Acker v. King

46 F. Supp. 3d 168, 112 U.S.P.Q. 2d (BNA) 1220, 42 Media L. Rep. (BNA) 2429, 2014 U.S. Dist. LEXIS 134721, 2014 WL 4760778
CourtDistrict Court, D. Connecticut
DecidedSeptember 24, 2014
DocketCivil No. 13CV1717 (AWT)
StatusPublished

This text of 46 F. Supp. 3d 168 (Acker v. King) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Acker v. King, 46 F. Supp. 3d 168, 112 U.S.P.Q. 2d (BNA) 1220, 42 Media L. Rep. (BNA) 2429, 2014 U.S. Dist. LEXIS 134721, 2014 WL 4760778 (D. Conn. 2014).

Opinion

RULING ON MOTION TO DISMISS

ALVIN W. THOMPSON, District Judge.

The pro se plaintiff, Yolanda Acker (“Acker”), brings this action against Stephen King (“King”) for copyright infringement and for perjury. The defendant has moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For reasons set forth below, the defendant’s motion to dismiss is being granted.

[170]*170I. FACTUAL ALLEGATIONS

“The [amended] complaint, which [the court] must accept as true for purposes of testing its sufficiency, alleges the following circumstances.” Monsky v. Moraghan, 127 F.3d 243, 244 (2d Cir.1997).

The plaintiff is the author of an unpublished anthology titled Short Tales of Killing Horror, which includes five short stories and one of which is titled “The Haunting of Addie Longwood” (“Haunting”). The effective date of the plaintiffs copyright registration for her anthology is May 2, 2011. Haunting “depicts a 12 year old girl named [Jessica] who moves to a town called Ellsworth which is in Maine[.]” (Am. Compl., Doc. No. 27, at 3.) Jessica “saves the town from murders” and “has had psychic abilities since her childhood.” (Id.)

The plaintiff alleges that she mailed a copy of her Haunting manuscript to the defendant in or around the middle of March 2012. The defendant’s assistant responded with a letter dated April 24, 2012. The letter acknowledged receipt of the manuscript, and also stated that “[t]he demands on [King’s] time also make it impossible to read and comment on unsolicited manuscripts.” (Am. Compl., Ex. 3, Doc. No. 27-3, at 2.) In or around May 2012, the plaintiff searched online for the defendant’s name and upcoming novels and learned about the upcoming publication of the defendant’s novel Doctor Sleep. The plaintiff alleges the theme of the defendant’s novel to be:

[T]he main character besides the boy Dan Torrance to be a 12 year old girl named Abra Stone who had moved to a new town (New Hampshire) and coincidentally met this/Dan Torrance boy whom they both have psychic abilities and at the end save the town from paranormal murders.

(Am. Compl., Doc. No. 27, at 3.) The plaintiff alleges the defendant willfully stole [her] main character to finish off his story ‘Dr. Sleep’ he addresses [her] character but coincidentally changes the way it was written offhandedly- (Id. at 6.) With respect to the perjury claim, the plaintiff alleges that the defendant made false statements “about [her] as to not know who [she is].” (Id.)

II. LEGAL STANDARD

When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Although a complaint “does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation”)). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citations omitted). However, the plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955. “The function of a [171]*171motion to dismiss is ‘merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.’” Mytych v. May Dept. Stores Co., 34 F.Supp.2d 130, 131 (D.Conn.1999) (quoting Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984)). “The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his claims.” United States v. Yale New Haven Hosp., 727 F.Supp. 784, 786 (D.Conn.1990) (citing Scheuer, 416 U.S. at 232, 94 S.Ct. 1683).

In its review of a motion to dismiss for failure to state a claim, the court may consider “only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the pleadings and matters of which judicial notice may be taken.” Samuels v. Air Transport Local 501, 992 F.2d 12, 15 (2d Cir.1993).

When considering the sufficiency of the allegations in a pro se complaint, the court applies “less stringent standards than [those applied to] formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Branham v. Meachum, 77 F.3d 626, 628-29- (2d Cir. 1996). Furthermore, the court should interpret the plaintiffs complaint “to raise the strongest arguments [it] suggest[s].” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).

III. DISCUSSION

A. Copyright Infringement

“[A] principle fundamental to copyright law [is that] a copyright does not protect an idea, but only the expression of an idea.” Kregos v. Associated Press, 3 F.3d 656, 663 (2d Cir.1993) (citing Baker v. Selden, 101 U.S. 99, 103, 25 L.Ed. 841 (1879)). Thus, “the essence of infringement lies in taking not a general theme but its particular expression through similarities of treatment, details, scenes, events and characterization.” Reyher v.

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Related

Baker v. Selden
101 U.S. 99 (Supreme Court, 1880)
Haines v. Kerner
404 U.S. 519 (Supreme Court, 1972)
Scheuer v. Rhodes
416 U.S. 232 (Supreme Court, 1974)
Papasan v. Allain
478 U.S. 265 (Supreme Court, 1986)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Ashcroft v. Iqbal
556 U.S. 662 (Supreme Court, 2009)
Richard Samuels v. Air Transport Local 504
992 F.2d 12 (Second Circuit, 1993)
United States v. Yale New Haven Hospital
727 F. Supp. 784 (D. Connecticut, 1990)
Nichols v. Universal Pictures Corporation
45 F.2d 119 (Second Circuit, 1930)
Jones v. CBS, INC.
733 F. Supp. 748 (S.D. New York, 1990)
Hogan v. DC Comics
48 F. Supp. 2d 298 (S.D. New York, 1999)

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46 F. Supp. 3d 168, 112 U.S.P.Q. 2d (BNA) 1220, 42 Media L. Rep. (BNA) 2429, 2014 U.S. Dist. LEXIS 134721, 2014 WL 4760778, Counsel Stack Legal Research, https://law.counselstack.com/opinion/acker-v-king-ctd-2014.