Allen v. Scholastic Inc.

OPINION AND ORDER

I. INTRODUCTION

Paul Gregory Allen, in his capacity as the trustee of the estate of Adrian Jacobs, brings a claim for copyright infringement against defendant Scholastic Inc. (“Scholastic”) relating to its 2000 publication in the United States of J.K. Rowling’s Harry Potter and the Goblet of Fire {“Goblet of Fire ”). Plaintiff alleges that Goblet of Fire unlawfully used protected expressions from The Adventures of Willy the Wizard — No 1 Livid Land {“Livid Land ”), a work authored by Jacobs and published in the United Kingdom in 1987. In response, defendant now moves to dismiss the complaint on the ground that no reasonable juror could find a substantial similarity between the two books. For the reasons set forth below, defendant’s motion is granted in its entirety.

II. BACKGROUND 1

Because “[determining whether substantial similarity exists requires courts to *646 engage in a ‘detailed examination of the works themselves,’ ” I begin with an overview of Livid Land and Goblet of Fire. 2

A. Livid Land

1. General Overview

Livid Land tells the story of an adult wizard named Willy who participates in “the year of the wizards’ contest” for the chance to win life membership in “Stellar Land [, e]very wizard’s dream of retirement.” 3 The thirty-two page book consists of sixteen pages of text by Jacobs, and sixteen pages of accompanying color illustrations by Nick Tidman. 4

2. The Protagonist

Willy has shoulder-length blond hair, blue eyes, a beard, and a long Pinocchio-like nose. 5 His wardrobe consists of a hoop earring, a floor length tunic, pointy Aladdin-type shoes, and a bent, cone-shaped hat. 6 Willy was raised in Switzerland by his father, an “angelsmith” who “had a contract with God [that] gave him the exclusive monopoly [to perform repairs] on all angel defects.” 7 When he was fourteen years old, he was “given the Book of Secrets with directions as to his initiation into Wizardry” and became the first wizard in the country. 8 After completing Wizard’s college, Willy moved to a private “new community in Memories Hideaway,” which he created by abducting and casting a memory spell on twenty-five tourists from the same family, spiriting away their bodies, and leaving their frozen empty clothes standing erect to scare others away. 9 Willy’s privacy was subsequently ensured as news of the missing tourists spread across Europe, and the town containing Memories Hideaway was renamed from Village Romantic to Village Remorse. 10

Inside Memories Hideaway, the abducted tourists happily run an angel repair shop, a gourmet chocolate factory, and a brewery, “activities which Willy encouraged, fostered and turned into profitable cottage industries” to meet the high “expenses of running his domain.” 11 Their *647 “children had grown, married, begot children” and together they constitute a thriving, contented community. 12 Several apprentice wizards — Tinken, Taylor, Solydar, and Delight — also reside in Magical Hideaway, and bestowed upon Willy an “elaborate factory ... in protest at the conditions in which they had formerly worked.” 13

3. The Plot 14

The story begins as Willy travels to a wizard’s conference held at Napoleon’s Castle, which is reached by a “velvet ladder” dangling from the sky. 15 As Willy enters the “great hall” of the castle, he encounters a “dramatic scene.” 16 The space is overrun with wizards of all races and nationalities, and as Willy “realizes the immensity of the Wizard brotherhood” for the first time, he is “frightened at the power it can muster.” 17 Willy is also terrified by the sight of a “large white banner printed in giant letters” declaring that spell-casting is forbidden inside the castle, and that violators will be banished to the much dreaded Treatment Island' — particularly as he had just jokingly considered turning all the wizards into lizards. 18

The conference itself is a brief affair. A French wizard named Wizard Duke Louis Dix-Sept, whose head is made invisible in order to prevent the “largely uncontrollable assassination spell” invoked by “gathering[s] of more than twenty,” emerges from a carriage to inaugurate the yearlong wizards’ tournament and instructs the attendees that they “will be given details of the competitions, prizes and penalties.” 19 Thereafter, the wizards immediately disperse, because they have “to be away from the castle environs in ten minutes.” 20 Willy uses an invisible flying swan taxi and magic powder from a gold snuff box to transport himself home to Memories Hideaway. 21

