While fictional stories can contain creative and innovative ways of expressing some common themes, the common themes themselves are not protectable. These are standard story elements – such as a damsel in distress, who is later saved by the proverbial knight on a white horse (e.g., Rapunzel or Sleeping Beauty), the villain who seeks redemption (e.g., Star Wars), star-crossed lovers whose romance is tragic (e.g., Shakespeare’s Romeo and Juliet), an epic journey through which the hero has several adventures (e.g., The Iliad or the Odyssey), or corruption and betrayal by a close friend leading to a tragic downfall (e.g., Shakespeare’s Julius Caesar). These story elements have existed for hundreds of years, and can be found even in Greek comedies and tragedies that we studied as students in literature classes or in theater programs.
These basic story elements are not protected under the Copyright Act, because to prevent others from copying them would render storytelling completely impossible. They are generic, standard building blocks in any story.
Stories that include these elements, however, are not completely beyond the protection provided by the Copyright Act. Instead, the way the story is told – the prose, the narrative, the alliterative descriptions that bring these story elements to life – are all the kinds of unique expression which the Copyright Act protects.
If someone were to come along and copy verbatim several chapters of a book (or even a shorter amount), the author could still enforce his or her copyrights (subject to some defenses like fair use, expiration of copyright term or independent creation, joint ownership, etc., which are beyond the scope of this article) because of that exact duplication. The author could not prevent other stories from being written that include a “damsel in distress” element or a “knight on a white horse” element – because those are the generic elements beyond the protection of the Copyright Act. They can always pursue an action when exact copying of their original, creative text has occurred.
In a recent case, this dichotomy between the protection of the expression versus the lack of protection of an idea was explored further. In Rucker v. Harlequin Enterprises Ltd., No. 4:12-cv-01135 (S.D. Tex. Feb. 26, 2013), the plaintiff – an author who had written (but not yet published) the first chapter of a romance novel – sued a book publisher for its publication of a full-length novel that allegedly copied her story about a “tall, dark and handsome,” wealthy and powerful male hero, and a beautiful red-haired heroine with green eyes, who was slender, young and strong-willed. Rucker at 14-15. She basically argued that the book publisher copied her idea (which she had submitted in a writing contest), put it into a full-length novel, and published it without her knowledge or consent.
The author did not provide any evidence that the publisher had actually seen her submission, but the Court later concluded that because the works were not substantially similar, there was no need to determine whether the book publisher, in fact, had access to her work prior to its own publication. Id. at 4 n. 2. In her complaint, the author identified 40 instances of direct infringement in a summary form, but did not provide any specific examples of them. Id. at 1. Because the book publisher provided copies of both works in its motion to dismiss, the Court was able to compare both works side-by-side to determine whether a claim for infringement could survive. Id. at 1-2.
After reviewing both works, the Court recognized that while there were some similarities between the two works, these similarities were “not in legally protected elements.” Id. at 12. The Court explained that “a theme or trope that has long existed is not ‘expression’ that the Copyright Act protects. Rather, infringement requires copying of constituent elements of the work that are original.” Id. at 13. In addition, “material or themes commonly repeated in a certain genre are not protectable by copyright, nor are so-called scenes a faire.” Id. “Scenes a faire” are later defined as involving “incidents, characteristics or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic, what flows naturally from these basic plot premises.” Id. (quoting Atari, Inc. v. N. Am. Philips Cons. Elec. Corp., 672 F.2d 607, 616 (7th Cir. 1982)).
These elements “are not protected because they are strongly affiliated or connected with a common theme and thus are not creative.” Id. In other words, there are limited ways available in which these standard story elements can be described. The Copyright Act does not preclude others from copying these same standard elements, because the ideas themselves are not copyrightable. Id. at 9 (“Copyright law does not protect an idea, but only the expression of an idea.”) (citation omitted); see also Russ Berrie & Co. v. Jerry Elsner Co., Inc., 482 F. Supp. 980, 986 (S.D.N.Y. 1980) (“shared characteristics of both parties’ Santa toys of a ‘traditional red suit and floppy cap, trimmed in white, black boots and a white beard’ and ‘nose like a cherry’ [were] common to all Santas and not probative of copying.”) (as quoted by Rucker at 13).
Ultimately, the Rucker Court concluded that “[t]he similarities that [the author] asserts are either stock elements of romance novels or plot elements that naturally flow from the broad themes that the two works share with other works in the same genre.” Id. at 14. The Court held that there was no actionable similarity between the two works and dismissed the complaint. Because the Court held that allowing the plaintiff to amend the complaint would be “futile,” the dismissal was made without leave to amend and with prejudice.
The take-away point from these cases is that unique ways of telling a story will garner protection under the Copyright Act, but one author cannot prevent others from telling stories using the same standard story elements, provided that the other authors tell the stories in their own ways and do not copy verbatim what the original author wrote.