         11-4438-cv
         Ditocco v. Riordan, Disney/ABC Int’l, et al.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of September, two thousand and
 5       twelve.
 6
 7       PRESENT: RICHARD C. WESLEY,
 8                BARRINGTON D. PARKER,
 9                         Circuit Judges,
10                JOHN GLEESON,
11                         District Judge.*
12
13
14
15       TONY DITOCCO,
16
17                                     Appellant,
18
19                      -v.-                                                11-4438-cv
20
21       RICK RIORDAN, DISNEY/ABC INTERNATIONAL
22       TELEVISION CO., INC., WALT DISNEY CO.,
23
24                                     Appellees.
25
26
27



                *
                The Honorable John Gleeson, of the United States District
         Court for the Eastern District of New York, sitting by
         designation.
 1   FOR APPELLANT:      MARC TOBEROFF, Toberoff & Associates,
 2                       P.C., Malibu, CA.
 3
 4   FOR APPELLEE:       SANFORD M. LITVACK, Hogan Lovells US LLP,
 5                       New York, NY (Theresa M. House, Hogan
 6                       Lovells US LLP, New York NY; David
 7                       Singer, Jenner & Block, Los Angeles, CA,
 8                       on the brief).
 9
10        Appeal from the United States District Court for the
11   Southern District of New York (Stein, J.).
12
13          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

14   AND DECREED that the judgment of the United States District

15   Court for the Southern District of New York is AFFIRMED.

16          Author Tony DiTocco appeals from a judgment of the

17   United States District Court for the Southern District of

18   New York (Stein, J.), granting Appellees’ motion to dismiss

19   Appellant’s claims for copyright infringement.    The district

20   court determined that Appellees’ five Percy Jackson & the

21   Olympians books are not substantially similar to Appellant’s

22   books, The Hero Perseus and Atlas’ Revenge, as a matter of

23   law.    We assume the parties’ familiarity with the underlying

24   facts, the procedural history, and the issues presented for

25   review.

26          This Court reviews de novo a district court’s dismissal

27   of a complaint for failure to state a claim upon which

28   relief can be granted.    See Peter F. Gaito Architecture, LLC


                                    2
1    v. Simone Dev. Corp., 602 F.3d 57, 61 (2d Cir. 2010).      To

2    succeed on a claim for copyright infringement, the plaintiff

3    must show (1) that the defendant had access to the

4    copyrighted work, and (2) substantial similarity between the

5    protectible elements of the respective works.     Williams v.

6    Crichton, 84 F.3d 581, 587 (2d Cir. 1996).     Presuming

7    access, courts may determine substantial similarity on a

8    motion to dismiss because “no discovery or fact-finding is

9    typically necessary, . . . what is required is only a visual

10   comparison of the works.”     Gaito, 602 F.3d at 64 (internal

11   quotation marks omitted).

12       Where, as here, we are comparing subject matter that

13   contains both protectible and unprotectible elements, we

14   apply the “more discerning” ordinary observer test to

15   determine substantial similarity: “we must attempt to

16   extract the unprotectible elements from our consideration

17   and ask whether the protectible elements, standing alone,

18   are substantially similar.”     See Knitwaves, Inc. v.

19   Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995)

20   (emphasis in original) (internal quotation marks omitted).

21   In making this determination, we compare the works’ “total

22   concept and overall feel.”     Gaito, 602 F.3d at 66 (internal


                                     3
1    quotation marks omitted).   The copyright holder must be

2    protected not only from literal copying but also from

3    infringement that is apparent only by comparing the

4    aesthetic import of the works in their entirety.     See id.

5    However, ideas are not protected, only their expression.

6    See 17 U.S.C. § 102(b); Nichols v. Universal Pictures Corp.,

7    45 F.2d 119, 121 (2d Cir. 1930) (Hand, J.); Walker v. Time

8    Life Films, Inc., 784 F.2d 44, 48 (2d Cir. 1986).

9    Similarly, this Court withholds copyright protection from

10   scenes a faire, which are “sequences of events that

11   necessarily result from the choice of a setting or

12   situation.”   Williams, 84 F.3d at 587 (internal quotation

13   marks omitted).

14       In light of these principles, we affirm the well-

15   reasoned opinion of the district court.

16       Both sets of books chronicle the adventures of a young

17   male protagonist named after the Greek hero Perseus.

18   Appellees’ Percy Jackson & the Olympians series tells the

19   story of demigod Percy Jackson as he battles classical Greek

20   monsters while traveling all over the country with his

21   fellow supernatural friends.   In Percy’s world, the Olympic

22   gods live among us – they wear sunglasses, use cell phones


                                    4
1    and ignore their demigod offspring.       By contrast, in

2    Appellant’s two novels, PJ Allen is a popular, athletic

3    young man who is whisked away in his dreams to Ancient

4    Greece where he fights mythical beasts and helps to restore

5    order to the world by recreating important events in Greek

6    mythology that have been erased from history.

7        The subject matter of these novels necessitates

8    significant reliance on Greek mythology for many characters,

9    settings and classic stories.       This material has entered the

10   public domain and is not protectible.       See, e.g., Bissoon-

11   Dath v. Sony Computer Entm’t Am., Inc., 694 F. Supp. 2d

12   1071, 1088 (N.D. Cal. 2010).    By comparing the protectible

13   elements of the parties’ works, with an eye toward the

14   “total concept and overall feel,” the district court

15   properly determined that the two sets of books are not

16   substantially similar as a matter of law.

17       For the foregoing reasons, the judgment of the district

18   court is hereby AFFIRMED.

19
20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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