Benjamin Michael Dubay v. Stephen King ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11224
________________________
D.C. Docket No. 3:17-cv-00348-HES-MCR
BENJAMIN MICHAEL DUBAY,
Plaintiff - Appellant,
WILLIAM B. DUBAY, LLC,
Plaintiff,
versus
STEPHEN KING,
MEDIA RIGHTS CAPITAL,
IMAGINE ENTERTAINMENT,
SONY PICTURES ENTERTAINMENT,
MARVEL ENTERTAINMENT, et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 23, 2021)
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Before NEWSOM and BRANCH, Circuit Judges.*
BRANCH, Circuit Judge:
In this copyright infringement action, Benjamin DuBay appeals the district
court’s grant of summary judgment to Stephen King, Media Rights Capital,
Imagine Entertainment, Sony Pictures Entertainment, Marvel Entertainment, and
Simon & Schuster (collectively, “King”). DuBay owns the copyright for a comic
book series called The Rook, which recounted the adventures of Restin Dane. King
is the author of The Dark Tower novel series, which features the character Roland
Deschain as its protagonist. DuBay sued King for copyright infringement, alleging
that Roland Deschain is a copy of Restin Dane. DuBay also sued the other
defendants for contributory and vicarious copyright infringement for their
respective roles in publishing King’s novel series and adapting the book series into
graphic novels and a motion picture. After careful consideration and with the
benefit of oral argument, we affirm.
I. BACKGROUND
Because the parties are familiar with the facts of this case, we recount only
those facts that are necessary to the disposition of this appeal.
*
After Judge Martin heard this case at oral argument, facts arose that required her
recusal. She did not, therefore, participate in this decision, which is rendered by a quorum. 28
U.S.C. § 46(d).
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William DuBay and two other individuals created the comic book character
Restin Dane, a.k.a. “The Rook,” in the 1970s. On January 19, 1977, Dane first
appeared in a Warren Publications horror/fantasy comic magazine entitled Eerie
(vol. 82). In 1979, Warren Publications published a comic book series dedicated to
The Rook. The Rook comic book series sold more than 5 million copies from 1977
to 1983.
As the evidence presented in the underlying proceeding established, Restin
Dane is a wealthy scientist/inventor who lives in Arizona in a house shaped like a
rook chess piece, which is known both as “Rook Castle” and “Rook Manor.” Dane
is a time traveler. He invents his own time machines (two resemble rook chess
pieces) and “will go anywhere—any time—in search of adventure!” During his
time-traveling adventures, Dane battles a variety of villains. Dane shares
numerous attributes with other traditional heroes from comic books. He is
handsome, masculine, courageous, and honorable. Dane is selfless and can always
be counted on to “do the right thing.” Dane does not engage in much
introspection; his character arc remains constant throughout The Rook series. In
short, Dane is a traditional comic book hero.
Stephen King is one of the best-known authors of the last half-century.
Although King has written more than 50 works of fiction, this case involves what
he describes as his “magnum opus”—The Dark Tower series. The Dark Tower is
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comprised of eight novels and a novella, published between 1982 and 2012. In or
around April 1970, King began writing the first novel in the series, The
Gunslinger. First published in book form in 1982, The Gunslinger introduced
Roland Deschain, the protagonist of The Dark Tower series. Between 2007 and
2017, Marvel published licensed graphic novels that were based on The Dark
Tower novels. And in 2017, Media Rights Capital, Imagine Entertainment, and
Sony Pictures Entertainment produced a motion picture adaptation of The Dark
Tower series by the same name.
Throughout The Dark Tower series, Roland Deschain pursues an elusive
structure called the Dark Tower—the linchpin of the space/time continuum—and a
sorcerer called The Man in Black who serves The Crimson King.
