USDC S.D. New York, September 21, 2009

Click here for a copy of the full decision.

  • In copyright infringement action, court holds that plaintiff’s manuscript for a children’s story depicting children around the world saying “pacifier” in different languages and defendants’ children’s book depicting children around the world saying “peace” in different languages are not substantially similar

Plaintiff Zev Lewinson wrote a manuscript for a children’s book called What Do You Call It? and sent it to defendant Henry Holt and Company. Plaintiff’s manuscript featured children in different countries sucking on a pacifier with text providing the word “pacifier” in different languages, ending with a picture of the children standing all over the planet, flags of each country, a dove and the words “Paci on Earth.” Plaintiff received copyright registration for this manuscript. Plaintiff also revised the manuscript by adding more detail and illustrations, creating a derivative work for which he did not receive copyright registration.

Henry Holt told plaintiff it would not publish his book. Several years later, Henry Holt published a children’s book called Can You Say Peace?, written and illustrated by defendant Karen Katz, which begins with a two-page description of International Peace Day followed by pictures of children from different countries and the word “peace” in different languages. The last page features a picture of a globe with children standing on it, and a dove with an olive branch.

Plaintiff filed suit for copyright infringement. Defendants moved to dismiss for failure to state a claim, or, in the alternative, summary judgment. The court granted defendants’ motion for summary judgment.

Plaintiff asserted that his registered manuscript and defendants’ book shared the following elements: (1) the titles, and “main questions,” of both stories are similar (i.e., What Do You Call It? and Can You Say Peace?); (2) the theme of both works is the desire of all children worldwide for peace; (3) both works portray children from various countries “wishing for peace in their native tongues”; (4) both books are (or propose to be) illustrated with depictions of “children playing, or in familiar settings” of their native country; (5) both books depict a Chinese child sitting near an elderly person on or near a river; (6) both books depict children getting ready for school; (7) both books place the main question of the works near or at the end of the works; and (8) the end of both works are (or propose to be) illustrated with a globe with the children depicted in the works standing around the planet, along with a dove holding an olive branch.

To determine whether the works are substantially similar, the court examined the similarities in such aspects as the theme, plot, characters, sequence, setting, and total concept and feel of the two works.

As a threshold matter, the court rejected plaintiff’s argument that the title-questions of the two works support his claim for copyright infringement because titles and phrases are not copyrightable.

The court compared the theme, plot, characters, sequence, setting and total look and feel of the two works and held that no rational trier of fact could find that the works are substantially similar.

The court also held Section 411(a) of the Copyright Act, requiring registration to bring an action for infringement, does not bar a plaintiff from suing for infringement of elements contained in a registered work from which an unregistered work was derived. However, a court must compare the allegedly infringing work with the registered work and not with the unregistered derivative work.