Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 1 of 6 PageID #:1366
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`GRACE JO P. O’LEARY,
`
`Plaintiff,
`
`v.
`
`MIRA BOOKS, a division of Harlequin Enterprises )
`Ltd.; MAUREEN WALTERS, Vice President,
`)
`Curtis Brown, Ltd.; JOSIE SCHOEL, Literary
`)
`Assistant, Curtis Brown, Ltd.; and LAURA
`)
`CALDWELL, Author,
`
`))
`
`)
`
`Defendants.
`
`No. 08 CV 08
`
`Judge Robert W. Gettleman
`
`))
`
`)
`
`))
`
`AMENDED MEMORANDUM OPINION AND ORDER
`
`Plaintiff Grace Jo P. O’Leary has filed a pro se complaint1 for copyright infringement
`
`pursuant to the Copyright Act of 1976, 17 U.S.C. 101, against defendants Mira Books, a division
`
`of Harlequin Enterprises Ltd.; Maureen Walters, Vice President, Curtis Brown, Ltd.; Josie
`
`Schoel, Literary Assistant, Curtis Brown, Ltd.2; and Laura Caldwell. Defendants Mira Books,
`
`Walters, and Caldwell have filed motions to dismiss the complaint for failure to state a claim
`
`pursuant to Fed. R. Civ. P. 12(b)(6), and defendant Caldwell has filed a motion to dismiss
`
`pursuant to Fed. R. Civ. P. 12(b)(5) for improper service of process. For the reasons discussed
`
`1Plaintiff was represented by counsel from March 18, 2008, through April 15, 2008.
`Both her complaint and her response to defendants’ Fed. R. Civ. P. 12(b)(5) and 12(b)(6)
`motions were filed pro se.
`
`2No appearance has been filed in the instant case on behalf of defendant Schoel, probably
`because the record does not indicate that she has been served with process. Because plaintiff
`fails to state a claim against defendant Schoel, however, the court will dismiss all claims against
`her sua sponte.
`
`

`
`Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 2 of 6 PageID #:1367
`
`below, the court grants defendants’ 12(b)(6) motions and denies defendant Caldwell’s 12(b)(5)
`
`motion as moot.
`
`FACTS3
`
`In October 2004, plaintiff began drafting a novel entitled What If. Plaintiff completed
`
`her first draft on January 27, 2005, and continued to revise her manuscript thereafter. On August
`
`31, 2005, plaintiff attended a book signing for defendant Caldwell, an author with whom plaintiff
`
`had some familiarity.4 Plaintiff told Caldwell about her manuscript, and Caldwell suggested she
`
`contact defendant Walters, her literary agent. Plaintiff called Walters at Curtis Brown, Ltd., a
`
`literary agency, and was given the e-mail address of defendant Schoel, Walters’s assistant.
`
`Plaintiff submitted a copy of her manuscript to defendant Schoel on September 30, 2005. On
`
`November 8, 2005, Schoel sent plaintiff an e-mail stating that the manuscript “didn’t hold [her]
`
`interest” and that Curtis Brown was not interested in publishing her novel. Schoel did not return
`
`the copy of the manuscript to plaintiff.
`
`On August 26, 2006, plaintiff wrote to defendant Schoel to inform her that she had
`
`revised What If. When defendant Schoel did not respond, plaintiff concluded that some
`
`infringement of her manuscript had taken place.5 Plaintiff then began a “search” for “suspected
`
`3For purposes of a motion to dismiss, the court accepts all well-pleaded allegations as
`true and draws all reasonable inferences in favor of the plaintiff. Travel Around the World, Inc.
`v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996).
`
`4According to plaintiff, her former husband was a childhood friend of defendant
`Caldwell’s father. Additionally, in 1993, plaintiff worked for a short period in a Chicago law
`firm where defendant Caldwell was an associate.
`
`5Plaintiff also claims that some infringement of her work occurred after she submitted a
`(continued...)
`
`2
`
`

`
`Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 3 of 6 PageID #:1368
`
`infringements” of her manuscript by reading back issues of “Publishers Weekly” and looking in
`
`Borders bookstores in Oak Park and Chicago, Illinois. On August 11, 2007, plaintiff saw a
`
`notice that defendant Caldwell would soon publish a new novel entitled The Good Liar. Plaintiff
`
`purchased two copies of that book, published by defendant Mira Books, on December 23, 2007.
`
`According to plaintiff, defendant Caldwell’s novel copies portions of What If. Plaintiff’s
`
`manuscript concerns an aging musician and his relationship with a paralegal. Defendant
`
`Caldwell’s The Good Liar is about a counter-terrorist organization called “The Trust.” Plaintiff
`
`has identified passages of Caldwell’s novel that she believes have been copied from her
`
`manuscript. These passages demonstrate that both novels, among other things, are set in the
`
`Chicago area, have characters with blonde hair, discuss sex and alcohol, and make references to
`
`bookcases and coffee.
`
`DISCUSSION
`
`Defendants Mira Books, Walters, and Caldwell have filed motions to dismiss pursuant to
`
`Fed. R. Civ. P. 12(b)(6). The purpose of a motion to dismiss is to test the sufficiency of the
`
`complaint, not to decide the merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
`
`1990). Federal notice pleading “requires ‘only a short and plaint statement of the claim showing
`
`that the pleader is entitled to relief.’” Erickson v. Pardus, -- U.S. --, 127 S. Ct. 2197 (June 4,
`
`2007) (citing Bell Atlantic Corp. v. Twombley, -- U.S. ---, 127 S.Ct. 1955, 1964 (2007). When
`
`ruling on a motion to dismiss, When ruling on a motion to dismiss, the court must accept all
`
`factual allegations in the complaint as true and draw all reasonable inferences in favor of the
`
`5(...continued)
`copy of her manuscript to a “Chicago professor” for review and editing at some point between
`January 28, 2005, and February 2, 2005.
`
`3
`
`

