Copyright Law - Second Circuit: Are Judges More Discerning Than Ordinary People?

Motion to Dismiss, Copyright in Literary Works, Substantial Similarity, “More Discerning Ordinary Observer” Test

DiTocco v. Riordan, 2012 WL 4016898 (2d Circuit September 13, 2012)(summary order).  The district court dismissed a copyright infringement claim after determining that the series of five Percy Jackson and the Olympian books were not substantially similar to plaintiff’s books The Hero Perseus and Atlas’ Revenge.   The Second Circuit affirmed, applying the “more discerning ordinary observer” test which requires an extraction of unprotectable elements and answering the question of whether the protectable elements, standing alone, are substantially similar, with an eye to “the total concept and feel”.  Since “what is required is only a visual comparison of the works” and the district court did not err in its finding of lack of substantial similarity, the dismissal was affirmed.

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