Upon his return, Willy sits in his “yellow bathroom-cum-study [, where] he [does] his best thinking,” soaks in a special water additive available only to five star wizards, and turns on a slide-out screen that emerges from the flat wall before him. 22 After he feeds in the contest details provided at the conference, the text is magically magnified and reads: “GAIN ENTRANCE TO LIVID LAND! AND RELEASE FEMALE PRISONERS FROM ANGRY SAM’S COMPOUND. FORTY POINTS AWARDED FOR EACH PRISONER RESCUED.” 23 Wizards who obtain more than one thousand stars receive the coveted grand prize, admission to Stellar Land. 24

*648 Willy immediately orders his apprentices to brief him on Livid Land by beaming them his thoughts. 25 From them, he learns that Livid Land is an island off the tip of Papua that is inhabited by Kanganatives, beings with the torsos of humans and the legs of kangaroos. 26 Access to Livid Land is severely restricted and virtually impossible — unauthorized visitors have to penetrate the Sky-to-Ocean barrier and supply the secret password, which is changed each month. 27 There is, however, an unguarded underground tunnel accessible from the ocean floor that is big enough only for Kanga Pygmies and, luckily, Willy’s “miniature midget elves.” 28 Aided by the seven swiftest Angels in Heavenland, Willy dispatches the Pixie Elf Brigade — Bimbo-Sad-Eyes, Botticello, and Simple Elf — to the island to uncover the secret password, which they manage to do by spying on the Kanganatives. 29 Sitting at home in Ali Baba’s chair, Willy is “frequentized into vision acute” and, through the “clarity-waves” transmitted from the Island, can see the Pixie Elf Brigade in real-time as they learn that the password is FURY. 30 Having completed their mission, the Pixie Elf Brigade, with the exception of Bimbo-Sad-Eyes, is picked up by Anna Eagle and flown back to Memories Hideaway. 31

Disguised as a “blue rarebit,” a creature avoided by Kanganatives as bad luck, Bimbo-Sad-Eyes is able to remain on Livid Land to coordinate the escape of ten female prisoners. 32 Bimbo-Sad-Eyes learns that Kanganatives are addicted to chocolate, and transmits the information to Willy through the Quebec Communicator attached from his whiskers to his left nostril. 33 After pondering for three days, Willy hatches a plan, OPERATION DIVERT, to release the prisoners; the plan is based on an idea devised by a visitor to his chocolate factory to boost Willy’s chocolate sales. 34 Willy enlists the help of Angel Leader Halo Perfectas and his meteorological experts to make sleep-inducing chocolate rain pour over Livid Land and enchant the Kanganatives. 35 As the Kanganatives sleep, the coquettish Apprentice Delight is dispatched to the island in order to charm the prison-guard while Bimbo-Sad-Eyes releases the ten female prisoners. 36 Using the secret password, the group is easily able to leave Livid Land as Willy watches from his Ali Baba chair, happy and relaxed now that “[he] had won his particular wizard’s test and the ladies were free.” 37

B. Goblet of Fire

1. General Overview

Goblet of Fire is the fourth book in an international, award-winning, and best selling seven-book series written by English author J.K. Rowling. 38 The series follows the adventures of a famous young wizard named Harry Potter from the time that he learns of his powers at age eleven until the end of his adolescence. 39 Goblet of Fire chronicles Harry’s participation in a tour *649 nament between rival magic schools when he is fourteen years old. The book itself is 734 pages, almost all of which are entirely text; the only illustrations are small charcoal images set above the title of every new chapter.

2. The Protagonist

Harry is a “skinny boy of fourteen” with large round glasses, “bright green eyes and untidy black hair.” 40 When Harry was a year old, his mother and father were killed by Lord Voldemort (“Voldemort”), “the most powerful Dark wizard for a century.” 41 Voldemort had attempted to kill Harry as well, but “the curse that had disposed of many full-grown witches and wizards in [Voldemort’s] steady rise to power” over the past eleven years had mysteriously failed. 42 Instead of killing Harry, it “rebounded upon Voldemort ... [and] reduced [him] to something barely alive,” forcing him to flee and lifting “the terror in which the secret community of witches and wizards had lived for so long.” 43 Harry was left only with a distinctive scar on his forehead shaped like a bolt of lightning, and became immediately famous in hidden wizarding world — even as he himself was unaware of its existence or his own magical origins. 44

