MEMORANDUM AND ORDER
On September 30, 1993, plaintiff Geoffrey T. Williams ("Plaintiff" or "Williams") brought suit against defendants Michael Crichton ("Crichton"), Alfred A. Knopf, Inc., Random House, Inc., Universal Studios, Inc., MCA, Inc., Amblin Entertainment, Inc., Steven Spielberg, and David Koepp (collectively "Defendants") alleging copyright infringement under the Copyright Act of 1976, as amended, 17 U.S.C. § 101, et seq., and related claims for an accounting. Plaintiff complains that Defendants' works, the Jurassic Park novel (the "Novel") and the Jurassic Park motion picture (the "Movie"), infringe upon Plaintiff's earlier copyrighted works. Presently before the Court is Defendants' copyrighted works. Presently before the Court is Defendants' motion for summary judgment. For the reasons set out below, Defendants' motion is granted.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only where "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate the absence of any genuine issue of material fact. See Adickes v. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). A fact is material when its resolution would "affect the outcome of a suit under governing law," and an issue is genuine "if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The nonmoving party's "evidence . . . is to be believed, and all justifiable inferences are to be drawn in [its] favor." Eastman Kodak Co. v. Image Technical Services, Inc., U.S. , 112 S. Ct. 2072, 2076 (1992) (quoting Anderson, 477 U.S. at 255).
The nonmoving party may not, however, simply either rest upon the allegations or denials contained in its pleading, see Fed. R. Civ. P. 56(e), or "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); accord Anderson, 477 U.S. at 247-48. Rather, the nonmoving party must "present affirmative evidence . . . from which a jury might return a verdict in [its] favor." Id. at 257.
Construing the record in the light most favorable to Plaintiff, and drawing all inferences in Plaintiff's favor, Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991), the facts are as follows.
Plaintiff Geoffrey Williams is the author of books intended for children between the ages of six and eleven years old. In his books, Williams incorporates and presents natural and scientific phenomena in the context of fictional adventure stories.
During the years 1985 through 1988, Williams created and published a series of four original copyrighted works of fiction for children bearing the following titles: (i) "Dinosaur World," created and first published in 1985 ("Dinosaur World" or "Book I"); (ii) "Lost in Dinosaur World," created in 1986 and first published in 1987 ("Lost in Dinosaur World" or "Book II"); (iii) "Explorers in Dinosaur World," created in 1987 and first published in 1988 "Explorers in Dinosaur World" or "Book III"); and (iv) "Saber Tooth: A Dinosaur World Adventure," created and first published in 1988 ("Saber Tooth" or "Book IV") (together, the "Dinosaur World books"). Plaintiff applied for and was issued a Certificate of Registration by the Register of Copyrights for Book I in December 1988 (registration number TX-1-966-153); Book II in August 1993 (number TX-3-598-943); Book III in March 1988 (number TX-2-294-611);
and Book IV in November 1988 (number TX-2-541-662)
Plaintiff represents that collectively the Dinosaur World books have sold over 800,000 copies in the United States and elsewhere.
The setting of each of Plaintiff's children's books is "Dinosaur World," a place where visitors can "tour and observe dinosaurs and other pre-historic animals in a presumably safe, man-made, controlled environment." Pl.'s Mem. Opp'n Defs.' Mot. Summ. J. ("Pl. Br.") at 7. Plaintiff's four children's books do not comprise a series of works in the sense of portraying the same characters or ongoing incidents and events in each book. Nonetheless, Plaintiff, citing Warner Bros., Inc. v. American Broadcasting Cos., Inc., 530 F. Supp. 1187, 1193 (S.D.N.Y. 1982) ("Warner Bros. I"), aff'd, 720 F.2d 231 (2d Cir. 1983), and Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), urges the Court to consider the works in their totality for the purpose of assessing his infringement claim against Defendants. The Court does not reach the issue of whether Plaintiff's works should be considered collectively, however, because, even so considered, the Court finds that there is no similarity between the parties respective works substantial enough to allow Plaintiff's claim to survive Defendants' motion.
Plaintiff's' first book, Dinosaur World (29 pages),
is a story about a visit by a young girl, Mary, and her father to Dinosaur World. When they arrive, they see many unfamiliar things: for example, plants that look like giant ferns, smoke rising from a volcano, and flying creatures that are not birds.
At the ticket booth, "Dad" pays the admission to a girl who hands him a small portable radio guide. The girl reads to Dad and Mary from the Official Dinosaur World Guide Book and tells them to observe all posted regulations, stay on the marked path, and for their own safety not to feed the dinosaurs.
As Mary and her father begin their tour, dozens of carnivorous dinosaurs "smaller than a chicken," Pl.'s Exh. A at 7, called compsognathus, run past Mary and her father. The radio guide informs them about these prehistoric animals.
