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From Intellectual Property Law Daily, March 5, 2019

Stephen King’s ‘Dark Tower’ protagonist did not infringe comic book character ‘The Rook’

By Nicholas Kaster, J.D.

The protected elements of The Rook character and King’s protagonist are dissimilar even when viewed in the light most favorable to the plaintiff; no reasonable jury could find the works substantially similar.

The federal district court in Jacksonville, Florida, has held that Roland Deschain, the protagonist in The Dark Tower series, authored by Stephen King, and the graphic novels and movie based on that character, was not "substantially similar" to the comic book character "The Rook." The similarities between The Rook and Roland concern only non-copyrightable elements, the court concluded. Accordingly, the court granted King’s motion for summary judgment in a copyright infringement action (DuBay v. King, March 1, 2019, Schlesinger, H.).

The Rook is a comic book character created by William Bryan DuBay and first published in 1977. DuBay’s nephew brought a copyright infringement action against Stephen King, author of a series of novels entitled The Dark Tower, later the subject of graphic novels and a film. DuBay alleged that Roland Deschain, the protagonist of The Dark Tower, is so "shockingly and extraordinarily" similar to Restin Dane, a/k/a/ The Rook, that King must have unlawfully copied and appropriated The Rook character. DuBay argued that because Roland is the central character in this large volume of works, all works infringe on his validly held copyright of The Rook character. King moved for summary judgment.

Non-infringement has been found as a matter of law and summary judgment granted where either: (1) the similarity between two works concerns only non-copyrightable elements of the plaintiff’s work, or (2) where no reasonable jury, properly instructed, could find the works are substantially similar.

DuBay argued that The Rook and Roland Deschain are substantially similar in their unique elements and their unique combination of common traits. Specifically, DuBay describes that Roland Deschain, like The Rook, "is a quasi-immortal time traveling monster-fighting romantic adventure hero who descends from an immortal, is symbolized by a rook bird, dresses in cowboy garb despite not being from the Old West, and who descends from Gilead, a homage to Goliad ‘The Other Alamo’ ...".

The court examined all the purported similarities, including the totality of the characters’ attributes and traits. The court found that DuBay’s characterization above, while "somewhat true" analyzed the characters at such a high level of abstraction and generality that it did not truly reflect the characters or their shared traits.

Both Roland and The Rook are the adventure-seeking protagonists of their stories. The Rook, however, is a classic hero, the court noted, whereas Roland was not: he was, at times, dark and brooding.

Time travel is an element in both works, the court noted, but the act of entering different time periods plays a different role in each work. The element of time travel in each work is not substantially similar, the court found. Further, even if the element of time travel was a similarity between the two works, time travel in the general sense, is hardly a unique, original expression, said the court.

While The Rook and Roland have a familial history of gun fighting, the court found that those histories manifest in different ways and are not substantially similar.

The Rook and Roland are similar to the extent that medieval towers play a large role in their adventures. However, the court found that look and function of each tower are different. The towers are not alike, said the court, and do not serve like roles in each work.

DuBay claimed that a point of similarity between the characters is that both The Rook and Roland romantically interact with women. Even if having a protagonist who has romantic interactions with women is an original expression, said the court, The Rook and Roland’s interactions with women could not be more different. Roland’s interactions with women are often shocking and violent, whereas The Rook is classically dashing and romantic.

DuBay pointed out that the nemesis of both characters is "the man in black." However, even if both characters had one significant adversary in their quests that only wore black, this is hardly original expression, said the court.

The looks of both characters are so widely used to represent Western protagonists that they are not original, the court stated.

DuBay argued that because both characters have the initials "R.D." this is an indicia of copying. The court found this a similarity without import.

DuBay contended that The Rook and Roland are substantially similar because they both feature the Battle of the Alamo. However, the court found that this similarity was without protection.

Similar birds are featured in each work, the court noted, but they are not featured in the same way.

In sum, the court concluded that Marvel’s graphic novels and The Dark Tower movie are not substantially similar to The Rook. Further, the court found that the plaintiff’s expert witnesses failed to raise a genuine issue of material fact. The similarities between The Rook and Roland concern only non-copyrightable elements, said the court. The protected elements of The Rook and Roland are dissimilar even when viewed in the light most favorable to the plaintiff, said the court, and no reasonable jury, properly instructed, could find the works substantially similar.

Accordingly, the court granted King’s motion for summary judgment.

This case is No. 3:17-cv-00348-HES-MCR.

Attorneys: Robby Thomas Cook (Rob Cook Attorney at Law P.A.) for Benjamin Michael DuBay. Louis Peter Petrich (Leopold, Petrich & Smith, PC) and Raymond F. Treadwell (Shutts & Bowen, LLP) for Stephen King. Raymond F. Treadwell (Shutts & Bowen, LLP) and Scott D. Ponce (Holland & Knight, LLP) for Media Rights Capital, Imagine Entertainment and Sony Pictures Entertainment.

Companies: Media Rights Capital; Imagine Entertainment; Sony Pictures Entertainment

MainStory: TopStory Copyright FloridaNews

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