STATEMENT OF FACTS

STATEMENT OF FACTS

On or about August 2, 2019, Watermark Books submitted to Scholastic and other publishers a sample chapter and plot summary entitled Magic Hatching, authored by Esther Lang, for review and consideration for publication.

Esther Lang solely authored magic Hatching. No one assisted her in writing the book except Ms. Rex, who assisted her in editing the text. Watermark Books is the company that represented her in getting her book published, and Ms. Rex was the president of the company. Watermark marketed the book to publishers and found a publisher for her. Esther Lang avers that it was a long process to write the book. That she had been thinking about trying to write a children’s book about dragons for quite a while. She doesn’t remember exactly when it first occurred to her, probably five years ago, long before Brigance began her book. She would write a chapter then stop then start again.  By 2019 she had already written several drafts. She just couldn’t get herself to finish it.  So she enrolled in a course about writing for kids thinking that if she took the course, it would sort of put her on a deadline – she would have to write something to submit for the course, and that would help her finish the project. Also, she would have some guidance. She took the course in 2019, spring session at Tyler Community College. Her instructor was Henrietta Rex, and she was the only one. The topic covered in the course was how to get started in writing a book, how to research it and plan it out, and then the business side of how to get an agent and eventually get it published. She submitted her first chapter and a summary of the rest of the book to Ms. Rex. She did not submit it to anyone else in the course,

such as fellow students. She neither discussed it nor read it aloud in class. None of her classmates knew what she had written about. Ms. Rex provided feedback in the form of written comments. She did not take all the suggestions; others she denied because they did not fit the vision she had for her book. A case in point, she did not take the suggestion about wyvern because she had always intended to make her dragon a specific type, but the assignment was due, and she hadn’t made up her mind which type it should be.  So she agreed with the substance of the comment, but she chose firedrake because she thought it was important that the dragon breathe fire and be a bit more menacing than a wyvern, particularly because she wanted to include battle scenes in the book. She was not aware that Brigance compared her wyvern, Wycca, to a gargoyle, not until this lawsuit. She took the suggestion of making Mabrys pale and icy rather than dark and black-haired because she had pictured Mabrys as a witch, and witches are usually dark-haired and mysterious. She had pictured her with black hair and black eyes.  But then she had given her the power to use a freezing spell and dressed her in silver and blue, so she could see how the icy, blonde, pale appearance would work better.

In her original draft, the bolthole was a chapel on the castle grounds, but she changed this location to a library because someone suggested to her that it might offend some readers to have a decrepit chapel being burned down.  They would think it was sacrilegious.  So she decided on a library instead. She liked the idea of the queen wanting a new library, in part as a way to distance the court from magic and superstition.  It left open an additional source of conflict or tension for Orion.  That’s the way it was intended, in any event.

During their study, Ms. Rex neither mentioned a book called “Hatching Magic” by Jane Brigance, nor did she provide them with a copy of the manuscript, galley proofs, or any other form, paper or electronic. Lang first heard of Hatching Magic when she received a letter from Scholastic accusing her of copyright infringement in September 2019. Lang completed the manuscript of her book, Magic Hatching a couple of months after she finished her writing course, the summer of 2019. She began submitting the draft to agents and book packagers right away after it was finished. The draft wasn’t accepted by any agent and got a lot of rejection letters. She received favorable responses from book packages, the only one being from Watermark, which she executed a contract with them. When she submitted her manuscript to Watermark, she did not realize that it was Henrietta Rex’s company and that she was not acquainted with her. Lang stated that she edited the first chapter in response to Ms. Rex’s comments on her draft of March 1, 2019, the editorial changes of which she made straight away. The final version of Chapter 1 was completed in March 2019 since she was pleased with it at that point, having gotten feedback from Henrietta. She made editorial changes after she submitted the entire book to Watermark. Her editor at Watermark was Henrietta Rex. No changes made in response to editing by Henrietta Rex at Watermark affected the first chapter of her book. She comes up with the title “Magic Hatching” by thinking of it because of the hatchling, Fuego.  He embodied magic Hatching from an egg.  Henrietta had thought her original title was a little flat, not very active or exciting, so she was trying for something more vivid. Her original title was “The Egg and the Labyrinth.” She knew it wasn’t a great title, but she had to call it something when she was handing in the draft. She figured she would come up with something better if she had the opportunity to submit it for publication. She came up with the names of her characters by trying to choose names that were mystical or evocative of magic.  Orion, of course, is a constellation.  Freya is a Norse goddess.  Wyrel and Mabry’s she just made up.  The “y” spelling is unusual and gives the names a magical feeling, in her opinion.  Also, given the setting of the book, you can’t really have characters with commonplace, modern names.

