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IP/Entertainment Case Law Updates

Greenspan v. Random House, Inc.

Court dismisses with prejudice plaintiff’s claims of direct, contributory and vicarious infringement, finding no substantial similarity existed between plaintiff’s memoir and defendants’ book and film based on the book.

Plaintiff Aaron Greenspan brought suit against defendants Random House, Inc., Benjamin Mezrich, and Columbia Pictures Industries, Inc., alleging direct, contributory and vicarious copyright infringement, and seeking damages and injunctive relief. Greenspan, who claims to have been one of the inventers of what is now Facebook while an undergraduate at Harvard University, authored Authoritas: One Student's Harvard Admissions and the Founding of the Facebook Era, and self-published the memoir in June 2008. He alleged that the book The Accidental Billionaires: The Founding of Facebook: A Tale of Sex, Money, Genius, and Betrayal, authored by Mezrich and published by Random House in July 2009, is an unauthorized derivative of Greenspan's book. He also alleged that The Social Network, the 2010 film based on Mezrich’s book and produced by Columbia Pictures, also infringes on Authoritas.

Plaintiff alleged similarities between the works, focused mainly on the accounts of meetings between then-president of Harvard Lawrence Summers and Harvard students. The meeting Greenspan describes in Authoritas involved him, while the meeting in The Accidental Billionaires and the film involved students Cameron and Tyler Winklevoss. Plaintiff’s alleged similarities included descriptions of waiting in the president’s reception area and the receptionist's conduct, Summers's office and his conduct and manner, the appearance and conduct of Summers's assistant, and the response of the students in the meetings. Plaintiff also alleged that an account of Mark Zuckerberg's statement in an Administrative Board hearing in the film is similar to his account of his own frustrations, as written in Authoritas. He also asserted that subtitles for the Authoritas and Accidental Billionaires both included the phrase “the founding of” Facebook and that two chapter titles in the books were either similar or identical. The district court granted defendants’ motion to dismiss, finding that plaintiff had failed to sufficiently allege substantial similarities between the works.

Plaintiff must establish both actual copying – that defendants copied the plaintiff's copyrighted material, and actionable copying – that the copying of the copyrighted material was so extensive that it rendered the infringing and copyrighted works substantially similar. On the element of actual copying, the court noted that plaintiff had alleged sufficient facts to establish that defendants had access to his work (he published Authoritas in June 2008 and it was accessible to the general public, Mezrich had contacted Greenspan regarding his knowledge of Facebook’s origins and Greenspan had referred Mezrich to the website for Authoritas, and Mezrich listed Authoritas as a secondary source in the bibliography of The Accidental Billionaires). Focusing its examination on the alleged probative similarities between the works, the court concluded that many of them did not involve copyrightable expressions. Neither the use of the “cliché” phrase “founding of” in the subtitles of the books, nor the use of “Harvard Yard” (a location) and “Veritas” (the Latin word for truth) in chapter headings deserved copyright protection. Similarly, the statement "the president will see you” – another clichéd expression – and fragmentary words and phrases such as "palpable" and "chubby" that Greenspan used in his description of the former president do not deserve protection.

Noting that ideas and facts are not copyrightable, but that plaintiff’s unique expressions of those ideas and facts are, the court parsed the protectable elements of plaintiff’s description of the meeting with Summers from the unprotectable facts and ideas underlying those expressions. For example, the idea of sitting and waiting for a meeting with Summers, and the fact that his office was located in Massachusetts Hall are not protected, but plaintiff’s original expression describing the couch in the waiting area and the location of Massachusetts hall within Harvard Yard should enjoy copyright protection. The pieces of furniture in Summers's office are unprotected facts, but plaintiff's expression of those facts through his choice of particular details would enjoy copyright protection. As to Greenspan's description of Summers's assistant, while the fact of her ethnicity is not protected, plaintiff's description of the assistant taking notes would be. The fragmented phrases that Greenspan wrote that Summers used ("what do you want me to do?" and "I don't see") are not protected, but Greenspan's expression of Summers's unwelcoming manner and inability to see the students' point of view would enjoy copyright protection. And the ideas that the students in the meeting would be upset at "the system" and frustrated at the anticipated punishment for exposing security flaws of the university would not be protected, although Greenspan's original expression of those ideas, his description of his own anger and frustration, would be.

After separating the protectable from the unprotectable elements in Greenspan’s work, the court concluded that the plaintiff's allegations, taken as true, might demonstrate a sufficient degree of similarity to allow it to find probative similarity, but that the alleged copying of from Authoritas was not sufficiently extensive to render the works "substantially similar," and therefore actionable. According to the court, the similarities between the works arose more from the underlying ideas rather than the expressions of those ideas. For example, the court noted that the idea of sitting in Massachusetts Hall waiting for the meeting with Summer appeared in both books, creating an impression of similarity, but that a comparison of the defendants' expression of that idea – describing the age of the couch and the location of Massachusetts Hall based on its proximity to another building and a statue – with the plaintiff's expression – describing the feel of the couch, the shape of Massachusetts Hall, and its location in proximity to Johnston Gate – did not show that the alleged copying was so extensive that an ordinary observer could conclude that the defendants unlawfully appropriated the plaintiff's expression. The court also found that the use of the desk, shelves, and computer in the descriptions of Summers’s office fell within the doctrine of scenes a faire as inherent characteristics of an office and did not support a plausible inference of infringement. In addition, defendants' choice to include details such as antique-looking side tables and an Oriental carpet, as compared to plaintiff's expression, which included the dark African masks, undercuts a finding of extensive copying.

The amount of the alleged copying, in the context of the works as a whole, was also insufficient to support a finding of substantial similarity. The court concluded: “Greenspan and the defendants use similar aspects to express the two different meetings with Summers, including describing the reception area, Summers's office, Summers's conduct and manner, Summers's assistant's appearance and conduct, and the students' responses in the meetings. However, there is no dispute that Greenspan's book and the defendants' works were describing two different meetings which took place at different times, involved different student participants and different subject matter. These meetings were but a very minimal part of the various works as a whole. In context, whatever similarity there may be, it is too quantitatively and qualitatively insignificant to be deemed ‘substantial.’ Greenspan has not alleged sufficient facts to establish that a reasonable, ordinary observer could conclude that the defendants unlawfully appropriated the plaintiff's original expressions.”

The court dismissed, with prejudice, plaintiff’s claim for copyright infringement. Absent a showing of direct copyright infringement, plaintiff’s claims for contributory or vicarious infringement also failed, and the court dismissed those with prejudice as well. Finally, the court dismissed, with prejudice, Greenspan’s claims of unfair competition and false advertising under the Lanham Act, as well as his state law defamation.