DiTocco v. Riordon, No. 11-4438-cv, 2012 WL 4016898 (2d Cir. Sept. 13, 2012)

The Second Circuit threw out a suit by an author claiming that best-selling series “Percy Jackson & the Olympians” infringed his books, upholding the lower court’s ruling that the books and subsequent movies were not substantially similar. In DiTocco v. Riordon, No. 11-4438-cv, 2012 WL 4016898 (2d Cir. Sept. 13, 2012), author Tony DiTocco claimed that Rick Riordan’s five Percy Jackson & the Olympians stories infringed on his books, The Hero Perseus and Atlas’ Revenge, which featured the mythological adventures of a teenaged by named PJ. Riordan’s books centered around the mythological adventures of teenaged boy named Percy Jackson who finds out he is the descendant of a Greek god.

To prove copyright infringement, a plaintiff must prove (1) that the defendant had access to the copyrighted works; and (2) substantial similarity between the protectable elements of the respective works. Here, the works contained both protectable and un-protectable elements, requiring the court to extract the un-protectable elements and ask whether the protectable elements, standing alone, are substantially similar. In doing so, a court will compare the “total concept and overall feel” of the works. The lower court found that the two series differed in their style, approach, focus, and intended audience

The Second Circuit agreed with the lower court that the similarities – including the heavy influence of Greek mythology – were not protected under copyright law. “The subject matter of these novels necessitates significant reliance on Greek mythology for many characters, settings and classic stories. This material has entered the public domain and is not protectable.” After comparing the protectable elements of the parties’ works, the Second Circuit agreed that the two series are not substantially similar as a matter of law.