Writing and the Law: A Lesson in Copyright

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by Brenda Warneka, JD

How would you react if you sent your newly published first book, in this case Keller’s Den (Publish America, 2002), to bestselling author Stephen King’s publisher, hoping King would provide a blurb for your cover, and instead he published his own novel, Duma Key (Scribner/ Simon & Schuster, 2008), with what you identify as 286 similarities to your book(1)?

Writer Rod Marquardt (nom-de-plume Rod Morgan) did what many of us would at least think of doing: he sued King, the author of more than 40 books, and his publisher for copyright infringement.

The complaint in Marquardt v. King, filed in federal court in Atlanta in 2010, describes main characters in both books who acquire “a mysterious and rapid ability to paint beyond their natural ability” due to an evil spirit. Keller’s Den says the hypnotic state controlling the main character is “like the talons of an eagle wrapped around a harmless garter snake;” Duma Key offers, “I was like a bird hypnotized by a snake.” The complaint lists sixteen pages of alleged similarities. The final sentence in Marquardt’s book has the main character feeling “gentle wisps of air;” King’s next-to-last sentence refers to a “first hesitant puff of air.”

However, Marquardt’s “lengthy list of analogous details,” as Judge Julie E. Carnes called it, did not convince her of the merits of his claim. In August 2011, after reading the books, she dismissed the complaint without a trial. She compared creative elements of the two books – plot, characterization, mood, pace and setting – and concluded the way the two authors express themselves is sufficiently different that the books fail the legal test of “substantial similarity,” whereby the average lay observer (reader) would recognize King’s book as having been appropriated from Marquardt’s book.

More specifically, Judge Carnes found the plots “while sharing the idea of a mysterious painting skill, express that idea quite differently.” She characterized Keller’s Den as “a religious allegory of fall and redemption,” but Duma Key as a psychological thriller, and said the two books have “dissimilar structures and feelings” and “very different moods and pacing.” She pointed to minimal character development in Marquardt’s book as compared to King’s and the fact that Marquardt’s book is written in third person and King’s in first person. She said Marquardt’s book is “driven more by action than suspense, whereas Duma Key…creates suspense, fear and mystery.”

King was off the hook for copyright infringement because what the copyright law protects is the complex arrangement of words and structure by which authors express themselves(2). He was free to take elements not subject to copyright – ideas, facts, and short phrases – from Marquardt’s work as long as he did not copy the way Marquardt expressed himself. Marquardt v. King is a reminder of what copyright law protects and what it does not.

(1) See list at rodmarquardt.com.
(2) The Copyright Act § 102 provides copyright protection for “original works of authorship fixed in any tangible medium of expression….”

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