In Dunn v. Brown, No. 11-2291 (1st Cir. 3-22-2012), the U. S. Court of Appeals for the First Circuit affirmed summary judgment in favor of author Dan Brown and his publisher, Simon & Schuster, to dismiss a rival author’s claim that Brown’s best-seller, Angels & Demons, infringed the plaintiff’s copyright in his book, The Vatican Boys.

Dunn, the author of seven books, and Brown, the author of five novels including the best-seller The DaVinci Code, have fought before. In an earlier suit (“Dunn I”), Dunn alleged that Brown’s The DaVinci Code infringed Dunn’s copyright in his 1997 book, The Vatican Boys. That case ended in 2007 with summary judgment for Brown. The Dunn I court held that while both books were thrillers involving artifacts from the Catholic Church, the characters, plot devices, settings, pacing, tone and theme of the two books were entirely different.

Filing the current suit (“Dunn II”) in 2010, Dunn again alleged that Brown infringed The Vatican Boys when writing Angels & Demons. He asserted that Brown and his publisher were liable for extensive and direct copying of Dunn’s text, character, settings, themes and plot elements, rendering Brown’s book substantially similar to the copyrighted expression in Dunn’s.

Dunn II was referred to Magistrate Judge Neiman, who examined several representative examples of the passages in the two books which Dunn contended were evidence of Brown’s direct copying. The Magistrate Judge found no basis to hold that an ordinary reasonable person would see a substantial similarity between the books. While both books were thrillers with religious elements, they had many differences. For example, Brown’s book was a murder mystery in which the male protagonist, Langdon, a Harvard professor, traveled to various historical sites in Rome. Dunn’s book was a crime novel in which the female protagonist, Turrell, was a recovering drug-addict who searched for stolen money. Brown’s book was set primarily in Rome and occurred in a single day. By contrast, Dunn’s novel was set primarily in New England and took place over three decades. Weighing these and other points, the Magistrate Judge concluded that the alleged similarities in the books were de minimis, the plots were quite different, the respective protagonists were not similar, and whatever similarities the books might have resulted from the use of stock scenes or elements necessarily flowing from common ideas. He therefore decided that the defendants had not infringed any of the copyright-protected expression in Dunn’s book. The district court adopted the Magistrate Judge’s report and granted summary judgment for the defendants.

Conducting its own review of the record, the First Circuit followed essentially the same reasoning of the lower federal court. In a summary decision with little elaboration, the First Circuit held that no reasonable juror could find substantial similarity of copyrighted expression sufficient to support an infringement claim, nor was there probative evidence of actual copying of Dunn’s book. The First Circuit also found that to the extent there were similarities between the books, “many of them relate to stock scenes à faire naturally stemming from both works’ subject matter, which are not subject to copyright protection.” The court found the remaining similarities only coincidental and de minimis.