## Facts

- Henry Denker authored the novel (1979) and play *Horowitz and Mrs. Washington*, about a 72-year-old Jewish man in New York recovering from a stroke whose son hires an African American caretaker; the man is initially racist but becomes friends with her and regains independence.
- Alfred Uhry authored the play *Driving Miss Daisy* (produced in 1987) and adapted it into a film (1989) about a 72-year-old Jewish woman in Atlanta whose son hires an African American chauffeur after she can no longer drive; over 25 years, she gradually accepts him as a close friend while she becomes more dependent.
- Denker alleged Uhry’s play and screenplay copied protected elements of *Horowitz and Mrs. Washington*, including the theme, characters, and plot concerning an elderly Jewish person’s racial hostility toward a Black helper that evolves into friendship.
- Defendants contended any overlap was limited to unprotectable ideas, general themes, and stock elements typical of stories about aging and racial prejudice.
- The actions were consolidated, and defendants jointly moved for summary judgment on improper appropriation.

## Issues

1. Whether the similarities between *Driving Miss Daisy* and *Horowitz and Mrs. Washington* constituted substantial similarity in protectable expression, rather than unprotectable ideas, themes, or scenes à faire.
2. Whether, viewing the works as a whole, a reasonable factfinder could find improper appropriation sufficient to defeat summary judgment.

## Decision

- The district court granted summary judgment for defendants and dismissed the infringement claims.
- The court held that the shared premise—friendship developing between an elderly Jewish person and a Black helper—was an unprotectable idea, and any overlapping incidents were scenes à faire associated with that premise.
- Considering plot, setting, structure, tone, pacing, and characterization, the court found the “total concept and feel” of the two works materially different.
- The Second Circuit affirmed.

## Legal Principles

- Copyright protects original expression, not abstract ideas, general themes, character types, or stock situations.
- Improper appropriation requires substantial similarity in protectable expression; similarities at a high level of abstraction are insufficient.
- Scenes à faire—elements that naturally flow from a basic premise or are standard to a genre or topic—are not protectable.
- In assessing substantial similarity, courts compare the works as a whole, including their total concept and feel, and may resolve the question on summary judgment when only unprotectable similarities are alleged.

## Conclusion

The court ruled that any similarities between the works were limited to unprotectable ideas and scenes à faire about aging, racial prejudice, and an elderly Jewish person’s relationship with a Black helper, and that the works were not substantially similar in protectable expression; therefore, defendants were entitled to summary judgment.


Denker v. Uhry, 820 F. Supp. 722 (S.D.N.Y. 1992)