similar to that character, and only the latter is infringement." Warner Bros., 720 F.2d at 242; see also Smith, 578 F. Supp. 1297, 1303 ("No character infringement claim can succeed unless plaintiff's original conception sufficiently developed the character, and defendants have copied this development and not merely the broader outlines."), aff'd without op., 738 F.2d 419 (2d Cir. 1984).
In the case at hand, plaintiff contends that the following characters are substantially similar: (1) Terry and Tedra; (2) Tammad and Challen; and (3) Murdock and Martha. (Sutak Aff. PP 20-21) However, not only are plaintiff's characters dissimilar to defendant's, but, apart from Terry, they also seem undeveloped to the point of being "stock" characters and therefore ineligible for copyright protection. Jones v. C.B.S., Inc., 733 F. Supp. 748, 753 (S.D.N.Y. 1990).
Moreover, plaintiff admits that "defendant colored the main characters with some differences, notably by giving her female protagonist (Tedra) a wise-cracking sense of humor which her male antagonist (Challan [sic]) responds well to, thus producing a material change to the mood of The Warrior Within. (Pl. Mem. at 78 (emphasis in original); see also Sutak Aff. P 10 ("Tedra does have some distinguishing characteristics from Terry . . . . Terry is a serious young woman in The Warrior Within. Tedra wise-cracks her way through Warrior's Woman. Moreover, Tedra, unlike Terry, is a virgin who looks forward to sex at the start. Hence, the difference in mood.") In fact, beyond Terry's and Tedra's independent, strong-willed personalities, and their elite statuses arising from their given talents, Terry and Tedra share no specific similarities.
Nonetheless, plaintiff argues that Terry and Tedra perform similar functions -- that is, plaintiff alleges that both Terry and Tedra act as an "ambassador and trade negotiator." (Sutak Aff. P 9) However, not only is this alleged similarity too broad and undeveloped to be the appropriate subject of copyright protection, see Nichols, 45 F.2d at 121, but that description also is false as applied to Tedra. Tedra is forced by a military coup to leave Kystran and is "world-discovering" in order to avoid being captured by Sha-Ka'ari warriors. Furthermore, once Tedra arrives on Sha-Ka'an, she decides that her primary purpose is to raise an army to overthrow the Sha-Ka'ari. Therefore, plaintiff's claims that Terry's and Tedra's "missions are substantially similar is simply wrong.
Moreover, plaintiff's claim that Tammad and Challen are substantially similar fails by plaintiff's own admission. As plaintiff concedes, both Tammad and Challen are versions of the "Conan" he-man and, as such, are not copyrightable. (Sutak Aff. PP 15, 17)
Finally, plaintiff's allegation that Murdock and Martha perform similar roles vis-a-vis Terry and Tedra, respectively, is wrong as well. Murdock's only function in The Warrior Within is to arrange Terry's servitude. Martha, on the other hand is a unique mix of machine and human, who serves as foil for the development of Tedra's character. Therefore, Terry is the only character in The Warrior Within sufficiently developed to be the subject of copyright protection. And, by plaintiff's own admission, the specific expression of Terry's and Tedra's characters differs.
Finally, plaintiff argues that Warrior's Woman contains dialogue and speech patterns that are substantially similar to those contained in The Warrior Within. (See Sutak Aff. P 14; Green Aff. PP 5-13) For example, plaintiff points out that both Terry and Tedra address Tammad and Challen, respectively, as warrior. (Sutak Aff. P 14) However, as plaintiff concedes, "cliched language, phrases, and expressions conveying an idea that is typically expressed in a limited number of stereotypical fashions are not protectible in and of themselves." (Id. P 14 n.1) Moreover, since both Tammad and Challen are warriors, one wonders how else they might be addressed.
Plaintiff also points to an alleged similarity between Tammad telling Terry "'I do not believe you could easily lift a sword,'" (Ferber Aff. Ex. C at 10), and Challen telling Tedra that, "You could not even lift a warrior's sword." (Id. Ex. E at 81) However, this dialogue, too, is hackneyed treatment of the warrior-hero theme, and therefore not properly the subject of copyright protection. See Zambito, 613 F. Supp. at 1112.
Finally, plaintiff claims that defendant has improperly appropriated the syntax of Tammad's speech by giving Challen substantially similar syntax. (See Green. Aff. PP 6-13) Specifically, plaintiff argues that Tammad's and Challen's syntax is substantially similar because both employ (i) "the 'do you' directive" (id. PP 7-8), (ii) "the 'do you' conjunctive" (id. P 9), (iii) "use of the definite article 'the' before a proper name" (id. P 10), and (iv) "awkward-sounding pronoun construction." (Id. P 11) However, not only has defendant supplied numerous examples of use of such speech patterns in other romance novels (see Stein Aff. P 11), but plaintiff also has conceded that she did not invent "any one of these unorthodox word usages or phrase constructions." (Green Aff. P 12)
Nonetheless, plaintiff argues that "the combination of all these linguistic devices into one alien dialect, or its English equivalent . . . Is [her] own." (Id. P 13) However, plaintiff concedes that defendant "infrequently" employed the "'do you' directive" construction. (Green Aff. P 8) In addition, defendant, herself, previously has employed the "'do you' conjunctive," e.g., "Do you seek to cause deliberate mischief, woman, you will be punished'" (Ferber Aff. Ex. E at 136). (See Stein Aff. P 11) Moreover, in Warrior's Woman, only Corth precedes proper names with the definite article "the" (Green Aff. P 10), distinguishing his speech from that of human Kystranis. Therefore, the only significant speech pattern shared by Tammad and Challen is awkward syntax. Because plaintiff herself argues that Tammad's barbarian dialect is original only to the extent that she combined various unoriginal word usages and sentence structures, her claim cannot stand on defendant's appropriation, at most, of Tammad's awkward sentence structure. At bottom, what both authors are showing, each in her own way, is that warriors in pulp fiction talk more like Tarzan than like Lord Chesterfield. See Burroughs v. Metro-Goldwyn-Mayer, Inc., 683 F.2d 610, 630 n.20 (2d Cir. 1982) (sample of Tarzan-Jane dialogue). That is not surprising, nor is it copyright infringement. Defendant has appropriated no elements of The Warrior Within's copyrightable dialogue or barbarian dialect.
* * *
Because, based on the differences discussed above, no reasonable juror could find the works substantially similar and because the few similarities between The Warrior Within and Warrior's Woman involve non-copyrightable elements of plaintiff's work, defendant's motion for summary judgment is granted and the complaint is dismissed.
Dated: New York, New York
December 8, 1992
Michael B. Mukasey,
U.S. District Judge