PublishAmerica author sues Stephen King for plagiarism

Cyia

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Isn't that the "Attack on Port Royale" from Pirates of the Carribbean? The House of Mouse should know better than to lift ideas of the Red Baron's ghost writer.

:tongue
 

circlexranch

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WOW! I take a few days to work and the spaghetti hits the fan.

A couple of things:

1. You always ask for a jury trial, no matter what. If you don't ask when you file the case, you've waived your right to that forever.

2. Almost nothing goes to jury trial. This little ditty will likely be disposed of on a motion to dismiss under Rule 12(b)(6), failure to state a claim or summary judgment. King has big bad mean lawyers, the kind that make Randall Flagg back off and say "sorry about that, didn't mean it . . ."

3. The jury would never read the book. They can only hear the evidence presented in trial. Unless the author reads the entire thing into evidence, then the jury is spared.

To quote the great philosopher Bugs Bunny, "what an octa-maroon."

Finally! The link in the very first post did not work for me. I got smush. Can someone post it again??? Please!!! I gotta read this. Nothing is funnier than a half-baked copyright lawsuit.
 

JulieHowe

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Copied and pasted from the PDF text file of the lawsuit filing:

In reference to the main character being unaware of their
surroundings while they paint, both of the novels use the same exact excerpt:


[Keller’s Den]
“As Martin skillfully painted a lone diver, he drifted into an
unknown world around him, not aware that smoke from his
burning pizza was spreading, filling the kitchen and working its
way into the adjacent rooms.” The following excerpt is when
Janet arrives at Martin’s house. “Inside, she waved her arms
through the swelling smoke . . . through the lingering smoke
she worked her way to the hallway where the smoke alarm was
blasting a warning (page 222).” (Pulitzer, anyone?)

The allegedly plagiarized version:

[Duma Key]
“If the smoke detectors would have gone off downstairs
announcing a fire, I would have paid no attention (page 110).”

If that doesn't convince you Stephen King is a plagiarist, try this one on for size. Plot similiarities:

Two secondary characters from each novel try to convince both
main characters to leave the house after a scary incident, but both
main characters stay alone at their house (Keller’s Den, pages 229,
230 -- Duma Key, page 433). Wow. This plot similarity between the two works definitely convinces me Stephen King plagiarized someone else's work.


j. Both novels begin in October around Halloween (Keller’s Den,
pages 16, 67 – Duma Key, pages 17, 57).and both novels used the
coastline of Florida as a setting. (I wonder if the plaintiff in this lawsuit is a connoisseur of the finest hand-crafted crack pipes.)


 
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circlexranch

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I got a copy from another blog, thanks! I also did a little research. The attorney suing King also has suits going against Motown, Microsoft, Amazon, AOL, etc. I've seen sanctions motions granted against his clients.

He seems like the same opponent I have in the lawsuit against my family company, trying to make a name and hit a payday and willing to do and/or say anything.

Howevah, the King lawsuit already has a big brick wall. I'm not seeing jurisdiction in Georgia. Expect a scathing answer and motion to dismiss within the next twenty days.

Somebody make some popcorn, this has quality fun written all over it!
 

CatSlave

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Stephen King owns a winter home in Florida.
So did John D. MacDonald of Travis McGee fame.
Now I'm suspicious of all mystery novels with a Florida setting.

Send Jesse Ventura to investigate immediately. Something definitely fishy here...
 

Stacia Kane

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This little ditty will likely be disposed of on a motion to dismiss under Rule 12(b)(6), failure to state a claim or summary judgment.

Howevah, the King lawsuit already has a big brick wall. I'm not seeing jurisdiction in Georgia. Expect a scathing answer and motion to dismiss within the next twenty days.


Could you explain those? :) I'm guessing the jurisdiction thing is what I noticed when I looked at the document, which was "Why Georgia?" The PAer lives in SC and S&S is in NY and King in Maine, so why would they file in GA? Would the laws of those other states not allow it, or...? I mean, obviously you can't say absolutely, I'm just wondering if you have any ideas.

But what's the first thing?