Deschain is a complex character. He is courageous and skilled with a gun,
yet he lacks the idealism and morality of the traditional hero. Deschain is a loner
who does not value the lives of others and is, thus, willing to sacrifice those who
get in his way. Sometimes he appears heartless and uncompassionate; other times
he displays an emotional and romantic side that allows him to engage in
introspection and—ultimately—change his behavior. Deschain’s character arc
throughout The Dark Tower series is marked by his search for self-knowledge and
redemption. Thus, Deschain’s journey is not only external—chasing the Dark
Tower and its sorcerer—but also internal. Deschain’s personal journey is difficult.
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He undergoes illness, aging, amputation, and terrible, heart-rending loss. Deschain
ultimately realizes that he cannot find redemption until he reflects on his life and
admits the evil he has done. In short, Deschain is best described as an anti-hero.
Approximately 35 years after the first publication of The Gunslinger,
Benjamin DuBay—the nephew of William DuBay 1—sued King for copyright
infringement. DuBay brought one count of copyright infringement against all
defendants; one count of contributory copyright infringement against Media Rights
Capital and Imagine Entertainment; and one count of vicarious copyright
infringement against King, Sony Pictures Entertainment, Marvel Entertainment,
and Simon & Schuster. DuBay alleged that the similarities between Deschain and
Dane were so “shocking and extraordinary” that King must have copied DuBay’s
artistic expression.
During discovery, DuBay moved to compel the production of King’s private
journals from January to May 1977. King objected and argued that the journals
were irrelevant, such production would invade his privacy, and that the request for
the journals was overbroad. After conducting an in camera review of the relevant
1
William DuBay died in April 2010. Benjamin DuBay claims that he received an
assignment of William DuBay’s ownership in The Rook’s copyright. The district court
concluded that “the issue of ownership is far from clear.” So it assumed without deciding that
Benjamin DuBay owned a share in the relevant copyright. We also assume for purposes of this
appeal that Benjamin DuBay owns an interest in the copyright.
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journal entries, a magistrate judge denied DuBay’s motion. DuBay did not file
objections to the magistrate judge’s ruling.
King eventually moved for summary judgment. He submitted a copy of the
first novel, The Gunslinger; The Dark Tower motion picture; and excerpts from
The Dark Tower graphic novels. Given the volume of the works at issue (totaling
approximately 4,200 pages), King supported his motion with an expert report
written by Michael Gale, which analyzed the issue of substantial similarity.2 King
also engaged Robin Furth to write character and plot summaries and analyze
quotations from the works at issue. 3
In his opposition to the motion for summary judgment, DuBay did not enter
any additional works into the record. 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.
2
Gale is an accomplished writer (best known for co-authoring the 1985 motion picture
Back to the Future) and has read extensive collections of science fiction in comics, including the
works at issue in this case. Gale has also provided expert testimony in numerous other copyright
cases.
3
Furth was a research assistant to King and wrote Stephen King’s The Dark Tower: The
Complete Concordance as a writer’s tool for King’s use. Furth has also published more than 50
articles about The Dark Tower series, co-authored the Marvel graphic novels based on The Dark
Tower series, appeared in documentaries and interviews related to the series, and served as a
consultant for the 2017 motion picture and a forthcoming television franchise.
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The district court concluded that the characters were not substantially similar
and granted summary judgment to all defendants.
DuBay then moved for relief from judgment under Fed. R. Civ. P. 59(e),
60(b)(1), and 60(b)(3), urging the court to reconsider its decision for various
reasons. The district court denied those motions. DuBay timely appealed.
II. DISCUSSION
DuBay raises two issues on appeal. First, DuBay contends that the district
court abused its discretion by failing to exclude Furth’s character and plot
summaries and Gale’s expert report. Second, he contends that the district court
erred when it found that the characters were not substantially similar. 4 We address
each issue in turn.
A. Expert Evidence5
First, DuBay contends that the district court abused its discretion by failing
to apply the Daubert standard to the evidence provided by Furth and Gale. See
4
Dubay also challenges the district court’s denial of his motion to compel production of
King’s journals. Dubay, however, abandoned this claim by failing to object below. See Fed. R.