Ms. Rex, currently the founder and president of Watermark, a company that aims to facilitate contact between writers and publishers, was a senior editor at Antheneum while she taught Ms. Lang’s class. (R. at 8-10.) Atheneum is the company that published the plaintiff’s book. (R. at 2.) At Atheneum, Ms. Rex reviewed assigned-manuscript submissions from literary agents; being a senior editor, she was also on the editorial board comprising of five to six senior editors that voted on whether each manuscript presented by board members should be published. (R. at 10-11.)

As a senior editor who taught a course at Ms. Lang’s class, Ms. Rex was never assigned and had never read the plaintiff’s book. (R. at 11.)  Although senior editors could review manuscripts not assigned to them, Ms. Rex did not read the plaintiff’s manuscript as she had a lot of work to focus on. (R. at 12.) Also, she was not present during the editorial board vote of the plaintiff’s manuscript. (R. Ex. 3 at 48.) The only editor, the plaintiff, worked with at Atheneum was Ethel Twitty.

During the writing and publishing course, Ms. Rex offered general advice to the students and admonished them to read the books of the genre they were trying to write in. (R. at 20.) Ms. Rex also referenced examples of good writing from former students and may have reference manuscripts that she read at Atheneum; neither the books students were advised to read, nor the writing samples were the plaintiff’s book. (R. at 23)

Ms. Rex required students to submit written work. (R. at 19.) The written works submitted were initial chapters for a children’s book that included a plot outline or summary. (R. at 19) Ms. Rex usually critiqued this work and returned them to the students. (R. at 19) Ms. Lang, who was a student in the course, submitted the first chapter as well as a summary for the children-dragon-fantasy book she has been struggling to finish. (R. at 19.)

By March of 2019, Ms. Lang had completed the final version of chapter one, and by the summer of 2019, Ms. Lang had a completed manuscript that she began submitting to agents and book packagers. (R. at 38.) Watermark became the opportunity Ms. Lang had hoped for as it was the first in giving a favorable response to Magic Hatching. (R. at 37.)

In her deposition, Jane Brigance averred that Ethel was the only editor she worked with at Atheneum and that her book fits into the children’s fantasy fiction. She further averred that a dragon hatching an egg is not unique. She admitted that the fact that her book involves a dragon hatching an egg and human trying to gain control doesn’t constitution copying and that she was only accusing the defendant of copying from her. She took cognizance of the similarity in Harry Potter and Hatching Magic, which she asserted that she didn’t copy because that is just a main idea or theme that is in a lot of children’s books.

There are similarities between the two books. First is that they fit in the same genre, that is, the children’s fantasy fiction. Second, the similarity in the titles is evident, as each title consists of the same two words with the order reversed.  Both titles refer to the Hatching of a dragon’s egg.  This similarity would confuse the reader into thinking the two books are, in fact, the same book. The settings of the two books are, however, different. Hatching Magic first, is a medieval castle in an unidentified location in Europe, and the second setting is Cambridge, Massachusetts. On the other hand, Magic Hatching’s first setting was a medieval castle, and the second one a labyrinth beneath the castle. A contrast can also be seen in the main characters of both books; in Lang’s book, it is the adults, while in Brigance’s book, it is the children. These dissimilarities, were recognised by Brigance when she made her deposition.

SUMMARY JUDGMENT STANDARD

My client, Esther Lang, is requesting this honorable court to reach a determination that enough evidence was not adduced to prove actual copying of the plaintiff’s work for the following reasons;

1. Whereas there are similarities in that the two works belong to the same genre of children’s fantasy fiction, the court should also look at the striking differences between the two books in terms of the theme, setting, and the main characters in the two books. Of interest is the fact that the plaintiff, in her deposition, was able to acknowledge these differences on her own during her examination in chief.
2. The thought of authoring the book occurred to the defendant five years ago, long before the plaintiff began her book. The claim of actual copying cannot, therefore, stand since the defendant cannot copy what is non-existent.

• During the writing process, the defendant had never heard or seen the plaintiff’s work, which she claims she has infringed. The defendant never made any reference to the plaintiff’s work either in person or as a group when there were the lessons about how to write a book. The defendant only came to know about the plaintiff’s book when a suit was instigated against her by the plaintiffs. The claim of actual copying cannot, therefore, stand as the defendant made no contact at all with the plaintiff’s work.

ARGUMENT

COPYRIGHT INFRINGEMENT

The issue for the determination is whether the defendant’s action resulted in copyright infringement. The Copyright Act of 1976 (“Copyright Act”), 17 U.S.C. §§ 101-803, grants copyright owners a bundle of exclusive rights, including the rights to “reproduce the copyrighted work in copies” and “to prepare derivative works based upon the copyrighted work.” Id. § 106. “Copyright infringement is established when the owner of valid copyright demonstrates unauthorized copying, and this was so held in the case of Repp v. Webber.[1] There are two main components of this prima facie case of infringement: first, a plaintiff must first show that his work was actually copied and secondly, must show that the copying amounts to an improper or unlawful appropriation. These components were established in the case of Laureyssens v. Idea Group, Inc.[2] In this analysis, the first component is going to be looked at in greater detail since it is the background against which the plaintiffs have sued the defendants, claiming that the defendants have actually copied the plaintiff’s work given the similarities that have earlier on been highlighted.

