- Court grants defendant author’s and publishers’ motion to dismiss copyright infringement action relating to vampire novels; court holds that plaintiff’s book The Nocturne and defendants’ book Breaking Dawn are not substantially similar as a matter of law.
The plaintiff filed an action for copyright infringement and the defendants moved to dismiss, asserting that the two works are not substantially similar. The court agreed.
First, the court rejected the plaintiff’s argument that the court should deny the motion to dismiss because it is a disguised motion for summary judgment. According to the court, the Ninth Circuit has held that when a copyrighted work and the allegedly infringing work are both before the court, and capable of examination and comparison, non-infringement can be determined on a motion to dismiss.
Turning to the issue of substantial similarity, the court conducted the extrinsic test and determined that the plot, themes, dialogue, mood, settings, pace, characters and sequence of events are quite different and that any similarities are between unprotectible elements. For example, with respect to “plot and themes,” the court held that the defendants’ book is a “fully realized vampire story, which focuses on the enmity between vampires and werewolves as well as the vampires’ internal strife” while the plaintiff’s book is “mostly a journey of self-discovery” for the main character who is transformed into a vampire near the end of the story. The court also noted, inter alia, that the setting and characters of the works are also very different, with Breaking Dawn set in the present-day Pacific Northwest and The Nocturne set in medieval France, and that the pace and sequence of events are also very different (particularly given that The Nocturne is the first book in a projected trilogy while Breaking Dawn is the last book of a four-part series).
Insofar as both works presented a similar sequence of marriage, consummation and child birth, the court held that such similarities in stock elements, which would typically be included in any love story, are not actionable. The court also admonished plaintiff for manipulated aspects of the subject works in order to create the appearance of similarity, noting that, among other things, plaintiff quoted several lines from both works as if they occurred consecutively when, in actuality, those lines were randomly plucked from several pages of text. The court concluded by quoting the Ninth Circuit’s directive that district courts be “particularly cautious where, as here, the [plaintiff] emphasizes random similarities scattered throughout the works.”