WOLF, District Judge.
On November 30, 2009, pro se plaintiff Susan Hassett filed a complaint alleging copyright infringement by defendants Elisabeth Hasselbeck and Center Street Hachette Book Group ("Center Street") (collectively, "defendants"), as well as by an unidentified ghostwriter (referred to in the complaint as John Doe). Hassett alleges that she is the author of a book entitled Living with Celiac Disease ("Living"), for which she obtained a copyright in March, 2008. She alleges that she mailed a copy of Living to Hasselbeck on April 4, 2008. She alleges that, on or about May 4, 2009, Center Street published and distributed The G Free Diet ("G Free"), a book written by Hasselbeck and the ghostwriter. She alleges that G Free contains actual copying of and is substantially similar to Living. As clarified at the November 30, 2010 hearing, her claim is based in part on a theory she terms "compilation copyright," meaning, essentially, that Hasselbeck broke Living down into its constituent facts, ideas, and phrases, made changes to the text, and then distributed these elements throughout G Free in a different order and arrangement. Hassett seeks damages and injunctive relief.
Defendants are moving for summary judgment on the ground that there is not substantial similarity between G Free and Living. Hassett is moving for leave to proceed in forma pauperis, for appointment of counsel, for a preliminary injunction prohibiting defendants from distributing or promoting G-Free, and for an order compelling defendants to identify the alleged ghostwriter, John Doe.
The court has thoroughly reviewed the works in questions, as well as Hassett's
The court recognizes that Hassett worked hard and under difficult circumstances to assemble the facts and ideas included in Living. Yet even if defendants appropriated some of these facts and ideas and incorporated them in a new work,
On November 30, 2009, Hassett, appearing pro se, filed the instant complaint, in which she asserts three counts of copyright infringement, one against each defendant. See Compl. at 5-8.
On August 2, 2010, defendants moved to dismiss the complaint due to a lack of substantial similarity. In connection with this motion, defendants submitted various exhibits, including a copy of G Free and a copy of Living. Hassett opposed dismissal, in part on the ground that the version of Living submitted with defendants' motion was the 2009 copyright version (the "2009 edition"), whereas the complaint refers to the 2008 copyright version (the "2008 edition"). In an October 14, 2010 Order, the court converted defendants' motion to dismiss to a motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d). The court ordered the parties to submit all material pertinent to such a motion by November 1, 2010, and scheduled a hearing on the motion for summary judgment for November 30, 2010. Since that time, Hassett has expanded the record by filing the 2008 edition of Living, as well as an additional list of purported similarities.
The court's discretion to grant summary judgment is governed by Federal Rule of Civil Procedure 56. Rule 56 provides, in
In determining the merits of a motion for summary judgment, the court is compelled to undertake two inquiries: (1) whether the factual disputes are genuine, and (2) whether any fact genuinely in dispute is material. Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine if the dispute about a material fact is "genuine," the court must decide whether "the evidence is such that a reasonable [fact finder] could return a verdict for the non-moving party." Id.; see also Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir.1988). Under this analysis, the evidence relied upon must be admissible. See Vazquez v. Lopez-Rosario, 134 F.3d 28, 36 (1st Cir.1998).
The plaintiff bears the burden of proving the two elements of copyright infringement: "`(1) ownership of a valid copyright[;] and (2) copying of constituent elements of the work that are original.'" See Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir.2005) (quoting Feist, 499 U.S. at 361, 111 S.Ct. 1282). To establish copying, a plaintiff must show actual copying and substantial similarity. Id. at 18 (citing Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 60 (1st Cir.2000)). Actual copying is shown by direct or circumstantial evidence, including evidence of access coupled with probative similarity. See id. Substantial similarity is shown by "proof that the copying was so extensive that it rendered the works so similar that the later work represented a wrongful appropriation of expression." Id. (citing Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st Cir.2001)). A plaintiff's failure to show substantial similarity entitles a defendant to judgment. See Yankee Candle, 259 F.3d at 33, 37 (affirming summary judgment based on lack of substantial similarity where validity of the copyright was undisputed and actual copying was assumed).
Substantial similarity is measured by the ordinary observer test, which provides that "two works will be said to be substantially similar if a reasonable, ordinary observer, upon examination of the two works, would `conclude that the defendant
Importantly, however, the examination for substantial similarity "must focus on `what aspects of the plaintiff's work are protectible under copyright laws and whether whatever copying took place appropriated those protected elements.'" Johnson, 409 F.3d at 19 (quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir.1998)); see T-Peg, 459 F.3d at 112. "[O]nly the `protected expression' is relevant to an evaluation of substantial similarity." Yankee Candle, 259 F.3d at 33-34. Thus, an impression of overall similarity will not establish substantial similarity if the "impression flows from similarities as to elements that are not themselves copyrightable." Johnson, 409 F.3d at 19.
