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Rucker v. Fasano

United States District Court, N.D. Illinois, Eastern Division

November 21, 2017

KELLY RUCKER, Plaintiff,



         Defendants and Donna Fasano have moved for summary judgment in this copyright infringement action. The court has jurisdiction over this dispute pursuant to 28 U.S.C. §§ 1331 and 1338. Neither personal jurisdiction nor venue is disputed. Because, applying the local rules for summary judgment motions, plaintiff has failed to properly contest most of defendants' statement of material undisputed facts (“SMUF”), summary judgment must be granted in defendants' favor.


         The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (explaining that Rule 56 “imposes an initial burden of production on the party moving for summary judgment to inform the district court why a trial is not necessary” (citation omitted)). After “a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (quotation omitted); see also Modrowski, 712 F.3d at 1169 (stating party opposing summary judgment “must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file), to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in her favor” (citations and quotations omitted)). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

         II. ANALYSIS

         Proving infringement requires proof of (1) ownership of a valid copyright and (2) copying of constituent elements of the work that are original. Peters v. West, 692 F.3d 629, 632 (7th Cir. 2012). “Proof of copying is crucial to any claim of copyright infringement because no matter how similar the two works may be (even to the point of identity), if the defendant did not copy the accused work, there is no infringement.” Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 1984) (citing Arnstein v. Edward B. Marks Music Corp., 82 F.2d 275 (2d Cir. 1936), motion to set aside decree denied, 86 F.2d 715 (2d Cir. 1936)). “However, because direct evidence of copying is rarely available, the plaintiff can rely on circumstantial evidence to prove this essential element, and the most important component of this sort of circumstantial evidence is proof of access.” Id., citing 3 Nimmer, Copyright §13.02 at 13-9 (1983). In the absence of evidence of access, an inference of access may still be established “by proof of similarity which is so striking that the possibilities of independent creation, coincidence and prior common source are, as a practical matter, precluded.” Id.

         Copyright does not protect ideas, but only the expression of ideas. Williams v. Crichton, 84 F.3d 581, 587 (2d Cir. 1996). The difference between an idea and its expression is “elusive.” Id. at 588. “Professor Chafee . . . defined the boundary between idea and expression, stating that ‘protection covers the pattern of the work . . . the sequence of events and the development of the interplay of characters.'” Id. (quoting Zechariah Chafee, Reflections on the Law of Copyright, 45 Colum. L. Rev. 503, 513 (1945) (second ellipsis in original)).

         A. Facts

         The court begins with what defendants have asserted and plaintiff admits. Plaintiff admits that defendant Fasano is an award-winning author of more than forty romance and women's fiction books. (Resp. to Statement of Material Undisputed Fact [hereinafter “RSMUF”] ¶ 6, ECF No. 35-5.) Plaintiff admits paragraphs 27-32 and 36-60 of defendants' SMUF. These admissions establish as undisputed that plaintiff Rucker alleges that she began writing her book, The Promise of a Virgin, in late summer or early fall of 2010; that she alleges she had completed a synopsis and first chapter by November 2010; that the basic plot of the book is as summarized by defendants at paragraph 30 of their SMUF (ECF No. 31); that “Rucker submitted The Promise of a Virgin to a 2010 contest sponsored by Harlequin Enterprising, [sic] Limited” (“Harlequin”), a publisher; and that Harlequin rejected the entry as not strong enough in January 2011. (See also 1st Am. Compl. ¶¶ 10-11, ECF No. 9.) Plaintiff further admits that she purchased Fasano's Reclaim My Heart from Amazon in late 2013, and that upon buying Reclaim My Heart, she claims that she noticed several similarities to The Promise of a Virgin in the elements of the plot. The similar elements and some differences among the elements are set forth in defendants' SMUF and are admitted by plaintiff. (See ECF No. 35-5 ¶¶ 17-26.) While what plaintiff alleges is not ordinarily dispositive, in this case it is critical that plaintiff claims to have started her book only in the early fall of 2010, and only in 2010 did she submit her first chapter and synopsis to Harlequin. As defendants' SMUF, which plaintiff does not effectively contest, establishes, Fasano's book was written and completed (with the exception of minor changes) long before Rucker ever started on hers.

