District court grants summary judgment for defendants in copyright infringement case, finding that author and illustrator failed to show substantial similarity between his comic books and defendants’ children’s TV show.

Plaintiff Christopher Knowles, a professional illustrator and artist, created a comic book titled Rivets & Ruby about Ruby, a tech-savvy human, and Rivets, the robot companion she created. Ruby and Rivets work from a “Robot Graveyard,” creating robots and computers under the supervision of a senior mentor named Professor Herbert. The theme of the story centers around the interaction and socialization between humans and satellite companion robots.

Defendants Spin Master, Inc., Spin Master Studios, Inc., Spin Master Ltd., Nickelodeon Animations Studios Inc. and Viacom International Inc. created an animated television show called Rusty Rivets, about a pair of tech-savvy companions named Rusty Rivets and Ruby, who work from a salvage yard containing used computers, robots and their spare parts to build “rescue bots” under the supervision of a senior mentor named Mr. Higgins.

Plaintiff sued defendants, alleging a variety of claims: copyright infringement, contributory copyright infringement, vicarious copyright infringement, violation of the Lanham Act, unfair business practices, accounting and cancellation of trademark application. The court previously dismissed plaintiff’s claims for trademark infringement, cancellation of trademark application and unfair business practices. The court granted defendants’ motion for summary judgment on the remaining claims, finding that plaintiff failed to establish a prima facie case for copyright infringement because he failed to show that defendants had access to, or illicitly copied, the protectable elements of his comic book, and the works are not substantially or strikingly similar.

The court first considered the evidentiary objections by both parties, including defendants’ objection to the admission of plaintiff’s expert’s declaration and report. Defendants argued that this evidence should be excluded because her declarations simply “opine as to alleged, scattered similarities without any focus on protectable expression, and thus is not helpful to the trier of fact to understand the evidence or to determine a fact in issue.” The court sustained the objection, finding the expert’s opinion unhelpful because she failed to conduct a filtration analysis.

The court next considered plaintiff’s copyright infringement claim. As an initial matter, the court determined that plaintiff’s evidence of defendants’ access to his comic books was “exceedingly weak.” Plaintiff produced circumstantial evidence consisting largely of “alleged similarities in the titles of the two works and the names of certain characters.” For example, plaintiff pointed to the fact that the book’s main characters are Rivets and Ruby, while the TV show’s main characters are Rusty Rivets and Ruby. Noting that names and titles are not subject to copyright protection, the court reasoned that the evidence fell short of supporting a “reasonable possibility” of access.

Because plaintiff lacked evidence of access, to create a reasonable inference of copying he had to show striking similarity between the two works. Assessing the alleged literary and visual similarities between the two works separately, the court concluded that plaintiff failed to show the requisite similarity between the works.

The court first examined the literary similarities of the two works (plot, themes, dialogue, mood, setting, pace, characters and sequence of events). The court noted that plaintiff admitted that no specific episode of the TV show copied any storyline or sequence of events from his comic book, and that the themes and dialogue of the works were not similar. The comic books portray stories of bank robberies and airplane hijackings, while the TV show is programmed toward a preschool audience and is about “10-year-olds Rusty Rivets and his best friend Ruby who build robots from spare parts and modify existing machines to solve problems.” The court held that the idea of humans interacting with robots is not protectable, and that the TV show and comic books were only similar at a “a very high level of generality.”

The court also found no similarities, other than unprotectable names, between the characters. In the comic books, the character Ruby is a young adult, whereas the character Ruby in the TV show is a 10-year-old girl. The court also rejected plaintiff’s arguments concerning the perceived similarities between Professor Herbert and Mr. Higgins. The fact that both characters are “older male authority figures with last names beginning with the letter ‘H’” is not instructive, as these generic similarities are not protectable. Moreover, Mr. Higgins’ character is not “especially distinctive” in light of the countless disgraced scientists who appear in literature.

The settings of the two works are likewise not substantially similar. The court found that while both stories take place in a type of salvage yard, such a shared similarity is not protectable in light of the fact that garbage dumps and salvage yards are common settings for stories involving robots. Moreover, while the story in the comic books is set in a crime-infested urban dystopia, the TV show takes place in a small suburban town.

The court next considered “the subject matter, shapes, colors, materials, and arrangement of the representations” to determine the objective similarity in appearance between the two works and found that the robot characters in the two works possessed only minor similarities, such as hinged jaws, cube-shaped figures and metal compositions. These similarities were not “meaningful” or protectable and did not warrant a finding of substantial similarity.