Freeman v. Deebs-Elkenaney
- Colleen McMahon
- 1:22-cv-02435
- U.S. District Court · Southern District of New York
- 4
In Freeman v. Deebs-Elkenaney, Judge Stanton overruled Freeman’s objections and upheld a pretrial order requiring her to identify two manuscripts for copyright comparisons.
Lynne Freeman must identify two manuscripts for use as primary comparison works in the pretrial copyright proceedings; the defendants are affected because those manuscripts will provide the basis for comparing the parties’ writings.
What happened
In Freeman v. Deebs-Elkenaney, Lynne Freeman objected to Magistrate Judge Sarah Netburn’s order in her copyright-infringement case. The order required Freeman to identify two manuscripts as the primary works for comparing her writings with books in the Crave series.
The court explained that common phrases and clichés generally are not protected by copyright unless used in a specially original way. It also said Freeman could not combine pieces from 30 volumes of work-in-progress material instead of identifying particular works for comparison. Requiring two manuscripts would help determine whether any protected elements were substantially similar, including similarities in plot, dialogue, setting, mood, pace, or sequence.
Judge Louis L. Stanton held that Magistrate Judge Netburn’s order was practical, lawful, and within her authority over general pretrial matters. He overruled Freeman’s objections and clarified that choosing two test manuscripts did not rule on the rest of Freeman’s evidence.
The detailed version
- Freeman v. Deebs-Elkenaney · No. 1:22-cv-02435
- Colleen McMahon
- Feb. 27, 2023
Background
Lynne Freeman brought claims alleging that defendants copied and infringed literary material. Freeman’s objections challenged a January 11, 2023 order by Magistrate Judge Sarah Netburn. The district court had referred general pretrial matters to Magistrate Judge Netburn, including scheduling, discovery, non-dispositive pretrial motions, and settlement.
Freeman identified numerous phrases appearing in both her writings and the defendants’ writings, including common expressions such as “two sides of the same coin” and “careful what you wish for.” She also relied on a 30-volume collection called the “Freeman Copyrighted Material” and argued that the court should consider that collection as a whole when comparing her work with the Crave series.
Court’s Analysis
The court stated that truisms, clichés, commonplaces, and simple short phrases generally are not protected by copyright unless used in a specially innovative and original manner. Freeman’s use of those phrases did not give her ownership of them because she had not invented them. A phrase might acquire significance from the setting and circumstances in which it appears in a completed work, but the court said the alleged similarities had to be evaluated using particular works rather than an amalgamation of fragments from works in progress.
The court approved Magistrate Judge Netburn’s direction that Freeman identify two manuscripts to serve as the primary works for comparison. That approach would allow a fact finder to examine whether the phrases had a special use or effect and whether the works were substantially similar in protected elements such as plot, theme, dialogue, mood, setting, pace, and sequence. The court emphasized that the order did not decide what evidence could be admitted at trial, exclude evidence, or rule on the rest of Freeman’s evidence.
Ruling
Judge Louis L. Stanton held that Magistrate Judge Netburn’s order was within her responsibility for general pretrial matters and was neither erroneous nor contrary to law. The court overruled Freeman’s objections. The selection of two manuscripts was not a ruling on the remainder of Freeman’s evidence.
Disposition
Freeman’s objections to Magistrate Judge Netburn’s January 11, 2023 order were overruled. The opinion did not decide whether infringement occurred or whether the parties’ works were substantially similar.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.