Green v. Lindsey

• Decision Date: 08 December 1992
• Docket Number: No. 91 Civ. 3668 (MBM).,91 Civ. 3668 (MBM).
• Citation: 885 F. Supp. 469
• Parties: Sharon GREEN, Plaintiff, v. Johanna LINDSEY, Defendant.
• Court: U.S. District Court — Southern District of New York

885 F. Supp. 469

Sharon GREEN, Plaintiff, v. Johanna LINDSEY, Defendant.

No. 91 Civ. 3668 (MBM).

United States District Court, S.D. New York.

December 8, 1992.

Ken Sutak, Schlesinger & Sussman, New York City, for plaintiff.

Stephen F. Huff, Tom J. Ferber, F. Robert Stein, Pryor, Cashman, Sherman & Flynn, New York City, for defendant.

OPINION AND ORDER

MUKASEY, District Judge.

In this copyright infringement action, plaintiff, who is the author of the science fiction novel The Warrior Within, sues defendant, the author of the futuristic romance novel Warrior's Woman, alleging that these two high-tech bodice-rippers¹ are substantially similar and therefore that her copyright has been infringed. Defendant moves for summary judgment pursuant to Fed. R.Civ.P. 56 on the basis that the two works do not contain substantial similarities, and that those similarities that do exist do not involve copyrightable material. For the reasons set forth below, defendant's motion is granted.

I.

Plaintiff, Sharon Green, is the author of approximately 20 books, most of which are science fiction. (Mainhardt Aff. ¶ 2) In publishing parlance, she is a "mid-list" writer — that is, an "average professional book writer" whose contract advances average between $6,500 and $7,500 per book. (Id. ¶ 5) As of December 31, 1989, The Warrior Within had sold 56,868 copies. (Id. ¶ 3)

Defendant, Johanna Lindsey, a "brand name" writer, is the author of approximately 20 best-selling romance novels, each of which has sold at least 700,000 copies. (Id. ¶ 5; Ferber Aff. Ex. H) Warrior's Woman was on The New York Times and Publisher's Weekly best-seller lists for about five weeks during the summer of 1990. (Mainhardt Aff. ¶ 5)

The claims in this case necessitate a more detailed review of these works than their literary merit would either warrant or induce. That review may be easier to follow if their plots first are summarized. This artless judicial pen could craft no better summaries than the ones that adorn the back cover of each novel, as follows:

Warrior's Woman — In the year 2139, fearless Tedra De Arr sets out to rescue her beleaguered planet Kystran from the savage rule of the evil Crad Ce Moerr. Experienced in combat but not in love, the beautiful, untouched Amazon flies with Martha, her wise-cracking, free-thinking computer, to a world where warriors reign supreme — and into the arms of the one man she can never hope to vanquish: the bronzed barbarian Challen Ly-San-Ter. A magnificent creature of raw yet disciplined desires, the muscle-bound primitive succeeds where no puny Kystran male had before — igniting a raging fire within Tedra that must be extinguished before she can even think of saving her enslaved world ... (emphasis in original)

The Warrior Within — She was one of Earth's most valued Primes — a brilliant and highly trained operative with a special talent for predicting accurately the thoughts and actions of others. He was a barbarian chief from a raw and primitive planet, wise only in the ways of warfare and the schemes of clan domination. His world had become a much needed key to Earth's space enterprises ... and he was prepared to make a deal if the star-people could help him win supreme power. So she was assigned to him. But the only way she could fulfill her mission was in the full native tradition. She must be locked into the five-banded chains of a warrior's slave girl — and live the role to the full.

A. The Warrior Within

The Warrior Within, published in 1982, traces the adventures of Terrilia Reya, "Terry," who is a "Prime Xeno-Mediator" on the planet Central. As a prime, Terry is able to read and influence the emotions of humans and animals (The Warrior Within, Ferber Aff. Ex. C at 92-93), a talent which Central employs to facilitate sensitive interplanetary negotiations with alien cultures. As a result of her critical role in Central's foreign relations, Terry is among Central's elite and "can do anything that she wishes to do. No one has the right to direct her." (Id. at 79)

The story opens with Terry being given to Tammad sek L'lenda, a gigantic barbarian warrior from the primitive planet Rimilia. According to the customs of Rimilia, once Terry is "gifted," that is, once she is given to Tammad as a house present, she belongs to him and he may do what he wishes with her. In fact, Tammad makes immediate "use" of Terry against her will; in prosaic terms, he rapes her. (Id. at 13)

