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IP/Entertainment Case Law Updates

DuBay v. King

Eleventh Circuit affirms summary judgment dismissal of copyright claims brought against Stephen King’s The Dark Tower novel series, adapted graphic novels and film, holding that The Dark Tower’s protagonist is not substantially similar to protagonist from plaintiff’s comic book series The Rook.

William DuBay and two other individuals created the comic book series The Rook in the 1970s, which sold more than 5 million copies between 1977 and 1983. DuBay’s nephew, claiming to own The Rook’s copyright by assignment, filed a copyright infringement action in the Middle District of Florida alleging that Stephen King’s The Dark Tower series of novels and related works infringed the copyright in The Rook. Specifically, plaintiff claimed that the main character in The Dark Tower series, Roland Deschain, was copied from Restin Dane, the protagonist in DuBay’s comic series.
King published the nine works comprising The Dark Tower series from 1982 to 2012, with the Roland Deschain character making his first appearance in The Gunslinger, the first novel in the series. Between 2007 and 2017, Marvel published graphic novels based on The Dark Tower. In 2017, Media Rights Capital, Imagine Entertainment and Sony Pictures Entertainment produced and released a film adaption. Plaintiff filed suit in 2017 over these works, 35 years after Roland Deschain’s introduction in The Gunslinger, asserting claims for direct and secondary copyright infringement based on the alleged character similarities.
The Rook series’ protagonist, Restin Dane, is a wealthy scientist and inventor who lives in a house shaped like a rook chess piece and travels through time with time machines of his own making to seek adventure and fight villains. He can be counted on to “do the right thing” and is, in the court’s words, a “traditional comic book hero.” The Dark Tower series centers on Roland Deschain’s pursuit of an elusive structure called the Dark Tower, the linchpin of the space-time continuum. As described by the court, Roland Deschain is an “anti-hero” who lacks the morality of a traditional hero and is willing to sacrifice those who get in his way. Deschain’s character arc throughout The Dark Tower series is “marked by his search for self-knowledge and redemption.” Despite the characters’ differences, DuBay claimed that they are substantially similar because they “(1) have similar names, (2) interact with towers that are integral to time travel, (3) have bird companions, (4) are marked by knightly characteristics, (5) travel back in time to save a young boy who becomes a gunslinger, (6) wear Western garb, (7) survive a fictionalized Alamo, and (8) use knives” as well as share a combination of those elements.
The district court previously granted summary judgment for defendants, concluding that the two characters were not substantially similar and that any purported similarities were unprotectable ideas or scènes à faire. (Read our summary of that decision here.) DuBay appealed the district court’s ruling, arguing that the district court erred in concluding that there was no substantial similarity between the characters and that the court further abused its discretion by failing to exclude the expert reports submitted by King. The Eleventh Circuit affirmed.
Parsing each of the alleged similarities, the Eleventh Circuit rejected plaintiff’s argument concerning the alleged similarity in the characters’ names, explaining that character names, as with other words and short phrases, do not enjoy copyright protection. The court further held that many of the alleged character similarities—including those “concerning their knightly heritage, travel to different times and parallel worlds, Western attire, fictionalized Alamo histories, and knife-wielding”—are scènes à faire too general to merit copyright protection.
As to the remaining elements alleged to be similar, the court explained that “[a]lthough these elements are similar in the abstract, they are not substantially similar because the elements are portrayed in different ways.” Whereas Restin Dane lives in a tower, the court observed, King’s Roland Deschain is on a quest to find a tower. The court similarly found that the characters’ interactions with birds were portrayed differently and that while Dane travels back in time to the Alamo and saves a young boy who turns out to be his great-great-grandfather, Deschain saves a young boy who he later betrays for the sake of his quest.
The court also rejected plaintiff’s claim that the combinations of these elements rendered the works substantially similar, concluding that “this holistic analysis further highlights the distinctiveness of each character.” While Dane is a traditional comic book hero—“a courageous gunslinger and an honorable man”—Deschain is a “far more complex” character who lacks idealism and moral integrity. Considering the different stories and contexts surrounding the characters, the court deemed any similarities to be merely superficial. The court thus affirmed the grant of summary judgment for King and the other defendants, concluding that no reasonable jury could find that the parties’ works are substantially similar.
The court also held that the district court did not abuse its discretion by refusing to exclude the expert reports submitted by King, which consisted of character and plot summaries of the works and a separate analysis of substantial similarity. Among other things, the court explained, there was no need to exclude the expert testimony on summary judgment because the case would not reach trial and because, in granting summary judgment for defendants, the district court considered the works themselves in addition to the expert reports that had been submitted.
Summary prepared by Wook Hwang and Kyle Petersen


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