IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks -- September 19, 2012


Table of Contents

DiTocco v. Riordan, USCA 2nd Circuit, September 13, 2012 (summary order)
 Click here for a copy of the full decision.

  • 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.”

Yeager v. Bowlin, USCA 9th Circuit, September 10, 2012
 Click here for a copy of the full decision.

  • Ninth Circuit affirms district court’s dismissal of plaintiff’s right of privacy and right of publicity claims as untimely, holding that statements published on websites are not “republished” under the single-publication rule unless the statement itself is substantively altered or added to or the website is directed to a new audience.

Plaintiff Charles E. “Chuck” Yeager, a recognized figure in aviation history, filed suit in 2008 against defendants, sellers of aviation-related memorabilia, including items related to or signed by Yeager, alleging that statements referencing him on defendants’ website violated his common-law right to privacy and California’s statutory right to publicity. The district court, applying the single-publication rule, granted summary judgment in favor of defendants, dismissing both claims as untimely under the applicable two-year statute of limitations. No evidence existed that defendants had added any information about Yeager or changed any of the challenged statements about Yeager on their website after October 2003, and the district court found that for the purposes of the statute of limitations Yeager’s claims accrued at that time. The Ninth Circuit affirmed.

According to the court of appeals, the single-publication rule limits tort claims premised on mass communications to a single cause of action that accrues upon the first publication of the communication and applies to statements made on the Internet. Statements are considered published when they are first made available to the public. Under this rule, the statute of limitations is reset when a statement is “republished.” A statement made in print is republished when it is reprinted in something that is not part of the same single integrated publication. For example, a statement made in a hardcover book is republished when it is repeated in a later paperback version. In contrast, a statement made in a daily newspaper is not republished when it appears in later editions of that newspaper. Applying this single-integrated-publication test to the Internet, the Ninth Circuit had previously found that once a defendant publishes a statement on a website, the defendant does not republish the statement by simply continuing to host the website. The court rejected Yeager’s argument that the website is republished each time defendants add to or revise content on their website, even if the new content does not reference or depict Yeager, holding that under California law a statement on a website is not republished unless the statement itself is substantively altered or added to or the website is directed to a new audience.

For more information, please contact Jonathan Zavin at jzavin@loeb.com or at 212.407.4161.

Westlaw decisions are reprinted with permission of Thomson/West. If you wish to check the currency of these cases, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.

Circular 230 Disclosure: To assure compliance with Treasury Department rules governing tax practice, we inform you that any advice (including in any attachment) (1) was not written and is not intended to be used, and cannot be used, for the purpose of avoiding any federal tax penalty that may be imposed on the taxpayer, and (2) may not be used in connection with promoting, marketing or recommending to another person any transaction or matter addressed herein.

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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