PublishAmerica author sues Stephen King for plagiarism

BenPanced

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Just skimmed over most of the longer brief, and it's interesting they're calling into question the PA author's ability to write in relation to King's.

Also gotta love this footnote from page 13:
4ther than the conclusory allegation that his work was and is for sale in various venues,
Plaintiff pleads no facts to support a finding of actual access or of widespread distribution to
presume access. (Cplt ¶ 9.) Nonetheless, should the Court deny this motion in any part, access
will be fiercely contested, as Stephen King never heard of Rod Marquardt or Rod Morgan until
he read about the commencement of this lawsuit in a trade publication, and, to this date, has
never seen the Plaintiff’s book.
 

circlexranch

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Page 19, footnote 5, fantastic summary of some of the legal battles that have been fought with the "laundry list" of so-called plagiarized elements.

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See also Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985) (insufficient similarity even though both works “deal with criminal organizations that murder healthy young people, then remove and sell their vital organs to wealthy people in need of organ transplants,” who are ultimately exposed by a “young professional who courageously investigates” the criminal organization; “No one can own that basic idea for a story. General plot ideas are not protected by copyright law; they remain forever the common property of artistic mankind.”); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042 (9th Cir.1994) (insufficient similarity where both
screenplays featured individuals using scientific formulas which shrink people to miniscule proportions); Warner Bros. Inc. v. American Broadcasting Cos., 720 F.2d 231 (2d Cir.1983) (insufficient similarity where both works centered on white male “superhero” who wore tight costume and cape, flew with arms extended, led double life, and rescued innocent people from evil-doers); Litchfield v. Spielberg, 736 F.2d 1352, 1354-55 (9th Cir.1984) (insufficient similarity where both works concerned alien with extraordinary powers who befriended child, was welcomed into family, adopted human habits, thwarted evil-doers, and then returned to his own planet).
 

Kateness

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Yes, it's a pretty damning review:

Page 24 -"There is little sense of suspense, and little mystery. Numerous plot lines are left hanging – for example, the rape and murders are seemingly without repercussion or the discovery of the bodies."
 

Kateness

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and page 27:

"The primary characters in Keller’s Den are thinly-developed. Martin is revealed to be an otherwise healthy, attractive and successful stockbroker whose life revolves around his committed and supportive fiancée, his job on Wall Street, outings with his wealthy clients and friends. (Id. chs. 1, 8, 16, 19.) ... Martin’s fiancée, Janet, is “an object that cause construction workers to drool on their flannel shirts and howl like wolves.” (Id. at 35-36.) Although convinced that Martin is mentally ill, she remains committed, supportive and deeply in love with him – the perfect woman. (Id. chs. 21, 33, 41, 46.)"
 

Bookewyrme

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Wow, that's some crazy stuff. I just read the Supporting Brief. Granted that the brief was prepared by King's lawyers, but the story ideas (nevermind the expression of said ideas which is actually copyrightable) don't even sound similar at all except for both being about painters with mystical abilities. Ah well, thanks for keeping us updated CxR!
 

Kateness

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That does sound sloppy.

I had to do a huge summons a while back and the getting the service right was the biggest PITA of the whole mess.

*shrug*

But if King says he never received notice, then he probably never received notice.
 

Little1

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Thanks Circle for doing all this work. It is interesting reading law stuffs from the big shots :) Yea I also found it funneh that king's lawyers pointed out that he never heard of this guy and how the guys writing sucks. :D
 

circlexranch

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This is an interesting passage with some good case law about the court's opinion of those who accuse the famous of plagiariasm.

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

In particular, courts have not hesitated to grant early dismissal when, as here,
the Complaint targets authors or works of some renown but the basis for the claim
is entirely lacking.

See, e.g., Allen v. Scholastic, Inc., No. 10 Civ. 5335 (SAS),
2011 WL 43448 (S.D.N.Y. Jan. 6, 2011) (dismissal of copyright claim alleging
that Harry Potter and the Goblet of Fire infringed plaintiff’s children’s book);
Scott v. Meyer, No. 09 Civ. 06076 (ODW), 2010 WL 2569286 (C.D. Cal. June 21,
2010) (dismissal of copyright claim against author and publisher of Twilight series
arising out of plaintiff’s work that also included vampires, with an award of costs
and attorneys’ fees); Brown v. Perdue, No. 04 Civ. 7417 (GBD), 2005 WL
1863673 (S.D.N.Y. Aug. 4, 2005), aff’d, 177 Fed. Appx. 121 (2d Cir. 2006)
(dismissal of copyright action against author and publisher of The Da Vinci Code
arising out of another religious thriller); Dunn v. Brown et al., 517 F. Supp. 2d 541,
543 (D. Mass. 2007) (same); Starobin v. King, 137 F. Supp. 2d 93 (N.D.N.Y.
2001) (dismissal of copyright lawsuit against Stephen King’s book, Desperation,
arising out of another horror novel, based on a 16 page list of non-contextual
incidental similarities).
 

pangalactic

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The longer brief makes for fascinating reading. I love how damning they are about the plaintiff's writing ability :D

I'm gonna get some more popcorn.
 

circlexranch

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A quick note before I get to work.