Civ. P. 72(a) (providing that when a magistrate judge decides a “pretrial matter not dispositive of
a party’s claim or defense,” a “party may serve and file objections to the order within 14 days
after being served with a copy” of the decision, and, “[a] party may not assign as error a defect in
the order not timely objected to.”). Because DuBay failed to object to the magistrate’s denial of
his motion to compel within 14 days, he “waived his right to appeal [that] order[] in this Court.”
Smith v. Sch. Bd. of Orange Cty., 487 F.3d 1361, 1365 (11th Cir. 2007). Accordingly, we will
not consider DuBay’s argument.
5
We review decisions regarding the admissibility and reliability of expert testimony for
abuse of discretion, and we will “not reverse an evidentiary decision of a district court unless the
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Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). DuBay argues that
Furth’s character and plot summaries were inadmissible because those summaries
were unreliable and irrelevant. According to DuBay, Furth’s summaries were
unreliable because she had a financial interest in the outcome of the case, and she
misrepresented The Dark Tower series by claiming that Deschain does not travel
through time. Furthermore, he contends that the summaries were irrelevant
because they covered elements that were not at issue and, therefore, did not assist
the district court. DuBay also argues that Gale’s expert report was unreliable
because Gale conceded that if Deschain were a traditional time traveler, the
premise of his expert report would be completely undermined.
Expert testimony is admissible if: (1) “the expert’s scientific, technical, or
other specialized knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue;” (2) “the testimony is based on sufficient facts or
data;” (3) “the testimony is the product of reliable principles and methods;” and
(4) “the expert has reliably applied the principles and methods to the facts of the
case.” Fed. R. Evid. 702; see also Crawford v. ITW Food Equip. Grp., LLC, 977
F.3d 1331, 1338 (11th Cir. 2020) (explaining that Daubert requires courts to assess
reliability by considering “(1) whether the expert’s testimony can be and has been
ruling is manifestly erroneous[.]” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004)
(en banc) (quotation omitted).
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tested; (2) whether the theory has been subjected to peer review and publication;
(3) the known or potential rate of error of the particular scientific technique; and
(4) whether the technique is generally accepted in the scientific community”
(quotation omitted)).
The Federal Rules of Evidence separately permit a party to introduce “a
summary, chart, or calculation to prove the content of voluminous writings,
recordings, or photographs that cannot be conveniently examined in court.” Fed.
R. Evid. 1006; see also United States v. Francis, 131 F.3d 1452, 1457 (11th Cir.
1997) (“Rule 1006 allows the district court to admit . . . summaries as evidence
[when], in the court’s discretion, it would be inconvenient or unnecessarily time-
consuming to [review all of the writings, recordings, or photographs].”).
In its summary judgment decision, the district court addressed Dubay’s
objections to the evidence submitted by Furth and Gale. As to Furth’s summaries,
the district court noted that the summaries were admissible under Rule 1006 given
the sheer volume of the works at issue. Furthermore, the district court did not limit
its review to the summaries, stating that it would “compare the characters for the
purpose of the substantial similarity analysis using Furth’s summaries[;] Eerie,
volumes 82–85, 87–88 in their entirety[;] and the other materials lodged with the
court.” As to Gale’s expert report, the district court emphasized that it “[was] not
left to rely on expert opinion alone to determine whether the protected expressions
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of the work [were] substantially similar” because “[t]o the extent the works at issue
have been lodged with the [district court], the works themselves have been
scrutinized.”
As an initial matter, DuBay misapprehends the purposes of Daubert and
Rule 1006. Daubert requires the district court “to act as a gatekeeper to insure that
speculative and unreliable [expert] opinions do not reach the jury.” McClain v.
Metabolife Int’l, Inc., 401 F.3d 1233, 1237 (11th Cir. 2005). Similarly, “Rule 1006
allows the district court to admit . . . summaries as evidence [when], in the court’s
discretion, it would be inconvenient or unnecessarily time-consuming to [present
all the evidence to] the jury.” United States v. Francis, 131 F.3d 1452, 1457 (11th
Cir. 1997). The purpose of both rules is to assist the ultimate fact finder. Here,
however, the district court personally examined the works at issue that the parties
submitted and determined that the case could not proceed to a jury because King
was entitled to summary judgment. And because the case would not reach trial,
there was no need for the district court to exercise its gatekeeping function.