Actual copying may be established either by direct evidence of copying or by indirect evidence, including access to the copyrighted work and similarities that are probative of copying between the works. Probative rather than substantial similarity is the correct term in referring to the plaintiff’s initial burden of proving actual copying by indirect evidence.[3]

Access to the copyrighted work

Access means that an alleged infringer had a “reasonable possibility”-not simply a “bare possibility”-of hearing the prior work, and hence access cannot be based on mere “speculation or conjecture” as was so held in the case of the Gaste v. Kaiserman.[4]  In order to support a claim of access, a plaintiff must offer “significant, affirmative, and probative evidence.”[5] In this case, the plaintiffs only alleged that their work had been infringed, but they did not approve access to the copyrighted work. The plaintiff’s copyrighted work was not in dispute during any of the stages of the proceedings. The plaintiff, Jane Brigance, only accused the defendant of copying from her without proving that indeed the defendant had gained access to the copyrighted work. It was the deposition of the defendant that she had thought of publishing such a book five years ago, long before the plaintiff had published her book. The question that must be asked at this stage of the proceeding is; if my client, Esther Lang, had thought of publishing the book, long before the plaintiff published her book, where did the defendant gain access to the thought to publish the book from? One can only gain access to something that is already in existence and has been authored and published.

To further add to the issue of access, I wish to draw the court’s attention to the fact that it is the desire to publish a children’s book that motivated my client to pursue a course about the same. It must be noted that during her study, research, and reading, she never interacted with the plaintiff’s work at any point. Ms. Rex, who was the course instructor for the course, never ever, in the course of her lessons, read an excerpt or a manuscript from the defendant’s book. My client only knew about the plaintiff’s work when the plaintiff sued her for the alleged copyright infringement.

Probative similarities between the two works

Probative similarity encompasses similarity of evidence of copying, along with proof of access to the underlying work. In the Expert Report Prepared by the Plaintiff’s Expert Lewis McGwyre, Ph.D. marked as Exhibit 8; the expert stated that there were indistinguishable differences, especially in regards to their initial chapters. Reading the first chapter of each book leaves the overall impression of having read the same thing twice.  In sum, the works are strikingly similar.  The expert’s conclusion was based on the following assessment;

• Titles

The similarity in the titles is evident, as each title consists of the same two words with the order reversed.  Both titles refer to the Hatching of a dragon’s egg.  This similarity would confuse the reader into thinking the two books are, in fact, the same book.

• Theme

The two books share a common theme of displacement and return.  The characters in each book travel to another dimension in pursuit of a dragon and seek to return home.  Both stories place the main characters in alien environments to which they must adapt.  They also encounter unusual characters and adventures along the way.  Both stories value teamwork and cooperation as the competing characters learn to work together in order to achieve their goal and safely return home.  Finally, both stories express a theme of acceptance of others, as magical and non-magical characters cooperate and use their respective strengths to overcome obstacles.

• Characters

The books share three pairs of similar characters.

In response to the expert opinion by the plaintiff, the defendant also came up with an expert opinion prepared by Russell Amburgh. To rebut the earlier assertion that the books had similar themes, Russell provided a comparison of both themes by stating that Hatching Magic’s primary theme is fundamentally a story of time travel while the secondary is accepting differences/valuing diversity and personal responsibility. This is contrasted with the primary theme in Magic Hatching, where the primary theme concerns a power struggle between opposing forces, and the secondary theme is problem-solving peacefully, rather than by resort to violence.

The main characters in both books are also different; whereas the main characters in Lang’s book are adults, those in Brigance’s book are children. This reduces the probative similarities between the two books, and hence the claim of copyright infringement fails on this account.

Conclusion

In conclusion, the plaintiff has not adduced sufficient evidence to warrant copyright infringement based on actual copying. The plaintiff merely asserted that the defendant copied her work without adducing evidence that satisfies both the access and probative similarities elements of copyright infringement by actual copying.

 

 

 

 

[1] 132 F.3d 882, 889 (2d Cir. 1997)

[2] 964 F.2d 131, 139-40 (2d Cir. 1992).

[3] CASTLE ROCK ENTERTAINMENT, INC. v. CAROL PUBLISHING GROUP, INC., 150 F.3d 132 (2d Cir. 1998)

[4] 863 F.2d 1061, 1066 (2d Cir.1988)

[5] Scott v. Paramount Pictures Corp., 449 F.Supp. 518, 520 (D.D.C.1978)