WWW.DISSERTATION.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Dissertations, online materials
 
<< HOME
CONTACTS



Pages:     | 1 |   ...   | 7 | 8 ||

«IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO TIZE W. CLARK, author, and BAU PUBLISHING GROUP, Plaintiffs, vs. Civ. No. 14-00965 ...»

-- [ Page 9 ] --

“[c]opyright law provides very limited protection to the characters presented in the creative work.” Acker, 46 F. Supp. 3d at 172 (internal quotation and citation omitted). A character’s obscure or general appearance is not a protectable expression. See Nichols v. Universal Pictures Corp., 45 F. 2d 119, 121 (2d Cir. 1930), cert denied, 282 U.S. 902 (1931). Only well-developed characters may enjoy copyright protection. Id. (“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”). Therefore, Plaintiffs’ asserted basic characteristics are insufficient to support a finding of substantial similarity.

In light of the aforementioned, the Court finds that no reasonable person would conclude that The Maze and The Maze Runner are substantially similar. As a result, Plaintiffs’ Complaint lacks any allegations, beyond Plaintiffs’ conclusory statement, that Defendants’ work, The Maze Runner, infringed on Plaintiffs’ protectable expressions in The Maze. Thus, Plaintiffs’ Count I is subject to dismissal under Rule 12(b)(6). It also follows that Plaintiffs’ Count II is dismissed as

–  –  –

claims will be dismissed with prejudice.

C. Unfair Trade Practices & Unfair Competition (Count III) Defendants assert that Plaintiffs’ state law unfair trade practices and unfair competition claims are preempted by the Copyright Act, 17 U.S.C. §§ 101–1332. Furthermore, Plaintiffs’ federal unfair competition claim for attribution falls within the exclusive province of federal copyright law. Plaintiffs counter that under New Mexico’s notice only pleadings standard, the Complaint sufficiently pleads the “state law or federal law claim in unfair trade practices and unfair competition.” (Doc. 36) at 28.

1. Plaintiffs’ State Law Claims Section 301 of the Copyright Act describes the extent to which state common-law and

statutory causes of action are preempted. It provides, in relevant part:

(a) [A]ll legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to...

(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.

17 U.S.C. § 301. “[A] state-law claim is preempted if (1) the work is within the scope of the ‘subject matter of copyright’ as specified in 17 U.S.C. §§ 102 and 103; and (2) the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright as set out in 17 U.S.C. § 106.” R.W. Beck, Inc. v. E3 Consulting, LLC, 577 F.3d 1133, 1146 (10th Cir.

–  –  –

respect to uncopyrightable as well as copyrightable elements.” Id. at 1146-47.

Defendants maintain that Plaintiffs’ claim meets both prongs of the preemption test: The Maze is a literary work under 17 U.S.C. § 102(a)(1); and, Plaintiffs have not alleged a requisite extra element to distinguish the purported rights at issue from those conferred by copyright.

Plaintiffs do not challenge either of Defendants’ contentions. And, as such, the Court finds that the first requirement is satisfied. The Court, nevertheless, will review “whether the state-law rights asserted by [Plaintiffs] are equivalent to any of the exclusive rights within the general scope of copyright, as specified in 17 U.S.C. § 106.” Id. at 1147.

Section 106 of the Copyright Act grants copyright owners the exclusive rights to: (1) reproduce the copyrighted work; (2) prepare derivative works; (3) distribute copies of the work to the public by sale; (4) perform the work publicly; and (5) display the work publicly. 17 U.S.C. § 106(1)–(6). As explained by the Tenth Circuit, a state violation is deemed preempted, “[w]hen a right defined by state law may be abridged by an act which, in and of itself, would infringe one of the exclusive rights.” R.W. Beck, Inc., 577 F.3d at 1147 (internal quotations omitted). The state law is not preempted if the state law violation is “predicated upon an act incorporating elements beyond mere reproduction or the like.” Id.

In Count III of the Complaint, Plaintiffs allege that:

The Maze by Tize Clark was in the public domain and was receiving healthy book sales and royalties to Tize Clark, in the summer of 2005.... [Defendant] Dashner published his novel... without consent or acknowledgment of its source and copyrightable material from 2009 to 2013 with million dollar sales of his book.