Because Harry was raised by his non-magical, or “Muggle,” aunt and uncle (the “Dursleys”), who “despised magic in any form,” Harry did not learn that he was a wizard until his eleventh birthday, when he was admitted to the Hogwarts School of Witchcraft and Wizardry (“Hogwarts”), a boarding school for young wizards in training. 45 Harry’s time at Hogwarts provides a happy reprieve from the mean-spirited Dursleys, who consider him to be “about as welcome ... as dry rot” in their home and who generally strive to make him as “miserable as possible.” 46 At Hogwarts, Harry has two best friends, Ron Weasley and Hermione Granger, from whom he is inseparable, and a headmaster, Professor Albus Dumbledore (“Dumbledore”), in whom he can confide. 47

Hogwarts is housed in a huge, sprawling castle that cannot be seen or located by Muggles. 48 The primary means of transportation to Hogwarts Castle is the Hogwarts Express, “a gleaming scarlet steam engine” that leaves from a magical platform found between “the apparently solid barrier dividing platforms nine and ten” in a regular train station 49 The most distinguished feature of the castle is the Great Hall, a “splendid [space] ... gleamed by the light of hundreds and hundreds of candles” and host to any newsworthy event at the school. 50

3. The Plot

Goblet of Fire opens during the summer holiday preceding Harry’s fourth-year of Hogwarts, with several premonitions that the murderous Voldemort has returned and is planning to kill Harry. 51 The sense of vague apprehension is tempered, however, by the promise of a great surprise awaiting the students of Hogwarts. 52 As *650 the students gather in the Great Hall to inaugurate the new term, Dumbledore announces that Hogwarts will host the TriWizard Tournament (“Tournament”), an inter-scholastic competition in which one representative, or “champion,” from each of the “three largest European schools of wizardry” competes in three magical tasks for “the Triwizard Cup, the glory of their school, and a thousand Galleons personal prize money.” 53 The Tournament consists of three surprise tasks that will take place over the school year, which are designed to test the champions’ “magical prowess— their daring — their powers of deduction— and of course, their ability to cope with danger.” 54 A five-judge panel will award marks based on performance in each task, and “the champion with the highest total after task three will win.” 55

Dumbledore explains that the seven-hundred year old Tournament has been suspended for several centuries due to an alarmingly high champion death toll, but is being reinstated in light of new safety precautions that should “ensure that this time, no champion would find himself or herself in mortal danger.” 56 Chief among these is a strict age restriction barring contenders under age seventeen, a “measure [considered to be] necessary, given that the tournament tasks will still be difficult and dangerous, whatever precautions [are taken], and it is highly unlikely that [younger] students ... will be able to cope with them.” 57 Dumbledore instructs the students that champions will be impartially selected by a goblet “full to the brim with dancing blue-white flames,” that will shoot out a “charred piece of parchment” naming the most worthy eligible volunteer from each school. 58

Although Harry is underage and does not submit his name for consideration, he is mysteriously named as champion in the Tournament, along with three other students — including Cedric Diggory, the intended Hogwarts representative. 59 Harry is suspicious that his participation is the result of sinister manipulation by Voldemort, and intended to ensure his demise. 60 Harry’s fear is shared by his Defense Against the Dark Arts professor, Alastor Moody (“Professor Moody”), who is certain that the contest has been manipulated by the forces of Dark Wizardry. 61 Nonetheless, because “[t]he placing of [a student’s] name in the goblet constitutes a binding, magical contract,” Harry is obligated to compete despite the great personal risk in doing so. 62 Harry’s unease is exacerbated by the alienation he feels from his peers, as only Hermione and his professors believe that he did not volunteer for the Tournament. 63 The vast majority of Hogwarts students — including Ron — are angered by Harry’s perceived audacity and envious of his inclusion in the competition. 64 Moreover, Harry’s competitors suspect that the contest has unfairly been rigged to allow Hogwarts an extra opportunity to attain victory, and are very aggrieved that there are four competitors instead of the intended three. 65

