District court dismisses copyright infringement and other claims brought by children’s book author against Viacom and Penguin, finding that works, about small trees with big dreams of becoming famous Christmas trees, are not substantially similar and that no copyright protection is afforded to generic plots and themes such as perseverance.

Jennie Nicassio, the author of an illustrated children’s book titled Rocky: The Rockefeller Christmas Tree, about a small Christmas tree that dreams of becoming the Rockefeller Center Christmas tree in New York City, filed a lawsuit against Viacom International and Penguin Random House over their children’s animated film and book adaptation “Albert: The Little Tree With Big Dreams.” Nicassio asserted claims against defendants for copyright infringement, federal and state law unfair competition, tortious interference with prospective advantage, and tortious destruction of intellectual property, claiming that “Albert” copied from her work, that its publication has confused consumers as to the source of the book and film, and that defendants interfered with her publishing deal and hopes of licensing Rocky to Hallmark. Defendants moved to dismiss Nicassio’s complaint, and the district court granted their motion with prejudice.

Rocky, which allegedly spent time as the highest-selling holiday children’s book on Amazon after its publication in 2009, tells the story of a small Norway spruce tree that dreams of one day becoming the famous Rockefeller Center Christmas tree. With inspiration and advice from a wood fairy and in the face of taunts from a tall tree named Bruce Spruce and other forest animals, Rocky motivates himself to grow twice as big, leading to his ultimate selection as the Rockefeller Center tree. In “Albert,” a tiny, potted Douglas fir tree named Albert lives in a nursery and wishes that he, like the bigger trees, could go home with a happy family for the holidays. Hearing of a contest to select a special tree to become the Empire City Christmas Tree in New York, Albert embarks on a journey with his plant friends to the selection grounds in Vermont, fighting off the mean-spirited Cactus Pete, escaping a paper mill and fleeing vegetarian bunnies that try to eat them. Though Albert doesn’t get selected as the Empire City Christmas Tree, he saves the day when the winning tree’s top is accidentally cut off and Albert is used to top the tree and hold the star. In the end, Albert realizes he misses his family at the nursery and heads home, allowing a newly changed Cactus Pete to happily partake in the Christmas spirit by sitting atop the Empire City Christmas Tree. Penguin published the book version of “Albert” in 2016, and it became one of the top-selling holiday children’s books. That same year, Viacom aired an animated adaptation of “Albert” on Nickelodeon and other platforms.

For purposes of the motion to dismiss, defendants did not contest Nicassio’s copyright in Rocky or whether they had access to the work, so the issue before the court on Nicassio’s copyright infringement claim was whether the two works are substantially similar. The court rejected Nicassio’s argument that the scene a faire doctrine does not apply because her use of an anthropomorphized tree having dreams of success and exhibiting perseverance is unique and does not flow from a commonplace idea, explaining that plaintiff misconstrued the nature of the scene a faire doctrine. The court also held that the shared plot similarities were too generic to be protectable by copyright law. Similarly, the court found that themes of perseverance, adversity or encouragement when used in a children’s book are not protectable. In analyzing whether a lay observer would consider the works as a whole to be substantially similar, the court pointed to a number of other differences between the works’ plots, themes and sequences, including the “Albert” themes of family, empathy and forgiveness, which are not present in Rocky; the obstacles Albert had to overcome; and the ways in which the two trees achieved their ultimate goals. The court also determined that the characters differed in the works. Other than the generic plot premise, what few similarities exist between Rocky and “Albert,” the court stated, amount to a “random scattershot” of aspects that would be expected in two works exploring the same idea. Finding no substantial similarity between the works as a matter of law, the court held that Nicassio failed to state a claim for copyright infringement.

Analyzing Nicassio’s claim for federal unfair competition under the Lanham Act, the court relied on the Supreme Court’s 2003 decision in Dastar Corp. v. Twentieth Century Fox Film Corp., which barred a Lanham Act claim based on alleged consumer confusion as to the origin of goods where the “origin” alleged is the creator or author of any idea, concept or communication embodied in those goods. The court stated that Dastar “rejected the notion that Section 43(a) of the Lanham Act ‘creat[es] a cause of action for, in effect, plagiarism.’” The court also rejected Nicassio’s state law claim of unfair competition, holding that it is pre-empted by the Copyright Act. Explaining that Nicassio’s claim was one for “reverse passing off” rather than for “passing off,” the court held that this claim did not contain an “extra element” beyond a claim for copyright infringement and thus is pre-empted by the Copyright Act.

Last, the court turned to Nicassio’s claims for tortious interference with prospective advantage and tortious destruction of intellectual property and held that those claims were also pre-empted by the Copyright Act. Nicassio alleged that defendants interfered with her book deal and potential agreement with Hallmark, and the court held that these arrangements related to her rights to manufacture, distribute and publish Rocky — rights that are exclusively protected by copyright law and that are therefore pre-empted. Similarly, the court applied this reasoning to the destruction of intellectual property claim, holding that it was based on the same allegations of copyright infringement.

Determining that Nicassio failed to state a claim on each of her causes of action, the court granted defendants’ motion to dismiss. Since Nicassio did not request leave of the court to amend her complaint, and because the court determined that any amendment would be futile in that no additional facts could be pleaded that would cure the deficiencies in her complaint, the court dismissed Nicassio’s complaint with prejudice.