Douglas v. Osteen

• Decision Date: 16 May 2008
• Docket Number: Civil Action No. 07-3925.
• Citation: 560 F.Supp.2d 362
• Parties: Herman DOUGLAS, Sr., Plaintiff, v. Joel OSTEEN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

560 F.Supp.2d 362

Herman DOUGLAS, Sr., Plaintiff, v. Joel OSTEEN, et al., Defendants.

Civil Action No. 07-3925.

United States District Court, E.D. Pennsylvania.

May 16, 2008.

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COPYRIGHT MATERIAL OMITTED

Herman Douglas, Sr., Norristown, PA, pro se.

Michael Eidel, Dla, Piper, Rudnick, Gray, Cary US LLC, Philadelphia, PA, for Defendants.

MEMORANDUM AND ORDER

TUCKER, District Judge.

Presently before this Court are Defendants' Joel Osteen and Hachette Book Group USA, Inc.'s Motions to Dismiss (Docs. 7 and 23).¹ For the reasons set forth below, upon consideration of Defendants' Motions, Plaintiffs Response (Doc. 9), and Defendants' Reply and Accompanying Exhibits (Docs. 18 and 19), this Court will grant Defendants' Motions.

BACKGROUND

From the evidence of record, taken in a light most favorable to the Plaintiff, the pertinent facts are as follows. In 1990, pro se Plaintiff, Reverend Herman Douglas, Sr., authored a book entitled Prayer Power in the Eyes of Faith for which he obtained copyrights in 1990 and 2006.² In 2004, Defendant Reverend Joel Osteen ("Osteen") authored and obtained a copyright for Your Best Life Now: 7 Steps to Living at Your Full Potential. Both Plaintiffs and Osteen's books focus on religious motivation, recounting biblical stories and setting forth motivational prayers and anecdotes. On March 31, 2007, Plaintiff purchased a copy of Osteen's Your Best Life Now and noticed several similarities between his and Osteen's book, including use of the title of Plaintiffs book, the same biblical stories, similar words and expressions, and the same literary style. Prior to filing suit, Plaintiff consulted with a "legal advisor," who, in April 2007, advised Plaintiff that the legal advisor was prepared to take Plaintiffs case. Plaintiff did not retain but agreed to employ the legal adviser on an "as needed basis." On a subsequent undisclosed date, Osteen's counsel contacted Plaintiffs legal advisor and threatened to file a motion to dismiss.

On September 24, 2007, Plaintiff filed suit against Osteen; Osteen's publisher, Hachette Book Group USA ("Hachette Book"); and unnamed Distributors and Retailers, alleging copyright infringement under the U.S. Copyright Act, 17 U.S.C. §§ 101-810; trademark infringement under the Lanham Act, 15 U.S.C. §§ 1051-1129; violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §§ 201-1 to 201-9.3; and tortious interference with contractual relations under Pennsylvania common law. Defendants Osteen and Hachette Book now move to dismiss all counts for failure to state a claim.

LEGAL STANDARD

On a motion to dismiss for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir.1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium, 214 F.3d 395, 397-98 (3d Cir.2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.2000). While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir.1997). "The pleader is required to `set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993) (quoting 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357 at 340).

The court may consider the allegations of the complaint, as well as documents attached to or specifically referenced in the complaint, and matters of public record. See Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir.1998); 5A Wright & Miller, Fed. Practice & Procedure: Civil 2d § 1357. "Plaintiffs cannot prevent a court from looking at the texts of the documents on which its claim is based by failing to attach or explicitly cite them." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.1997). "[A] `document integral to or explicitly relied upon in the complaint' may be considered `without converting the motion [to dismiss] into one for summary judgment.'" Id. (emphasis in original) (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir.1996)). Any further expansion beyond the pleading, however, may require conversion of the motion into one for summary judgment. FED. R. CIV. P. 12(b).