This is a 12(b)(6) motion, the legal weapon of mass destruction.

Under the Federal Rules of Civil Procedure, there are certain defenses you can raise before the case gets started and goes to discovery. Rule 12(b) allows you to challenge service, jurisdiction, venue, etc.

However, the fer-special clause is 12(b)(6) which allows for dismissal "failure to state a claim upon which relief can be granted."

In real world terms this translates to "you filed a half-assed frivolous claim that is so flimsy and inadequate you shouldn't even get the right to make me waste my time defending it and the court waste their time hearing it."

It is a tough row because the courts bend over backwards to give plaintiffs their day in court. However, courts also have no patience for throwing #$%^ at the wall and seeing what might stick.

The proudest moment of my legal career was winning a 12(b)(6) motion in my trademark case. I caught the other side completely with their proverbial pants down and got 9 out of 10 counts dismissed.

The plaintiff now has 30 days from February 14 to file a response. It will be interesting to see what his attorney comes up with.

This brief was blistering and most assuredly not civil, those are the only words for it. Court, particularly federal court, has the same enforced civility as diplomacy where you can verbally slap someone just in the way you ask for tea.

The motion basically says, "We'll cede jurisdiction and venue because we are so unafraid of you and your non-existent claims that it's not worth our time to argue petty matters. We'll fight you any place, any time, any way. Bring it . . ."

A 12(b)(6) motion is a jump shot from center court. Sink it and the game is over. Miss it and you can no longer challenge jurisdiction, venue, service, etc.

So, the ball is in the air. Let's see what kind of D the other side can muster.
 

thothguard51

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Reading over the brief I think this particular writer shot himself in the head on the chances of ever landing with a legitimate publisher.

Perhaps Rod should consider painting as a hobby...
 

circlexranch

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Reading over the brief I think this particular writer shot himself in the head on the chances of ever landing with a legitimate publisher.

Perhaps Rod should consider painting as a hobby...

Remember, we respect the writers!

I have a problem with the attorney here. Part of an attorney's job is telling people they have no case. This attorney did not do his job. Looking over his other cases, he likes to sue big intellectual property holders, accusing them of infringement. In my opinion, it preys on hopes and dreams as much as PA. After all, if "Stephen King copied my stuff then it must be good" or "I'd be famous if only Stephen King hadn't copied my stuff."

One of my fav quotes that pops up in cases from time to time is:

"About half of the practice of a decent lawyer is telling would-be
clients that they are damned fools and should stop." Elihu Root
 

victoriastrauss

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It's a real shame that so much time, money, and intellectual energy must be wasted on such an utterly frivolous and pathetic allegation. I wonder if S&S will counter-sue for legal fees.

- Victoria
 

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Perhaps they should sue his attorney for not doing a good job for his client... Like in making him understand he does not have a case.
 

thothguard51

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Does any author who loses a case like this ever go on to find success because of the publicity alone?
 

Little1

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I have deff learned a lot about rights by this :) Very educational :)
 

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And now that I've gone and read through the PDF, there are definitely some eerie similarities between the two books. But still.

"Eerie?" How so? Reading that pdf made me feel embarrassed for the Publish America guy; it's like one romance novelist suing another one for plagiarism because they both used words like "manhood" or "member" to euphemistically avoid calling a spade a spade (or a penis a penis).
 

Izz

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it's like one romance novelist suing another one for plagiarism because they both used words like "manhood" or "member" to euphemistically avoid calling a spade a spade (or a penis a penis).
Y'know... i now really want to find an excuse to call a spade a member and/or a manhood in a story somewhere.

"He grabbed his manhood and began digging."

"John raised his member and viciously brought it down on top of Jack's head."

/derail over...
 
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circlexranch

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It's a real shame that so much time, money, and intellectual energy must be wasted on such an utterly frivolous and pathetic allegation. I wonder if S&S will counter-sue for legal fees.

- Victoria

Oh yeah . . .

Ms. McNamara has been very successful in recovering fees (which BTW is freaking hard). The Twilight wanna-be got nailed with fees. The DaVinci Code dude got hammered with fees. In this case (polishing up crystal ball), I'd estimate an ask of $10K - $15K.
 

Kateness

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Oh yeah . . .

Ms. McNamara has been very successful in recovering fees (which BTW is freaking hard). The Twilight wanna-be got nailed with fees. The DaVinci Code dude got hammered with fees. In this case (polishing up crystal ball), I'd estimate an ask of $10K - $15K.


Doesn't that depend on how long the case lasts? Or are you assuming that the Court is going to throw this case out before it gets to discovery?