*651 The first task involves recovering a golden egg guarded by a dragon. 66 Harry learns the nature of the challenge in advance from Hagrid, his professor and friend, and, correctly assuming that Cedric will be the only competitor not similarly forewarned, shares the information with him in the interest of fairness. 67 Harry must confront the Hungarian Horntail, the most dangerous and belligerent of the four dragons that the competitors are paired up with. 68 Based upon a hint from Professor Moody, Harry completes the task by relying on the flying skills he cultivated while playing Quidditch, a wizard sport involving flying broomsticks. 69 He is awarded forty out of fifty points from the judges, and ties for first place. 70 Harry does not care about winning the round, but he is surprised and thrilled by the crowd’s support for him, realizing that “[w]hen it had come down to it, when they had seen what he was facing, most of the school had been on his side as well as Cedric’s.” 71 Harry is most overjoyed that his struggle with the dragon led Ron to realize that he did not volunteer for the tournament, and ended the tension between them. 72

The second task requires the champions to solve the clue hidden in the retrieved egg. 73 When Harry opens the egg, however, he is greeted only by an incomprehensible “loud and screechy wailing.” 74 Preferring to focus his energies on the upcoming school dance and daydreaming about his crush, Harry puts off making sense of the clue until he receives some unexpected assistance. 75 In gratitude for Harry’s help with the first task, Cedric advises him to take a bath with the egg in the prefects’ bathroom, a “magnificent” space with a bathtub the size of a swimming pool. 76 After Moaning Myrtle, the resident bathroom ghost, clarifies that he should hold the egg under water, Harry is able to hear a riddle revealing the second task. 77 He learns that he will have to recover something “[he’ll] surely miss”— which turns out to be Ron — from a community of merpeople, human-mermaid hybrids who live at the bottom of a lake on the school grounds. 78

Harry spends the next several weeks fruitlessly researching how to breathe underwater with Hermione and Ron. 79 Finally, on the day of the task, a house elf named Dobby provides Harry with a solution in the form of gillyweed, a magical plant that enables him to grow gills. 80 Harry reaches the bottom of the lake first and discovers that, in addition to Ron, three other students are waiting to be rescued by the champions. 81 Incorrectly believing that the students will otherwise be harmed, Harry waits for the other champions to arrive to ensure that everyone is retrieved from the lake. 82 When one champion fails to appear, Harry ex *652 ceeds the allotted time limit and specified scope of the task in order to pull both Ron and the remaining student from the water. 83 Nonetheless, he is awarded forty-five out of fifty points for his “moral fiber” and comes in second place. 84

The third and final task appears to be “very straightforward” — the Triwizard Cup is placed in the center of a maze filled with magical obstacles, and the first champion to touch it will be named the Tournament winner. 85 Harry and Cedric help each other navigate the labyrinth, reach the finish line before the other champions, and decide to take hold of the Triwizard Cup at the same time to tie the competition. 86 The task, however, turns out to be a trap — upon touching the trophy, they are transported to a graveyard and find themselves face-to-face with Voldemort and his servant Wormtail, who immediately kills Cedric. 87

Harry must then battle Voldemort, who has used some of Harry’s own blood to restore his strength and the full scope of his powers. 88 As they duel, a beam of light mysteriously connects their wands, causing the ghosts of Voldemort’s victims to appear. 89 The ghosts are able to momentarily divert Voldemort’s attention, giving Harry just enough time to grab Cedric’s body and escape Voldemort’s fatal blow through the Portkey, a magical teleporting device, that transports him back to Hogwarts. 90 Once he is back at school, Harry is whisked by someone who appears to be Professor Moody, but is actually Voldemort’s most zealous supporter, Barty Crouch Jr. (“Barty”), in disguise. 91 Barty boasts that, at Voldemort’s direction, he entered Harry into the Tournament and subsequently “guid[ed him] through the tasks” to ensure that Harry would reach the Triwizard Cup first and fall prey to Voldemort’s trap — knowing that Hagrid, Cedric, and Dobby would help Harry, he planted the information they shared with him regarding the Tournament tasks. 92 Dumbledore realizes that Harry is in danger just in the nick of time, and saves Harry’s life. 93

Because Cedric has been killed, Harry is awarded all of the prize money for winning the Tournament. 94 Although he offers it to Cedric’s parents, they refuse to take it and he gives it to Ron’s older twin brothers to realize their dream of opening a wizard joke shop. 95 The story ends as a more somber and mature Harry travels back home to the Dursleys for his summer vacation. 96

III. APPLICABLE LAW

A. Motion to Dismiss

When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must “accept as true all of the factual allegations contained in the complaint” 97 and “draw *653 all reasonable inferences in the plaintiffs favor.” 98 However, the court need not accord “[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness.” 99 To survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must meet a standard of “plausibility.” 100 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 101 Plausibility “is not akin to a probability requirement;” rather, plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” 102 Pleading a fact that is “merely consistent with a defendant’s liability” does not satisfy the plausibility standard. 103

