A children’s book author came to me about a demand letter she had received from another author’s lawyer. The letter alleged that there were “too many” similarities between our client’s book and the other author’s book, and that our client had infringed the other author’s copyright. The letter was accompanied by a chart like the ones used in lawsuits concerning books or movies, summarizing and comparing supposedly “intricate” or “complicated” plots and dialogues — except that the plot and dialogue in a children’s book are pretty darn simple.
The similarities our adversary alleged included things like:
•A parental figure telling a bedtime story to a child.
•The moon being the brightest object in the sky.
•A magical creature helps to explain why the moon is so prominent.
To be sure, they demonstrated that their book was published (and registered for copyright) four months before our client’s copyright registration. From this, they made the giant logical leap that any of these purported similarities “must have” resulted from our client’s copying their client’s book.
To be sure, the prior registration would be sufficient to demand statutory damages and attorney’s fees — but only if our client’s book actually infringed the earlier-published work.
Our client was exasperated and wanted to know what she could do. She said that the accusations were simply not true. She didn’t want to be part of a lawsuit, but at the same time, it was just a short children’s book that didn’t hold much promise in terms of income, so she didn’t want to pay any of the outrageous demand.
Most importantly, she said, she had written (but not yet published) the book a year before the other author published it. (Bingo!) Our client not only could show that her digital copy of the book pre-dated the other book’s publication date, but had also emailed her first draft to her editor at that time.
I sent the email and the digital copy to our adversary, who then warned me that manipulating the date on a document is potentially a crime. (A less-than-charming assumption on his part…) I replied that there was no reason for me to doubt our client’s conduct, and our adversary had no reason to doubt me. That said, out of an abundance of caution — and to put our adversary on notice — I provided him with declarations made under the penalty of perjury from both the client and the editor who received the email. Both confirmed that our client’s manuscript was written a year before the accuser had published their book. So, I said, our client couldn’t have had access to his client’s book.
Secondly, the words and drawings were entirely different, and any “plot” similarities (bedtime story; nighttime view of the sky; magical creatures) were pretty standard fare for any children’s book.
Third, I reminded counsel that if he brought a lawsuit for copyright infringement, the prevailing party (including the defendant) could be awarded attorney’s fees — especially when he had no factual basis to refute the warning we had sent. Now that he had received declarations that our client’s work existed before his book was even published, any lawsuit and their claim could be deemed frivolous — and the plaintiff would have the pleasure of paying our attorney’s fees and costs.
The next day, the other attorney wrote to say his client was not waiving any rights, but they were not going forward with any claim. And so our client is back to publishing her book.
Good facts make for short disputes, and the client was lucky to have good facts and a good, truthful friend as her editor.