In any event, DuBay’s arguments are meritless. DuBay argues that Furth’s
summaries were unreliable and irrelevant and thus inadmissible under Rule 702
and Daubert. But Furth’s summaries were independently admissible under Rule
1006. See WWP, Inc. v. Wounded Warriors Family Support, Inc., 628 F.3d 1032,
1039–40 & n.7 (8th Cir. 2011) (explaining that evidence was admissible either as
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expert testimony under Rule 702 or as summary testimony to prove content under
Rule 1006). DuBay does not dispute that the works at issue are voluminous or that
it would have been inconvenient for the district court to review all the relevant
material. Thus, DuBay does not argue that Rule 1006 was inapplicable. To the
extent DuBay contends that Furth’s summaries were affected by bias, the district
court correctly observed that Furth’s potential bias goes to the weight the district
court should give the summaries—not whether they are admissible. See, e.g.,
Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1334 (11th Cir. 2014) (explaining that
the “risk of bias . . . goes to the weight of . . . testimony, not its admissibility”).
And because the district court independently examined the works the parties
submitted, it was well positioned to determine what weight to give to Furth’s
summaries. In sum, DuBay has not shown that the district court abused its
discretion by admitting Furth’s summaries under Rule 1006.
DuBay’s attempt to undermine Gale’s export report is similarly
unpersuasive. DuBay maintains that Gale’s expert report was not admissible under
Daubert and Rule 702 because Gale conceded the unreliability of his own report.
However, Gale made no such concession. DuBay’s counsel asked Gale a
hypothetical question: “If Roland Deschain is a time traveler in the traditional
sense, then wouldn’t that undermine the entire basis of your opinion?” Gale never
entertained the hypothetical and repeatedly insisted that Deschain was “not a
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traditional time traveler.” Thus, DuBay has not shown that the district court
abused its discretion by failing to exclude Gale’s expert report.6
B. Substantial Similarity 7
Next, DuBay argues that the district court erred when it granted summary
judgment to King because a reasonable jury could conclude that the characters of
Dane and Deschain are substantially similar. As DuBay sees it, the characters are
substantially similar because they (1) have similar names, (2) interact with towers
that are integral to time travel, (3) have bird companions, (4) are marked by
knightly characteristics, (5) travel back in time to save a young boy who becomes a
gunslinger, (6) wear Western garb, (7) survive a fictionalized Alamo, and (8) use
6
DuBay further challenges the district court’s decision to consider the expert report and
the summaries by arguing that the district court abused its discretion by not affording him relief
under Federal Rules of Civil Procedure 59 and 60. These motions purported to identify further
evidence that Furth’s summaries were biased and unreliable and that Gale lacked the requisite
expertise. On appeal, DuBay asserts—in two sentences—that the district court abused its
discretion because it did not apply the Daubert standards for relevance or reliability to Furth’s
summaries. Apart from this conclusory assertion, DuBay fails to “advanc[e] any arguments or
cit[e] any authorities to establish” that the district court abused its discretion when it denied his
post-trial motions. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
“[S]imply stating that an issue exists, without further argument or discussion, constitutes
abandonment of that issue and precludes our considering the issue on appeal.” Id. (quotation
omitted). Accordingly, we will not consider DuBay’s argument.
7
We review “a district court’s grant of summary judgment de novo, applying the same
legal standards used by the district court.” Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir.
2008). “Summary judgment is appropriate [when] there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law.” Wooden v. Bd. of
Regents of Univ. Sys. of Georgia, 247 F.3d 1262, 1271 (11th Cir. 2001) (quotation omitted). We
“draw all inferences and review all evidence in the light most favorable to the non-moving
party.” Gorss Motels, Inc. v. Safemark Sys., LP, 931 F.3d 1094, 1099 (11th Cir. 2019) (quotation
omitted and alterations adopted).
