Dubay v. King is a case wherein the purported heir to the creator of the comic book The Rook from the 1960s and 70s sued Stephen King — and all of his publishers and movie producers — for alleged copyright infringement of The Rook through The Gunslinger series. The defendants made a motion for summary judgment in the Middle District of Florida. After comparing in depth the two plots and the characters of the two works, the judge granted summary judgment in favor of the defendants.
The plaintiff in this case is Benjamin Michael DuBay, nephew of Rook creator William Bryan DuBay. According to the plaintiff, a major impetus to this lawsuit was to fulfill a deathbed promise he made to William Bryan DuBay to defend The Rook against infringement — a motivation that is typically not addressed by the courts.
In the decision, Judge Schlesinger states early on that a character can be entitled to copyright protection, but in order to have the unique elements of that character be protected, those characteristics need to be unambiguously unique. If they’re too vague, they are not entitled to copyright protection.
To that end, the defendants hired an expert to read through and summarize the 4,000 pages of text that Stephen King has written about this character over the last 25 years, in addition to summarizing The Rook. Using these summaries, the court examined the plaintiff’s claims of infringement, which included:
- Both characters are gunslingers.
- They both wear cowboy garb.
- They each travel through time (sort of; the Gunslinger travels through parallel universes…).
- They’re both accompanied by dark birds.
- They both come from a family that was under siege.
- Each is the only survivor of that siege.
Judge Schlesinger went through each of the plaintiff’s claims of similarity, saying to some extent many of them are scènes à faire. In other words, it’s relatively standard with no way of getting around them; for example, the cowboy attire of both characters is just what cowboys wear.
Moreover, the time travel of the plaintiff’s character is very much a standard time machine; he walks inside a device, and emerges in a different time. The protagonist in the Stephen King serial accomplishes time travel through some sort of interdimensional manipulation where time, space, and alternate universes are all involved.
Most importantly, the overall goodness and badness of the two characters is very different. The plaintiff’s character aims to do “the right thing.” He treats women with respect, and his driving goal is to save his distant ancestor who died at the Alamo. The gunslinger in Stephen King’s stories is sometimes murderous, sometimes leaves people to die slowly because he has his own agenda, and he treats women in a way that we won’t repeat in this blog. So the overall feel of the two characters is very different.
The judge pointed out that the plaintiff’s perception of King’s infringement could only come about by looking at the characters in the most abstract of lenses. He gave the example of Star Wars and The Wizard of Oz sharing several points in their arcs:
Both films feature main characters who live with an Aunt and Uncle in a rural environment, leave home to go on a quest, are accompanied by a character made of metal important to the success of the quest (the Tin Man/C3PO Robot) and a hairy character (The Cowardly Lion/Wookie ), and seek a wise old man for help (The Wizard/Obi Wan Kenobi). The villains in both films dress completely in black (The Witch/Darth Vader) and wear distinctive headgear (Witch’s hat/Darth Vader’s helmet). Yet, no reasonable person would call the movies Star Wars and The Wizard of Oz substantially similar works.
It is worth mentioning that aggressive actions taken by the plaintiff, who served as his own paralegal, would later become liabilities. All of that came into play in an ensuing motion by the defendants for attorney’s fees (as discussed in this blog article…)
