By: Dunlap Bennett & Ludwig  [6/17/22]

THE SUPREME COURT OF THE UNITED STATES DENIES PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT IN CASE CONCERNING TIME TRAVELING, KNIFE-WEILDING, WESTERN ATTIRED HEROES WITH KNIGHTLY HERITAGE

In late 2021, The Supreme Court of the United States denied a petition for writ of certiorari to the United States Court of Appeals for the Eleventh Circuit from Benjamin DuBay, the nephew of William DuBay, the latter being the creator of a comic book character known as Restin Dane who was featured in a comic book series called The Rook in the late 1970s and early 1980s. Benjamin DuBay allegedly received an assignment of William DuBay’s copyright interest in The Rook

The Rook chronicled the tales of Dane, a time-traveling traditional comic book hero who is a wealthy scientist and inventor living in a rook chess piece-shaped home known as “Rook Manor” in Arizona. Dane develops his own time machines shaped like rook chess pieces and battle villains. The Rook comic book series sold more than five (5) million copies from 1977 to 1983.  

Stephen King is a well-known author that wrote The Dark Tower, which is a series of novels and a novella published between 1982 and 2012 concerning Roland Deschain, a loner anti-hero chasing a Dark Tower, which is the nexus that ties worlds and dimensions together.  The Dark Tower was licensed for graphic novels and was adapted into a major motion picture in 2017.  

DuBay sued King for copyright infringement and lost on a motion for summary judgment at the trial court level before appealing to the Eleventh Circuit. Among other things, DuBay claimed that King had access to The Rook series and that The Dark Tower was substantially similar to The Rook given that Dane and Deschain were substantially similar as they: (1) had similar names, (2) interacted with towers that are integral to time travel, (3) have bird companions, (4) are marked by knightly characteristics, (5) travel back in time to save a young boy who becomes a gunslinger, (6) wear Western garb, (7) survive a fictionalized Alamo, and (8) use knives. DuBay further argued that Dane was the first character which combined those elements into a distinctive and original character and that King copied him with the Deschain character.

The Eleventh Circuit Court of Appeals disagreed with DuBay. 

First, it noted that character names are not afforded copyright protection.  

Second, it noted that although the Dane and Deschain characters shared similarities in having knightly heritage, time travel, western attire, fictionalized Alamo histories and wielded knives, such similarities were merely scènes à faire, which are general themes that are unprotectable by copyright.

Third, the Eleventh Circuit analyzed the copyright protectable Dane and Deschain similarities related to towers and tower imagery, bird companionship, and that both characters saved a young boy in a different time but found them not to be substantially similar. This is so because the Dane character resided in a rook chess piece house and built time machines that looked like that house while the Deschain character’s Dark Tower was neither a house nor a time machine but a nexus tying worlds and dimensions together and an end goal for Deschain’s quest. The bird companion elements were different as Dane embraced the rook bird as a belt buckle, wore rook wings, and flew into battle alongside a rook bird while Deschain merely encountered a talking crow and allied with a fighting hawk that he eventually sacrificed in furtherance of his own goals. The young male companion element was also different as Dane’s young boy companion was his great-great-grandfather and was saved by Dane at the battle of the Alamo while Deschain encountered and bonded with a young boy that he ultimately ended up sacrificing to further his own goals.  

When evaluating the Dane and Deschain characters on the whole, the Eleventh Circuit found even further dissimilarity, noting that Dane was more of a simple traditional comic book hero while Deschain was more properly categorized as a complex anti-hero. Given the Eleventh Circuit’s ruling, DuBay petitioned the Supreme Court of the United States for a writ of certiorari to the Eleventh Circuit, however, by denying it, the Supreme Court foreclosed any further avenue of appeal for DuBay and the Eleventh Circuit’s ruling will remain undisturbed on these issues.  

Geoffrey M. Dureska is Senior Counsel in the Atlanta Office of Dunlap, Bennett & Ludwig, and focuses on business and intellectual property litigation.

Our copyright infringement lawyer litigation team has significant experience litigating and resolving copyright disputes in a number of contexts and industries, and on behalf of both plaintiffs and defendants. For more information on how Dunlap Bennett & Ludwig can help you with your legal needs, contact us by calling 800-747-9354 or emailing clientservices@dbllawyers.com.


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