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knives. He also contends that Dane was the first character that combined these
elements to create a distinctive character that King later copied.
The Copyright Act protects “original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they
can be perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device.” 17 U.S.C. § 102(a). “Because the Copyright Act
protects ‘original works of authorship,’ the ‘sine qua non of copyright is
originality.’” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994)
(citation omitted) (first quoting 17 U.S.C. § 102(a) and then quoting Feist Publ’ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991)). Thus, non-original ideas
and material, such as scènes à faire, are not copyrightable. Id. Scènes à faire are
“sequences of events which necessarily follow from a common theme, or incidents,
characters, or settings that are indispensable or standard in the treatment of a given
topic.” Peter Letterese & Assocs., Inc. v. World Inst. Of Scientology Enters., 533
F.3d 1287, 1302 (11th Cir. 2008) (citation and quotation marks omitted).
To establish a copyright infringement claim, a plaintiff must show two
elements: “(1) ownership of a valid copyright, and (2) copying of constituent
elements of the work that are original.” Feist Publ’ns, 499 U.S. at 361. When, as
is the case here, there is no “direct evidence” of copyright infringement, a plaintiff
must prove that: (1) “the defendant had access to the plaintiff’s work[,]” and
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(2) “the defendant’s work is substantially similar to the plaintiff’s protected
expression.” Beal, 20 F.3d at 459.
Like the district court, we assume that DuBay has proved that King had
access to The Rook, and we will focus our analysis on substantial similarity.8
Substantial similarity exists when “an average lay observer would recognize the
alleged copy as having been appropriated from the copyrighted work.” Oravec v.
Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1224 (11th Cir. 2008)
(quotation omitted). But because a work may contain uncopyrightable elements,
our task is to “determine[] both whether the similarities between the works are
substantial from the point of view of the lay observer and whether those
similarities involve copyrightable material.” Id. (quotation omitted) (alteration
adopted).
We begin by narrowing down the alleged similarities to elements that are
protected by copyright. First, we agree with the district court that character names
do not merit copyright protection. CMM Cable Rep, Inc. v. Ocean Coast Prop.,
Inc., 97 F.3d 1504, 1519 (1st Cir. 1996) (explaining that mere words and short
8
The district court concluded that it was unnecessary to decide the issue of access given
the lack of substantial similarity between the characters. On appeal, the parties disagree about
whether the evidence establishes that King had access to The Rook. We note that if a plaintiff
cannot establish access, that plaintiff must meet a higher standard of “demonstrating that the
works are so strikingly similar as to preclude the possibility of independent creation.” Herzog v.
Castle Rock Entm’t, 193 F.3d 1241, 1249 (11th Cir. 1999) (emphasis added). On this record, we
decline to decide that issue in the first instance. Therefore, we will assume that DuBay has
demonstrated access and analyze whether the characters are substantially similar.
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phrases, even if they occur in a copyrighted work, do not themselves enjoy
protection against copying); cf. 37 C.F.R. § 202.1(a) (excepting from copyright
protection “[w]ords and short phrases such as names, titles, and slogans”).
Second, we agree with the district court that there are certain similarities at
issue in this appeal that lack originality. Even assuming that the characters share
some similarities concerning their knightly heritage, travel to different times and
parallel worlds, Western attire, fictionalized Alamo histories, and knife-wielding,
these similarities are scènes à faire that are too general to merit copyright
protection. See Peter Letterese, 533 F.3d at 1302; Zalewski v. Cicero Builder Dev.,
Inc., 754 F.3d 95, 102 (2d Cir. 2014) (“[T]he doctrine of ‘scènes-à-faire’ teaches
that elements of a work that are ‘indispensable, or at least standard, in the
treatment of a given topic’—like cowboys, bank robbers, and shootouts in stories
of the American West—get no protection.” (quotation omitted)).
