Court Pleadings, Motions, and Ruling

Case 1:10-CV-03946-JEC

Rod Marquardt v. Stephen King; Simon & Schuster, Inc., et al

(Summation)

The subject matter on this site is based upon a Copyright Infringement case involving myself, Stephen King, and Simon & Schuster. Incidentally, this case is open to the public and the transcripts can be viewed by setting up an on-line PACER account through the court systems.

This website material is best judged by those who can be unbiased and can distance themselves from any emotional ties to me or Stephen King. This site does not suggest that I do not respect or admire his works. In fact, my sentiments couldn’t be further from the truth. It is hard for me to say anything negative about Stephen King without making an effort to shed a positive light on his behalf. Nobody could achieve his status without becoming a literary mastermind and nobody in my opinion will ever be “the next Stephen King.” However, please keep in mind that nobody is exempt from walking too close to the edge on occasion and sometimes temptation is too powerful to resist. The content of this site is not to derail Stephen King or try to darken his reputation, but it is intent on informing and educating those who are curious about the subtleties and legal aspects of Copyright Infringement, albeit in a version that pertains to this particular case.

Copyright Infringement is very subjective, and what one judge perceives as plagiarism another judge will merely see innocent similarities. I found out the hard way that the 11th District Circuit Court of Northern Georgia in Atlanta is no place to be for Copyright Infringement. One attorney I spoke with, making a parody regarding Copyright Infringement, said the 11th District has more of a “CopyLeft” position than “CopyRight.” Another attorney I spoke to mentioned that the presiding Judge was apprehensive about Copyright cases. Unfortunately, many of these professional opinions were divulged after my complaint was filed and the venue was chosen. I was also told by other attorneys that due to his status and contributions to our literary and entertainment world, Stephen King would be given special consideration regarding any legal decisions. Hearing this made me realize that I was in an uphill battle. But David defeated Goliath, so I continued.

Before I go any further, allow me to commend Stephen King, Simon & Schuster, and their attorneys for doing a much better job than I did in providing legal representation in this case. They were understandably more experienced and much more prepared for this case. I wasn’t without options, but choosing wisely was my downfall. At one time I had four contracts in my possession from four different firms in four different states who were ready to file a lawsuit for this case. They were all willing and confident enough to take this case on a contingency basis. This of course meant that they would not make any money unless there was a settlement or the case was won in court. Unfortunately for me, I chose the wrong attorney and the wrong venue. My poorly chosen attorney, who said all the right things when we first met, missed two filing deadlines. I can’t express enough how important it is to choose the best possible attorney. It would also be beneficial to do research on cases won or lost in certain venues before making any important decisions. This will obviously not guarantee a desirable outcome, but putting more arrows in your quiver is essential. Incidentally, the Supreme Court of Georgia has suspended my previous attorney from any further legal practice due to his negiligent and irresponsible actions.

Let me also say that I didn’t agree with the judge’s decision to dismiss the case, especially at such an early stage in the proceedings. But her opinion was the one that mattered. Again, this is not to say that I don’t respect the ability and efforts of Chief Judge Julie Carnes, but I am entitled to disagree with her decision.

There are probably as many laws out there as there are judges. I’ve often wondered when a judge is assigned a case, is that judge an expert in that particular field, the way most attorneys are experts in certain practices, or does a judge get selected as the presiding judge for a particular case due to scheduling and location? Couldn’t a, for lack of better words, legal specialist look at a case and determine who the best judge for a particular law suit would be – regardless of the venue? My understanding is that the Chief Judge assigns the cases and Chief Judge Julie E. Carnes decided to take this case as her own.