Further down the path, Mary and her father hear waves as they approach a reproduction of the North American inland sea the park calls "Dinosaur Sea." They observe flying dinosaurs (pteranodons and pterodactyls), a "giant" turtle, and a predecessor of modern crocodiles (a tylosaurus). Continuing on the path, Mary and her father observe a series of other dinosaurs, with the radio guide supplying information. The two leave Dinosaur World soon after they observe, in a fenced pasture area, a tyrannosaurus rex stampede a group of triceratops dinosaurs.
In Book I, there is no menace or attack on humans by animals, and no fear of any danger to visitors. Plaintiff concedes that this book, viewed independently of the other Dinosaur World books, is not infringed by Defendants' works. Plaintiff asserts, however, the following, limited, assertedly protectible, similarities as indicative of infringement when the Dinosaur World books are viewed as a whole: (a) the first dinosaurs encountered by the reader are chicken-sized carnivorous animals (procompsognathus in the Jurassic Park novel) seen by a young girl on a beach, and (b) the stampede of a herd of dinosaurs chased by a tyrannosaurus rex.
Plaintiff's Lost in Dinosaur World (30 pages) was written for older children than the audience intended for Book I; consequently, Book II presents a somewhat more "sophisticated" and detailed setting for the Dinosaur World park. There is a Petting Zoo and next to it the Dinosaur World Nursery in a building where ten dinosaur eggs have hatched the week before the story begins. Visitors receive at the entrance gate a map of the park and a radio guide to answer questions about the animals. Visitors can tour the park either by walking on marked paths or by riding the "T-Rex Express" through the dinosaur time periods represented in the park, observing the animals from the safety of the train.
In Plaintiff's characterization, similar to the Dinosaur World books generally, the story of Lost in Dinosaur World "has as its theme a presumably safe place inhabited by dinosaurs in a controlled environment where adults and children can visit, tour about and safely observe dinosaurs." Pl. Br. at 11. The setting includes
tall pines rising overhead, along with exotic ferns, gingko and monkey puzzle trees; giant pterosaurs and pteranodons circling in the blue sky, their eerie, high-pitched squeals carrying across the distance; roars, grunts and growls coming from deep in the forest, made by who-knows-what-kind of wild creatures . . . .
Pl.'s Exh. B at 2. Despite the supposedly safe environment, Plaintiff asserts, "there is immediately a mood and feeling of mystery and menace surrounding the park." Pl. Br. at 11.
Book II begins with two children, Tim and Mary McDunn, and their parents readying to visit Dinosaur World for the first time. The boy's mother assures him: "We're just going to Dinosaur World, Tim. Not to the jungle or someplace dangerous." Pl.'s Exh. B at 1. Tim and his father discuss the first thing that Tim wants to do at Dinosaur World, which is to ride the T-Rex Express, and then to see an allosaur ("the scariest animal in the park," id.), a dinosaur assertedly similar to a tyrannosaurus rex.
After they arrive at Dinosaur World, the McDunn family receives their tickets, a map of the park and a small radio guide to answer any questions they may have about the animals. They discuss whether to first visit the nursery or to ride the T-Rex Express. Tim is impatient and wants to go directly to the train ride. His father, preferring to begin at the nursery, admonishes him: "Tim, it won't take but a few minutes, and I'm sure there'll be plenty of exciting things for you to do today." The narration continues: "Little did Mr. McDunn know how true that was." Id. at 4.
The story relates that the family then observes their first dinosaur, a brachiosaur, eating leaves from nearby trees. The radio guide explains that the brachiosaur is the largest land animal that ever lived. The family then enters the nursery, where the air is warm and humid, and views large proteceratop eggs.
Next, the family takes the T-Rex Express rail tour of Dinosaur World. Only Tim's ticket is for the "SuperTour," which covers all the geologic time periods during which dinosaurs lived (the Triassic, Jurassic, and Cretaceous eras); the rest of the family is to view only the Triassic period. "After that Tim would be on his own. He was very excited." Id. at 8.
During the ride through the Triassic period, the train passes by the shore of the Dinosaur Sea where it is approached by a shrieking, twenty-five foot sea reptile (a nothosaur) with "needle-sharp teeth" and a neck that moves "like a snake." Id. at 11. Tim is left "a little frightened and wondering how much excitement the rest of the trip would bring." Id.
As the Triassic tour ends, Tim's family leaves the train, and his father hands him the radio and warns:
"This is your first trip here, so be very careful not to lose your guide. Whatever you need to know, just ask. And remember, no matter what happens, don't get off the train."
Id. at 14. The narrative continues:
Then they all waved good-bye. Tim watched until they disappeared from sight around a curve. He couldn't help feeling just a little lonesome as he continued his adventure.