From at least October 6 of 2009, and continuously since that date [D]efendant James Dashner and Random House (Delacorte Press) [sic] has been publishing, selling, and otherwise marketing the book, The Maze Runner by Dashner, to their profit and without credit and royalties to Tize Clark.





–  –  –

out of Defendants’ publication and selling of The Maze Runner as their own original work.

Because the nature of Plaintiffs’ state law unfair trade practices and unfair competition claim flows from the “publication” of The Maze Runner that arose from the alleged copying of Plaintiffs’ work, Plaintiffs’ state law claim is preempted. See R.W. Beck, Inc., 577 F.3d at 1145– 49 (state law claims of unfair competition and unjust enrichment preempted by Copyright Act);

see also Ehat v. Tanner, 780 F.2d 876, 879 (10th Cir. 1985) (nature of unfair competition claims based on “reproduction” of plaintiff’s work are within scope of federal copyright). Accordingly, Plaintiffs’ state law claim in Count III is subject to dismissal for failure to state a claim with prejudice.7

2. Plaintiffs’ Federal Unfair Competition Claim Defendants assert that Plaintiffs’ federal unfair competition claim is subject to dismissal because Plaintiffs’ rights are limited to those provided by the Copyright Act, and, therefore, Plaintiffs cannot also pursue a Section 43(a) Lanham Act claim. Defendants cite Dastar v.

Twentieth Century Fox, 539 U.S. 23 (2003), to argue the Section 43(a) claim is barred as a matter of law. Plaintiffs did not respond to Defendants assertion.

The Lanham Act, generally, “was intended to make ‘actionable the deception and misleading use of marks,’ and ‘to protect persons engaged in... commerce against unfair competition.’” Dastar, 539 U.S. at 28 (ellipsis in original) (quoting 15 U.S.C. § 1127).

Section 43(a) of the Lanham Act provides, in pertinent part:

7 In the response, Plaintiffs summarily contend that if the Court grants Defendants’ motion as to the “state law and federal law claim in unfair trade practices and unfair competition” the “Court permit amendment to separately state claim.” (Doc. 36) at 28. As thoroughly addressed above, Plaintiffs’ state law claims for unfair trade practices and unfair competition are preempted and, therefore, any amendment to the Complaint would be futile. See Brereton, 434 F.3d at 1219. Plaintiffs’ request for amendment is, therefore, denied.

–  –  –

(A) Is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person....

...

[S]hall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1)(A).

Here, in the Complaint, Plaintiffs allege Defendants published, sold, and marketed the book The Maze Runner as their own. This constitutes a claim of “reverse passing off,” where Defendants “misrepresent[] someone else’s goods or services as [their] own.” Dastar, 539 U.S.

at 27 n.1 (citation omitted). The Court agrees Dastar governs its evaluation of this claim.

In Dastar, the defendant purchased videos of a television series for which the copyright had expired, copied the videos, made some “minor” revisions, and then released the videos under a new title that referenced the defendant as the distributor and producer. Id. at 26–27, 31. The Supreme Court rejected the plaintiffs’ reverse passing off claim under the Lanham Act for failure to credit the plaintiffs for the original videos. The Supreme Court held that the term “origin” as used in Section 43(a)(1) is “incapable of connoting the person or entity that originated the ideas or communications” contained in the produced goods. Id. at 32. In declining to recognize a cause of action under Section 43(a) “for, in effect, plagiarism,” the Supreme Court found that such a holding would conflict with federal copyright law, “which addresses that subject

specifically.” Id. at 33, 36. The Court concluded:

In sum, reading the phrase “origin of goods” in the Lanham Act in accordance with the Act’s common-law foundations (which were not designed to protect

–  –  –

Id. at 37 (emphasis in original).