Rather than bog you down with oodles of legal detail I will provide you with a brief and general summation of the proceedings, particularly the dismissal. During the pleadings I submitted several corrections due to false statements made by the defense attorney. Using statements such as “Keller’s Den is a self-published novel,” or “some of the similarities are not even similarities at all,” were just defense tactics that attempted to plant doubt in the Judge’s mind. These tactics are simply what lawyers do for a living and seasoned veterans know what buttons to push and how hard to push them. For easy reference, each of the 286 similarities includes page numbers or chapter numbers for both books and is listed on this site under the List of Similarities tab, which also provides a three page overview (38 total pages).  Incidentally, only one third of these similarities were listed in the original Complaint filed in December of 2010.

On August 10, 2011, Judge Julie E. Carnes dismissed my case against Stephen King due to lack of “substantial similarity.” The following lists some of her reasoning, along with some of the tactics used by the defense:

In a negative connotation, Judge Carnes and the defense attorney referred to several “random similarities,” as if this analogy should weaken my case. Shouldn’t a long list of similarities that feed the premise and move the story along help the plaintiff and not be labeled as a “laundry list?” Many of these similarities were significant to the story, but it seemed the more similarities that were listed, the more these similarities became insignificant.  Remember, copyright infringement does not have to be verbatim copying; it is also the theft of ideas.

Judge Carnes and the defense attorney cited past cases such as “Coming to America” versus “The Arab Prince” as comparisons and a reason for dismissal of my case, even though these examples were vastly different from “Keller’s Den” versus “Duma Key.”

Judge Carnes and the defense attorney cited the use of 1st person and 3rd person as being a difference between the two novels. Shouldn’t we be more concerned about the content and denotation of the novels rather than if an author uses 1st person or 3rd person? In other words, isn’t “I killed the cop with a tree limb” pretty much the same as “Joe killed the cop with a tree limb,” providing “I” and “Joe” are the two main characters? Judge Carnes and the defense attorney also cited that King’s word length and chapters are longer than that of “Keller’s Den.” If this is allowed to be a factor, then couldn’t a writer plagiarize someone’s book simply by making a novel longer? Actually, font size probably even came into play regarding page length. But to me, this seems too insignificant to even have to bring it up.

When the defense attorney cited some differences during the pleadings, they were actually similarities without her knowing that they hadn’t been listed yet. In her pleadings, the defense attorney, in an attempt to differentiate the two novels actually exposed more similarities. She mentioned the intention to destroy paintings due to evil implications as being unique to “Duma Key,” apparently unaware that this idea came from “Keller’s Den.” She mentioned evil attempting to lure the main character to his doom as being unique to “Duma Key,” apparently unaware that this idea came from “Keller’s Den.” She mentioned a character suffering from asphyxiation because of a painting as being unique to “Duma Key,” apparently unaware that this idea came from “Kellers’ Den.” She mentioned that evil gained strength through paintings as being unique to “Duma Key,” apparently unaware that this idea came from “Keller’s Den.”

When explaining one of the distinctions of “Duma Key,” the judge cited the main character’s depression, seemingly unaware that both main characters suffered from depression. She also cited that it is later in the novel that “Duma Key’s” curse (Perse) is revealed, apparently unaware that this was also done with Mrs. Baxter in “Keller’s Den.” She stated that Mr. King created suspense in “Duma Key,” apparently dismissing any possibility that suspense was also created in “Keller’s Den.” I guess everybody has their own definition of suspense. She also stated that the paintings in “Duma Key” had the power to change reality, apparently unaware that the same phenomenon existed in “Keller’s Den” with a near asphyxiation ordeal in one painting, and also in a painting that caused a house fire. The judge also incorrectly stated that the painting skill in “Keller’s Den” is expressed in the context of a religious allegory of possession and salvation, when in fact the painting skill in “Keller’s Den” was a spiritual phenomenon and had nothing to do with religion. Religion is a key, however, to aid the main character in escape from his curse. The Judge also attempted to differentiate the two novels by stating that the old lady who lived next door to the main character in “Duma Key” knew more about the curse than anyone. But the Judge did not mention that the old lady who lives next door to the main character in “Keller’s Den” also knew more about the curse than anyone. In attempting to differentiate the setting, the judge stated that the two settings are in very different locations; one along the west coast of Florida near Tampa and one along the east coast of Florida in Miami. Actually, each story used settings in both the city and along the coast or in the ocean. Moreover, the judge categorized “Duma Key” as a psychological mystery, apparently dismissing “Keller’s Den” from this genre. Attempting to further divide the novels, the judge described the main character in “Duma Key” as a protagonist in the tradition of a psychological novel, apparently dismissing the main character in “Keller’s Den” as the same. The Judge noted the differences in the book covers, but did not mention the similarity which is similar looking canvases with eight staples down the sides (shown on original cover).

