[ID: Excerpts from the court documents.
IV. The Works
The Court has personally read every word of the four Wolff books and the six Freeman drafts and nine sets of notes at issue in this case. That was a lot of reading. Each of Freeman’s first five drafts is approximately 450 double spaced pages long. The sixth (Masqued 2016) is 108 pages long; it appears to be incomplete. There are approximately 55 additional pages of notes, variously single and double spaced. Each of Wolff’s four novels is about 650 pages long, but that number is highly misleading because, with each successive volume, the print and the margins on each page get smaller and the line spacing gets closer. When Wo l ff’s works are normed for changes in print and margin sizes, they easily exceed 3000 pages – which means the Court has read upwards of 6000 pages of romantasy fiction.
into a draft of her novel – mentions in passing that “Ian and Sasha” (characters who were never written into any draft of her novel) live on a “large compound like a castle.” Dkt. No. 397-9 at 5. Likewise, the notion that Katmere is substantially similar to the “Old-World European chateau” in which the MacKays live, simply because “chateau” is the French word for “castle,” borders on the frivolous. No building in any of Freeman’s drafts looks or feels remotely like the ancient dragon’s lair in the Alaskan wilderness that is Katmere Academy. This is a motif we will encounter again and again as we examine the factors that play into the “total look and feel” of these two sets of works.
Ash/Roman and Jaxon, the heroines’ boyfriends, are also quite different. Though Freeman characterizes both romantic leads as “wild,” “sexy,” “beautiful,” “smoking hot,” “gorgeous” and “dangerous,” Dkt. No. 543-1 at 27–28, hot, sexy, dangerous boys – central to virtually all young adult romance novels – cannot be copyrighted. The Viking Ash/Roman has rosy cheeks and sun-
f. Total Concept and Feel
And so, having discussed individually the various elements of substantial similarity, we come to the ultimate test – could the more discerning ordinary reader conclude that, despite their many differences, the aesthetic appeal of Freeman’s work and Wolff’s is the same?See Gaito, 602 F.3d at 66.
The answer is no. No trier of fact could plausibly find that a more discerning ordinary observer “would recognize the alleged copy as having been appropriated from the copyrighted work.” Knitwaves, 71 F.3d at 1001 (citation omitted). Therefore, the works are not substantially similar as a matter of law.
Freeman contends that the works are substantially similar because both take place in a high school in Alaska. Alaska is a place known to the public, so setting a novel in Alaska is not copyrightable. Neither is setting a novel about teenagers in a high school.
A handsome, sun-kissed New Boy arrives at school on a motorcycle with a gorgeous girl in tow – his sister. He pays attention to our heroine in their shared classes, one of which is taught
11 by his parents, who are archaeologists. The parents, the boy, and his sister are shapeshifting paranormal creatures and members of an ancient order. They are in Anchorage searching for objects that were supposedly cursed by a Celtic Druid and subsequently brought to Alaska from New Zealand by Captain James Cook.
Mean Girl Taylor – beautiful and popular with all the boys – announces that she wants New Boy to be her next boyfriend, but New Boy expresses no interest in her.
New Boy drives the heroine home on his motorcycle, to the consternation of her mother.
Because her mother will not talk to her about such matters, the heroine discusses her family’s past and her own future with her aunt, who is a witch and a veterinarian.
The heroine casts a Tarot reading about New Boy; the cards come to life and she tries to interpret the resulting vision, which involves a maiden, two knights, wolves, a cup, a flower, and (in some versions) a dagger.
A month passes, during which our heroine and New Boy have minimal contact.
Our heroine is rescued from having to each lunch alone by her long-time biracial male friend – the Class President, whom the heroine alone knows is gay – and his friends.
The heroine begins to develop mysterious markings on her neck and spine, which her aunt hides with a salve that makes them disappear.
New Boy asks the heroine to meet him at a school dance, which she attends with her gay friend and three of his pals; she is dressed as Little Red Riding Hood.
Mean Girl Taylor makes sure that our heroine overhears her talking about her “date” with New Boy, and our heroine is bereft. She leaves the dance and goes outside. New Boy follows.
After New Boy explains that he was not on a date with Mean Girl Taylor, our heroine and New Boy enjoy their first romantic moment outside the school under the Northern Lights.
Moreover, Freeman cannot prevail on a theory of fragmented literal similarity because the “literal” similarities to which she points are simply ordinary words or common phrases that any author is free to use. Examples of fragmented literal similarity identified by Freeman include Wo l ff’s use of the following phrases: “things that go bump in the night,” “pang of disappointment,” “my stomach is roiling,” “he gives me a knowing look,” “grab my backpack and head out,” “everything is going to be okay,” “my blood freezes in my veins,” “the whooshing sound,” “tears streaming down my cheeks,” “I’m so sorry this happened,” “I don’t have a clue,” “I feel exactly the same way,” “harder than I thought it would be,” “and to hell with the consequences,” “and that’s when it hits me,” “kisses the top of my head,” and “like a sack of potatoes.” See Dkt. Nos. 276-34; 276-53; 276-54; 276-56. Arguing that the use of these common phrases demonstrates substantial similarity trivializes copyright law.
Freeman also suggests that the heroines share “parallel, specific lifestyle details.” Id. at 26. For example, she says that the heroines’ favorite food comes from a local Mexican restaurant, and they often drink tea. The heroine also “ducks her head down” when she is uncomfortable, loves homemade chocolate chip cookies, and eats apples and yogurt at school. Id.
Putting aside that a shared love of Mexican food or tea is not borne out in the works themselves (Grace’s favorite food is Pop Tarts – although she does like tacos, as do many teenaged girls – and while she may drink tea on occasion, she much prefers Dr. Pepper), these alleged similarities are both unprotectable and nothing more than random, minute details that do nothing
52 to address the question of whether the characters themselves are substantially similar. Moreover, there is no “local Mexican restaurant” in Crave – there is not a restaurant anywhere close to Katmere. When Grace eats tacos, it is at a stall in a marketplace in a prison in New Orleans or when Jaxon brings her favorite street tacos from her hometown in San Diego – not in a local Mexican restaurant.
(footnote 18) It should come as no surprise that Alistair has grey eyes. He is, after all, a gargoyle – a creature made of stone. Interestingly, in his magical gargoyle form his eyes are red, not grey.
In connection with her original motion for summary judgment, Plaintiff’s counsel listed hundreds of additional points of purported similarity between Freeman’s drafts and the Crave
65 novels. See Dkt. Nos. 276-34; 276-44 through 276-56. But virtually all of the similarities Freeman identifies in these lists are either tropes/scènes à faire, similarities based on the shared use of ordinary words and common phrases, or trivial details that have no bearing on the total concept and overall feel of the works. Freeman’s lists, for example, include such things as both works mentioning Hawaii and both heroines grabbing an apple between classes – as well as the fact that both novels featured the phrase “Well, well, well.” Dkt. No. 276-3 at 98. End ID]
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