USDC S.D. Texas, February 17, 2009

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After reading plaintiff’s book and watching defendants’ movie, which were referenced in the complaint, central to plaintiff’s claims and therefore considered part of the pleadings, the district court held that there is no substantial similarity in the protectable elements of plaintiff’s science fiction book Mystic Deja: Maze of Existence and defendants’ motion picture The Adventures of Shark Boy and Lava Girl in 3-D and dismissed plaintiff’s copyright infringement claim without leave to amend. The court also dismissed plaintiff’s Lanham Act claim for reverse passing off and her state law claim for deceptive trade practices.

Plaintiff’s book features a confident 18-year old girl who is looking for her father’s consciousness which is imprisoned in a dream world. She has a boyfriend and a sidekick, battles an evil “emergist” who wants to rule the universe, and faces physical and emotional obstacles during her journey. She uses her father’s journals to learn to navigate around the dream world. The book is intended to be the first in a 12-part series and therefore the main character’s journey does not end when the book ends.

Defendants’ movie is a “family adventure” featuring a 10-year old boy named Max who is an outcast at school and who creates a dream world that is a “kid paradise” with whimsical elements such as a “train of thought” that travels to the Land of Milk and Cookies. The characters in the dream world in defendants’ movie parallel those in Max’s real life such as his father, a school teacher, and a bully. One character leaves the dream world and goes to Max’s school where Max and his classmates defeat him. Max earns the respect of his classmates and enjoys a happier relationship with his father.

According to the court, “the side-by-side comparison of the plaintiff’s book and the defendants’ movie leads to the conclusion that there is no substantial similarity in the protectable elements of the works. The basic elements of plot, themes, dialogue, mood, setting, pace, characters, and sequence of events -- and the overall concept and feel of both works -- are very different.” For example, the court explained that plaintiff’s book is a science-fiction work for young adults with themes about the human psyche and power of the mind, while defendants’ movie is a children’s fantasy that features 10 year-olds trying to overcome loneliness and learning to deal with bullies. Furthermore, plaintiff’s book is “black and gothic” while defendants’ movie is “bright and busy”.

Plaintiff argued that both the book and the movie involve a dream world, a dream journal, “shape shifting” creatures, a bike, and attacking fish, to support her claim of substantial similarity. However, the court held that the “general concept of an imaginary world or realm, or of a character searching for a father, cannot be copyrighted. The expressions of these ideas are copyrightable but in this case, are not substantially similar.” (citations omitted) The court held that the themes identified by plaintiff – searching for one’s father and identifying one’s strengths – appear in innumerable works of literature and that the presence of these themes does not make the two works substantially similar. The court dismissed plaintiff’s copyright claim without leave to amend “because any attempt to amend would be futile.”

The court also dismissed plaintiff’s reverse passing off claim. Relying on Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37 (2003), the court stated that the Lanham Act does not protect an author’s expression from false designation because the phrase “origin of goods” in the Lanham Act refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods. “The copyright and patent laws, not the Lanham Act, protect originality and creativity.” The court also dismissed plaintiff’s state law deceptive trade practices claim as preempted by the Copyright Act because the gravaman of that claim was wrongful copying of plaintiff’s work and its distribution.