Plaintiff Everette Hallford brought suit against defendants Fox Entertainment Group and others involved in the television show Touch, asserting a single count of copyright infringement based on allegations that Touch infringed plaintiff’s copyrighted screenplay Prodigy. The district court granted defendants’ motion to dismiss, finding that the defendants’ television show was not substantially similar to plaintiff’s work.
At the outset, the court noted that, in order to determine whether two works are substantially similar for the purposes of determining copyright infringement, courts must evaluate the total concept and theme, the characters, plot, sequence, pace, and setting of the works. Under the Second Circuit’s ordinary observer standard for substantial similarity, the court must determine whether an ordinary observer, unless he set out to detect disparities, would be disposed to overlook them and would regard the aesthetic appeal of the two works at issue as the same. In addition, when works include both protectible and unprotectible elements, the court must first apply the “more discerning” test and extract the unprotectible elements from consideration and then ask whether only the protectible elements are substantially similar.
While plaintiff’s amended complaint asserted a single count of copyright infringement against defendants for infringing his copyright in Prodigy, he argued that the court should also evaluate the similarity of Touch to one of his earlier works, a novel titled Visionary, asserting that Touch is a “remolecularized version of Prodigy and Visionary” and that the works evaluated together established copyright infringement. The court declined to consider Visionary for two reasons. First, copyright infringement requires substantial similarity between a protected work and an infringing work, and plaintiff cannot “mix and match” alleged similarities between defendants’ Touch and other of plaintiff’s works that are not related to one another. Second, the court found that Visionary was “entirely dissimilar” to both Prodigy and Touch.
Noting that it need not consider every one of the “legion” of similarities that plaintiff asserted because that kind of micro-analysis fails to address the underlying issue of whether the works as a whole are substantially similar, the court concluded that “the average lay observer – no matter how discerning – would not recognize that Touch was appropriated from Prodigy” because the two works are fundamentally different in total concept and overall feel. Prodigy, a story about family “forged through unlikely connections” around the boy Jonathan, involves an investigative journalist haunted by the loss of his wife, who grows to care for an autistic child who cannot communicate with the outside world. Together they not only discover how a train accident was narrowly averted, but also change as a result of their time together. In contrast, Touch is “less about family and more about fate.” In Touch, the boy Jake reveals the “red thread of fate” that binds together people whose lives are destined to touch, and he facilitates those connections among people, changing the world. Touch is about the mystery of Jake’s power, and tells the stories of Jake and Martin’s “ongoing mission to ensure that particular people meet at particular moments in order to avoid catastrophe.”
While Touch and Prodigy are broadly similar in that both works concern the theme of interconnectedness, copyright does not protect general themes, only the particularized expression of those themes through “treatment, details, scenes, events and characterization,” according to the court. “Interconnectedness is not a protectable theme. And the themes in Prodigy and Touch are only similar in that they each address this nonprotectible idea.” Based on its evaluation of the two works, the court found that the plot and sequence of Prodigy and Touch are substantially different. Prodigy is a mystery story in which a reporter for a parapsychology journal bonds with a young autistic child who helps him discover how a man prevented a train accident. In contrast, Touch is a “fast-paced work that cuts among multiple plotlines across multiple countries,” in which Jake, the boy protagonist, acts as “an air traffic controller” of interconnectivity, causing particular people to meet at particular moments in order to avoid catastrophe and, in the first episode alone, “prevents a suicide bombing, restores a family’s livelihood, saves children on a school bus, comforts grieving parents, and launches a singing career.”
The court also found that the characters, setting and pace of the two works are not substantially similar. Beyond the fact that both boy characters exhibit symptoms of autism, Prodigy’s Jonathan and Touch’s Jake are “fundamentally dissimilar,” and the male main characters, while both widowers, are also not substantially similar. The court also found that the setting and pace of Prodigy, a relatively slow-paced drama set in New York and rural Pennsylvania, differed significantly from the setting and pace of Touch, with its frenetic action and multiple stories set around the world. And while both works feature scenes in New York City, using New York City as a setting is not a protectable element.