DiTocco v. Riordan, 815 F. Supp. 2d 655 (S.D.N.Y. 2011)
Plaintiffs Robyn and Tony DiTocco wrote two books about a teenage boy who must prevent destruction of the world by forces from Greek mythology while continuing to live the ordinary life of a high schooler, and later, a college student. The DiToccos alleged that author Rick Riordan’s five Percy Jackson novels and the derivative Percy Jackson movie infringed on their copyright in the two books. The defendants, Riordan and the distributors and producers of his novel and the derivative movie, moved to dismiss.
The defendants argued that the Percy Jackson novels and books were not “substantially similar” to the DiToccos’ books, which defeated the copyright infringement claim. The court applied the Second Circuit’s “ordinary observer” test, considering the narrative structure, characters, themes, setting, plots, and scenes, as well as the total concept and overall feel, of the two sets of books. Ultimately, the court held that while both the DiToccos’ books and the defendants’ books and movie shared a common theme, the similarities in the books related to nonprotectible elements and were greatly outweighed by the books’ differences. Thus, no reasonable jury could find that the works were substantially similar, and the court granted the motion to dismiss.
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