United States District Court, D. Massachusetts
Debra Feldman, Plaintiff, Pro se, Salem, MA.
For Shonda Rhimes, Jenna Bans, Ships at a Distance, Shondaland, Minnesota Logging Company, American Broadcasting Companies, Inc., The Walt Disney Company, Touchstone Television Productions, International Creative Management, Foley Hoag LLP, Michael Boudett, Jeffrey Follett, Paul Bork, Elisa Nethercott, Defendants: Jeffrey S. Follett, LEAD ATTORNEY, Michael P Boudett, Nicole Kinsley, Paul Bork, Foley Hoag LLP, Boston, MA.
For Davis Wright Tremaine LLP, Defendant: Deborah A. Adler, PRO HAC VICE, Davis Wright Tremaine LLP, San Francisco, CA; Elizabeth A. McNamara, PRO HAC VICE, Davis Wright Tremaine, LLP, New York, NY; Margaret M. Pinkham, Pinkham Busny LLP, Woburn, MA.
For Elizabeth McNamara, Monica Pa, Defendants: Deborah A. Adler, PRO HAC VICE, Davis Wright Tremaine LLP, San Francisco, CA; Elizabeth A. McNamara, PRO HAC VICE, Davis Wright Tremaine, LLP, New York, NY.
For Brown Rudnick LLP, Elizabeth A. Ritvo, Steven Veenema, Defendants: Elizabeth A. Ritvo, Brown Rudnick Berlack Israels LLP, Boston, MA; Jessica T. Lu, Brown Rudnick LLP, Boston, MA.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS
Richard G. Stearns, UNITED STATES DISTRICT JUDGE.
In this copyright action, plaintiff author Debra Feldman alleges that the 2011 ABC television medical drama, Off the Map, infringes the two books and two manuscripts in her Overlap quadrilogy, and in particular, the unpublished The Red Tattoo. The court, having considered the allegations of the Amended Complaint, the excerpts of The Red Tattoo and a companion manuscript Days of Grace submitted by Feldman, and having reviewed, yes, watched (albeit with diminishing anticipation) all thirteen episodes of Off the Map, finds that Feldman has failed to make a plausible claim of probative similarity between her works and defendants' creation.
To survive a motion to dismiss, the " [f]actual allegations [of a complaint] must be enough to raise a right to relief above the speculative level." Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " To establish
infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).
To show actionable copying and therefore satisfy Feist's second prong, a plaintiff must first prove that the alleged infringer copied plaintiff's copyrighted work as a factual matter; to do this, he or she may either present direct evidence of factual copying or, if that is unavailable, evidence that the alleged infringer had access to the copyrighted work and that the offending and copyrighted works are so similar that the court may infer that there was factual copying (i.e., probative similarity).
Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813 (1st Cir. 1995), aff'd 516 U.S. 233, 116 S.Ct. 804, 133 L.Ed.2d 610 (1996).
To determine whether probative similarity exists between two works, " the Court should ask whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work. . . . In doing so, the Court should note similarities and dissimilarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting." Blakeman v. The ...