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IP/Entertainment Case Law Updates

Green v. Harbach

Second Circuit affirms district court’s dismissal of copyright infringement claim against author of novel The Art of Fielding, finding that alleged similarities in works are unprotectable abstract ideas or scènes à faire.

Plaintiff Charles C. Green, author of an unpublished manuscript, “Bucky’s 9th,” sued defendant Chad D. Harbach for copyright infringement, alleging that the 2011 best-selling novel The Art of Fielding copied the “Bucky’s 9th” premise, setting, plot, structure and other “startlingly shared content.

Plaintiff’s work tells the story of Kenesaw “Bucky” Bucks, a former star pitcher at Princeton University. Struggling after the unexpected suicide of his father and encouraged by an old friend of his father’s, Bucky re-enrolls in school at a small university for the deaf, where he plays baseball again. The novel focuses on Bucky’s attempts to cope with his father’s death and conceal his false identity at his new school. Plaintiff alleged that between 1994 and 2008, he created multiple iterations of the manuscript and submitted these works to various individuals in the entertainment and publishing industries, and he submitted a version of “Bucky’s 9th,” which he registered with the Copyright Office, to various publishers around 2006 and 2007.

Defendant’s novel, which he began working on in 2000 and published in 2011, tells the story of Henry Skrimshander, who joins the baseball team at a small liberal arts college and becomes a nationally recognized and recruited shortstop.

In a July 2018 order and opinion, the district court granted defendant’s motion to dismiss and dismissed the case in its entirety, finding no substantial similarity between the two works because the purported similarities were “either abstract ideas, scenes a faire, or trivial details insignificant to … either of the two works” and that the works completely diverged with respect to “why and how the new player … arrived at the team” and “the nature of the new player’s professional and personal development.” (Read our summary of the district court decision here.)

On plaintiff’s appeal, the Second Circuit reviewed the district court’s ruling de novo and held that the district court did not err in its “well-reasoned decision” and conclusion that The Art of Fielding is not substantially similar to “Bucky’s 9th” because the alleged similarities do not enjoy copyright protection and the “total concept and feel” of each work are substantially different.

The court of appeals also rejected plaintiff’s argument that the district court erred in denying his motion to amend his complaint to add a statistical analysis purportedly showing that a certain baseball scene has a small chance of occurring. Noting the “well-established general rule” to limit the use of expert testimony in determining substantial similarity, the court found that amendment of plaintiff’s complaint would be futile.

Summary prepared by Melanie Howard and Mary Jean Kim