Even though much of the content is the same, the pace and mood does differ somewhat between the two novels, as the Judge stated in her dismissal. “Keller’s Den” proceeds at a faster pace, keeping the reader more in tune and alive, while “Duma Key” is written at a more sluggish pace. But how much should our different styles be an impetus for dismissal?

The judge incorrectly stated that I sent my novel to Simon & Schuster, when actually I sent it to Stephen King, as I stated in the pleadings. In fact, in the pleadings the defense (King et al) conceded to having access to “Keller’s Den.” As I mentioned in the similarity outline, King’s assistant sent me a letter stating that Stephen King chose not to take time to review other novels. It was peculiar however, that in 2010, I received a notice from my publisher stating that Stephen King would be interested in seeing more books from more Publish America authors.   

Judge Julie E. Carnes dismissed this case on August 10th, 2011, not only denying me a jury, but also not allowing this case to proceed to Discovery and Summary Judgment, which would have allowed expert testimony. She also ruled that the case be dismissed with prejudice which prevented any re-filing possibilities. At the very least, as several Intellectual Property Attorneys mentioned to me before the case was dismissed, this case should be allowed to proceed to the next step. Many of what Judge Carnes used as reasoning for dismissal seemed to be taken directly out of the Motion for Dismissal context deliberated by the defense attorney. As we all know, having a good case sometimes isn’t as important as having good legal representation and having the right judge or jury.

Let’s face the facts. It’s true that “Duma Key’s” style, pace and word length are different than “Keller’s Den.” But should an author be allowed to copy all of these ideas simply because of these facets? Let’s forget about the word plagiarism momentarily; especially since Copyright Infringement is subjective. Let’s use the word “used.” At the very least King “used” the novel “Keller’s Den” to create “Duma Key.” More than likely, he read “Keller’s Den” and simply took hundreds of notes, probably using more content than should be allowed.

Did Stephen King do the unthinkable, or are the 286 similarities between “Keller’s Den” and “Duma Key” simply coincidental?  Is this another case of celebrity entitlement influenced by those of higher status, or was this case judged on an unbiased and fair platform?  Is this up to each individual court or judge, or is this a Copyright law embedded into our legal system?

Stephen King may be only guilty to the point that he knew he could get away with something because of the flaws in our legal system. If someone told me I could pick up a five million dollar bill and there would be a one in 100 chance that I would have to give it back, I would pick it up! Yes, you can sue a celebrity. However, it appears in order to do that, the moon must align with Mars during a lunar eclipse on the second Tuesday of the fifth week of the thirteenth month. It also helps to hire an attorney that is capable of bringing more than a pea-shooter to a gun fight.

As I mentioned, Copyright Infringement, particularly Plagiarism, is very subjective. If 100 people looked at this case, you might get 100 opinions. And where is the line drawn for each judge? Can it possibly be the same for each one? One thing that must be considered regarding this case: the possibility exists that all of these similarities that were used to create “Duma Key” was entirely legal according to Copyright Infringement laws. And if this is true, those who read the Similarity List will probably have to adjust their proverbial line in the sand. 

Maybe I’m wrong about this whole case. Or maybe I’m right and wrong. Maybe I should have won this case, but maybe there was a good reason why I didn’t. Maybe an unknown author shouldn’t be allowed to defeat a legend like Stephen King in a legal proceeding. Maybe there are just certain times when justice should take a back seat to “entitlement.”

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