The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.
This copyright action arises out of books about tree houses. Plaintiffs David and Jeanie Stiles allege that defendants HarperCollins LLC and Conn and Hal Iggulden misappropriated their copyrighted tree-house-in-one-tree design and related illustrations. Defendants move to dismiss the complaint on the ground that their works are not substantially similar to plaintiffs'. Plaintiffs oppose that motion and cross-move for partial summary judgment on the ground that defendants' illustrations are substantially similar to their own illustrations. Because the Court finds that defendants' works are not substantially similar to the protectible expression in plaintiffs' works, the Court grants defendants' motion to dismiss.
Plaintiff David Stiles is the author of The Tree House Book, which was published in 1979, (Compl. ¶¶ 13-14), and wrote, along with his wife Jeanie Stiles, Tree Houses You Can Actually Build, published in 1998, (id. ¶ 16).
Defendants Conn and Hal Iggulden are the authors of The Dangerous Book for Boys ("The Dangerous Book") and The Pocket Dangerous Book for Boys: Things To Do ("The Pocket Book"),published in 2006 and 2007, respectively.*fn1 (Id. ¶ 5.) Defendant HarperCollins publishes, markets, advertises, and sells these two books. (Id. ¶ 8.)
B. Summary of the Parties' Works
The following overview is based on the Court's examination of the four works at issue in this action.
The Tree House Book and Tree Houses You Can Actually Build (collectively, "The Tree House Books") are, not surprisingly, books about how to build tree houses. They each contain an essentially identical seven-page chapter about how to build a "basic" tree house in a single tree. The Tree House Book at 26-32; Tree Houses You Can Actually Build at 61-67. This chapter comprises thirteen hand-drawn illustrations of the construction process, along with short captions.
The title page of the chapter features a full-page illustration of a finished tree house built around a single tree. The Tree House Book at 26; Tree Houses You Can Actually Build at 61. This tree house has four short walls, each of which consists of three overlapping horizontal panels set between four corner posts. The corner posts hold up a pyramid-shaped roof that is covered with overlapping shingles. Diagonal braces connect the corners of the base of the house to the tree, which is surrounded by leaves. In this illustration, five boys can be seen playing inside the tree house as a girl climbs up a dangling rope ladder.
Following the title page come step-by-step illustrations of how to build that tree house. The second page contains three images of platform construction on a leafy tree. The Tree House Book at 27; Tree Houses You Can Actually Build at 62. In the first image, a man nails two parallel 2x6 pieces of wood, seven feet long, into opposite sides of the tree. Next, two more parallel 2x6s are placed on top at right angles to the first 2x6s. In the last of these images, a man places a level on a 7x7 square-foot frame that has been built around the two perpendicular sets of 2x6s.
The third page depicts the construction of four corner braces. The Tree House Book at 28; Tree Houses You Can Actually Build at 63. The main image is of a completed platform with corner braces that run diagonally from the base of the platform to the tree. Five more detailed images focus on the forty-five and ninety degree "angle cuts" made on each brace so that the braces can fit inside the corners of the frame. Three of these five images show the insertion of nails.
The fourth page contains a single up-close illustration of a half-finished floor-including a trapdoor-that covers the tree-house's platform. The Tree House Book at 29; Tree Houses You Can Actually Build at 64. The fifth page shows an angled view of the completed tree-house frame-the lower half of which consists of a window sill held up by short vertical posts spaced between the corner posts, the upper half of which consists of a square frame, on a plane parallel to the platform, which is connected to the corner posts by 2x4 braces. The Tree House Book at 30; Tree Houses You Can Actually Build at 65. The sixth page provides a bird's-eye view of a man on a ladder who builds the tree-house walls by fitting overlapping horizontal boards between the corner posts. The Tree House Book at 31; Tree Houses You Can ...