USDC, S.D.N.Y., April 19, 2018

District court dismisses copyright infringement action brought by children’s book author against Chelsea Clinton and the publisher of her children’s book for lack of substantial similarity.

Christopher Janes Kimberley brought a copyright infringement action alleging that Chelsea Clinton’s children’s book She Persisted: 13 American Women Who Changed the World, published by Penguin Random House, constituted an “unauthorized reproduction” of his work, A Heart Is the Part That Makes Boys and Girls Smart. Defendants moved to dismiss the complaint, and Kimberley moved to strike their reply brief on the grounds that it was “rife with false misrepresentations, deliberately misleading argument characterizations and factual error/s.” The district court granted defendants’ motion to dismiss for lack of substantial similarity and, noting that there was “nothing whatsoever improper” about defendants’ reply brief, denied Kimberley’s motion to strike.

Kimberley’s work, A Heart Is the Part That Makes Boys and Girls Smart, is a three-volume children’s book that includes a “Quotable Questionnaire” featuring 16 quotes from famous historical figures and a section referencing the sources of the quotes. Kimberley alleged that, on two separate occasions, he submitted excerpts from his work to defendants via Facebook Messenger. Although defendants denied that they had prior access to Kimberley’s manuscript, they conceded access for purposes of their motion to dismiss, limiting the analysis to whether the works were substantially similar.

Applying the Second Circuit’s test for substantial similarity, the court extracted the unprotectable elements from consideration, holding that the shared references to certain historical figures — Harriet Tubman, Helen Keller and Nellie Bly — and the common use of a quotation attributed to Bly were uncopyrightable historical facts. These “direct similarities” thus could not give rise to substantial similarity as a matter of law. The district court also rejected plaintiff’s argument that both works’ use of quotes attributable to women could support a finding of substantial similarity, explaining that “the ideas of featuring notable women and their words are not copyrightable.”

Finally, the court compared the works’ “total concept and feel” and concluded that the two works were “entirely different,” as they shared neither similar design nor literary elements, nor arranged their elements in a similar manner. Among other things, Kimberley’s Quotable Questionnaire is formatted as a quiz, in plain text on a plain background, and lacked additional facts or information about the referenced individuals. Clinton’s work, on the other hand, comprises a two-page spread of each featured female, each of which is accompanied by a paragraph of biographical information, a colorful illustration of each woman performing an act for which she is remembered and a quotation attributed to her.

Based on the lack of substantial similarity between the works, the court held that plaintiff failed to state a claim for copyright infringement, and thus dismissed the action.