As always, thanks so much for the info!
 

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In reference to the main character being unaware of their
surroundings while they paint, both of the novels use the same exact excerpt:

Those are totally and completely the same in every way. ;)
 

Polenth

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As an editor, I'd have asked Mr. PA for a rewrite of "controlled him like the talons of an eagle wrapped around a harmless garter snake."

Way too labored and clunky.

OTOH, King's was a boring cliche: "I was like a bird hypnotized by a snake."

I'd have asked Mr. King to do better: "Dude--we're paying you an effing fortune for your words, for pity's sake have the courtesy to bring your A-game to the page!"

The thing that struck me with those is they're describing two different situations. One where an eagle carries a snake off for dinner. And one where a snake sees a little bird and gets the munchies. They are both predator/prey related, but hardly the same... especially as the bird in the second one is going to be something small and preyish, not an eagle. It wasn't a good start for the similarity list.

Though my favourite had to be the skeletons in tattered clothing. As we all know, skeletons would never be seen in tattered clothing, because they like to keep up with fashion. There's no way two books could have a skeleton in tattered clothes by chance.
 

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I can answer the jurisdiction question. It's federal court (not state court), and they're claiming what's known as "diversity jurisdiction."

Federal courts have jurisdiction over all types of cases that involve citizens of two different states. So, for instance, if you live in New York and want to sue someone in Texas, you can either sue in state court in Texas or in federal court anywhere that has jurisdiction over ONE of the parties.

I'm guessing they chose Georgia simply because that's where the attorney is admitted to practice. The Plaintiff gets to choose any court he wants that has jurisdiction over the defendant, even if he doesn't live there, so he chooses Georgia district court and sets out to establish that there's jurisdiction over the defendant there. Then, they make the argument that the defendant publisher does business in Georgia (which is likely), so one party is "in" Georgia, and the other party is in South Carolina, so there's diversity jurisdiction.

I don't know the details of jurisdiction for SKing himself, as opposed to his publisher. I'm guessing that once there is jurisdiction for one party in a cross-state-lines case, the federal court has jurisdiction over all parties, but I'm not entirely sure about that. I've only had experience of it when it was just one party on either side. It's seen frequently in New England, where the states are small, and motor vehicle accidents occur with one driver from, say, Massachusetts, and the other driver from Rhode Island.

Not giving individual legal advice here, just explaining diversity jurisdiction in the fedeal courts.
 

CatSlave

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The thing that struck me with those is they're describing two different situations. One where an eagle carries a snake off for dinner. And one where a snake sees a little bird and gets the munchies. They are both predator/prey related, but hardly the same... especially as the bird in the second one is going to be something small and preyish, not an eagle.
And a bird eating a snake is a symbol of the Aztecs and is on the Mexican flag.
So much for original ideas.
 

circlexranch

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Yes, it is being claimed under diversity jurisdiction. Howevah, that is not enough. The person who sues has to claim and prove that the person being sued has sufficient ties to the forum state to "anticipate being haled into court."

The fact that King and Simon/Schuster has sold books in Georgia is unlikely to be enough. Otherwise anyone could sue any big company or famous person anywhere anytime anyhow. Even when your pockets are as deep as King's, that is fundamentally unfair. And you have to establish jurisdiction over each and every individual named. The attorney put the most famous name on the top of the list you may have noticed. It's not Marquardt vs. Simon Schuster et al. It is Marquardt vs. Stephen King et al. All the better to get more publicity.

Georgia was chosen for a reason and I will be doing a bit of digging to find out why.

Otherwise, they are looking for a quick and dirty settlement offer is my guess. Instead they will open their door and find Christine, with a full complement of lawyers as passengers, sitting in the driveway.

Of course, it is a crowded place, full of lawyers from Microsoft, AOL, Amazon, Motown, and several smaller music companies all rallied with torches and pitchforks.
 
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JulieB

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Perhaps Terri or someone better versed in law can better explain this. I just looked up the copyright registration number in the suit, and the copyright was registered on March 29th of this year.