For this reason, a court evaluating substantial similarity must recognize and apply certain limits on the scope of copyright protection. See id. "Copyright law protects original expressions of ideas but it does not safeguard either the ideas themselves or banal expressions of them." See id.; Yankee Candle, 259 F.3d at 33 ("[I]deas cannot be copyrighted . . . ." (internal quotation marks omitted)); Dunn v. Brown, 517 F.Supp.2d 541, 544-45 (D.Mass.2007) (Ponsor, J.); see also 17 U.S.C. § 102(b) ("In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."). Under the merger doctrine, even the expression of an idea is unprotected "when there is only one way to express a particular idea." Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 68 (1st Cir. 2009). Although a particular selection and arrangement of facts may be "thin[ly]" protected, the facts themselves are not. See Feist, 499 U.S. at 348-49, 111 S.Ct. 1282. Under the doctrine of scenes a faire, there is no protection for "elements of a work that are for all practical purposes indispensable, or at least customary,
The process of identifying the unprotected elements of a work and removing them from consideration is sometimes called "dissection analysis." See Yankee Candle, 259 F.3d at 34. "In performing the substantial similarity analysis, a court should be careful not to over-dissect the plaintiff's work, causing it to ignore the plaintiff's protectable expression." Situation Mgmt., 560 F.3d at 59 (citing CMM, 97 F.3d at 1515 (stating that the court must be aware of the danger of "so dissect[ing] the work as to classify all its elements as unprotectable[,] thereby possibly blinding [the court] to the expressiveness of their ensemble." (internal quotation marks and ellipses omitted))). "[T]he court should not lose sight of the forest for the trees; that is, it should take pains not to focus too intently on particular unprotected elements at the expense of a work's overall protected expression." Coquico, 562 F.3d at 68.
"Summary judgment on substantial similarity is `unusual' but can be warranted on the right set of facts." T-Peg, 459 F.3d at 112 (quoting Segrets, 207 F.3d at 62). "`Summary judgment on substantial similarity is appropriate only when a rational factfinder, correctly applying the pertinent legal standards, would be compelled to conclude that no substantial similarity exists between the copyrighted work and the allegedly infringing work.'" Id. (quoting Johnson, 409 F.3d at 18); see also Quaglia v. Bravo Networks, No. 06-1864, ___ Fed. Appx. ___, ___ _ ___, 2006 WL 3691667, at *1-2 (1st Cir. Dec. 15, 2006) (affirming summary judgment where no reasonable juror could find substantial similarity because the similar elements were either insubstantial or not subject to copyright protection).
At the outset, the court notes that both the 2009 edition and the 2008 edition of Living are in the record and are referred to in the briefing. The complaint relates only to the 2008 edition. Although Hassett originally took issue with the defendants' submission of the 2009 edition of Living, she now takes the position that the 2008 edition and the 2009 edition have "exactly [the] same text." See Hassett Decl. at 1. She states that the only differences between the two versions are that the 2009 edition has numbered pages, corrects some spelling errors, and has a different copyright date and ISBN number. See id. at 2. Hassett states that she, in fact, submitted pages from the 2009 edition to the court in her exhibits. See id. Consequently, as agreed by the parties at the November 30, 2010 hearing, any differences between the 2009 edition and the 2008 edition are immaterial to the substantial similarity analysis. Because the 2009 edition has numbered pages, the court will cite to that version for the sake of clarity.
The sole question before the court is whether a rational factfinder, correctly applying the pertinent legal standards, would be compelled to conclude that no substantial
Both Living and G Free are self-help books designed to assist people who have celiac disease. As one would expect, and as Hassett demonstrates through her exhibits, there are similarities between the two works. Both books, for example, list the symptoms of celiac disease (many of which are included in both books) and describe the particular symptoms experienced by the respective authors. Compare Living at 24-35, with G Free at 4-10, 16-17. Both works include lists of foods and other products likely to contain gluten. Compare Living at 60-67, 70-72, with G Free at 35-50. Both offer ideas to avoid contact with gluten in everyday life. Compare Living at 36-41, with G Free at 63-94. Both discuss problems related to children with celiac disease. Compare Living at 42-44, with G Free at 145-59. Both discuss a possible link between gluten consumption and autism. Compare Living at 42, with G Free at 199-205. Both note that children with Down syndrome are at increased risk for developing celiac disease. Compare Living at 43, with G Free at 32. However, even if these similarities create an impression of overall similarity, they will not establish substantial similarity if the "impression flows from similarities as to elements that are not themselves copyrightable." Johnson, 409 F.3d at 19. After reviewing the similarities submitted by Hassett, the court finds that the similarities arise out of ideas, facts, individual words or short phrases, and aspects of the works customary to the genre, none of which are copyrightable. See Part III(B), supra (collecting cases). Once these unprotected elements are excised, a reasonable factfinder could not find substantial similarity.
