Appellate court agrees Stephen King novel did not infringe on comic book. DUBAY v. KING

Copyright is a legal protection granted to the creator of a new work of expression. Painters, sculptors, photographers, musicians, authors are all creative occupations whose works can be protected by copyright. Copyright allows creators to prevent other people from copying their works. Frequently creators are inspired by the works of other creators. Drawing inspiration from an earlier work is not considered copyright infringement because copyright law protects the expression of ideas, not the ideas themselves. However there is a fine line between inspiration and imitation. If a new work is substantially similar to a prior work, then copyright infringement may have occurred.

The definition of substantial similarity in the context of copyright law is specific, yet open to interpretation. Proof of substantial similarity is satisfied by a two part test of extrinsic similarity and intrinsic similarity. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. Unprotectable elements such as idea, concepts and elements in the public domain are filtered out of the extrinsic test. The intrinsic test is an examination of an ordinary person’s subjective impression of the similarities between the two works, and is the exclusive province of the jury.

It is possible for the characters of a story to be granted copyright protection in the United States, if certain conditions are met. The text of United States Copyright Law does not explicitly mention characters as subject matter that is protected, so any copyright protection granted to characters are created by a court’s interpretation of what copyright law may protect.

Court precedent varies between the different appeals circuits however a consistent rule is, to be eligible for copyright protection a character must be part of a copyrightable work and the character must be fictional. Some circuits have well defined rules to see whether a character qualifies for copyright protection, such as the “well delineated character” test or the “character that is the story” test. Other circuits apply the substantial similarity test directly to characters.

BENJAMIN MICHAEL DUBAY, v. STEPHEN KING, 19-11224 (11th Cir. 2021) is an example of a case where a protagonist in a novel was found to not be substantially similar to the main character in a comic book.

DuBay owns the copyright for a comic book series called The Rook, first published in 1977, which recounted the adventures of Restin Dane. King is the author of The Dark Tower novel series, published starting in 1982, which features the character Roland Deschain as its protagonist. Both characters are time traveling men, with strong connections to castles and birds. Both characters travel back in time to save young boys from death. DuBay sued King for copyright infringement, alleging that Roland Deschain is a copy of Restin Dane.

DuBay argued that King had access to The Rook and that the characters were substantially similar because they shared similar literary and visual elements. DuBay also argued that the “overall look and feel” of the characters was substantially similar. After presenting the court with over 4200 pages of evidence and expert testimony rebutting DuBay’s case, King motioned for summary judgement.

The district court granted summary judgment in favor of King. DuBay appealed to the Court of Appeals for the Eleventh Circuit. On Appeal DuBay argued that the expert testimony was inadmissible under the Federal Rules of Evidence 702 and that the district court erred in finding that the two works were not substantially similar.

The Eleventh Circuit noted that the district court did not rely solely on King’s experts under the Federal Rules of Evidence 702. In its decision the district court made it clear that it was considering certain sections of the works presented as evidence and Kings experts under Federal Rules of Evidence 1006. This rule of evidence allows a party to present summary evidence when the evidence is so voluminous it cannot be conveniently examined in court. Based on that rule of evidence, the Eleventh Circuit held the expert testimony was admissible.

With respect to substantial similarity, the Eleventh Circuit noted that the district court correctly discarded unprotectable elements and focused on protectable elements; specifically, the castles, the boys and the birds. The Eleventh Circuit found that while Dane and Deschain share some characteristics superficially, the district court correctly concluded that no reasonable jury would find the two characters substantially similar. Dane consistently does the right thing, Deschain is a troubled anti-hero. Based on these conclusions the Eleventh Circuit affirmed the district court’s summary judgement in favor of King.

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