At first, Terry believes that her "gifting" was a mistake that will be corrected. However, she soon learns that her superior in the bureaucracy of Central, Murdock McKenzie, deliberately assigned her to assist Tammad in convincing his fellow Rimilians to join the interplanetary Amalgamation. Therefore, Murdock does nothing to undo the "gifting," and instead orders Terry to accompany Tammad to Rimilia. Furthermore, Murdock directs Terry to keep Tammad with her until they leave for Rimilia. (Id. at 23)

In the few days Tammad spends with Terry on Central, he regularly rapes and beats her (see, e.g., id. at 40-41, 62); he asserts and reasserts that she now is his possession and must obey him unconditionally and for all purposes. Despite Terry's attempts to resist Tammad, she finds him physically attractive and hates her body for "betraying her." In her words:

No matter what I wanted, my idiot body was obviously aching for his touch. I'd never been that way with a man before, and it made no sense! Didn't my body know that a civilized man was preferable to a barbarian? That a civilized man would never rape it, never take from it what he wanted? A civilized man would wait to be given, and never simply take!

(Id. at 26-27 (emphasis in original))

Before Terry and Tammad leave for Rimilia, Terry takes Tammad to a "real" — a movie fed directly into the brain and thus experienced rather than merely watched and heard — about a woman's beating and rape by a merciless primitive man. Terry gives Tammad the female headset and takes the male headset for herself. (Id. at 68-70) Although Tammad apparently is familiar with the subject-matter of the real, the sex reversal "produces an unnatural strain" on him, causing him to move as if in a trance for the remainder of the day. (Id. at 70-71) However, by evening he has returned to himself and has no recollection of the real. Nonetheless, that night Terry dreams that he had been quivering in terror; she wakes up and vomits from her overwhelming guilt at having "destroyed" him. When she realizes he is unaffected, she is so grateful she "barely resented his subsequent use of her." (Id. at 72-73)

Two or three days after attending the real, Terry and Tammad leave for Rimilia. (Id. at 65) Once on Rimilia, they are escorted to the Central embassy. Tammad makes Terry don an imad and caldin, a sheer outfit worn by all Rimilian women. (Id. at 82-83) He also "bands" Terry with five chains: one around each of her ankles and wrists, and one around her neck. (Id. at 87) These chains signify his ownership of her, his choice of five chains ensuring that she will remain his. As one of the embassy employees explains to Terry, "`Men will make offers for one-, two-, and three-banded girls, and sometimes even for four-banded ones, but a five-banded girl has to be fought for. Not many men are willing to face Tammad, not even for a green-eyed, dark-haired woman like you.'" (Id. at 86)

Once Terry is appropriately clad, she and Tammad begin their long journey to Tammad's home, and then to the Great Meeting of tribes, also known as the Ratanan, where the Rimilian warriors will decide whether to join the Amalgamation. Terry and Tammad travel by seetar, a "monstrously large" horse-like animal. (Id. at 88) Tammad explains that when the weather is clear, Terry must walk in his track; she is never allowed to ride a seetar herself because she "could not control a seetar even were it fitting for wenda woman to ride one alone...." (Id. at 88) Because they begin their journey amid heavy rains, Tammad offers to "let" Terry share his saddle. However, she scorns Tammad's "offer" to ride with him, choosing instead to walk in his tracks despite the rain and mud.

At the end of their first day traveling, Terry falls to the ground in exhaustion. Tammad places her inside a tent, where she almost immediately begins to fall asleep. Just before she loses consciousness, Tammad speaks the special code word that reactivates her empathetic powers. (Id. at 89-91)

During the journey to Tammad's home, Terry twice attempts to leave Tammad and fend for herself. Both times, however, Tammad saves her in the proverbial nick of time, once from a wild (and hungry) beast, and once from two lustful men. (Id. at 97, 107-11) He later beats her for her transgressions and she begins to believe that she

was to be trapped on that terrible planet forever. Something would go wrong with the barbarian's plans, I would be blamed, and then I would be given away. No one would listen when I asked to be taken to the embassy, and I would never see Central or my friends again. Throughout the long day I'd thought about that, and I was completely resigned to my fate. I had no chance of escaping the brute who claimed to own me, and I would never escape the ones who owned me after him. I would be lost forever.

(Id. at 115-16)

Several days into their journey, Terry awakens to continued rain. During that day's ride, she becomes feverish and Tammad tends to her with a medicinal broth, which he predicts will cure her within a few hours. She proclaims that she does not want to be well, but would rather die so that she can be free again. (Id. at 119) However when Terry subsequently is faced with the prospect of death — in the form of yet another menacing wild beast — she realizes that she does not want to die. Therefore, she considers that she is properly relegated to the rank of slave. (Id. at 122) (Tammad earlier had said that, "If a person does not feel death preferable to...