`
`Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 4 of 6 PageID #:1369
`
`plaintiff. Moranski v. General Motors Corp., 433 F.3d 537, 539 (7th Cir. 2005). “Factual
`
`allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic,
`
`127 S.Ct. at 1964-65.
`
`Copyright Infringement
`
`Plaintiff claims that defendant Caldwell copied portions of What If in her novel The
`
`Good Liar, which defendant Mira Books then published. To establish a claim of copyright
`
`infringement, plaintiff must demonstrate (1) ownership of a valid copyright, and (2) “copying” of
`
`the original constituent elements of the work. JCW Investments, Inc. v. Novelty, Inc., 289 F.
`
`Supp. 2d 1023, 1031 (N.D. Ill. 2003).
`
`The parties do not dispute that plaintiff possesses a valid copyright. The court will
`
`therefore focus only on the second prong of the test for copyright infringement. Plaintiff alleges
`
`that The Good Liar directly copies portions of her manuscript. Plaintiff, however, has provided
`
`no support for her assertion; the comparison chart she provides her complaint does not make
`
`reference to any directly quoted passages.6 Plaintiff may still establish copying, though, by
`
`demonstrating that “the defendant had access to the copyrighted work and the accused work is
`
`substantially similar to the copyrighted work.” Susan Wakeen Doll Co., Inc. v. Ashton Drake
`
`Galleries, 272 F.3d 441, 450 (7th Cir. 2001). Substantial similarity exists when “the accused
`
`work is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that
`
`the defendant unlawfully appropriated the plaintiff’s protectible expression by taking material of
`
`6Plaintiff does claim that both novels use the phrase “guilty as charged.” Usage of such a
`common phrase does not constitute infringement. See, e.g., Bucklew v. Hawkins, Ash, Baptie &
`Co., 329 F.3d 923, 929 (7th Cir. 2003) (no infringement for features that are “so rudimentary, so
`commonplace, standard or unavoidable that they do not serve to distinguish one work within a
`class of works from another”).
`
`4
`
`

`
`Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 5 of 6 PageID #:1370
`
`substance and value.” Wildlife Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 508-09 (7th
`
`Cir. 1994).
`
`There is simply no substantial similarity between the two written works at issue. As
`
`discussed above, plaintiff’s manuscript concerns the relationship between a rock star and a
`
`paralegal, while defendant Caldwell’s novel tells the story of a counter-terrorist unit. Plaintiff, in
`
`fact, does not allege that defendant Caldwell appropriated any plot elements from her
`
`manuscript. Plaintiff claims only that certain passages in the two novels are similar. The
`
`passages identified by plaintiff as “substantially similar,” however, are nothing more than
`
`references to common things, places, and emotional states. The fact that both written works
`
`refer to coffee, bookcases, and blonde women hardly makes them substantially similar; a random
`
`comparison of any two books at the local bookstore would likely reveal the very same
`
`references. Plaintiff cannot establish that the works at issue are substantially similar. For that
`
`reason, the court grants defendants’ motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
`
`Potential State Law Claims
`
`Plaintiff alleges that defendant Mira Books has “engaged in unfair trade practices and
`
`unfair competition” by publishing The Good Liar. These allegations could possibly be construed
`
`as common law claims for which plaintiff seeks equitable relief. Defendant Mira Books asserts
`
`that these claims are preempted by the Copyright Act.
`
`The Seventh Circuit uses a two-part test to determine whether federal copyright law
`
`preempts a state law claim. First, the work in which the copyright is asserted must be “fixed in a
`
`tangible medium of expression” and come within the subject matter of copyright as specified in
`
`Section 102 of the Copyright Act. Baltimore Orioles, Inc. v. Major League Baseball Players
`
`5
`
`

`
`Case: 1:08-cv-00008 Document #: 60 Filed: 08/18/08 Page 6 of 6 PageID #:1371
`
`Ass’n, 805 F.2d 663, 674 (7th Cir. 1986). Plaintiff’s work is in written form, and plaintiff has
`
`registered for a copyright, bringing her manuscript within the subject matter of the Copyright
`
`Act.
`
`Second, the right asserted by plaintiff must be equivalent to any of the rights specified in
`
`Section 106 of the Act.7 Id. at 677-78. Plaintiff asserts that defendant Mira Books published and
`
`marketed The Good Liar, which infringed on her right to reproduce and distribute What If as
`
`protected by Section 106 of the Act. Plaintiff’s claim of “unfair trade practices and unfair
`
`competition” are based on the very same publishing and marketing of The Good Liar and involve
`
`the same rights protected by Section 106 of the Act. Because both prongs of the test are
`
`satisfied, the court finds that any potential state law claims alleged by plaintiff are preempted by
`
`the Copyright Act.
`
`CONCLUSION
`
`For the reasons discussed above, the court grants defendants’ motions to dismiss pursuant
`
`to Fed. R. Civ. P. 12(b)(6). The court also dismisses the complaint as to defendant Schoel.
`
`Defendant Caldwell’s 12(b)(5) motion is denied as moot. Both dismissals are with prejudice.
`
`ENTER:
`
`August 18, 2008
`
`__________________________________________
`Robert W. Gettleman
`United States District Judge
`
`7Section 106 of the Copyright Act grants the owner of a copyright the exclusive rights to
`reproduce (whether in original or derivative form), distribute, perform, and display the
`copyrighted work.
`
`6