Kassel v. Moynihan, Jr.

Background

Daniel Kassel alleged that his original animated short, Happily Everglades After, was copied by Robert Moynihan, Jr., Cartuna LLC, and Comedy Partners in creating and distributing the animated series Loafy. Kassel developed the Jukebox Manatee project beginning in 2013, presented versions of it at Pratt Institute between 2018 and 2019, completed the final version in 2019, and later screened, posted, and registered it with the U.S. Copyright Office.

Kassel alleged that people who had attended presentations of his work later worked at Cartuna, which worked on Loafy. For purposes of the motion, the court accepted Kassel’s allegation that the defendants had access to his work. The court considered the complaint and the two works themselves because they were integral to the complaint.

Kassel asserted two copyright-infringement claims, a Lanham Act unfair-competition claim, and a claim under Section 349(a) of the New York General Business Law. The defendants moved to dismiss all claims.

Copyright Claims

A copyright-infringement claim requires ownership of a valid copyright and copying of original elements. The court focused on whether Loafy was substantially similar to the protectable expression in Happily. Because Happily included unprotectable ideas and standard elements, the court used the more careful comparison required when a work contains both protected and unprotected material.

Kassel identified four key similarities: a manatee protagonist, a laid-back attitude, a human girlfriend, and a character who experiences misfortunes while commenting on life with irony and dark humor. The court held that these features, to the extent they were shared, were largely general character types, ideas, or standard story elements that copyright law does not protect. The court also found that the works differed substantially in their overall concept and feel:

- Loafy is an eight-part, brightly colored animated series set at a dilapidated zoo, while Happily is a four-minute stop-motion short set in the Florida Everglades. - Loafy centers on a crude, foul-mouthed manatee who is a drug dealer and has a manatee son and a human girlfriend. Happily centers on Jukebox Manatee, who does not have an occupation, use human technology, or converse with humans. - The works portray different supporting characters, settings, events, styles, tones, and messages. - Loafy uses crude humor and is designed to make viewers laugh, while Happily presents a darker commentary on the mistreatment of manatees, the environment, and wildlife.

The court also rejected Kassel’s alternative argument based on “fragmented literal similarity,” which applies when a defendant copies a portion of a work exactly or nearly exactly. The court found that Kassel did not allege literal copying and that the works contained no sequences showing exact or nearly exact copying.

The court therefore dismissed both copyright claims. It treated the second copyright count as duplicative of the first because Kassel acknowledged that the counts were not substantively different except for the defendants named. The copyright claims were dismissed without leave to amend because the lack of substantial similarity could not be cured by amendment.

Lanham Act Claim

Kassel alleged under Section 43(a) of the Lanham Act that the defendants falsely represented the origin of Loafy and caused consumers to believe that the defendants’ work was theirs rather than Kassel’s. Kassel did not respond to the defendants’ arguments seeking dismissal of this claim and instead stated that he would seek permission to amend it. The court dismissed the Lanham Act claim.

New York Deceptive-Practices Claim

Kassel alleged that the defendants violated Section 349(a) of the New York General Business Law through misleading representations about the origin of Loafy. The defendants argued that the claim was preempted by the Copyright Act because it asserted rights equivalent to copyright rights without an additional element. Kassel did not respond to that argument and instead said he would seek permission to amend. The court dismissed the state-law claim.

Leave to Amend and Disposition

The court granted Kassel leave to amend the Lanham Act and state-law unfair-competition claims because he had not previously amended the complaint. Kassel was given 21 days from the opinion and order to file an amended complaint concerning those claims. The court did not grant leave to amend the copyright claims. If Kassel did not amend within the stated period, the court said it would close the case.

Judge Jennifer L. Rochon granted the defendants’ motion to dismiss. The order terminated the pending motion, dismissed the copyright claims without leave to amend, dismissed the Lanham Act and state-law claims, and granted leave to amend the latter two claims within 21 days.