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December 8, 1992

SHARON GREEN, Plaintiff,

The opinion of the court was delivered by: MICHAEL B. MUKASEY


 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-rippers *fn1" 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.


 Plaintiff, Sharon Green, is the author of approximately 20 books, most of which are science fiction. (Mainhardt Aff. P 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. P 5) As of December 31, 1989, The Warrior Within had sold 56,868 copies. (Id. P 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. P 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. P 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 Ge 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 slavery, slavery is the proper place for [that person].'" (Id. at 59))

 During the final leg of the journey, Tammad and Terry are joined by a warrior friend of Tammad's, Fadden, and Fadden's wenda, Doran. (Id. at 126) Tammad spends the night with Doran in order to impregnate her and thereby honor Fadden with a denday child, i.e., the child of a warrior chief. Tammad gifts Terry for that same night to Fadden. (Id. at 126-35)

 Shortly after this night of wenda swapping, Terry and Tammad reach Tammad's home. The remaining 81 pages of the book are divided evenly between the time Terry and Tammad spend in Tammad's home awaiting and preparing for the Ratanan, and the Ratanan itself. Both before and during the Ratanan, Terry helps Tammad by reading the minds of his fellow l'lendaa (warriors). Also during this time, she begins to fall in love with Tammad, and to crave and enjoy his "use" of her. However, she continues to resent that he owns her. In addition, he continues to punish her and, for a second time, swaps her for the wenda of another warrior. (Id. at 172) The warrior to whom Terry is "loaned" brutalizes her: "My imad and caldin were quickly removed, and he used me as l'lendaa do, but he also used me in the most embarrassing and humiliating of ways. I was helpless to stop him, my tears of frustration and shame simply giving him greater pleasure." (Id. at 175)

 In addition to these unpleasant facets of her relationship with Tammad, Terry regrets what she perceives to be Tammad's failure to love her as a woman rather than to abide her as a useful object. Terry muses: "I wanted to be so many things to him, wanted so much to have everything I couldn't have." (Id. 153)

 Tammad ultimately is victorious at the Ratanan, convincing the l'lendaa to join the Amalgamation. Just as Terry realizes the extent of her love for Tammad, and just as she realizes that she is pregnant with his child (although it is unclear how she knows that it is Tammad's child and not the child of one of the other l'lendaa who "used" her) Tammad sends her back to Central. Terry is devastated: "There was no sadness or regret in him, no loss of any sort. He was sending me back because my job was done, and he would not miss the Prime he had used. . . . my world was dead and gone." (Id. at 219)

 Warrior's Woman opens with its heroine, Tedra De Arr, quelling a violent demonstration at a free-sex clinic on the planet Kystran in the year 2139 AC (After Colonization). Tedra is a "Sec 1," a member of Kystran's highest ranking security division; she is taller than the average Kystrani male and has the "highest rating for an expert in weapons and hand-to-hand combat." (Warrior's Woman, Ferber Aff. Ex. E at 3)

 Ten pages into the story, Tedra learns that an evil leader, with the aid of huge, sword-wielding, barbarian mercenaries from the planet Sha-Ka'ar, has effected a military coup. (Id. at 10-11) In exchange for their assistance, the Sha-Ka'ari are being allowed to abduct and enslave all female Secs.

 Rourk Ce Dell, a close friend of Tedra's, quickly arranges for a change of Tedra's identity and requisitions a "Rover" spaceship so that she can escape Kystran. (Id. at 13) On her way to Rourk's, Tedra encounters two Sha-Ka'ari warriors, who menacingly proposition her. Tedra manages to separate them, taking only one back to Rourk's apartment, where she takes him down. (Id. at 22) However, Tedra does not want to kill this Sha-Ka'ari warrior because, as she explains to Rourk, the warrior "had his hands all over me and I didn't half mind it. Do you know how long I've been waiting for something like this to happen?" (Id. at 23) The reader thus learns that Tedra is a virgin, a rarity on a planet of free-sex stress reduction clinics, who has been unable to find a man who is her physical equal. (Id. at 6, 23, 29)

 Tedra sets out on her Rover for some "world discovering" in view of Rourk's prediction that it may be years before it will be safe to return to Kystran. (Id. at 34) She takes her "free-thinking," wise-cracking computer, Martha, who is obsessed with Tedra's losing her virginity, and Corth, a sex-capable android whom Martha has programmed to attempt to seduce Tedra. (See, e.g., id. at 39-40)