When determining the sufficiency of a claim under Rule 12(b)(6), the court is normally required to consider only the allegations in the complaint. However, the court is allowed to consider documents outside the pleading if the documents are integral to the pleading or subject to judicial notice. 104

B. Copyright Infringement

“To prevail on a claim of copyright infringement, the plaintiff must demonstrate both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant.” 105 “The second element is further broken down into two components: ‘a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.’ ” 106 “Because direct evidence is seldom available to prove ‘actual copying,’ a plaintiff may fulfill this requirement with indirect evidence.” 107 To this end, copying may be established “circumstantially by demonstrating that the person who composed the defendant’s work had access to the copyrighted material ... and that there are similarities between the two works that are probative of copying.” 108 Then, to *654 give rise to copyright infringement, the plaintiff must demonstrate that the similarity concerns protected elements of the work at issue. 109 In other words, to be actionable, the alleged similarities must arise from “protected aesthetic expressions original to the allegedly infringed work, [rather than] ... something in the original that is free for the taking.” 110 “[T]he law is clear that a copyright does not protect an idea, but only the expression of an idea, and therefore scenes a faire, sequences of events that necessarily result from the choice of a setting or situation, do not enjoy copyright protection.” 111

“Substantial similarity exists only when ‘it is protected expression in the earlier work that was copied and the amount that was copied is more than de minimis.’ ” 112 “The standard test for substantial similarity between two items is whether an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’ ” 113 Under this so-called “ordinary observer test,” the essential question is whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” 114 Where the allegedly infringing work contains both protectible and non-protectible elements, however, “the usual ‘ordinary observer’ test becomes ‘more discerning,’ and requires the Court to ‘attempt to extract the unprotectible elements from ... consideration and ask whether the protectible elements, standing alone, are substantially similar.’ ” 115 Under either test, “a court is not to dissect the works at issue into separate components and compare only the copyrightable elements.” 116 Instead, the inquiry is “principally guided by comparing the contested [work’s] total concept and overall feel with that of the allegedly infringed work, as instructed by [a reader’s] good eyes and common sense.” 117

*655 “When a court is called upon to consider whether the works are substantially similar, no discovery or fact-finding is typically necessary, because what is required is only a visual comparison of the works.” 118 Thus, while the question of substantial similarity often presents a close issue of fact that must be resolved by a jury, district courts may determine non-infringement as a matter of law “either because the similarity between two works concerns only non-copyrightable elements of the plaintiffs work, or because no reasonable jury, properly instructed, could find that the two works are substantially similar.” 119 The Second Circuit has recently underscored that, where “the works in questions are attached to [or referenced in] a plaintiffs complaint, it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation.” 120

IV. DISCUSSION

For purposes of this motion, defendant concedes that plaintiff has a valid copyright in Livid Land and that actual copying occurred. 121 The operative question is thus whether a substantial similarity exists between Goblet of Fire and the protectible elements of Livid Land. 122 Because “[a] court examines the similarities between the two literary works in such aspects as the total concept and feel, theme, characters, plot, sequence, pace and setting of the works,” I address each of these features in turn. 123

However, because the copyright infringement analysis requires direct inspection of the works in question, it is appropriate to include a representative excerpt *656 from each book in support of my conclusion of no infringement. Thus, the opening scenes of both Goblet of Fire and Livid Land are set forth below. These excerpts convey the stark differences between the works far more convincingly than any description, and provide useful context for the ensuing discussion.

A. Source Excerpts

1. Livid Land

Willy the Wizard contemplated his elaborate laboratory. It had been a gift from Tinken, Taylor and Soldyar. They were his apprentice wizards and the gift was in protest at the conditions in which they had formerly worked. They loved all the gleaming apparatus. The whole thing positively bored him.

‘Ugh.’

He tapped the pipe leading to a tall retort. He hadn’t realized it was his number two magic wand for Abracadabra! He catapulted right through the skylight, magic carpet and all, and was now proceeding speedily on Cloud 13. Oh dear! He thought. It would be Cloud 13.

He hated Cloud 13. It was so much more windy and unprotected and in his surprise departure he had left behind his woollies.

