As noted by the court in its decision, in 1994 Marilyn Olson, a professional writer and novelist, wrote and copyrighted a play entitled Hadassah based on (shockingly) Megillas Esther. At various times, the Plaintiff sent videos of her play to Trinity Broadcasting Network (TBN) and others. Usually the videos were returned to her.
In late 1999 or early 2000, Plaintiff called one of TBN's 800 numbers and asked the person who answered the phone whether TBN “would be interested in Hadassah.” She was transferred to another number where she left a message. Subsequently, she got a call back from another person whose name the Plaintiff could not recall. Following the conversation she sent a video of Hadassah, the Hadassah script, a brochure for Hadassah, and a coloring book to the man who called her back.
Thereafter, on December 7, 2000, Plaintiff posted two messages on the GodChasers Network website in which she stated, "Please let me know if you wanted to see a copy of the new musical named “Hadassah”. This is the story of Esther, 2 hours, 20 minutes long.... Funny, accurate, and extremely entertaining, you might want to consider it for your full length feature film. I can send you a copy of the script and music."
On December 28, 2000, Plaintiff received a response by e-mail from Jenni Baier of GodChasers Network, which stated "I would be interested in hearing more about the musical “Hadassah.” I visited the website, but it seem to be mostly “old” information. Is it currently being performed anywhere? Are there videos available? I am especially interested in finding credible sources that will help us set the historical context for the story." Plaintiff did not respond to Baier's email, and the email was deleted.
Thereafter, in 2002 Tommy Tenny (a Louisiana minister and owner of GodChasers) approached Bethany House, a division of Baker Book House, about writing a novel based on the Book of Esther. After agreeing that a a novel and a nonfiction book should be written, Tenny began to work on the novel with Mark Olsen. Among other things, Tenny and Olsen discussed Persian and Jewish history, Jewish teachings, and the circumstances in which a young Jewish girl like Esther would have been raised as an orphaned exile in Persia during the Fourth Century, B.C.
After the October 2002 meeting, Olsen created a manuscript based on historical reference materials, the Book of Esther, and the ideas he and Tenny discussed at their meeting. Johnson supervised the cover design of the novel and suggested it be named Hadassah. The novel was published in 2004.
On August 18, 2005, Plaintiff filed a copyight infringement lawsuit against Tenny, Olsen, and Baker Book House relating to the novel Hadassah and various derivative works including a children's version, a Spanish translation, and an audio book recording of Hadassah.
In considering the defendants motion for summary judgment, the court performed the traditional access review as well as the extrinsic and and intrinsic tests by which it looks for similarities between the two pieces. I have reproduced the extrinsic analysis below, in which the court found that:
Many of the similarities between the works identified by Plaintiff arise from historical fact. For example, both works relate the fact that women who were not chosen to be queen to Xerxes, the King of Persia in the Fourth Century, B.C., became his concubines, virtual prisoners, and shut away from friends and family. In addition, both works reference the fact that wealthy individuals were carried in litters by servants and observe that anyone approaching the Persian king without permission was killed unless the king granted them an immediate pardon. As noted, copyright protection does not extend to such historical facts.
In addition, many of the similarities identified by Plaintiff stem from the common source of the Book of Esther. For example, both works include the Biblical narrative that Hadassah is Esther's Jewish name and that Hadassah changes her name to avoid being revealed as a Jew in the King's palace. The phrase “Who would do such a thing?” appears in both works and is a phrase taken from the Book of Esther. The incident in which Xerxes takes his ring from Haman and gives it to Mordecai and the role of Memucan as a prince and advisor to Xerxes also are taken from the Book of Esther. As noted, copyright protection does not extend to material from common sources or “in the public domain.”
Plaintiff also identifies similarities between the two works that are considered scenes a faire: i.e.,“incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” For example, both works note Mordecai, Hadassah's relative and guardian, teaches her about her Jewish history and Jewish traditions. Similarly, both works include the theme of Hadassah's growing awareness of and faith in God, a standard development in a work based on a book of the Bible. Scenes a faire are not protectable material.
Plaintiff also alleges the novel's inclusion of the words “wonderful,” “joy,” and “his presence fills the air” when referring to Hadassah's feelings about God violate Plaintiff's copyright. In a work based on a book of the Bible, however, a character's feelings about God are likely to include joy or wonder when the character believes God is near. In addition, scenes in which the queen candidates fight over jewels and clothing and that describe the sadness of the concubines who are not selected for queen are scenes a faire“that necessarily result from the choice of a setting or situation.”
Plaintiff's list of similarities also includes metaphors or cliched language, which like “phrases and expressions conveying an idea that can only be, or is typically expressed in a limited number of stereotyped fashions,” are not subject to copyright protection. For example, both works include phrases such as “Your Majesty,” which is not unusual when a primary character is the King of Persia, and the phrase “fallen in love,” which is common in stories about characters who discover love.
On this record, the Court concludes the similarity of ideas between Plaintiff's musical and the novel and its derivative works arise from a common source, historical facts, scenes a faire, and cliched language rather than from any protectable ideas or expressions. Accordingly, a reasonable juror could not conclude Defendants infringed any protectable ideas or expressions of Plaintiff's musical.
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