Copyright Claims Dismissed Against Facebook Movie and Book: Unoriginal Expression And Fragmentary Phrases Not Protected

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
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[author: David Kluft]

Software entrepreneur Aaron Greenspan claims not only to have been the original inventor of Facebook. He also claims to have been the original author of the story of Facebook, via his memoire, Authoritas: One Student’s Harvard Admissions and the Founding of the Facebook Era.

However, yesterday Massachusetts Federal Magistrate Judge Robert Collings found that these claims were not sufficient to sustain a copyright lawsuit against Benjamin Mezrich, the author of The Accidental Billionaires: The Founding of Facebook, and the makers of the film, The Social Network, which was based on Mezrich’s book.

According to Greenspan, the story began when he was an undergraduate at Harvard and created a website called “The Facebook.” One of his classmates, Mark Zuckerberg, sought Greenspan’s advice and copied his ideas, which led to the founding of the phenomenally popular social networking site. Greenspan charges that, as early as 2005, Zuckerberg was already constructing a false narrative about the founding of Facebook. A narrative that excluded Greenspan.

In order to correct what he saw as an injustice, Greenspan did two things. First, he raised legal claims against Zuckerberg, which resulted in a confidential settlement in May 2009. Second, he wrote and published Autoritas, his own account of what actually happened.

In 2008, Mezrich asked Greenspan for his cooperation in writing a fictional account of the founding of Facebook. When Greenspan refused, Mezrich went ahead with his own book anyway, citing Autoritas as a secondary source. After Mezrich’s book and The Social Network became commercial successes, Greenspan brought copyright infringement claims against Mezrich, his publisher and the filmmakers.

Greenspan’s principal allegation was that Mezrich had copied Greenspan’s account of his own meeting with Harvard President Larry Summers in order to create a fictional account of a different meeting with President Summers (one that didn’t include Greenspan). Greenspan’s complaint contained about twenty statements about this meeting which he alleged were copied by Mezrich, ranging from a description of the office to his characterization of President Summers as “chubby."

 

 

In order to prove copying in a copyright case, a plaintiff (in lieu of evidence of actual copying) must show that the defendant had access to the work, and that the works are substantially similar. But unfortunately for Greenspan, the Judge found that the two works just weren’t that similar. Judge Collings first put aside many of the plaintiff’s alleged instances of copied expression, holding that much of it was not protectable original expression in the first place. For example, the statement, “the president will see you now” is simply a cliché to denote the start of a meeting; and fragmentary words and phrases, such as the word “chubby” to describe President Summers, or “African-American” to describe his assistant’s ethnicity, are not subject to copyright protection as original expression.

Once this unoriginal expression was removed from the equation, Judge Collings compared the protectable expression that was left (such as the description of President Summer’s unwelcoming manner) as a whole against the defendant’s work, and determined that any copying that may have occurred was not so extensive that an ordinary observer would find that the two works were substantially similar.

In addition to recommending the dismissal of Greenspan’s copyright claims, Judge Collings also recommended dismissal of his remaining claims, which included defamation and false advertising.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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