In 1998, Tom J. Frye successfully obtained an injunction to prevent the Young Men’s Christian Association (YMCA) from infringing his rights to his medieval themed play, Kastleland. Recently, Mr. Frye became aware that the YMCA was producing a children’s play titled KnightQuest, which utilized similar themes to Mr. Frye’s play, namely, an evil central character representing negative traits which are overcome by positive traits. Mr. Frye filed a motion in US District Court in Nebraska to hold the YMCA in contempt of the injunction. The court held that while Mr. Frye held copyrights in his play, that the YMCA had access to his play and the plays shared a similarity of ideas, Mr. Frye failed to establish the necessary element of substantial similarity as to expression. Consequently, the court held that the YMCA did violate Mr. Frye’s copyrights and was therefore not in contempt of the injunction.

To prove copyright infringement, Mr. Frye needed to show that (1) he owns the copyright in his medieval-themed play, Kastleland; (2) YMCA had access to the play; and (3) that there is a substantial similarity between the two works in both expression and idea. The court held that Mr. Frye met the burden as to ownership of the copyright and that the YMCA had access to the work, but failed to prove the third prong, substantial similarity between the two works.

In assessing the substantial similarity, the court employed a two-step test set out in McCulloch v. Albert E. Price, Inc., 823 F.2d 316 (9th Cir. 1987), focusing first on the similarities of ideas, of which there are many, and then turning to the “ordinary, reasonable person” test to determine substantial similarity as to expression. Regarding the similarity of ideas, the court determined that the similarities between the works consisted of scenes a faire, or common plot points, one would expect due to the general theme of a work, which are not protectable under copyright law. What is protectable is the expression of those ideas such as selection of the particular elements and the arrangement or coordination of the elements. Here, the plaintiff failed to prove that the common elements were expressed in such a manner that an ordinary, reasonable person would believe the expressions to be substantially similar. Therefore, despite similarities that include medieval theme, knights, dragons, sword fights and the like, Frye failed to produce sufficient evidence of substantial similarity in expression.

For more information on protecting copyrights or defending against copyright actions, please contact Anthony V. Lupo.