Many of Hassett's purported similarities arise out of similarity of ideas, which are not protected by copyright law. See Feist, 499 U.S. at 348-49, 111 S.Ct. 1282; Johnson, 409 F.3d at 19. For example,
Living at 38-39.
G-Free at 76-77.
These passages embody a similar idea— the idea that a person with celiac disease should contact manufacturers from time to time to verify that gluten-free foods are still made without gluten and in a location that is not contaminated by wheat products. Beyond that idea, which is unprotected, the passages have a few individual words in common ("call" "belt" "label" "wheat"), but are otherwise essentially dissimilar. For example, Living discusses the failure to change a product label after changing the starch in a product, while G Free discusses such a failure in the context of acquiring a new brand or shifting manufacturing facilities. Living discusses the possibility that a conveyor belt is contaminated, whereas, in G Free, it is the corn chip that becomes contaminated rather than the belt. Living emphasizes requesting written confirmation, while G Free does not. The differences between these two passages are not the sort of slight or trivial variations which would permit a finding of substantially similarity. See Segrets, 207 F.3d at 65. Rather, it is the points of similarity that are both qualitatively and quantitatively unimportant. See id.
As another example, in Living, Hassett writes:
Living at 40. Similarly, in G-Free, Hasselbeck writes:
G Free at 67-68.
As a third example, in Living, Hassett writes:
Living at 44.
G Free at 154; see also id. at 156 (suggesting meeting with "as many different people as possible—teachers, administrators, cafeteria staffers, and of course, your child's classmates and their parents").
As a fourth example, Hassett writes, in a section on avoiding gluten when receiving inpatient medical treatment:
Living at 73. Hasselbeck titled a section (directed at the companions of people with celiac disease) "Quality 3. Candor: Be a Gluten Guard" and writes:
G Free at 163. Hasselbeck also refers to a "wingman" and "gluten guard" in a section about dining at weddings. See id. at 119. Again, the ideas here are similar—the idea that a person with celiac disease will be helped if a family member prevents gluten exposure at difficult moments. Beyond that, the expression is different. Hassett talks about a "gluten warden," while Hasselbeck talks about a "gluten guard" or "wingman." Hassett's discussion is focused on the hospital setting, while Hasselbeck's is directed at dining out. The similarities are minimal.
Because these similarities arise out of unprotected ideas, they cannot, as a matter of law, demonstrate substantial similarity. See Johnson, 409 F.3d at 19. For example, in 1998, in Duffy v. Penguin Books USA Inc., the District Court for the Southern District of New York granted a defendant's motion for summary judgment where two works expressed similar ideas through dissimilar expression. See 4 F.Supp.2d 268, 273-275 (S.D.N.Y.1998). In Duffy, plaintiff wrote books relating "to style and fashion for large sized women." See id. at 270-71. Plaintiff's book articulated a system of four categories, labeled H, O, A, and X, to describe a woman's body. Id. at 273. Defendant's book addressed a similar topic and used four similar categories, albeit without the same labels. Id. at 273. The court held that there was not substantial similarity because "the idea that women's bodies come in one of four types is not copyright protectable." See id. The court explained that such an idea is "a common one that [defendant] and others are free to build upon, although not to express in precisely the same manner as [plaintiff]." Id. Here, just as in Duffy, defendants were free to express ideas about techniques to avoid ingesting gluten, provided that they did not do so in the same manner as Hassett. See id.; see also LaPine v. Seinfeld, No. 08-128, 2009 WL 2902584, at *8 (S.D.N.Y. Sept. 10, 2009) (holding, in a case involving similar cookbooks for parents, that the idea of hiding vegetables in foods children enjoy is not copyrightable).
Other purported similarities offered by Hassett are short phrases, which are not protected by copyright law. See Johnson, 409 F.3d at 24; CMM, 97 F.3d at 1519.
