IP Law Daily, COPYRIGHT—S.D. Cal.: Preliminary injunction denied in suit alleging author stole ideas from other writers, (Jan 30, 2025)

By Patricia K. Ruiz, J.D.

The court found that the allegedly infringed upon books’ appearance on a popular website did not sufficiently allege the defendant had access to the material.

The U.S. District Court for the Southern District of California denied a motion for preliminary injunction by L ALD LLC, the authors of two young adult (YA) books alleged to have been copied. The court found the plaintiffs’ arguments to be conclusory and unsupported by facts (L ALD LLC v. Gray, No. 3:24-cv-02195-GPC-MSB (S.D. Cal. Jan. 28, 2025)).

Background. Rebekah Gray writes YA fiction under the pen name RM Gray. She began writing Nightweaver in January 2020, completed a substantial draft of the novel by October 2020, and sent a complete manuscript to her editor on June 13, 2022.

Plaintiffs, siblings Lesley and Lindsey Aldrich write YA novels under the pseudonym Liz Ald. They have authored a three-novel series, the first two of which are at issue in this case: The Boy with the Beautiful Name (Book 1) and The Boy with the Beautiful Soul (Book 2). The plaintiffs allege that a portion of Book 1 was first posted on the website Wattpad, an interactive web-novel platform where authors can publish their content, on January 8, 2022. The plaintiffs posted multiple chapters each month on Wattpad, with the entire book posted to the website by July 2022. A portion of Book 2 was posted to Wattpad on August 5, 2022, and the entire book was posted by March 2023. Lesley Aldrich obtained registered copyrights for both books on February 5, 2024, and then transferred the interests in the copyrights to L ALD LLC, the entity she owns with her sister.

Lawsuit. Noticing similarities between Nightweaver and Book 1 and Book 2, including plot, character, and setting similarities, Lesley Aldrich sent via her then-counsel a cease-and-desist letter to Gray and Gatekeeper Press, LLC, among others, asserting copyright infringement. The letter was sent five months after Nightweaver was first published. Gray’s counsel responded to the letter arguing that the allegations were without legal and evidentiary support and stating that Gray would continue to sell and distribute Nightweaver. Gray’s counsel forwarded to the plaintiffs the June 2022 email in which Gray submitted a complete manuscript of Nightweaver to her editor. The plaintiffs argued that Gray had manipulated the manuscript to make it appear that the manuscript pre-dated the plaintiffs’ works. The plaintiffs moved for preliminary injunction to enjoin the defendants from selling Nightweaver on any medium.

Access. The plaintiffs argue that access is established because of the “widely disseminated” nature of Book 1 and Book 2 on Wattpad. However, the court disagreed, as the plaintiffs’ argument is based on the popularity of the Wattpad website, and not the books themselves. To prove access, the plaintiffs must prove that Book 1 and Book 2 were widely read and disseminated. The court found the plaintiffs’ other arguments as to the popularity of the books to be lacking in support. Further, the court found that the popular nature of Wattpad may undermine the proposition that the books are widely disseminated, as the greater the number of works available on Wattpad, the likelier that the plaintiffs’ works did not cut through and reach a level of prominence and dissemination.

The court found the issue of timing to be even more fatal to the plaintiffs’ argument, as Gray could not have had access to the plaintiffs’ works if she had already finished much of the work on Nightweaver before the plaintiffs posted Book 1 and Book 2 on Wattpad. The court noted that many of the allegedly infringing elements were present in the October 2020 partial draft and that all were present in the complete June 2022 manuscript. The court found no reason to doubt the validity of the email containing Gray’s completed manuscript. Thus, the court found the plaintiffs have not carried their burden to show that the two books were sufficiently widely disseminated.

Striking similarity. The court further found that the alleged infringing elements are not striking, as the most surprising similarities pointed out by the plaintiffs are easily distinguishable on closer look. The court further found the plaintiffs’ other arguments as to striking similarity to be conclusory and lacking in legal and evidentiary support.

Unlawful appropriation. The plaintiffs failed to establish the second prong, unlawful appropriation, utilizing either the extrinsic test or the extrinsic test. The extrinsic test focuses on articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. The court was not convinced by the plaintiffs’ alleged 58 instances of character similarities, 43 instances of plot similarities, and 99 instances of scene similarities, finding the plaintiffs failed to meet the extrinsic test because they cannot prove substantial similarity based on the provided examples of non-protected ideas, common themes, and scenes-a-faire. The intrinsic test looks to whether there is a similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance. Because the plaintiffs failed to meet the extrinsic test, the court found it need not consider the intrinsic test, as both needed to be met in order for unlawful appropriation to be found.

Finding that the plaintiffs failed to show a likelihood of success on the merits, the court determined it need not reach the other elements required for a preliminary injunction and denied the plaintiffs’ motion.

The Case is No. 3:24-cv-02195-GPC-MSB.

Judge: Curiel, G.

Attorneys: Cody R. LeJeune (Lejeune Law, PC) for L ALD LLC. Allison Michelle Aviki (Mayer Brown LLP) for Rebekah M. Gray, Merlin Publishing LLC, Gatekeeper Press, Ingram Industries Inc., and Hatchette Book Group.

Companies: L ALD LLC; Merlin Publishing LLC; Gatekeeper Press; Ingram Industries Inc.; Hatchette Book Group

Cases: Copyright CaliforniaNews GCNNews