18-2078-cv
Green v. Harbach

                               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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 6th day of February, two thousand nineteen.

PRESENT:           GUIDO CALABRESI,
                   JOSÉ A. CABRANES,
                   RICHARD C. WESLEY,
                                Circuit Judges.


CHARLES C. GREEN,

                          Plaintiff-Appellant,                      18-2078-cv

                          v.

CHAD D. HARBACH,

                          Defendant-Appellee.


FOR PLAINTIFF-APPELLANT:                                 PIETER VAN TOL, Hogan Lovells US LLP,
                                                         New York, NY.

FOR DEFENDANT-APPELLEE:                                  ELIZABETH A. MCNAMARA (Adam Lazier,
                                                         on the brief), Davis Wright Tremaine LLP,
                                                         New York, NY.

        Appeal from the July 11, 2018 judgment of the United States District Court for the Southern
District of New York (Alvin K. Hellerstein, Judge).



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     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-Appellant Charles C. Green (“Green”) appeals from the July 11, 2018 judgment of
the District Court dismissing his complaint against Defendant-Appellee Chad D. Harbach
(“Harbach”). Green filed a lawsuit against Harbach alleging that Harbach’s novel, The Art of Fielding,
misappropriated critical elements of Green’s copyrighted manuscript, Bucky’s 9th, in violation of 17
U.S.C. §§ 106 and 501. He argues that the District Court erred in dismissing his complaint based on
its conclusion that the two books are not substantially similar. Green further argues that the District
Court erred in denying his motion to amend his complaint. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), accepting as true all factual allegations in the complaint and drawing all reasonable
inferences in Green’s favor. See Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). “We generally
review a district court’s decision to permit or deny leave to amend a complaint for abuse of
discretion, keeping in mind that leave to amend should be freely granted when justice so requires.”
Balintulo v. Ford Motor Co., 796 F.3d 160, 164 (2d Cir. 2015) (internal quotation marks omitted).
Where a district court denies a motion to amend a complaint based on an interpretation of law
“such as futility,” we review de novo. Allen v. Credit Suisse Sec. (USA) LLC, 895 F.3d 214, 227 (2d
Cir. 2018).

         Green contends that the District Court erred in dismissing his complaint based on its
conclusion that The Art of Fielding is not substantially similar to Bucky’s 9th. To establish a claim of
copyright infringement, “a plaintiff with a valid copyright must demonstrate that: (1) the defendant
has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity
exists between the defendant’s work and the protectible elements of plaintiff’s.” Peter F. Gaito
Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (quoting Hamil Am. Inc. v. GFI,
193 F.3d 92, 99 (2d Cir. 1999)). We have held that “in certain circumstances, it is entirely appropriate
for a district court to resolve that question as a matter of law” on a motion to dismiss. Id. at 63.

        It is well established that copyright protects only “the expression of ideas, not the ideas
themselves.” Id. at 67. Similarly, copyright does not protect “scenes a faire, sequences of events that
necessarily result from the choice of a setting or situation.” Williams v. Crichton, 84 F.3d 581, 587 (2d
Cir. 1996) (internal quotation marks omitted). When evaluating whether two literary works are
substantially similar, we consider the “total concept and feel” of the works, “instructed by common
sense.” Boisson v. Banian, Ltd, 273 F.3d 262, 273 (2d Cir. 2001). We also evaluate the “theme,
characters, plot, sequence, pace, and setting.” Williams, 84 F.3d at 588.



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         Upon de novo review of the two works, we agree with the District Court’s well-reasoned
decision and conclude that The Art of Fielding is not substantially similar to Bucky’s 9th. See Green v.
Harbach, No. 17-cv-6984, 2018 WL 3350329, at *7 (S.D.N.Y. July 9, 2018). Many of the alleged
similarities in the works are unprotectible abstract ideas or scènes à faire that do not enjoy copyright
protection. Moreover, many of the alleged similarities are similar only at a high level of abstraction; a
closer look reveals that they share little in common. In addition, a review of both books reveals that
their “total concept and feel” differ quite substantially. Accordingly, the District Court did not err in
concluding that these two works are not substantially similar as a matter of law.

         Green also contends that the District Court erred in denying his motion to amend his
complaint to add a statistical analysis that allegedly shows that a certain baseball scene has a small
chance of occurring. “The well-established general rule in this circuit has been to limit the use of
expert opinion in determining whether works at issue are substantially similar.” Computer Assocs. Int’l,
Inc. v. Altai, Inc., 982 F.2d 693, 713 (2d Cir. 1992). Outside a limited class of cases involving highly
technical works such as computer software, such testimony is “irrelevant and not permitted.” Id.
(internal quotation marks omitted). As such, any expert testimony regarding the rarity of a certain
baseball occurrence would be irrelevant to the substantial similarity analysis. Accordingly, we
conclude that Green’s amendment would be futile, and the District Court did not err in denying the
motion to amend.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Green on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the July 11, 2018 judgment.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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