The U.S. Court of Appeals for the Eighth Circuit found that the characters and themes of a Kastleland, a medieval play created for a children’s YMCA camp, consisted of scenes a faire, and that the characters and scenes from Kastleland and the defendant’s medieval play, KnightQuest, were not substantially similar to the protected elements of the copyright. Frye v. YMCA Camp Kitaki and Russ Koos, Case No. 09-3010 (8th Cir., Aug. 20, 2010) (Hansen, J).

In 1986, plaintiff Tom Frye developed Kastleland, a medieval-themed adventure trail for use at YMCA’s Camp Kitaki. Campers gather around a campfire at the beginning of the trail, while stock medieval characters, such as a Robin Hood-like figure, a knight and a female character speak among themselves before the campers about impending danger from seven dragons. The campers agree to accompany these characters on a quest, during which they undertake challenges and gain a “word of power” upon the completion of each challenge. These “words of power”— love, courage, self-control and nobility—are then used to defeat the dragons and complete the quest. Frye ended his association with the YMCA in 1998 and a dispute immediately arose surrounding the YMCA’s right to continue its use of Kastleland at Camp Kitaki. In a settlement agreement and stipulated judgment, the YMCA agreed not to infringe Frye’s copyright in Kastleland.

In 2005, Camp Kitaki hired defendant Russ Koos, who wrote a medieval-themed adventure trail, KnightQuest and introduced the program in 2007. KnightQuest begins with a campfire scene, in which two siblings, a friend and a wizard character are confronted by an antagonist and four “shadow lords,” representing hate, lies, disrespect and irresponsibility. The wizard asks the campers assembled to join in a quest to become knights and defeat the shadow lords. During the trials that follow, the campers learn YMCA core values—responsibility, caring, respect and truthfulness—and upon completion of the trials, the campers are knighted. Upon learning of KnightQuest, Frye filed a complaint, alleging copyright infringement of Kastleland.

The district court found that the characters in Kastleland consisted of “medieval archetypes” and that the plot was composed of scenes a faire, “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” The characters, setting and themes found in Kastleland were of the kind typically found in a medieval-themed play or activity. Upon removing these unprotected elements, the court did not find substantial similarity between the protected expression of Kastleland and KnightQuest. Frey appealed.

On appeal, the Eighth Circuit reiterated the two-step analysis for determining substantial similarity: “first, similarity of ideas is analyzed extrinsically, focusing on objective similarities in the details of the works; second, if there is substantial similarity in ideas, similarity of expression is evaluated using an intrinsic test depending on the response of the ordinary, reasonable person to the forms of expression,” In comparing Kastleland and KnightQuest, the Court noted both are interactive plays, conducted at the same YMCA camp and employ a medieval theme. Both plays further engage campers in a “quest” that involves the teaching of values to defeat antagonists. However, the court dismissed these similarities, holding that the YMCA’s employment of this general idea could not form the basis of a copyright infringement claim and finding shared elements to be “required or at least standard to the plays’ shared hero-on-a-quest plot, medieval theme, and summer campfire setting.” As the Court explained, “[t]he challenges, acquisition of skills, and use of the skills to defeat evil characters are ever-present in the hero’s journey.” While those elements are not attributable to medieval scenes a faire, they were dictated by the summer camp setting. After removing these unprotected elements from the substantial similarity inquiry, the court found that remaining similarities of Kastleland and KnightQuest were insubstantial.

Practice Note: Even where two works appear to be substantially similar, elements defined as scenes a faire will not be considered in the court’s substantial similarity inquiry and may leave a plaintiff alleging copyright infringement—including one with a work with has been copied to a significant degree—with only a few insubstantial similarities on which to rest his or her case.