Finally, we turn to what remains: the alleged similarities between the
characters’ relationship to towers and tower imagery, the presence of bird
companions, and the fact that both characters save a young boy from a different
time. Although these elements are similar in the abstract, they are not substantially
similar because the elements are portrayed in different ways. To begin, the towers
serve very different functions for each character. Dane resides in a house that
resembles a rook chess piece and builds time machines with a similar appearance.
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By contrast, the Dark Tower is neither Deschain’s home nor a time machine.
Deschain is on a quest to find the Dark Tower, which is the nexus that ties different
worlds and dimensions together.
Next, the characters interact with bird companions and imagery in different
ways. Dane is associated with bird symbolism because he wears a belt buckle with
the image of a rook bird and, on at least one occasion, puts on a pair of rook wings
and flies into battle alongside a rook bird. Deschain, on the other hand, encounters
a talking crow and briefly allies with a fighting hawk before sacrificing the hawk
to serve his own ends. Unlike Dane, who only associates with bird allies, Deschain
symbolically becomes the hawk upon its demise.
Finally, the characters’ interactions with young male companions are
dramatically different. Dane travels back in time to the Battle of the Alamo and,
by chance, saves the life of a young boy who turns out to be Dane’s great-great-
grandfather. Deschain also saves and bonds with a young boy, but Deschain later
betrays and sacrifices the boy for the sake of his quest. Even if these elements bear
some similarity, the portrayals of these elements are distinguishable. Given these
distinctive presentations, “no reasonable jury upon proper instruction would find
that the two works are substantially similar.” Beal, 20 F.3d at 459.
In addition to asking us to analyze substantial similarity by comparing each
element side by side, DuBay urges us to consider whether the characters’
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combinations of those elements are substantially similar. DuBay submits that
Dane is a unique expression of those combined elements and that Deschain is a
copy of that expression.
We have recognized the pitfalls of scrutinizing each alleged similarity in
isolation. See Beal, 20 F.3d at 460 (“The district court correctly noted that . . . lists
[of similarities] are inherently subjective and unreliable, particularly where the list
contains random similarities. Many such similarities could be found in very
dissimilar works.” (citation and quotation marks omitted)); Leigh v. Warner Bros.,
212 F.3d 1210, 1215 (11th Cir. 2000) (“This circuit has noted . . . that lists of
similarities between works are inherently subjective and unreliable.”). But by
asking us to take a broader view of the characters, DuBay hurts rather than helps
his case because this more holistic analysis further highlights the distinctiveness of
each character.
Dane possesses many attributes of a traditional comic book hero. He is a
courageous gunslinger and an honorable man. He always does the “right thing.”
He travels through time and fights a variety of villains. And Dane’s character arc
remains constant throughout The Rook series. Deschain, however, is far more
complex. He is courageous and skilled with a gun yet lacks the idealism and
morality integrity of a traditional hero. He uses and sacrifices others out of self-
interest. And Deschain is on an external quest for the Dark Tower and The Man in
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Black and an internal quest for self-knowledge and redemption. Deschain is best
described as a troubled anti-hero. As a result, these characters are surrounded by
different stories and contexts, thereby rendering any similarities superficial.
For these reasons, and those explained in the district court’s thorough
opinion, “no reasonable jury upon proper instruction would find that the two works
are substantially similar.” Beal, 20 F.3d at 459. Accordingly, the district court did
not err by granting King’s motion for summary judgment. 9
III. CONCLUSION
For the reasons explained, we affirm the district court in full.
AFFIRMED.
9
Because there was no direct copyright infringement, DuBay’s contributory and
vicarious copyright infringement claims fail. See Peter Letterese &Assocs., Inc. v. World Inst.
Of Scientology Enter., 533 F.3d 1287, 1298 n.11 (11th Cir. 2008) (explaining that there “can be
no contributory infringement without a direct infringement” (quotation omitted)); Leonard v.
Stemtech Int’l Inc., 834 F.3d 376, 386 (3d Cir. 2016) (“[T]o prove a claim of contributory or
vicarious infringement, a plaintiff must first show direct infringement by a third party.”).
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