DiTocco v. Riordan

Second Circuit affirms district court’s dismissal of plaintiffs’ copyright claims, holding that defendants’ Percy Jackson book series was not substantially similar to plaintiffs’ two novels as a matter of law.

Plaintiffs, authors and copyright owners of two books, The Hero Perseus and Atlas’ Revenge, brought suit for copyright infringement against defendants, the author of the five-book Percy Jackson & the Olympians series, the distributor of the books and the companies that produced, distributed and financed the motion picture Percy Jackson & The Olympians: The Lightning Thief. The district court granted defendants’ motion to dismiss, finding as a matter of law no substantial similarity between the protected elements of plaintiffs’ books and the Percy Jackson books and movie. (Read our summary of the district court’s decision here.) Plaintiffs appealed the dismissal with respect to the books, and the Second Circuit in a summary order affirmed the “well-reasoned opinion of the district court.”

At the outset, the court explained that the standard to be applied in comparing works that contain both protectable and unprotectable elements to determine substantial similarity is the “‘more discerning’ ordinary observer test,” requiring the court to attempt to extract the unprotectable elements from consideration and discern whether the protectable elements standing alone are substantially similar. While both sets of works chronicle the adventures of a young male protagonist named after the Greek hero Perseus, the court noted the significant difference in the way the works treat their subject. The Percy Jackson & the Olympians series tells the stories of demigod Percy Jackson and his battles against classical Greek monsters while traveling all over the country with his supernatural friends. In these works, the Olympic gods live among the mortals in the modern world, wearing sunglasses, using cell phones and ignoring their demigod offspring, noted the court. In contrast, in plaintiffs’ novels their protagonist PJ Allen is a popular and athletic young man who in his dreams is taken back to ancient Greece, where he fights mythical beasts and re-creates important events in Greek mythology that have been erased from history. Both sets of works incorporate characters, settings and classic stories from Greek mythology, which are in the public domain and are therefore unprotectable. Leaving these unprotectable elements aside and comparing the protectable elements of the parties’ works with a view toward “the total concept and overall feel” of the two works, the court concluded that “the district court properly determined that the two sets of books are not substantially similar as a matter of law.”