For example, Hassett writes:
Living at 37. Hasselbeck, in a section called "Naturally G-Free Foods," writes:
G Free at 78. The ideas expressed by the two passages are somewhat different— Hassett's idea is that people with celiac disease should never shop in certain parts of the supermarket due to the presence of gluten-containing products, while Hasselbeck's idea is that foods in certain parts of the supermarket are generally healthier and should constitute a large part of every person's diet. The passages are similar, however, because both contain the phrase
As another example, Hassett writes:
Living at 31. Hasselbeck writes, in her section captioned "Osteoporosis":
G Free at 26. Most of the similarities between these passages are unprotected medical facts—such as the fact that osteoporosis is caused by prolonged celiac disease, and the fact that calcium and magnesium supplements are used to treat osteoporosis. The passages also share an unprotected idea—the idea that people with celiac disease will probably benefit from being tested and treated for osteoporosis. Beyond these unprotected ideas and facts, the only significant similarity of expression is the phrase "bone density test[ing]," a short phrase excluded from copyright protection.
As a third example, Hassett writes:
Living at 36.
Tip 1: Rome Wasn't Built in a Day!
G Free at 100. The ideas expressed are different—Hassett's idea is that celiac sufferers may make mistakes when adjusting their diet or relapse to an inappropriate diet, while Hasselbeck's idea is that a celiac sufferer who cooks for a family should try to introduce the new diet to family members incrementally. Beyond that, the expression is different except for the phrase "Rome wasn't built in a day." This cliché is not copyrightable. See Johnson, 409 F.3d at 24.
In addition to unprotected similarities arising out of ideas or short phrases, other similarities between the books arise out of unprotected facts. "[T]he facts contained in existing works may be freely copied because copyright protects only the elements that owe their origin to the compiler—the selection, coordination, and arrangement of facts." Feist, 499 U.S. at 359, 111 S.Ct. 1282. However, "[n]ot every selection will pass muster." Id. at 358, 111 S.Ct. 1282. Rather, a protected selection or arrangement must display a minimal level of creativity, unlike (as in Feist) the alphabetical listing of names in a telephone book. See id. at 358-59, 362-63, 111 S.Ct. 1282.
As an example of the exclusion of fact from copyright protection, in 1998, in De-Bitetto v. Alpha Books, the District Court for the Southern District of New York dismissed a claim of copyright infringement arising out of books about medical care for dogs because, even if actual copying occurred, the books lacked substantial similarity. See 7 F.Supp.2d 330, 334, 336 (S.D.N.Y.1998). The court noted that, even though the books in question "address[ed] many of the same topics and rel[ied] on many of the same underlying facts," these similarities were primarily the result of unprotected elements, "including statements of scientific or medical fact or procedures for caring for a dog." See id. at 334. For example, although both books discussed mange and roundworm in passages the court termed "undeniably similar," the passages were not substantially similar for infringement purposes because the facts about these parasites were not protected and because the passages were organized differently and used different tone and style. See id. Even where a list of poisons was virtually identical, the court found that there was no infringement because "[t]he list of poisons is the sort of list likely to be found in any book of pet care" and thus lacked sufficient originality to be protected based on the selection and arrangement of facts. See id. at 334-35 (citing Feist, 499 U.S. at 344-49, 111 S.Ct. 1282).
Here, as in DeBitetto, there are similarities in fact that cannot, as a matter of law, justify a finding of substantial similarity. For example, both Living and G Free list the symptoms of celiac disease. Compare Living at 24-26, with G Free at 16-18. Some symptoms are listed in both books. See e.g., Living at 24 ("miscarriages"); G Free at 17 ("Infertility, spontaneous miscarriages"). However, the similarities between the two passages arise out of elements that are not copyrightable. First, the symptoms themselves are facts and are not, therefore, protected. See Feist,
Both Living and G Free also list foods and other products that do and do not contain gluten. Compare Living at 60-72, with G Free at 35-47. Information regarding whether a food or product contains gluten is an unprotected fact, and there cannot, therefore, be substantial similarity just because both works state as fact that products like instant coffee, communion wafers, and envelope adhesive sometimes contain gluten. See Feist, 499 U.S. at 359, 111 S.Ct. 1282. Additionally, the selection and arrangement of the facts in the works is very different. In Living, Hassett first lists a number of "word[s] that should bring up red flags," each with a short explanation. See Living at 60-65. The list, which is not organized alphabetically, includes the names and descriptions of various products containing gluten, including food products, food additives, hygiene products, and miscellaneous products like communion wafers and envelopes. See id. Hassett next presents a list of "things that can bother a severe case of celiac disease," which is not in alphabetical order and which includes, for example, cigarette smoke, gasoline fumes, and floral arrangements. See id. at 66. Hassett then presents a list of "[g]rains to avoid," again not in alphabetical order. See id. at 67-68. She then presents a list of "gluten free flours" in apparently random order. See id. at 68. Hassett next presents a conversion chart for using alternative flours in recipes that call for wheat flour. See id. at 69. Lastly, she presents, in alphabetical order, a "forbidden list" naming, but not describing, foods and food ingredients containing gluten. See id. at 70-72.
