It’s a quiet afternoon and you are sitting at your desk thinking about your next book. After all, your last work has been quite successful despite being published in the midst of a pandemic thanks to your being able to develop a marketing plan using ZOOM and other “outside the box” techniques to reach your audience.

Now you’re thinking sequel … no prequel first … then sequel … when the doorbell rings and, a few minute later, you’re reading some legal papers charging you with copyright infringement.

How do you feel? Well, you would probably have the same reaction to this “service of process” as Tomi Adeyemi did when she learned Stella Amanze was suing her in a federal district court alleging copyright infringement based on Amanze’s representation that Adeyemi’s copyrighted novel, Children of Blood and Bone, copied characters, plots, and themes from Amanze’s copyrighted novel Banished.

If you are accused of copyright infringement when your work is entirely unique, this article will be helpful for you. If you think someone else has copied your work based simply on a theme, or other general details, this article may save you thousand of dollars in legal fees.

In response to Adeyemi’s motion to dismiss Amanze’s complaint, the district court, explaining that the resolution of Adeyemi’s motion to dismiss Amanze’s complaint turned on whether the two works are substantially similar, said that a “detailed examination of the works themselves” was required.

After thoroughly examining each of the books, the district court concluded that “at anything but the most abstract levels of generality, the two works are nothing alike, let alone substantially similar,” and granted Adeylemi’s motion to dismiss Amanze’s complaint.

Amanze appealed the district court’s ruling to the Second Circuit United States Circuit Court of Appeals.

The Circuit Court, however, said it agreed with “the thorough and well-reasoned opinion of the district court” and, for substantially the same reasons, affirmed the lower court’s ruling, explaining that its “independent review of Banished and Children reveals that the district court correctly determined that the novels are not substantially similar as a matter of law.”

The Circuit Court explained that the books contain entirely distinct plots, characters, themes, and settings, that the overall concept and feel are utterly different and that the only apparent similarities between the books involving magic, love, royalty, and evil are “unprotectable abstract ideas” and under the doctrine of scènes à faire, are “unprotectable elements flowing naturally from a work’s theme rather than from the author’s creativity.”

In addition, the court noted that, while Amanze argued that she has also met the requirements of the “fragmented literal similarity test,” which focuses upon copying of direct quotations or close paraphrasing in contrast to, or in addition to, showing that the total concept and feel of the books are similar, she failed to identify any examples of “direct quotations or close paraphrasing,” as required to meet that test. Further, said the Circuit Court, “Each of Amanze’s specific allegations of similarity raised on appeal fail because those examples do not demonstrate any protectable similarity.”

The opinion then addresses a number of key elements considered by courts in adjudication copyright infringement cases.

The complaint must “state a claim to relief that is plausible on its face,” explaining that a claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

“Copyright infringement occurs where a plaintiff owns a valid copyright and another person copies its constituent elements.” Observing that this case thus turns upon whether, “in the eyes of the average lay observer, [Children] is substantially similar to the protectable expression in [Banished],” in the event the similarity concerns only noncopyrightable elements of a plaintiff’s work, or the works are not substantially similar as a matter of law, dismissal is appropriate.

Significantly, the decision notes that “the axiom of copyright law that the protection granted to a copyrightable work extends only to the particular expression of an idea and never to the idea itself.”

Accordingly, opined the Circuit Court, in evaluating literary works, judicial tribunals “assess similarities in such aspects as plot, characters, setting, and themes,” and takes special care to compare “the contested [work’s] total concept and overall feel with that of the allegedly infringed work, as instructed by [its] good eyes and common sense.”

Comparing the plots in the two works, the court found that their plots share virtually nothing in common, opining that Children is structured as a traditional quest narrative, with its young protagonists undertaking a journey, and overcoming various obstacles, while the protagonists in Banished do not undertake a journey, and overcome their entirely distinct obstacles in order to accomplish entirely distinct goals.

Other alleged similarities, such as characters falling in love, betrayal, persecution, royalty, missions, imprisonment, fleeing antagonists, magical powers, escape scenes, and spectral visions are likewise unprotectable ideas expressed in strikingly dissimilar ways, and constitute nothing more than “paradigmatic scènes à faire of fairytales and fantasies,” among other genres. In the words of the Circuit Court, “The mere use of ‘paranormal abilities,’ including telepathy, telekinesis, clairvoyance, and the ability to manipulate fire, cannot be protected” by copyright.

The Circuit Court also concluded that the characters of the two works were not substantially similar, rejecting Amanze’s blanket assertion that nearly every character in Banished was “changed to” a character in Children, and found “no protectable similarities between the settings of the two works.” Although both authors incorporated various Nigerian cultural themes in their works, the court held that such themes are not copyrightable and the “total concept and overall feel of the two works are markedly distinct.”

In sum, concluded the Circuit Court, Banished and Children are vastly different works that share next to nothing in terms of plot, characters, setting, themes, total concept, or overall feel and that it had little trouble finding that the two works were not substantially similar as a matter of law.

The bottom line: The Circuit Court found that Amanze failed to plausibly allege the misappropriation of protectable expression and granted Adeyemi’s motion to dismiss in its entirety.

For those interested, the complete text of the District Court’s decision is posted on the Internet at https://www.leagle.com/decision/infdco20190705c37.

The complete text of the Circuit Court’s decision is posted on the Internet at https://www.leagle.com/decision/infco20201005058.

Harvey Randall formerly served as Principal Attorney, New York State Department of Civil Service. He also served as Director of Personnel for the State University of New York system and as Director of Research, Governor’s Office of Employee Relations. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School. Randall maintains a law blog of the same name focusing on New York Public Personnel Law.