IP Law Daily Stephen King’s ‘Dark Tower’ protagonist not ‘substantially similar’ to comic-book character ‘The Rook’
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Wednesday, February 24, 2021

Stephen King’s ‘Dark Tower’ protagonist not ‘substantially similar’ to comic-book character ‘The Rook’

By Pamela C. Maloney, J.D.

Antihero protagonist in The Dark Tower was distinctively different from The Rook’s traditional time travelling hero.

Although there were certain similarities between Roland Deschain, the protagonist portrayed in The Dark Tower series written by Stephen King and Restin Dane, and the hero in a comic book titled The Rook, those similarities concerned only non-copyrightable elements, the US. Court of Appeals in Atlanta ruled in affirming a Florida district court’s grant of summary judgment in favor of King. The protectible elements of the characters and the story lines were portrayed in such distinctive ways that there was no basis for a finding of substantial similarity, the Eleventh Circuit opined (DuBay v. King, February 23, 2021, Branch, E.).

In the 1970s, William DuBay and two other individuals created the comic book character Restin Dane, a.k.a. "The Rook." The character first appeared in a Warren Publications horror/fantasy comic magazine entitled Eerie and later in a comic book series dedicated to The Rook also published by Warren Publications. Dane, a time traveler, was portrayed in the series as a traditional comic book hero—handsome, masculine, courageous, and honorable. Stephen King, who has written more than 50 works of fiction, wrote and published The Dark Tower series, consisting of eight novels and a novella, which featured Roland Deschain as the protagonist who pursued an elusive structure called the Dark Tower—the linchpin of the space/time continuum. Deschain, who was introduced in the first novel of the series, entitled The Gunslinger, which King began writing in 1970, was described as an antihero who lacked the idealism and morality of the traditional hero. Between 2007 and 2017, Marvel published licensed graphic novels that were based on The Dark Tower novels; in 2017, Media Rights Capital, Imagine Entertainment, and Sony Pictures Entertainment produced a motion picture adaptation of The Dark Tower series under the same name.

DuBay’s nephew, who claimed to have received an assignment of his uncle’s ownership in The Rook’s  copyright, sued King, Media Rights Capital, and Imagine Entertainment for copyright infringement, alleging that the similarities between Roland Deschain and Restin Dane were so "shocking and extraordinary" that King must have copied DuBay’s artistic expression. DuBay’s complaint also included a count for contributory copyright infringement against Media Rights Capital and Imagine Entertainment, and one count of vicarious copyright infringement against King, Sony Pictures Entertainment, Marvel Entertainment, and Simon & Schuster. King moved for and was granted summary judgment based on a finding by the federal district court in Jacksonville that that Deschain was not "substantially similar" to the comic book character The Rook, and that any similarities between the two characters concerned only non-copyrightable elements. DuBay appealed.

Expert testimony. In support of his motion for summary judgment, King introduced a report written by an accomplished writer who analyzed the issue of substantial similarity along with character and plot summaries written by one of his research assistants. DuBay sought to exclude both the expert’s report and the character and plot summaries as unreliable and irrelevant under the Rule 702 and the standard enunciated in Daubert v. Merrell Dow Pharm, Inc., 509 U.S. 579. Given the sheer volume of the works at issue, the summaries were admissible under a separate federal rule permitting a party to introduce a summary to prove the content of voluminous writings. In addition, the district court did not limit its substantial similarity review to the summaries but had compared the characters using both the summaries and the original works submitted by both parties. DuBay’s claim that that the writer of the summaries was unreliable because she had a financial interest in the outcome of the litigation went to the weight, not the admissibility of the summaries. The Eleventh Circuit further concluded that the expert had not conceded the unreliability of his own report and, thus, the motion to exclude failed.

Substantial similarity. DuBay argued that the two characters were substantially similar because they (1) had similar names; (2) interacted with towers that were integral to time travel; (3) had bird companions; (4) were marked by knightly characteristics; (5) travelled back in time to save a young boy who became a gunslinger; (6) wore Western garb; (7) survived a fictionalized Alamo; and (8) used knives. He also argued that Dane was the first character who combined these elements to create a distinctive character that King copied. The Eleventh Circuit agreed with the district court’s finding that there while there were certain similarities showing that King’s character lacked originality, those similarities which concerned the two characters’ knightly heritage, travel to different times and parallel worlds, Western attire, fictionalized Alamo histories, and knife wielding skills, were scenes a faire that were too general to merit copyright protection.

In evaluating the remaining alleged similarities relating to the characters’ relationship to towers and tower imagery, the presence of bird companions, and the fact that both characters saved a young boy from a different time, the Eleventh Circuit found that while the elements were similar in the abstract, when compared side by side, there was no substantial similarity because each of these elements was portrayed in different ways in the two works. In addition, a broad view of the two characters—one with the attributes of a traditional comic book hero and the other a troubled antihero who lacked the idealism and moral integrity of a traditional hero—highlighted the distinctiveness of each character. It also demonstrated that each character was surrounded by different stories and contexts, rendering any similarities superficial.

This case is No. 19-11224.

Attorneys: Robby T. Cook (Rob Cook Attorney At Law P.A.) for Benjamin Michael DuBay. Vincent Cox (Ballard Spahr LLP) for Stephen King, Media Rights Capital, Imagine Entertainment, LLC, Sony Pictures Entertainment Inc., Marvel Entertainment, LLC, and Simon & Schuster, Inc.

Companies: Media Rights Capital; Imagine Entertainment, LLC; Sony Pictures Entertainment Inc.; Marvel Entertainment, LLC; Simon & Schuster, Inc.

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