Posted by: Paul A. Forsyth | June 12, 2014

My Favorite Judicial Opinion of the Week: Dragons and Copyright

The decision itself is a few weeks old, but I only read about it this week. Kenneth Eng, acting pro se, sued L’Poni Baldwin for copyright infringement. Eng and Baldwin both write about dragons, you see. Toward the end of May, Judge Eric Vitaliano (of the Southern District of New York) dismissed the suit for failure to state a claim upon which relief may be granted (Rule 8). In other words, Eng failed to allege facts sufficient to show copyright infringement.

Here’s a key part of Judge Vitaliano’s opinion (which is also the part that made me chuckle):

It is clear that Eng, as told by him in his complaint, has seized hold of similarities between his ideas, as expressed in “Dragons: Lexicon Triumvirate,” and Baldwin’s, as expressed in her own works. Far from being “original” in a legal sense, the ideas which Eng purports to own are similarly common in the corpus of American science fiction and fantasy. Moreover, plaintiff entirely fails to identify how Baldwin’s expressions are in any way substantially similar to his own, and even the most cursory comparison of the works in question can make clear that the authors express their common ideas quite differently. For instance, Eng alleges that the “dragon gods” in Baldwin’s stories are “identical” to what the character Dennagon becomes in his own novel. But, where Eng’s supreme dragon realized singular, limitless power through contact with the titular Lexicon artifact, and made himself one with eternity itself, the “dragon gods” of Baldwin’s writings are many, less-than-omnipotent, and preoccupied with mundane concerns. In short, expressions which Eng calls “identical” to his own are anything but.

As Tim Cushing says, “Kudos to the judge for being willing to wade into roughly comparable texts dealing with dragons, techno-dragons, gun-wielding dragons and dragon gods in order to make this point.” Indeed. (Not all judges hearing copyright infringement cases are fortunate enough to be reading Faulkner or Joyce.)

The court dismissed the suit without prejudice and gave the pro se plaintiff 30 days to refile. (Somehow, I am dubious of the chances for success of any amended complaint Mr. Eng might file.)

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