He felt in his tunic pocket Pocket sesame was always to be relied on in an emergency. Woosh! He touched the concealed jewelled [sic] dagger that Aladdin had bequeathed to him and presto he was walking silently in Precious Boulevard off Sultan’s Row, that famous Turkish road, every cobble of which was either a ruby or amethyst. Puff puff, he was out of breath. He stopped at Rainbow Fountain and peered into the magic water mumbling the Wizard’s chant. His gaze pierced the surface of the pool, and the sheer beauty beneath him made him gasp.

“Big bear, Small bear, Picnic retreat. Which way to Wizard Napolean’s Castle?” 124

2. Goblet of Fire

The villagers of Little Hangleton still called it “the Riddle House,” even though it had been many years since the Riddle family had lived there. It stood on a hill overlooking the village, some of its windows boarded, tiles missing from its roof, and ivy spreading unchecked over its face. Once a fine looking man- or, and easily the largest and grandest building for miles around, the Riddle House was now damp, derelict, and unoccupied.

The Little Hangletons all agreed that the old house was “creepy.” Half a century ago, something strange and horrible had happened there, something that the older inhabitants of the village still liked to discuss when gossip was scarce. The story had been picked over so many times, and had been embroidered in so many places, that nobody was quite sure what the truth was anymore. Every version of the tale, however, started in the same place: Fifty years before, at daybreak on a fine summer’s morning, when the Riddle House had still been well-kept and impressive, a maid had entered the drawing room to find all three Riddles dead. 125

B. Analysis

1. Total Concept and Feel

Because the works at issue are primarily created for children, the total concept and feel of the works — rather than their plot and character development — is the most important factor for purposes of *657 establishing copyright infringement. 126 Here, the contrast between the total concept and feel of the works is so stark that any serious comparison of the two strains credulity. As an initial matter, the dramatic difference in length between Goblet of Fire and Livid Land — 734 pages and 16 pages of text, respectively — immediately undermines Allen’s suggestion that the authors similarly “selected, coordinated and arranged the elements” of their work. 127 Indeed, a reading of the works unequivocally confirms that they are distinctly different in both substance and style, and ultimately engender very different visceral responses from their readers. 128

The works vary in structure, mood, details, and characterization. Livid Land progresses as a series of fragmented and often tangential scenes, each of which summarily recounts Willy’s various exploits without any supporting detail, contextual explanation, or suspenseful buildup. Accounts about Willy’s background, travels, illnesses, business ventures, and participation in a contest are presented in the same tone and with the same level of generality. To the extent that Livid Land specifically aims to tell the story about Willy’s participation in a contest — as opposed to providing short and self-contained anecdotes concerning his life in general— its intended subject is made clear only by the fact that the work refers to the contest in more than one chapter. Events are dryly set forth, rather than described. New characters or references frequently pop up without introduction or purpose, never to appear again. Beyond the background fact of the wizards’ contest, the book lacks any cohesive narrative elements that can unify or make sense of its disparate anecdotes — a generous reading may infer that its purpose is to engage a child’s attention for a few moments at a time, *658 much like a mobile or cartoon. 129 Indeed, the text is enlivened only by the illustrations that accompany it.

Livid Land is entirely devoid of a moral message or intellectual depth. It does not present any overarching message or character development. The competition stands as an end in itself, and there is no purpose to Willy’s participation aside from victory. The characters never face any difficult choices, or experience any type of conflict. Their feelings are not addressed and their interpersonal relationships are not explored. Essentially, Livid Land offers only narration, not nuance.

In contrast, Goblet of Fire is a cumulative work, in which one scene builds upon and transitions to another. The storyline is highly developed and complex, and captures the attention of both children and adults for long periods of time. The wizard competition clearly drives the plot and is fleshed out in great detail, but it is not, in and of itself, the primary subject of the book — rather, the competition serves as packaging for various underlying story-lines, such as Voldemort’s return or Ron and Hermione’s romantic feelings towards each other. 130 Indeed, Harry’s ordeal is not over following his victory, because Voldemort is still on the loose and the wizard community expects to face “dark and difficult times.” 131 The text is rich in imagery, emotive and suspenseful. Sophisticated literary devices, such as foreshadowing, are frequently employed — for example, Harry’s scar reflexively hurts whenever Voldemort is near him, whether or not he is aware of his presence, with the intensity of the pain corresponding to the degree of danger he is in.

