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IP/Entertainment Case Law Updates

Dunn v. Brown, et al., USDC, D. Massachusetts

District court granted defendants’ motion to dismiss the plaintiff’s copyright claim (converting the motion to one for summary judgment), finding that plaintiff’s book The Vatican Boys was not substantially similar to defendants’ book and movie The DaVinci Code. The court rejected the plaintiff’s argument that substantial similarity could be based on the assertion of a basic “thematic or structural similarity.” The court found no authority for such an analysis; instead it applied the traditional analysis of focusing on the books’ characters, plot devices, settings, tone and theme.

Of note for defendants in this type of case, the court concluded that no discovery or expert testimony was needed, since the court could simply examine the two works for similarity, and could apply the “ordinary observer” test without such discovery or expert testimony. The court also noted that neither ideas nor facts can be copyrighted, quoting with approval the Second Circuit decision in Hoehling v. Universal City Studios, Inc., that “the scope of copyright in historical accounts is narrow indeed….”

In analyzing the two works, the court found that The Vatican Boys is a novel about a multi-million dollar banking fraud, orchestrated by the Catholic organization Opus Dei. The lead female character is a recovering drug addict who double crosses Opus Dei. The sub-plot involves a search for a sacred cloth that will, when joined with another cloth, lead to the Second Coming. The novel takes place from 1964 to 1997 in Paris, London, Vermont, Ontario, Jerusalem, Madrid, Toronto, Martha’s Vineyard, Monte Carlo and Tibet. The lead male character is a “greedy, macho rat” and the lead female character cuts off contact with him. In contrast, The DaVinci Code takes place over several days in Paris, London and Scotland. The lead male character is a likeable Harvard professor and the female character is a cryptographer and descendant of Jesus Christ who is a “resourceful and reliable sidekick.” The villain in The DaVinci Code is a cultivated and calculating killer who has no parallel in The Vatican Boys, and The DaVinci Code is “deeply skeptical of orthodox Catholicism.” The court found that “far from being similar, the characters, plot devices, settings, pacing, tone and theme of the two books are entirely different.” Applying the “ordinary observer” test to the two works, the court concluded that the books are not substantially similar.