In assessing claims for copyright infringement similarity is not enough. Verbatim copying is clearly infringes but the standard needed to prove a case of copyright infringement is “substantial similarity.” In a notable case a couple of years ago by a cookbook author aggrieved by another author allegedly poaching in her niche (sneaking vegetables into children’s food) the court in an unpublished opinion had this to say: “We are not persuaded. Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted.” The court continued (debunking the claim still further) that “to the extent the two works have general and abstract vaguely similar titles and inclusion of illustrations of prepared dishes, health advice, personal narrative, descriptions of how to make purees, instructions for preparing dishes, and language about children’s healthy eating — the district court correctly concluded that these elements do not raise a fact issue for trial because they are ‘scenes a faire,’ or ‘unprotectible elements that follow naturally from [the] work’s theme rather than from [the] author’s creativity’,” Lapine V. Seinfeld, 375 Fed.Appx. 81 (2nd Cir. 2010).

Scenes a faire (more generally associated with fiction) are generic elements defined as sequences of events that “necessarily result from the choice of a setting or situation.” Take any exceptional work of literary or dramatic art and you will find stock situations elevated to art by the author’s craft and expressive skill. It is not ideas or concepts that are protected by copyright, but the manner in which they are given life with language. “[T]here can be no copyright in the `ideas’ disclosed but only in their `expression’,” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). Copyright is “limited to those aspects of the work-termed ‘expression’-that display the stamp of the author’s originality,” Harper & Row v. Nation Enters., 471 U.S. 539, 547 ) (1985). What copyright protects is further parsed in the “Tree House” and “demigod” cases, Stiles v. Harperollins Publishers LLC, 10 Civ. 2605 (SDNY 8/5/11) a couple of months ago and even more recently in Ditocco v. Riordan, 1- Civ – 4186 (SDNY 9/20/11).

Plaintiff’s book in Stiles contains “step-by-step illustrations of how to build [a] tree house.” Defendant’s book includes a chapter entitled “Building a Tree House” and has “hand-drawn illustrations embedded in paragraphs of text.” The defendant’s illustrations are not dissimilar to the plaintiff’s but similarity flows from the project. The court concluded that “[a]lthough there are obvious similarities between the tree house designs and illustrations, ‘the similarities do not go beyond the concepts and ideas [and process] contained in plaintiffs’ drawings.” If the “total concept and overall feel” of the two works are distinct, there is no infringement. “[G]eneralized ideas about how to arrange wooden planks to form a square platform is not copyrightable.” Similarity such as there may be between parties’ works limited to hackneyed elements cannot furnish the basis for finding substantial similarity.

In the demigod case, plaintiffs’ two book series recounts the adventures of a modern day teenager descended from the Greek mythological hero Perseus who is “summoned to fight ancient battles in order to save the world, all the while balancing the demands of school, sports, friends, love, and family back at home.” Defendant’s five book series tell the first-person story of an adolescent demigod. “Percy [short for Perseus] and his fellow demigods battle creatures from Greek mythology on their adventures across modern-day America, with the ultimate objective to prevent the rise of the titan Kronos.” “[T]he shared name Percy derives from the hero Perseus … a character unquestionably in the public domain.” Differences include for Perseus different paternity, Zeus and Poseidon.

Similarity of characters, situations and scenes drawn from cultural materials and quotidian events are original only to the extent of the creative language in which tales are told. The court in Ditocco pointed out that “expression [in narrative structure, characters, themes, setting, plot and scenes] varies considerably in both works.” The same is also true for preparing food and building tree houses. “[I]n the end [the] inquiry necessarily focuses on whether the alleged infringer has misappropriated ‘the original way in which the author as “selected, coordinated, and arranged” the elements of his or her work,” citing earlier cases on the issue.