It's my understanding that the plaintiff cannot get statutory damages unless the copyright was filed within three months of publication - or at least before the date of alleged infringement. It's my understanding that actual damages can be awarded if the plaintiff wins the suit, though.

INAL, obviously, so just asking the question...
 

circlexranch

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Hey Julie, thanks for that info, you beat me to it. The copyright registration was obviously filed in anticipation of this lawsuit. That seriously undercuts a lot of the damages.

No, being close to King's winter home is not enough. I think I am going to find a combination of statute of limitations and favorable copyright rulings coupled with a lawyer who is grabbing at the brass ring by being willing to file any suit any time.
 

circlexranch

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Also, there is waaay tooo much info in the petition and it is artfully written to place King in the worst possible light. After all, it's not like anyone actually read the plaintiff's book, so the lawyer can spin it just about any way he wants to.

A quick example:

-----------------------------------------------------------

"Dear AMC:

I am the sole heir to Margaret Mitchell's estate and I am ordering you to stop production on your television series "The Walking Dead" (TWD) immediately for copyright violations of "Gone With The Wind." (GWTW) The following infringing similarities of the two works are as follows:

1. GWTW has scenes in Atlanta. TWD has scenes in Atlanta.

2. GWTW has a storyline about a horde of invaders overrunning Atlanta. TWD has a storyline about a horde of invaders overrunning Atlanta.

3. GWTW has a female lead who manipulates men and plays two men against each other. TWD has a female lead who manipulates men and plays two men against each other. Also, the female lead in each has a young son.

4. There is significant reliance on gunfire in both Atlanta storylines. This reliance is too prominent to be a mere coincidence.

5. In GWTW, the survivors of the sacking of Atlanta escape into the countryside. In TWD, the survivors of the sacking of Atlanta escape into the countryside.

6. In GWTW, buildings in Atlanta are destroyed with explosives. In TWD, buildings in Atlanta are destroyed with explosives.

7. In GWTW, plucky survivors protect sick and wounded against invaders. In TWD, plucky survivors protect sick and wounded against invaders.

8. Horses die and are eaten in both GWTW and TWD. Again, the similarities are impossible to ascribe to coincidence.

9. As the survivors escape to the countryside in GWTW and TWD, they must routinely hide from invaders and kill invaders to avoid being killed themselves.

10. In GWTW the invaders were Yankees. In TWD, the invaders are souless zombies. To southerners, this is the same difference.

Consequently, my valuable rights have been trampled upon. Nothing can ever make this right. However, an apology and a payment of eleventy-gagillion dollars will assist me in my recovery.

Sincerely . . . "

---------------------------------------------------------------

Lawyers write more fiction than they are given credit for . . .
 

JulieB

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Hey Julie, thanks for that info, you beat me to it. The copyright registration was obviously filed in anticipation of this lawsuit. That seriously undercuts a lot of the damages.

Thank you for clarifying the info.

(As I say, I'm not a lawyer, but Alan Shore can come sit on my patio and have a drink any time!)
 

Bookewyrme

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My first impulse when I read the thread title was to snicker and click through to see what was going on. After reading the "similarities" my second impulse was to roll my eyes and continue snickering. Can't wait to see what happens next in this little farce.

I have to say, this sort of thing is pretty scary to me as a writer who also reads voraciously. Plagiarism lawsuits scare me. :e2cry: What is or isn't plagiarism seems to be such a subjective topic (unless you're talking about word-for-word lifting of whole paragraphs/stories), even among writers judging by some of the other threads around AW on the subject.
 

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This may be a little off topic and more legalese than anyone cares to read, but the "haled into court" and "sufficient contacts" language refer to STATE long-arm statutes, not to federal district court jurisdiction.

There's no question that the federal district courts have jurisdiction. The plaintiff gets to choose which one, at least initially. There may, however, be an argument by the defense that it should be transferred to either a New York or South Carolina or Maine district court. There's a procedure for that, although I don't know the citation off the top of my head.