Goblet of Fire has a highly developed moral core, and conveys overarching messages through its plot. For example, following Harry’s victory and Cedric’s death in the competition, Dumbledore instructs the students at Hogwarts that,

in the light of Lord Voldemort’s return, we are only as strong as we are united, as weak as we are divided. Lord Voldemort’s gift for spreading discord and enmity is very great. We can fight it only by showing an equally strong bond of friendship and trust. Differences of habit and language are nothing at all if our aims are identical and our hearts are open. 132

Indeed, the book’s characters are frequently subject to ethical scrutiny. The choices that they make are often difficult and marked by clear trade-offs, which are explored and elaborated upon. Harry is not concerned with winning the competition, but with doing what is right — for example, he foregoes an easy victory in the second task of the competition to ensure that his competitors reach and save all the hostages at the bottom of the lake.

Given the vast aesthetic and substantive differences between Livid Land and Goblet of Fire, I find no overlap in their total concept and feel.

*659 2. Theme

Allen argues that both works evince themes of “friendship, teamwork, ... the value of personal ingenuity, [and] the international scope and unity of the wizard community.” 133 It is unclear, however, that any discernible — let alone protectible — themes emerge from Livid Land’s one-dimensional and desultory account of Willy’s participation in the wizard competition. 134 The general foundations of a theme — i.e., sentiment or insight, topical or symbolical occurrences, evolution of character or plot — are not readily identifiable in the text. For example, despite being one of Allen’s purported themes, Livid Land’s consideration of the “international scope and unity of the wizard community” 135 is limited to the following passage:

There were wizards of all races. Chinese, with massive Mandarin hats beautifully hand painted with peasant scenes. Black and brown wizards from the Ivory Coast and Delhi. Willy wondered. Until now he’d never realised the immensity of the Wizard brotherhood. He was frightened at the power it could muster. 136

A brief, perfunctory and isolated reference to a subject cannot give rise to a cognizable theme — let alone one that is specific enough to be infringed.

Moreover, Livid Land does not provide even those elements necessary to formulate and express the specific themes that plaintiff identifies in the text. For example, Allen identifies friendship as a theme common to both works, but Willy does not seem to have any friends or to express any desire for companionship. Throughout the work, he engages only in cursory and singular interactions with acquaintances. His primary company, and the only other recurring characters, are various apprentices and elves — all of whom are subject to his bidding, and who provide him with assistance in the competition only upon orders to do so. Because there is scant basis upon which to extrapolate any theme from Livid Land, there is certainly no support for a finding of substantial similarity in this regard.

3. Characters

Allen argues that the similarities between Willy and Harry provide evidence of unlawful appropriation, because “both protagonists are famous male wizards, initiated late into wizarding (in pre/early adolescence), who receive formal education in wizardry, and are chosen to compete in year-long wizard competitions.” 137 Even accepting Allen’s dubious *660 characterizations, 138 they constitute a general prototype too indistinct to merit copyright protection. 139 Because “[t]he bar for substantial similarity in a character is set quite high,” courts have found no substantial similarity between characters sharing far more specific and developed traits. 140

Allen’s purported list of common attributes between Willy and Harry evokes only a general sketch of a character (ie., an unprotectible idea), rather than a recognizable identity that can be linked to a particular figure (ie., a protected expression of that idea). The amorphous figure emerging from Allen’s claimed similarities may be either a villain or hero, acclaimed or maligned, old or young, a social butterfly or solitary recluse — in short, he may be anyone at all. Hence, “any similarity between the two characters exists only at a level of abstraction too basic to permit any inference that defendant] wrongfully appropriated any expression of plaintiffs ideas.” 141 Particularly where two diametrically opposed characters can be constructed based on plaintiffs examples of *661 the allegedly infringing characteristics, there cannot be a finding of substantial similarity.

In any event, it is unlikely that a rudimentary character like Willy can be infringed upon at all. 142 Livid Land provides only a few details about Willy, such as where he lives and what he does, but does not imbue him with a discernible personality or distinguishable appearance. Despite serving as the protagonist of a children’s work, it is not even clear whether Willy is a ‘good’ moral character. 143 Willy’s superficiality underscores that his character is but a “rough idea[ ] of general nature ... instead of [a] specific expression and realization of those ideas” 144 — i.e.