         Plaintiff Rucker has submitted a sworn declaration (ECF No. 35-1) that provides factual support for her allegation that she began writing The Promise of a Virgin “[s]ometime in the second half of 2010.” (Rucker Decl. ¶ 5.) She avers that she submitted her work to a Harlequin contest in November 2010. (Id.) She first discovered Reclaim My Heart in November 2013. (Id. ¶ 6.)

         In most of her RSMUF (specifically, ¶¶ 7-13, 15-26, and 33-35), Rucker attempts a denial, but her denials are ineffective under this court's rules applicable to summary judgment motions. What she says, repeatedly, is: “Ms. Rucker is without knowledge or belief to the truth of the matter asserted. Alternatively, denied.” (E.g., ECF No. 35-5 ¶ 7.) In this circuit, it is well-established that such assertions are inadequate as denials of defendants' Rule 56.1(b)(3) statement and are to be construed as admissions. As stated in Hisense USA Corp. v. Central Transport, LLC, No. 14 C 7485, 2015 WL 4692460, *1 (N.D. Ill. Aug. 6, 2015), because these responses attempt to deny defendants' SMUF without any citation to the record to establish a basis for the denial, they are improper and constitute an admission of defendants' SMUF. See also Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“a mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material”); McGuire v. United Parcel Serv., 152 F.3d 673, 675 (7th Cir. 1998) (“An answer that does not deny the allegations in the numbered paragraph with citations to supporting evidence in the record constitutes an admission.”). Considering these inadequate denials as admissions, as the court must, what has plaintiff admitted?

         Plaintiff has admitted that Fasano began writing what is now Reclaim My Heart (originally entitled For the Sake of their Son) in 2004. Fasano's agent, Evan Marshall, sent a proposal for the book to Tara Gavin, a Harlequin editor, sometime in 2006. Gavin told Fasano in October 2006 that she liked the script but requested some changes. Fasano made the requested revisions and renamed the book Hindsight. Marshall sent the revised proposal for Hindsight to Gavin on November 22, 2006. Pursuant to an agreement dated January 30, 2007, Harlequin agreed to publish Hindsight. Fasano completed the manuscript of Hindsight and sent it to Gavin in June 2007. However, Harlequin decided not to publish the book and terminated the agreement in 2008. In 2013, Reclaim My Heart was published and sold on

         After the 2008 termination of the agreement, Fasano did not work with Harlequin again. Fasano has never judged a Harlequin writing contest. Nor did Fasano ever receive a copy of The Promise of a Virgin from Harlequin before she wrote the story that became Reclaim My Heart. (Fasano Decl., Ex.1 to SMUF, ECF No. 31-1.)

         Defendant's SMUF also deals with the issue of what changes Fasano made in her manuscript after Harlequin rejected it and before Amazon published it. The period of time involved here is 2008 until 2013, the period during which Rucker wrote her chapter and synopsis and submitted it to Harlequin. Fasano admits making changes, albeit minor ones, in her manuscript after it was rejected by Harlequin in 2008 and published by in 2013. The relevant paragraphs in defendants' SMUF are numbers 17-26. Rucker has ineffectively denied these paragraphs, so they are deemed admitted. They establish that Reclaim My Heart, the novel published by Fasano on, and Hindsight, the version of the novel written for Harlequin in 2007, have the same characters, plots, settings, and sequence of events. (¶ 17.) They have the same opening scene, in which the heroine, Tyne, arrives at a police station to pick up her son, Zach, after he is caught spraying graffiti on the school gym. (¶ 18.) In both books, Tyne has not seen Zach's father, Lucas, since she was a teenager because her father had bribed Lucas, who is half Native American, to stay away from his family. (¶ 19.) In both books, Tyne finds Lucas, now an attorney, and asks him to represent Zach in juvenile court. (¶ 20.) In both books, in the years before Tyne reconnects with Lucas, Tyne has married someone else, who died when Zach was young, and has become engaged to another man. (¶ 21.) In both books, when the judge orders Lucas to take Zach to the Native American community where he grew up, Tyne accompanies Lucas and Zach, breaks off her engagement and rekindles her romance with Lucas. (¶ 22.) The hero's name in Hindsight is Lucas Silver Fox. In Reclaim My Heart, it is Lucas Silver Hawk. (¶ 23.) The books differ in that Reclaim My Heart includes two intimate scenes between the protagonists and two scenes discussing tattoos. (ΒΆ 24.) The two books have minor wording ...

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