There isn't likely to be an issue with respect to which state's law applies. The applicable law is federal (copyright law), and, to the extent any state law comes into the equation without being preempted, the federal court, regardless of whether it's located in Georgia or Maine or Alaska or any other state, will address the "conflict of laws" issue (separate from the jurisdiction issue) and decide which state's law should apply to the case. (In other words, a federal court located in Georgia could well decide that it has jurisdiction, but that Maine copyright law -- if there is such a thing -- is the applicable law, and then it would apply that law, rather that the state law where the federal court is situated). Jurisdiction and which state's laws to use are two separate issues in the federal courts.

There might be some minor differences in the application of CIRCUIT (federal) precedents with respect to copyright, but I believe (could be wrong, and I'm too lazy to look it up) Georgia and South Carolina are in the same circuit, so it wouldn't change the applicable precedents. There may be small differences between the precedents in the circuit New York is in, and the circuit Georgia is in, but I doubt they're significant with respect to copyright cases.

Sometimes the simplest explanation is the best. The plaintiff found an attorney who would take the case. It's a federal case (copyright law is a federal question, and there's diversity of citiizenship for diversity jurisdiction), so it can, at least initially, be filed in any federal court. The attorney isn't licensed in NY or SC, so he filed in one of the two states where he is licensed.

ETA: it's a matter of venue rules, technicaly. The relevant one appears to be Chapter 87 USC Section 1391, which provides that when jurisdiction is based on a federal question (in addition to diversity, rather than by diversity alone), the case may be brought in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

The first sentence doesn't apply (b/c the plaintiff and both defendants live in separate states); the plaintiff is apparently arguing the second one applies (the sale of books that violate the plaintiff's copyright); and the plaintiff is apparently arguing the third one applies (publisher can be found in Georgia, in the form of its business transactions there, and therefore it doesn't matter where the other defendant, SKing, can be found). The argument is that there's no one district where everyone can be found, so if you get one of the defendants in a given district, and the Plaintiff's happy with that district too, you might as well hear the case there, since it will be heard in a federal court somewhere, and it's just a matter of which federal court is the most convenient for the most parties.
 
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circlexranch

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Hi Jan - I am a lawyer. I've been in bare-knuckled cage matches over jurisdiction in federal court. I've won and I've lost. I have a win under the "Calder Effects Test," as you know, a near-impossible win to get.

If you are a lawyer then you know it can't just be filed in "any" federal court. You have to have jurisdiction over the defendant and meet the minimum contacts test. Even though the 10th Circuit decision in Rainy Day Books made it easier to get jurisdiction over defendants with extensive websites, it is still a tough row. Lawsuits fail against eBay and eBay sellers every day because of the lack of minimum contacts.

Also, if the case is filed under diversity jurisdiction, you then apply the state rules for long-arm jurisdiction.

Also, this is a federal question case, copyright is a federal question, with exclusive jurisdiction in federal court. If the attorney filed it as diversity, then he really doesn't know what he is doing. Diversity means the plaintiff and defendants all have to be from different states. It doesn't mean you can pick any court you choose. I assume we live in different states. I can't sue you in federal court in Alaska just because I know you hate the cold.

I also see this failing on the question of venue and forum non conveniens. The only person that Georgia makes sense for is the plaintiff's attorney.

Not the place for this argument. Trust me, okay? I'll submit my briefs and the federal court decision on jurisdiction in a federal question trademark case if you'd like.
 
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circlexranch

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Well, that certainly cleared the room. Nothing nastier in a lawsuit than the procedural brawls at the beginning of it.

I'll continue posting as the documents come in, but will probably move most of the analysis to my blog.
 

ajkjd01

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Any legal types out there taking bets on how fast a Rule 11 motion for sanctions gets filed on Mr. King's behalf?

(in layman's terms, a motion to the court stating that the lawyer is filing a frivolous motion, one not warranted by evidence or existing law or filed for an improper purpose, etc. If Mr. King's lawyers file this and win, they can seek, among other things, payment of his legal fees. If you saw the movie, or read the book, A Civil Action, the lawyers in that case faced the same kind of motion by the defendants' lawyers, and it was dismissed.)