In contrast, in G Free, Hasselbeck presents some of the same facts but organizes the presentation differently. She first presents a list of gluten-free foods.
Hasselbeck and Hassett, therefore, both incorporate some of the same facts into their works, but have, in general, selected and arranged their facts very differently. Moreover, where both authors include explanatory text about a particular fact, the text is not similar. Compare Living at 60-65, with G Free at 40-44. For this reason, any similarity relates to unprotected elements of Living and cannot justify a finding of substantial similarity.
As another example, regarding a medical condition called Dermatitis Herpetiformis, Hassett writes:
Living at 45. Hasselbeck, in her section captioned "Understanding Dermatitis Herpetiformis," writes:
G Free at 24. The only similarities between these passages are medical facts—the fact that a condition called dermatitis herpetiformis is associated with celiac disease, the fact that this condition causes itching, and the fact that the condition often occurs on the knees, elbows, and buttocks. Beyond these unprotected facts, the passages are not very similar.
Hassett, in the exhibits to her complaint, also asserts that there are similarities in the structure of the two books. A review of the two works reveals that any similarities are, in fact, minor. While the books address some of the same topics, the order of presentation is not identical or nearly so. To the extent there is any general similarity related to the selection and ordering of the topics, the defendants' exhibits demonstrate that the general sequence and topic selection of these works are customary to the genre, see Snyder Decl. Ex. 30, and thus unprotected under the doctrine of scenes a faire. See Coquico, 562 F.3d at 68. Moreover, courts have held that the general thematic ordering
As a final matter, the theory of "compilation copyright" on which Hassett primarily relies is fundamentally flawed as a matter of law. As clarified at the November 30, 2010 hearing, Hassett asserts that defendants extracted ideas, facts, and short pieces of text from Living, changed the text, and then dispersed this information throughout G Free in a new arrangement. Hassett argues that this is impermissible because Hassett spent years compiling the information and ideas she included in Living.
Accepting Hassett's view would essentially revive the "sweat of the brow" doctrine rejected by the Supreme Court in Feist. See 499 U.S. at 359-60, 111 S.Ct. 1282. Hassett's labor in assembling Living, while commendable, does not entitle her to prevent others from using her facts and ideas in a subsequent work, provided that the expression and arrangement are sufficiently different. See id. at 344-45, 111 S.Ct. 1282. "The very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas." Id. at 349, 111 S.Ct. 1282 (internal brackets and quotation marks omitted); see also Johnson, 409 F.3d at 25 (holding dissection analysis properly disposes of the case where "the components themselves are so dissimilar that they cannot sensibly be agglomerated in such a way as to conjure up an overall (legally significant) resemblance"). Here, as previously discussed, any facts and ideas arguably copied from Living have been thoroughly reshuffled and restated, and any lingering similarities arise out of individual words or short phrases excluded from protection.
When the unprotected portions of Living are removed from consideration, the remaining similarities are outweighed by the points of dissimilarity and are, in the context of the work, both qualitatively and quantitatively minimal. Indeed, although there is some overlap in subject matter, G Free and Living are very different books. Living is written in an informal style, emphasizes the hardships associated with celiac disease, and devotes almost 130 of its 249 pages to describing recipes for gluten-free cooking. G Free, on the other hand, is written in a more formal style, assumes a much more positive tone, and offers a total of four recipes comprising six pages of text. See DeBitetto, 7 F.Supp.2d at 335 (noting that stark differences in style, tone, and emphasis undercut the possibility of finding substantial similarity).
Accordingly, for all the foregoing reasons, a rational factfinder applying the correct legal standards would be compelled to find that no substantial similarity exists between Living and G Free. See T-Peg, 459 F.3d at 112. Therefore, summary judgment for defendants is appropriate.
In view of the foregoing, it is hereby ORDERED that:
1. Defendants' Motion for Summary Judgment (Docket No. 33) is ALLOWED. Judgment shall enter for defendants.
2. All other pending motions are MOOT.