It follows that under Dastar, the Lanham Act does not prohibit the conduct complained of in this matter, i.e. Defendants’ publication of The Maze Runner, which Plaintiffs allege is substantial similar to Plaintiffs’ work, without crediting Plaintiffs. This type of allegation falls within the exclusive purview of federal copyright law. Thus, Plaintiffs may not state a federal unfair competition claim for the same alleged conduct that supports the copyright infringement claim. Consequently, Defendants are entitled to dismissal, with prejudice, of Plaintiffs’ federal unfair competition claim in Count III.

–  –  –

1. Defendants’ Motion to Dismiss Complaint (DKT. #1) by Defendants Dashner and Random House (Incorporating Authorities) (Doc. 22) is granted; and

2. Plaintiffs’ claims against Defendant James Dashner and Defendant Random House in Count I, Count II, and Count III in the Complaint (Doc. 1), filed October 24, 2014, will be dismissed with prejudice.

–  –  –

30

Pages:     | 1 |   ...   | 7 | 8 ||


Similar works:

«Silo Sense Table of Contents Page Introduction 1 Unloader Suspensions and Cables 2 Leaning Silos 3 Silo Chutes 4 Silo Doors 5 Fill Pipes 6 Hydric Lifting 7 Concrete Deterioration 8 Silo Roofs 9 Silo Hoops 10 Feed Distribution 11 Silo Insurance 12 Silo Ladders and Cages 13 Unloader Service 14 Shell Corn in Conventional Silos 15 Overfilling Your Silo 16 Silo Footing Concerns 17 Silo Footings 18 Introduction Like soldiers standing at attention, upright silos stand all over the country preserving...»

«INVESTITOR: JPKP ″LAZAREVAC ″ LAZAREVAC GENERALNI PROJEKAT KANALISANJA, ODVOĐENJA I PREČIŠĆAVANJA KOMUNALNIH OTPADNIH VODA OPŠTINE LAZAREVAC REZI M E REZI M E PROJEKTANT: INSTITUT ZA VODOPRIVREDU ″JAROSLAV ČERNI″ ″ BEOGRAD BEOGRAD,april 2007. 1 JP KP “Lazarevac”-Lazarevac GENERALNI PROJEKAT KANALISANJA, ODVOĐENJA I PREČIŠĆAVANJA KOMUNALNIH OTPADNIH VODANA PODRUČJU OPŠTINE LAZAREVAC -REZIMEINSTITUT ZA VODOPRIVREDU JAROSLAV ČERNI Zavod za vodosnabdevanje, kanalizaciju i...»

«Funding Examples of Major Dam and Canal Infrastruture Projects in Montana July 2015 Prepared by: ® Table of Contents Introduction Case Studies (Dams) Ackley Lake Dam Rehabilitation Carter Ponds Rehabilitation Deadman’s Basin Terminal Outlet Replacement Flowers Creek Dam Improvements Lake Frances East Dam Rehabilitation – Phase I & II Middle Creek Dam Sinkhole Repair Mill Lake Dam Rehabilitation Ruby Dam Rehabilitation Phase 1 & 2 Smith Lake Dam Reconstruction Tin Cup Dam Repairs Case...»

«AE The Financial Supply Chain Management: a New Solution for Supply Chain Resilience THE FINANCIAL SUPPLY CHAIN MANAGEMENT: A NEW SOLUTION FOR SUPPLY CHAIN RESILIENCE Virgil Popa Valahia University of Târgovişte, Romania Abstract In the present article, the author aims to find solutions to optimize the supply chain for the cash flow – a flow of products reversed from the physical one and the two-ways flow of information. In the last 15-20 years, academics and practitioners were oriented...»

«International Medieval Congress 2015 – Academic Programme 6-9 July 2015 Last updated: 04 July 2015, 11:00 MONDAY 06 JULY 2015: 09.00-10.30 Session: 1 KEYNOTE ONLY Great Hall Title: KEYNOTE LECTURES 2015: BEYOND NATIONAL NARRATIVES: CULTURE, STATES, AND REFRAMING ‘GREGORIAN’ REFORM (LANGUAGE: ENGLISH) SPACES OF REFORM?: URBAN RENEWAL AND THE SHAPING OF CITIES IN MEDIEVAL EUROPE (LANGUAGE: ENGLISH) Purpose: Beyond National Narratives: Culture, States, and Reframing ‘Gregorian’ Reform...»