 As luck would have it, the first planet Tedra lands on turns out to be Sha-Ka'an, Sha-Ka'ar's mother planet. Sha-Ka'an is inhabited by a "warrior class of men," and Tedra decides to try to enlist Sha-Ka'ani warriors to help her reclaim Kystran. (Id. at 57-58)

 Tedra teleports down to Sha-Ka'an, using a molecular transfer device, and immediately encounters a huge, sword-wielding barbarian warrior who, Tedra thinks, is "magnificent," "dominant maleness personified." (Id. at 64-65) He orders her to remove her clothes because she is wearing pants, which only warriors -- male, obviously -- are permitted to wear. When Tedra ignores his order, he attempts to remove her clothing himself. She stops him by stunning him with her phazor. (Id. at 66-68). While he lies stunned although, unbeknownst to Tedra, still conscious, she "examines" his body. (Id. at 69-70)

 When the barbarian, Challen Ly-San-Ter, a shodan, i.e., chieftain, regains his powers, he immediately knocks the phazor from Tedra's grasp. He ponders "claiming" her, which means that she would be unable to "deny her warrior's will" (id. at 77-78), or "using" her. He may do either under the laws of Sha-Ka'an because Tedra is unaccompanied by a man. However, "It was a law Challen had never taken advantage of before. Women came to the shodan for protection . . . . There had never been a need to find one to claim, when he had more than made for a peaceful household. Of course, those who sought his protection could not be used, did they not offer themselves for use." (Id. at 74)

 Tedra attempts to explain to Challen that she cannot be claimed because she is from another planet and only on Sha-Ka'an for a business trip -- to discuss with the Sha-Ka'ani shodan the possibility of hiring some warriors or trading for Toreno steel, the same steel used to make the Sha-Ka'ari swords. (Id. at 79) Challen simply "waves her to silence" (id.), and attempts to remove her clothes himself.

 Challen again demands that Tedra remove her clothes; she complies this time, and, standing naked before him, she is surprised and disappointed when he makes no move to "take advantage" of her. (Id. at 96-99) Tedra remains unaware that Challen's restraint results from his recent use of dhaya juice, a drug which temporarily suppresses a man's sex drive and which warriors take before hunting trips and raids so as not to be distracted. Therefore, Challen simply throws a blanket over her, binds her hands, albeit carefully so as not to chafe them, gags her, and carries her off. (Id. at 103-07) Challen explains his need to bind and gag her as a ritual of challenge loss -- "to declare his or her status to all." (Id. at 104)

 He punishes Tedra for her earlier disrespect. However, he does not punish her by beating or raping her. Rather, he sexually arouses her without providing any release, ultimately bringing her to tears of frustration. (Id. at 115-19) On seeing her tears, Challen apologizes. (Id. at 120)

 Tedra is surprised by Challen's gentleness and decency:

 No, she had to stop trying to pin kind and thoughtful qualities to his nature. He was a barbarian, after all, a dominant, arbitrary male. So what if he'd been incredibly gentle with her in every instance, even to cutting up her clothes to ensure that her wrists didn't get scraped by his scratchy rope. Come to think of it, he hadn't laid a single harsh hand on her even when they'd fought and she'd try to lay him low with every blow. And when he did take hold of her, he was exceedingly careful about it.

 (Id. at 125)

 Apparently, Challen shares some of Tedra's feeling. In fact, when the dhaya juice wears off and Challen feels overcome by his need to touch Tedra, he thinks: "He had bragged to her of a warrior's control. Where was it now?" (Id. at 150)

 He found her incredibly beautiful. She was using his arm as a pillow, but both her hands were wrapped around it, too, as if she felt in sleep what he had also felt, a need to hold tight to what he had found, a fear it might be lost otherwise. The fear was not unfounded on his part, not that he thought the woman would flee him. He had spoken true when he told her he trusted in her honor. There was not another woman he would have said that to . . .

 (Id. at 15) Therefore, although Challen knows Tedra's resistance to him will be "like nothing he had ever encountered before," "he had decided from the moment he had gotten a closer look at her that she would be his." (Id. at 151)

 He wakes Tedra and they begin her first "sex sharing experience." Although Challen does not know that Tedra is a virgin, he attempts to be gentle with her; so much so, that she begs him to get on with it. After this first "experience," they have sexual intercourse repeatedly. Indeed, Tedra appears to enjoy Challen so much that she has sex with him on a riverbank, without realizing that she had the option to resist because she ...

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