549 F. App'x 32
2d Cir.2014Background
- Plaintiff Monique Wager, as heir of Saul Dharien, sued Jonathan Littell and Harper Imprint for copyright infringement, alleging Littell’s novel copied Dharien’s unpublished manuscript.
- District court dismissed Wager’s complaint for failure to state a claim; Wager appealed and is represented by counsel on appeal.
- Wager alleged defendants had access to the manuscript via unnamed people to whom Dharien loaned it, Dharien’s travels in Spain, and an online copy that could have been hacked.
- She also pointed to thematic and episodic similarities between the two works (both WWII/Holocaust fiction, occasional shared references like the Madagascar proposal and a disguised Hitler).
- The Second Circuit reviewed the dismissal de novo and examined the works themselves for striking similarity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wager plausibly pleaded defendants’ access to Dharien’s manuscript | Access via unnamed persons who borrowed the manuscript; Dharien’s travels; manuscript stored online and potentially hacked | No plausible connection between the unnamed borrowers or defendants; hypotheses are speculative | Access allegations are speculative and insufficient to show a reasonable opportunity to view; dismissal affirmed |
| Whether the works are "strikingly similar" to permit inference of copying absent proven access | Alleged thematic and episodic similarities (WWII/Holocaust setting, specific references) support an inference of copying | Similarities reflect common historical themes and public-source material, not protectable expression | Court found no striking similarity as a matter of law; common historical elements insufficient to show improper appropriation |
| Pleading sufficiency under Rule 12(b)(6) and Iqbal/Twombly standards | Complaint’s factual assertions should be accepted, and pro se status entitles some leniency | Plaintiff failed to allege sufficient factual matter to make liability plausible | Applying Iqbal standard (with pro se leniency considered), plaintiffs failed to state a plausible claim; dismissal affirmed |
| Whether examination of the works permits disposition as a matter of law | Plaintiff urged factual inquiry and discovery to establish similarity/access | Defendants argued the works themselves resolve the striking-similarity question without discovery | Court reviewed both works and concluded no reasonable jury could find striking similarity; disposition appropriate as matter of law |
Key Cases Cited
- Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) (pleading-stage review of striking-similarity and rule that works themselves control contrary descriptions in pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (Sup. Ct. 2009) (plausibility standard for Rule 8 pleading)
- Scholz Design, Inc. v. Sard Custom Homes, LLC, 691 F.3d 182 (2d Cir. 2012) (elements of a copyright infringement claim)
- Jorgensen v. Epic/Sony Records, 351 F.3d 46 (2d Cir. 2003) (proof of copying requires both actual copying and unlawful appropriation; access and substantial similarity framework)
- Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) (access must be more than a bare possibility; cannot rest on speculation)
- Repp v. Webber, 132 F.3d 882 (2d Cir. 1997) (striking-similarity doctrine allows inference of copying when works are so similar independent creation is precluded)
- Brownwell v. Krom, 446 F.3d 305 (2d Cir. 2006) (pro se plaintiffs receive more liberal pleading treatment)