THE PRODUCERS OF “THE ART OF FIELDING” AGAIN AVOID LIABILITY
Steven T. Lowe
On February 6, 2019, a Second Circuit panel refused to give Charles Green (the author of “Bucky’s 9th”) another chance at his allegations that the 2011 best-selling baseball novel “The Art of Fielding” stole the plot from his book, ruling the scenes in question are common in the genre. This In The Know article is a follow-up to our August 1, 2018 article titled: “The Art of Fielding” Did Not Infringe “Bucky’s 9th” Copyright.
The panel’s decision affirms a July 2018 ruling by a New York federal court in which Judge Alvin K. Hellerstein ruled that any similarities between “The Art Fielding” and Green’s “Bucky’s 9th” are either abstract ideas, stock elements of the genre or trivial details; in essence, “the alleged similarities in the works are unprotectable abstract ideas or scènes à faire that do not enjoy copyright protection.”
Green had argued at the Second Circuit that the district court was wrong to dismiss the suit and to deny his motion to amend the complaint with additional information. However, Second Circuit Judge Guido Calabresi explained last month at a hearing that the similarities are everyday plot devices that “happen all the time” in the genre. The panel re-affirmed the foregoing remarks on February 6th, 2019 saying despite Green’s argument about the similarities between the works, a review of the books reveals their concepts differ; “the similarities are at a high level of abstraction in two books that have little else in common.”
The Second Circuit also rejected Green’s argument he should get to amend the complaint with statistical analysis he says would show one of the allegedly stolen baseball scenes has an extremely low chance of occurring independently. The panel ruled such testimony is “irrelevant and not permitted” outside of cases involving highly technical works; therefore any amendment would be futile.
Green stated after the case, “I just wanted to get some satisfaction, just an explanation for how two…baseball books could have all of these idiosyncratic details and plot lines, et cetera, in common.” He further added the decision didn’t take into account specific passages and circumstances in the plot that he argued were “practically identical” between the works, including how the situation in the game at the book’s climax plays out, the mindset of characters in the scene and the point in history in which the books take place.
Green is represented by Pieter Van Tol of Hogan Lovells.
Harbach is represented by Elizabeth A. McNamara of Davis Wright Tremaine LLP.
The case is Green v. Harbach, case number 18-2078, in the U.S. Court of Appeals for the Second Circuit.
* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple publications for its many achievements and high ethical standards, including Martindale-Hubbell and Super Lawyers.
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