Similarities Between Christmas-Themed Books Constituted Unprotectable Elements
Oct. 29 –An Oregon author had failed to set forth an actionable claim against an evangelical organization that she alleged had infringed her copyright interest in an instructional book focusing on the Nativity story, the U.S. District Court for the District of Oregon ruled Oct. 23 (Christenson v. FLTI, D. Or., No. 6:13-cv-00254-AA, 10/23/13).
Granting a motion to dismiss, the court found that once all the unprotectable elements were removed, the two works were not substantially similar for the purposes of a copyright infringement claim.
Author Sues Cru
Campus Crusade for Christ Inc. was founded in 1951 at the University of California at Los Angeles with a focus on encouraging the spread of adherence to Christianity on college campuses. By 1996, it was recognized as the largest evangelical organization in the United States, with 25,000 paid staff members and 225,000 volunteers worldwide. The organization formally changed its brand identity to “Cru” in 2011.
In 2003, Laloni Kay Christenson of Deschutes County, Ore., wrote a manuscript titled “Christ in Christmas: An Interactive Christmas Devotional for the Whole Family” and registered her copyright interest in the work with the Copyright Office.
Christenson then submitted her manuscript to Cru for its consideration for publication. Cru declined to publish the work. In 2005, Cru published a children’s book, “What God Wants for Christmas.” The books both offer ideas for Christmas activities for families, specifically, tying the opening of specific gifts–Nativity-scene figurines–with lessons.
In 2007, Christenson’s daughter purchased a copy of Cru’s book and in 2013, she sued Cru and its subsidiary, FLTI d/b/a Family Life Publishing of Little Rock, Ark., alleging copyright infringement. Cru moved for dismissal of the copyright infringement claim under Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief is available under the law. Cru argued that the two works were not substantially similar.
Similar Elements Not Protectable
Judge Ann Aiken set forth detailed descriptions of the two works before determining that several of the similarities between the two works, as set forth by Christenson, constituted nonprotectable elements:
Here, it is undisputed that the plot is stock; both parties “use the story of the Nativity to tell the story of the Nativity.” Defs.’ Reply to Mot. Dismiss 7-8; Pl.’s Resp. to Mot. Dismiss 10. Instead, the similarities alleged by plaintiff arise from non-plot elements, including sequencing, instructions, questions, gifts, variations, and how to lead someone to God.
It is undisputed that the following elements are not protected under copyright law: (1) the Nativity story and characters; (2) asking questions about Biblical characters and providing scripture to allow for more in-depth exploration of those characters; (3) the theme and message of giving one’s self to God or Jesus, even as a Christmas present; and (4) the concept of family exercises centered on unwrapping gift boxes with figurines.
Regarding the structure of the works, the court said that under the merger doctrine, the idea of giving instructions to parents regarding Christmas-themed activities and then setting forth the story to be used could not be separated from the subject matter.
“In order to flow logically, both works must first describe themselves and how they can be used with children before presenting the story,” the court said. “In turn, because the story conveys the gift from God to humankind, it naturally comes before an exhortatory section on an individual’s gift to God.”
Thus, the court said that the way in which the two works set forth the underlying idea was not protectable. The court thus concluded that the alleged substantial similarities were of unprotectable elements.
Having removed these from consideration, the court said that “there is little left for this Court to evaluate.” The only level of protection remaining was for “virtually identical copying,” which was not applicable to this case. Furthermore, the court did find significant differences once the nonprotectable elements were removed from consideration.
The court thus granted the motion and dismissed the copyright claims.
Christenson was represented by Daniel J. Rice of Heltzel, Williams, Yandell, Rothe, Smith, Petersen & Lush P.C., Salem, Ore. Cru was represented by Duane A. Bosworth II of Davis, Wright, Tremaine LLP, Portland, Ore.
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