«Publications Prof. Dr Tania Singer Articles in Refereed Journals Hoffmann, F., Banzhaf, C., Kanske, P., Bermpohl, F., & Singer, T. (in press). Where the depressed mind wanders: Self-generated thought patterns as assessed trough experience sampling as a state marker of depression. Journal of Affective Disorders. Tusche, A., Böckler, A., Kanske, P., Trautwein, F.-M., & Singer, T. (in press). Decoding the charitable brain: Empathy, perspective taking and attention shifts differentially predict...»

«USER MANUAL Version 1.4.1 Loway Via Ligornetto 17a – 6854 San Pietro Switzerland http://queuemetrics.com QueueMetrics User Manual Page 2 of 130 INDEX What is QueueMetrics? Installing QueueMetrics Prerequisites: Server Prerequisites: Client Where to install Installing in practice Installing using yum Using the JDBC tester page Updating from a previous version of QueueMetrics Automatic update using yum The database update utility Installing a licence key Setting session timeout Understanding...»

«The Ryukyuanist A Newsletter on Ryukyu/Okinawa Studies Nos. 72-73 (b) Summer/Autumn 2006 In this issue, we continue reflections on the 5th International Conference on Okinawan Studies held at the University of Venice, Italy on September 14 -16, 2006. The general theme of the conference was “Imagined Okinawa: Challenge from Time and Space.” We then report on an aspect of the last gubernatorial election of Okinawa that should have been major news but wasn’t: i.e., re-emergence of a...»

«3 He a lt h 0 0 Fire 0 2 0 Re a c t iv it y P e rs o n a l P ro t e c t io n Material Safety Data Sheet Ammonia-Ammonium Chloride Buffer TS MSDS Section 1: Chemical Product and Company Identification Product Name: Ammonia-Ammonium Chloride Buffer TS Contact Information: Sciencelab.com, Inc. Catalog Codes: SLA2323 14025 Smith Rd. CAS#: Mixture. Houston, Texas 77396 US Sales: 1-800-901-7247 RTECS: Not applicable. International Sales: 1-281-441-4400 TSCA: TSCA 8(b) inventory: Ammonium hydroxide;...»

«International Bear News Quarterly Newsletter of the International Association for Bear Research and Management (IBA) and the IUCN/SSC Bear Specialist Group May 2011 Vol. 20 no. 2 © Species Restoration Center, Korea National Park Service. An Asiatic black bear cub imported from the Russian Far East, released into Jirisan National Park, South Korea, in 2005. The cub was found orphaned in the wild in Russia. IBA websites: www.bearbiology.org www.bearbiology.com Ursus website: www.ursusjournal.com...»

«WM2013 Conference, February 24 – 28, 2013, Phoenix, Arizona, USA Natural Capital Management: An Evolutionary Paradigm for Sustainable Restoration Investment – 13455 Maureen T. Koetz, Esq. Koetz and Duncan LLC Suite 30J, 355 South End Avenue, New York, NY 10280 Koetz @Koetzduncan.com ABSTRACT Unlike other forms of capital assets (built infrastructure, labor, financial capital), the supply of usable or accessible air, land, and water elements (termed Natural Capital Assets or NCA) available...»

«R AY M O N D VA N W I J K Organizing Knowledge in Internal Networks A Multilevel Study ORGANIZING KNOWLEDGE IN INTERNAL NETWORKS A MULTILEVEL STUDY ORGANIZING KNOWLEDGE IN INTERNAL NETWORKS A MULTILEVEL STUDY HET ORGANISEREN VAN KENNIS IN INTERNE NETWERKEN EEN MULTI-LEVEL STUDIE PROEFSCHRIFT TER VERKRIJGING VAN DE GRAAD VAN DOCTOR AAN DE ERASMUS UNIVERSITEIT ROTTERDAM OP GEZAG VAN DE RECTOR MAGNIFICUS PROF.DR.IR. J.H. VAN BEMMEL EN VOLGENS BESLUIT VAN HET COLLEGE VOOR PROMOTIES DE OPENBARE...»





 
<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.