According to the U.S. Copyright Office, “As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner (http://www.copyright.gov/help/faq/faq-definitions.html).” As defined by Wikipedia, “Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works (http://en.wikipedia.org/wiki/Copyright_infringement).” Wikipedia also explains that “substantial similarity” is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement was limited to making only exact and complete reproductions of a work.
Expression Di vide http://en.wikipedia.org/wiki/Idea-expression_divide separates the difference between ideas and expression of ideas. “Copyright may subsist in the work as a whole, in the particular story or characters involved, or in any artwork contained in the book, but generally not in the idea or genre of the story. Copyright therefore may not subsist in the idea of a man venturing out on a quest, but may subsist in a particular story which follows that pattern.” Using this concept in comparison of “Keller’s Den” to “Duma Key,” not only are the premises similar and very unique, but many of the subplots and other key elements that progress the story are similar as well.
After reading Duma Key, I have come to the understanding that there are too many atypical similarities to consider the content in both novels as being coincidental. Also, as noted by Ivan Hoffman, “The loose definition of ‘scenes a faire’ refers to situations in which there is essentially no other way to express a particular idea except by using certain elements and in such instances, those elements will often be termed “scenes a faire.” http://www.ivanhoffman.com/scenes.html Using “scene a faire” as a defense would not be applicable since many of the similarities are not typical ideas that need to coincide with the storyline.
In addition to unique ideas, the “particular sequence in which an author strings together a substantial amount of unprotected elements can itself be a protectable element,” page 4 ofhttp://www.scribd.com/doc/4686189/Metcalf-v-Bochco-copyright . Due to the fact that there are over 250 similar elements that associate “Keller’s Den” with “Duma Key,” any substantial amount of similarities that do not fall under “expression of idea” would certainly fall under this “extrinsic test.”
Something that maybe worthy of mentioning is that King’s style is somewhat different than mine in that his context is more drawn out and long-winded. It is not my contention to say that there are no differences between the novels, as no two books are alike. However, it is not the differences that instigate impetus for copyright infringement -- it is the similarities. Anyone can use over 250 ideas from a novel, make some changes and call it their own.
In 2002, I once sent a letter and a copy of Keller’s Den to Stephen King in an effort to gain insight and to have him review “Keller’s Den” for support or endorsement consideration. In response, I received a letter from his assistant saying that it would be counter-productive for Stephen King to indulge into other author’s affairs, rather than devote his time to his own writing. I completely understood and in fact agreed with their position. Stephen King has had 51 published novels to his credit, and as a result, has seen 47 movies or TV mini-series spawn from his work. He has received numerous awards, including the 2009 Reader’s Choice Dark Genre Novel of the year for “Duma Key” (published on January 22, 2008). “Duma Key” reached #1 on the New York Times bestseller’s list. Having said that, I thought it was very peculiar that I received a letter from my publisher indicating that Stephen King is interested in reviewing books from Publish America authors.
The similarities that occur throughout “Keller’s Den,” a novel that was written by myself, Rod Marquardt, and was published in 2002 by Publish America/America House Publishing (copyright registration # TX 7-118-190), as compared to “Duma Key,” a novel that was written by Stephen King and was published in 2008 by Simon and Schuster, will basically provide my reasoning for bringing this situation to the forefront. Incidentally, my novel has been available since 2002 on all on-line sites such as Amazon, Barnes & Noble, etc. The resemblance between these two novels was initially brought to my attention in August of 2009 by an acquaintance of mine.
Regarding the 35 Page Similarity List . . . for some comparisons I’ve used page numbers as references. For other comparisons I’ve used chapter numbers. I used thehardback version of Duma Key that is Geramond 3 Font Size 607 pages, and the original paperback version of “Keller’s Den that is 254 pages.