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DuBay v. King

District court dismisses copyright claims against author Stephen King and other defendants involved in creation of books, graphic novels and feature film based on King’s The Dark Tower series, finding that purported similarities to plaintiff’s comic book character were unprotectable ideas or scènes à faire.

William Brya DuBay was one of three creators of the comic book character “Restin Dane,” also known as “The Rook,” who first appeared in 1977 in volume 82 of a Warren Publication horror/fantasy comic magazine titled Eerie. DuBay’s nephew, Michael DuBay, brought copyright infringement claims against author Stephen King and various entities involved in the creation of books, graphic novels and a feature film based on King’s The Dark Tower series of novels, claiming that the works copied DuBay’s The Rook character. Defendants moved for summary judgment, and the district court granted the motion.

King first published The Dark Tower as a serialized novel in 1982. The novel evolved into an eight-volume series published by defendant Simon & Schuster, graphic novels licensed by defendant Marvel, and the 2017 feature film The Dark Tower, produced and distributed by defendants MRC, Imagine Entertainment and Sony Pictures Entertainment. 

In his complaint, DuBay alleged that King’s protagonist, Roland Deschain, known as “The Gunslinger,” was “so shockingly and extraordinarily similar to The Rook that [d]efendant King must have unlawfully copied and appropriated the character.” Plaintiff did not allege that any of King’s written works infringed The Rook character or DuBay’s comics in a specific, individual capacity, but rather relied on a broader theory of substantial similarity based on the overall impression of the protagonists. Specifically, plaintiff argued that The Rook and Roland Deschain are “substantially similar in their unique elements” and in their “unique combination of common traits.”

Although acknowledging that characters are copyrightable independently from the works in which they appear, the court did not opine on the copyrightability of The Rook. Instead, it concluded that there was no substantial similarity between The Rook and Roland Deschain. Plaintiff described both protagonists as, among other things, “quasi-immortal, time-traveling, monster-fighting, romantic adventure hero[es] who descend[] from an immortal, [are] symbolized by a rook bird, dress[] in cowboy garb despite not being from the Old West” and “who traverse[] time through dimensional doors.” The court rejected this characterization of the two characters as too high a level of abstraction and generality, noting that a similar analysis of “most adventure heroes with such a high level of abstraction would lead to a finding of infringement.”

Although it “examined all purported similarities, including the totality of the characters’ attributes and traits,” the court elected to focus on the similarities it found “most significant and representative.” In doing so, it dismissed a number of the purported similarities as unprotectable ideas, scènes à faire or simply without import. For example, the court noted: “Plaintiff correctly points out that both Roland and The Rook are brave, excellent marksman, born leaders, determined, engage in hand-to-hand combat and fight monsters. However, these characteristics are scenes a faire of action adventure heroes.” With respect to a number of the characters’ alleged traits, the court found that they manifested in different ways. For example, plaintiff asserted that both characters are adventure-seeking protagonists. The court found, however, that while The Rook is a “classic hero,” who “seeks to do the ‘right thing,’” Roland is “dark and brooding” and “kills in cold blood.” And while plaintiff alleged that both characters romantically interact with women, the court concluded that they do so in vastly different ways — Roland in a “shocking and violent” manner, and The Rook in a “classically dashing” manner.
The court discounted the fact that the characters shared the power to travel across time, finding that the element of time travel was hardly an original expression, and that, in any event, “the act of entering different time periods plays a different role in each work.” As the court explained, for The Rook, time travel is a central storyline that serves as the catalyst for his adventures — he time-travels to correct perceived wrongs and save those he loves, and employs time-travel technology to control when and where he is traveling to. Roland, on the other hand, does not use a time machine to travel, but moves from one parallel world to another through physical doorways. He has no control over where he travels, only whether he walks through the door. 

The court disregarded several other purported similarities as well, concluding, for example, that the characters’ cowboy garb was scènes à faire of Western heroes and that the stories’ shared references to birds and the Battle of the Alamo were not protectable expressions.

Although plaintiff could have prevailed on his infringement claim if the manner in which the works expressed unprotectable elements was substantially similar or if the unoriginal elements were combined in a unique way, the court concluded that this was not the case here. 

Summary prepared by Frank D’Angelo and Nathalie Russell