That case and that book

[dumbledore11214]

nrenka:

> '150 F.3d 132' into Google and see what
> you get. This case has been cited repeatedly as
> precedent.

Lee:
Yes, it has. But my question was whether the "fictional facts"
distinction *specifically* has been referenced as precedent? I've 
spent
hours online wading through references to Castle Rock, and while it is
true that 150 F.3d 132 has been widely cited generally, I have been
unable to find another case that so much as takes note of, let alone
relies specifically on, Castle Rock's "fictional facts" determination.

Alla:

Well, try this case for example, where basically plaintiffs allege 
breach of copyright by the defendants who produced movie supposedly 
based on their screenplay.

Price v. Fox Entertainment Group, Inc.
Not Reported in F.Supp.2d, 2007 WL 241389 (S.D.N.Y.)
Court here  denied defendant's motion for summary judgment saying 
that question of substantial similarity between two works must be 
decided by the trier of fact, but what I find significant is that 
judge does NOT does NOT examine dialog only, he examines  everything –
 feel, theme characters, plot, sequence and setting.

 "C. Actionable Infringement
After examining each work's "total concept and feel, theme, 
characters, plot, sequence, pace, and setting," [FN79] I cannot find 
as a matter of law that each and every similar element between the 
two works is non-protectable. A jury could reasonably conclude 
that " 'the ordinary observer, unless he set out to detect the 
disparities, would be disposed to overlook them, and regard [the 
works'] aesthetic appeal as the same." ' [FN80]
FN79. Williams, 84 F.3d at 588.

FN80. Boisson, 273 F.3d at 272 (quoting Folio Impressions, 937 F.2d 
at 765).


"The jury will have to decide whether the similarities between the 
two works at issue here are substantial, and therefore actionable. 
This will require differentiation between similarities that 
constitute original artistic expressions and those that flow from non-
protectable ideas, from scenes a faire, or from conventions of 
underdog sports stories and Hollywood films, or whether the 
similarities can be found in the prior art, such as Happy Gilmore or 
Men with Brooms. These questions are quintessentially fact-based 
disputes and cannot be decided as a matter of law."


Alla:

While I did not see the expression "fiction facts" used verbatum in 
the decision, I would argue that determination made partially based 
on this dicta language as well.

And I did keysited Castle rock on Westlaw, found about 750 cases 
where it was cited and from ten or twelve cases that I skimmed I 
realised something that I was apparently too slow to realize earlier. 
Please forgive me, I guess it is good that I am not a copyright 
lawyer.

Since fair use is indeed affirmative defense, plaintiffs do have to 
prove prima facie case of copyright infringement BEFORE defendants 
should even bother to allege the defense. Now, of course in the case 
like this it is assumed that plaintiffs are able to make out their 
prima facie burden and defendants alleged it in their answer to 
preserve the defense at trial, but theoretically judge may not even 
have to go into fair use and its four factors at all, should he find 
that plaintiffs did not prove their prima facie case of infringement. 
Now, I think they proved it in spades, but heeee, am not a copyright 
lawyer.


Also try this case for proposition of accepting the test that Castle 
Court used, although that case is distinguishable on the facts IMO, 
since plaintiff's copyright was being challenged and even that did 
not stop the court from denying defendant's summary judgment motion:

2001 WL 984714

"FN6. According to the Second Circuit, the question of whether the 
copied portion of the original work in a case of fragmented literal 
similarity is substantial is distinct from the quantitative question 
asked as part of the qualitative/quantitative analysis applied in 
Castle Rock, 150 F.3d at 138, and Ringgold, 126 F.3d at 75. In those 
cases, when deciding how much of the copyrighted work had been 
copied, the Court considered "the amount of copying not only of 
direct quotations and close paraphrasing, but also of all other 
protectable expression in the original work." Castle Rock, 150 F.3d 
at 140 n. 6. Here, the alleged copying was limited to direct 
quotation and close paraphrasing of the two measures of "Hard to 
Handle." Moreover, the works being compared here, unlike the works in 
Castle Rock and Ringgold, were produced in the same medium, and the 
styles, although different, are susceptible to comparison. Therefore, 
the fragmented literal similarity analysis is most appropriate in 
this case. Nonetheless, even under the quantitative/qualitative 
analysis, a genuine issue of material fact exists as to whether the 
amount of material copied from "Hard to Handle" was more than de 
minimis."

Lee:
<SNIP>
Patry further notes that Castle Rock has been recently criticized, and
refers to 292 F. 3d 512, 523 (Ty, Inc. v. Publications International 
Ltd.).
<SNIP>

Alla:

Taking this quote out of order just to make the point I wanted to 
make anyways.

This is "Beanie Baby" case, which is as far as I could see very 
distinguishable on the facts. It was a suit of manufactures of beanie 
babies against publisher of beanie babies collector magasines. I am 
pretty sure court did found fair use there.

Now more general point - the fact that case had been criticised ( in 
other words several cases distinguish this one either on the law or 
facts and quite a few cases do) means well, nothing as far as I know. 
As long as case is not overturned, it is a good law and judge has an 
absolute right and well, even duty to follow it AS LONG AS he finds 
that the case that he decides is similar to the precedent in this one.

If judge finds that this case is different and decides to follow 
ANOTHER case which he finds similar to, well more power to the judge.