11th Circuit Determines that Stephen King Did Not Copy Comic Hero

Steven T. Lowe

On February 23, 2021, the Eleventh Circuit Court held that Stephen King’s protagonist in “The Dark Tower” book series did not copy the hero in late comic book writer William B. DuBay’s “The Rook” series.

Benjamin DuBay, the nephew of William DuBay, filed a lawsuit in 2017 alleging that fictional character Roland Deschain of “The Dark Tower” books by noted author Stephen King (first released in 1982) shares substantial similarities with his deceased uncle’s character, Restin Dane from “The Rook” comic property first introduced in 1977. These similarities include similar names, interactions with towers that are integral to time travel, avian companions, knightly characteristics, Western garb, and knife-wielding, to name a few. The plaintiff alleged that his character represents the first character to combine these attributes.

The court began its analysis by narrowing the scope of protectable elements. First, the court noted that names do not merit copyright protection. Then the court held that some of the elements shared by both characters lack originality and qualify as re scènes à faire, meaning that they are too general to merit copyrightability. Specifically, these elements included Western attire, knightly heritage, and time traveler status. This author would note that once courts start “deconstructing” literary works into their separate elements and eliminating those that are not separately “copyrightable,” defendants always win. It is the combination of elements that creates original literary works.

The court was left to examine whether the more distinctive aspects such as the bird companions, time travel storylines, and the prominence of a tower in terms of imagery and narrative were enough to establish copyright infringement. The court observed that, though these elements may sound similar in the abstract, the way that they are expressed in the plaintiff’s and defendant’s works are quite different, with many of these elements serving highly divergent functions and narrative executions. This author would note that this is another way that courts use to sidestep blatant similarities.

Though the plaintiff urged the court to consider the characters in terms of the distinctive combination of these collective traits, the Court found that such a holistic approach would still to support the plaintiff’s copyright; Dane (the plaintiff’s character) was a traditional hero that could always be counted on to do the right thing throughout his consistent character arc while Deschain was alternatively presented as more complex, with many of his actions driven by self-interest and moral ambiguity as an antihero undergoing a dynamic character arc.

The court concluded that, due to the characters being executed differently within starkly different contexts, any similarities that could be gleaned amounted to little more than superficial similarities. For this reason, the court upheld the summary judgment in Stephen King’s favor, holding that he did not copy this comic book character.

Dubay is represented by Rob T. Cook of Rob Cook Attorney at Law PA.

King and the other defendants are represented by Scott D. Ponce and Michael M. Gropper of Holland & Knight LLP and Louis P. Petrich and Vincent Cox of Ballard Spahr LLP.

The case is Benjamin Dubay v. Stephen King et al., case number 19-11224, in the U.S. Court of Appeals for the Eleventh Circuit.

* Lowe & Associates (“The Firm”) is an entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.

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