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March 11, 1986

Anna FRIEDMAN, Plaintiff,
ITC INTERNATIONAL TELEVISION CORPORATION, Mobil Corporation, Channel 13, Public Broadcasting Channel, Defendants

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

Defendants move this court for summary judgment.


 Plaintiff is the author and the owner of a copyright in a work entitled Benjamin Disraeli.

 Plaintiff alleges that defendants' television broadcast entitled Disraeli: Portrait of a Romantic, shown on public television, infringed upon her copyright.

 For purposes of this motion, all parties concede that defendants had access to plaintiff's manuscript.

 Plaintiff's Claim of Similarity

 Plaintiff's biography of Disraeli is an essentially chronological account of the life of the famed British statesman. The manuscript chronicles Disraeli's life from his birth through his rise to political power. The last 15 pages of the manuscript contains plaintiff's conclusions with respect to the place in history occupied by Disraeli.

 Plaintiff's affidavit in opposition states that she was astonished at the "striking similarity" between her work and defendants' teleplay.

 Plaintiff, to aid the court in its inquiry on this motion, made notes in the margins of defendants' transcript of the teleplay detailing the alleged similarities.

 The court has reviewed both works in question as well as the alleged similarities and finds, inter alia, that plaintiff claims copyright protection over the following:

 1. Disraeli's date of birth and lineage

 2. Disraeli's academic difficulties

 3. Disraeli's travels

 4. Disraeli's wardrobe

 5. Clara's acquaintance with Disraeli

 6. Mary Anne's having read Disraeli's books

 7. Disraeli's need to write books in order to satisfy creditors

 8. Disraeli's desire to confront O'Connell with a challenge to duel.

 Defendants' Dissimilarity

 Defendants argue that every similarity to which plaintiff points involves an historical fact, idea or scene a faire, and it is apparent to the court that plaintiff nowhere denies this.

 Defendants categorically state that plaintiff seeks to appropriate to herself the exclusive right to recount the life of an historical figure in chronological order.


 It is undisputed that plaintiff has a valid copyright in her book. To prove infringement, she must also show copying by defendants. Warner Brothers v. American Broadcasting Co., 654 F.2d 204, 207 (2d Cir.1981) (Warner I). Copying may be inferred where a plaintiff establishes that the defendant had access to the copyrighted work and that substantial similarities exist as to protectible material in the two works. Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S. Ct. 492, 50 L. Ed. 2d 588 (1976). There is no question in this case whether defendants had access to plaintiff's work as it is conceded that they did. Accordingly, in determining whether substantial similarity between the works exists, "the court must distill the protected parts of a work from the unprotected." Warner Brothers, Inc. v. American Broadcasting Co., 530 F. Supp. 1187, 1190 (S.D.N.Y.1982), aff'd, 720 F.2d 231 (2d Cir.1983) (Warner II).

 This court has the authority to determine noninfringement as a matter of law on a motion for summary judgment either when the similarity concerns only noncopyrightable elements of plaintiff's work, or when no reasonable trier of fact could find the works substantially similar. Warner Brothers, Inc. v. American Broadcasting Co., 720 F.2d at 240 (1983) (Warner II).

 This court finds that there is a substantial dissimilarity in perspective between the two works. Plaintiff's work, as she states in her affidavit, is a product of her research in the New York Public Library. The manuscript essentially restates the "newsclippings and reports of the times as well as accounts of Disraeli's contemporaries." It is apparent to the court that much of the language in her plaintiff's manuscript is not a product of 20th Century American English, whereas, defendants' teleplay is clearly a product of 20th Century American English. In fact, much of the language used in plaintiff's manuscript is rather archaic. *fn1"

 Moreover, those passages which plaintiff alleges to be "direct quote[s]" are clearly not. *fn2"

 The conclusion is inescapable that no reasonable observer could find them substantially similar beyond the level of generalized or otherwise nonprotectible ideas. Plaintiff's book, by plaintiff's own description, is an account of actual events. This renders proof of infringement more difficult, because copyright protection in this circuit does not extend to facts or to true events, even if they are discovered through original research. Walker v. Time Life Films, Inc., 784 F.2d 44, 49 (2d Cir.1986).

 Accordingly, defendants' motion for summary judgment is granted.


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