted)). Accordingly, the Court dismisses
Plaintiff’s tortious interference claim with prejudice.

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CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in
full. The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
SO ORDERED.
Dated:

March 6, 2025
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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