PublishAmerica author sues Stephen King for plagiarism

[circlexranch]

Here is a link to the CV of one of the attorneys who has joined the fray for King and S&S:

Elizabeth McNamara

Definitely a Top Gun.

[pangalactic]

That's one impressive CV. Gonna need more popcorn.

[thothguard51]

EM has a very impressive portfolio...

[Unimportant]

This is probably a stupid question, but I am nothing remotely resembling a lawyer, so.... Is it possible/likely that the judge will find this is a "nuisance" case and will biff it and make the PA author pay all costs, including those for King's high-flying lawyers?

[circlexranch]

That is a toughie. I won my copyright case (someone claimed I had infringed on them). It took 6 grueling years. The other side was frivolous and incompetent. Their claims were on a par with the ones against King.

1. I pointed out all the flaws and asked to dismiss. The judge let them correct the flaws.

2. I pointed out all the remaining flaws and asked the judge to dismiss. The judge gave them more time to correct their flaws.

3. I moved for summary judgment and won.

4. They filed a motion for reconsideration and lost.

5. I filed a motion for attorney's fees and lost. The rationale? In so many words, the judge's ruling boiled down to, "well, they thought their claim had merit and incompetent doesn't necessarily equal evil."

Cost awards in copyright cases are 100% within the judge's discretion.

I don't think any judge in the world would rule in plaintiff's favor and my guess is this will be dismissed on jurisdictional or other technical grounds. However, the judge is also likely to find that defending against this sort of thing is a cost of doing business if you are Stephen King or S&S.

[Unimportant]

Thanks for that informative answer, CXR!

[circlexranch]

The King/S&S legal team is opening up with both barrels. They asked and received permission to file a brief in excess of the 25-page limit. It looks like they are going to sidestep the jurisdictional issue and go straight for a Rule 12 dismissal (more about that when they actually file the brief).

It should be a juicy document.

Here is the motion, it gives a nice overview of what we can expect in the next 30 days or so.

King - S&S Motion to Exceed Page Limit

Make some fresh popcorn, the new battle for Atlanta is about to start!

Terri

[Shrouded]

I tried to get a peek at the motion and got this instead;
"Sorry, we are unable to retrieve the document for viewing or you don't have permission to view the document."

That was a quick supression.

[thothguard51]

I got the same. I wonder if this means any final agreements/verdicts will be sealed?

[JulieB]

It might be a permissions thing, but IE is reporting a JavaScript error and Chrome reports a timeout.

[circlexranch]

BLARG! No, it's me being an idiot thing who can't use Google docs correctly. I'm at work now, so I can't fix it. I will do so tomorrow when I'm at my home office puter.

Terri

[AnneMarble]

Originally Posted by circlexranch

BLARG! No, it's me being an idiot thing who can't use Google docs correctly. I'm at work now, so I can't fix it. I will do so tomorrow when I'm at my home office puter.

Terri

Oh, good. I thought I had forgotten my Google password again.


This should be very very interesting... Hurray for Stephen King and his attorneys.

[Little1]

Yes, this is getting good GO S&S and Steven King!

[circlexranch]

Okay, let's see how many lawyers it takes to post a brief on the interwebz . . .

King - SOS Motion to Exceed Page Limit

I had forgotten to make it a public doc . . . DOH!

[Kateness]

Cool, thanks!

Since I started working at a law firm, I'm always fascinated to read these sorts of things

[circlexranch]

Alrighty boys and girls, here is the motion to dismiss and the brief. I haven't read it thoroughly, but I think you can take it as a primer of copyright law and it should answer a lot of questions about what is and isn't infringement. No all that often you get to see work done by lawyers who don't get out of bed for less than a $10,000 retainer.

There are three docs:

1. The Motion to Dismiss - short and to the point

2. The Supporting Brief - long and to the point

3. A Backup doc about copies of the books filed with the court.

These are public documents. You can print them, copy them, blog them, post them, do anything your heart desires with them. All I did was copy out of the court system and post in a more accessible and free-of-charge format.

More on the implications of a Rule 12(b)(6) motion later.

Terri

[Kateness]

Woot, thanks!

These are all on ECF? Or is district court down there on Lexis?

[circlexranch]

This is from the ECF feed from the Northern District of Georgia.

[circlexranch]

Page 4 of the brief:

On December 6, 2010, nearly three years after Duma Key was originally
published, Marquardt filed this Complaint for copyright infringement, alleging that
Duma Key infringed the copyright in his self-published book, Keller’s Den. (emphasis added)

Yee-ouch!

[Kateness]

Hah! PA would love to see that

[Kateness]

Also, does this mean that King's attorneys had to suffer through a PA book?

[or got some first-year associate to read it and summarize?]

[circlexranch]

Page 13, footnote 4:

Other 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.

I'm surprised they found a copy in order to compare it to King's book. Imagine you found out you'd been sued in a trade publication. Did the other attorney even properly serve the summons?

[circlexranch]

Awesome legal quote:

"At bottom, this lawsuit is a classic example of “that obsessive conviction, so
frequent among authors and composers, that all similarities between their works
and any others which appear later must inevitably be ascribed to plagiarism.”
Dellar v. Samuel Goldwyn, Inc., 150 F.2d 612, 613 (2d Cir. 1945)."

Because nobody else can have an idea! All the ideas are mine, mine, mine!

[Kateness]

Well, shouldn't there be a certificate of service along with the summons?

[BenPanced]

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.