## Facts

- In 1987, Adrian Jacobs authored *The Adventures of Willy the Wizard—No. 1 Livid Land* (*Livid Land*), a 16-page illustrated children’s book.
- *Livid Land* follows an adult wizard, Willy, during “the year of the wizards’ contest,” in which he competes for a prize: life in “Stellar Land,” described as a dream retirement community for wizards.
- In 2000, Scholastic Inc. published in the United States J.K. Rowling’s *Harry Potter and the Goblet of Fire* (*Goblet of Fire*), a 734-page novel (the fourth in the Harry Potter series).
- *Goblet of Fire* centers on fourteen-year-old Harry Potter competing in a multi-task tournament involving rival magic schools; the novel includes only a few small illustrations above new chapter titles.
- Paul Gregory Allen, trustee of the Estate of Adrian Jacobs, sued Scholastic in the Southern District of New York for copyright infringement, alleging that *Goblet of Fire* copied protected expression from *Livid Land*.
- Scholastic moved to dismiss under Rule 12(b)(6), arguing that, after filtering out unprotectable elements, no reasonable jury could find substantial similarity between the works.
- For purposes of the motion only, Scholastic assumed arguendo that the estate owned a valid copyright and that “actual copying” (in the access/factual-copying sense) could be inferred, leaving substantial similarity of protectable expression as the decisive question.
- In deciding the motion, the court reviewed the two works themselves, which were submitted with the motion papers.

## Issues

1. Whether *Goblet of Fire* is substantially similar to the protectable elements of *Livid Land* under the Second Circuit’s ordinary observer standard (as refined to exclude unprotectable ideas and scenes à faire), such that the complaint plausibly states a claim for copyright infringement.

## Decision

- The court granted Scholastic’s Rule 12(b)(6) motion to dismiss.
- The court held that no reasonable jury could find substantial similarity between the protectable expression in *Livid Land* and *Goblet of Fire*.
- The complaint was dismissed in its entirety, and the Clerk was directed to close the motion and the case.

## Legal Principles

- To plead copyright infringement, a plaintiff must allege (and ultimately prove) ownership of a valid copyright and copying of constituent elements of the work that are original; copying requires more than access or factual copying and turns on substantial similarity of protectable expression.
- The Second Circuit’s “ordinary observer” inquiry asks whether an average lay observer would recognize the defendant’s work as having appropriated the plaintiff’s protected expression.
- When a work contains both protectable and unprotectable elements, courts apply a “more discerning” ordinary observer analysis by filtering out unprotectable material and comparing only protectable expression.
- Unprotectable material includes general ideas, common themes, stock elements, and genre conventions (scenes à faire); similarities at that level cannot support an infringement claim.
- In comparing literary works, courts may consider overall similarities in total concept and feel, along with elements such as theme, characters, plot, sequence, pace, and setting; for children’s works, total concept and feel can carry significant weight.
- A court may resolve substantial-similarity disputes on a motion to dismiss when the works themselves are properly before the court and comparison shows that no reasonable jury could find substantial similarity in protectable expression.

## Conclusion

The court dismissed the estate’s infringement claim because the alleged parallels—such as a wizard contest and related fantasy devices—were general concepts or genre features, and the works’ protectable expression differed sharply in total concept and feel, narrative presentation, character treatment, and overall structure, making substantial similarity implausible as a matter of law.


Allen v. Scholastic Inc., 2011 WL 43448 (2011)