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- Court holds that the author of two action-mystery books about a modern-day warrior and protector named Ely Stone failed to state a claim for copyright infringement against ABC, the producers of “Eli Stone,” a comedy-drama television series about an attorney named Eli Stone, finding that the common elements between the two works are not protectible.
Plaintiff David W. Davis is an author who writes under the pseudonym David Walks-As-Bear. Davis authored two novels, “The Murmurings” and “Old Money,” about a character named Ely Stone. Defendants American Broadcasting Companies, Touchstone Television Productions, and Buena Vista Home Entertainment are the producers of the ABC television series “Eli Stone.”
In Davis’ novels, Ely Stone is a Native American and a retired member of the Coast Guard’s elite team of specialized intelligence operatives. Davis’ character is a reluctant hero with a strong moral compass, excellent fighting skills, vivid nightmares, and a special ability called the “Shinkakee,” which helps the character to sense danger. The Shinkakee alerts Ely Stone to danger by playing a song in the character’s head, such as “Ghost Riders in the Sky” by Johnny Cash or “Something’s Happening Here” by Buffalo Springfield. Ely’s attributes help him to solve problems, to accomplish heroic tasks, and to protect his tribe and loved ones.
The 2008 ABC television series revolves around the character Eli Stone, a successful but heartless attorney who represents vicious corporate clients for a prestigious San Francisco law firm. Eli Stone begins to experiences hallucinations—which are possibly prophetic but may be due to a brain aneurism—that cause him to lose connection with reality. However, these experiences lead the character to take on more pro bono work and to fight for the downtrodden. In addition to his professional challenges, Eli Stone also encounters problems involving his family and his love life. The hallucinations—which occasionally involve music such as “Faith” by George Michael—typically provide a road map for Eli’s success.
Davis sued the defendants for copyright infringement and contributory copyright infringement, claiming that “Eli Stone” is a derivative work based upon Davis’ character and novels. The district court disagreed and granted defendants’ motion to dismiss. Applying the Sixth Circuit’s two step test for determining substantial similarity, the district court found that many of the common elements between the Davis novels and “Eli Stone” were scenes a faire or unprotectible stock themes.
First, Davis alleged that the Ely and Eli characters were similar in that they each have visions that help them in their lives. However, the court found that the idea of a character who has visions is too general to be copyrightable. Moreover, the “visions” each character experienced were completely different, in that ABC’s character experienced visual hallucinations, while Davis’ character experienced no more than a form of “Spidey sense.”
Second, Davis argued that the theme of the reluctant hero is a protectible element of his books. The court again disagreed, finding that a “reluctance” to take up the hero’s mantle drives many hero stories, including those of Spiderman, the Hobbits, and Buffy the Vampire Slayer.
Third, Davis alleged that each of the works involved a “spiritual advisor,” who acts as a moral compass for the character. Ely Stone is guided by a tribal shaman, while Eli Stone is guided by his acupuncturist Dr. Chen. Again, the court found this theme to be too broad to be protectible, citing the characters Yoda, Dumbledore, and Gandalf as common examples of spiritual advisors.
Finally, the court found that the common names and common themes in which the characters love and become concerned for one another were unoriginal and not protectible. Names are generally unprotectible elements of a work, especially where the characters' names are merely similar, not identical, and the similarities between such characters are tenuous at best. Finding that the alleged similarities between Davis’ works and the ABC series to be either unprotectible or insubstantial, the district court granted the defendants’ motion to dismiss.