DISCUSSION

Defendants move to dismiss Plaintiffs copyright infringement, trademark infringement, UTPCPL violation, and tortious interference claims. The Court will grant Defendants' Motions.

A. Copyright Infringement

In Count I of the Amended Complaint, Plaintiff alleges that there are "substantial similarities" between Plaintiffs and Osteen's books sufficient to constitute copy-right infringement, in violation of the Copyright Act, 17 U.S.C. § 501. Plaintiff specifically alleges that Defendants use of the title of his book,³ the same biblical stories, similar words and expressions, and the same literary style amounts to copyright infringement. Defendants argue that Plaintiff has failed to state a claim because there is no copyright protection for titles of books, short phrases, or biblical stories which are in the public domain and use of the same literary style does not give rise to a finding of "substantial similarity."

To establish copyright infringement, the plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (citing Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 548, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985)). Copying may be demonstrated by either direct evidence or circumstantial evidence showing that the defendant had access to the copyrighted work and that the original and allegedly infringing works bare substantial similarities. Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 207-08 (3d Cir.2005). "Not all copying, however, is copyright infringement." Id. at 208 (quoting Feist Publ'ns, 499 U.S. at 361, 111 S.Ct. 1282). To be actionable, the alleged copying must amount to an unlawful appropriation of protectable material. Id. Protectable material includes expressions of ideas, not the ideas themselves nor matters in the public domain. See 17 U.S.C. § 102(b) (barring copyright protection for ideas); 37 C.F.R. § 202.1(b) (same); Kay Berry, 421 F.3d at 208 ("It is a fundamental premise of copyright law that an author can protect only the expression of an idea, but not the idea itself."); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1232 n. 23 (3d Cir.1986) (noting that the plaintiff must show that the similarities between the works was due to copying and not because both parties drew from common sources that were part of the public domain); Ty, Inc. v. GMA Accessories, 132 F.3d 1167, 1170 (7th Cir.1997) (same). Stated differently, protectable material includes only the original elements of the plaintiffs work. Kay Berry, 421 F.3d at 208.

Here, Plaintiff alleges that there exist substantial similarities in the words, expressions, biblical stories, and literary method used in the two books at issue in this case. Plaintiff may not claim a copyright in the title of his book nor the individual words, expressions, or short phrases used therein. The U.S. Copyright Office's regulations specifically exclude from copyright protection "words and short phrases such as names, titles, and slogans . . . ." 37 C.F.R. § 202.1(a); accord Southco v. Kanebridge Corp., 390 F.3d 276, 286 (3d Cir. 2004); Kirkland v. National Broadcasting Co., 425 F.Supp. 1111, 1114 (E.D.Pa.1976). Similarly, Plaintiff may not claim a copyright in biblical stories, which are in the public domain. See Torah Soft Ltd. v. Drosnin, 136 F.Supp.2d 276, 286 (S.D.N.Y. 2001) (noting that the Bible is in the public domain, and therefore unprotectable); see also Computer Assocs. Int'l. v. Altai, Inc., 982 F.2d 693, 710 (2d Cir. 1992) (stating material from the public domain "is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work"); Whelan Assocs., 797 F.2d at 1232. Lastly, there is no copyright protection for a particular literary style. See Whitehead v. CBS/Viacom, Inc., 315 F.Supp.2d 1, 11 (D.D.C.2004).

The two books at issue in this case are motivational religious books. It is unsurprising that they contain the same biblical stories, similar expressions and phrases, and similar literary styles because the two books explore the same idea, namely religious motivation. Further, nowhere in the Amended Complaint has Plaintiff alleged that Defendants copied any of the original elements of his work; Plaintiff merely alleges that both he and Osteen wrote motivational religious books, which contain common elements that are not subject to copyright protection. See Kay Berry, 421 F.3d at 208 (indicating that there is no copyright protection where the allegedly infringing work is substantial similar "merely because it contains elements that would be expected when two works express the same idea or explore the same theme"). As such, Plaintiffs copyright infringement claim will be dismissed for failure to state a...