United States District Court, D. Connecticut
For Joseph Leary, Plaintiff: Benjamin C. White, Steven B. Simonis, LEAD ATTORNEYS, Stephen S Zimowski, St. Onge, Steward, Johnston & Reens, Stamford, CT.
For Roy Manstan, Frederic Frese, Defendants, Counter Claimants: Noam Kritzer, LEAD ATTORNEY, PRO HAC VICE, Bakos & Kritzer, Florham Park, NJ; Regina von Gootkin, LEAD ATTORNEY, Brown Paindiris & Scott, LLP, Glastonbury, CT.
For Westholme Publishing, LLC, Defendant: Noam Kritzer, LEAD ATTORNEY, PRO HAC VICE, Bakos & Kritzer, Florham Park, NJ.
For Joseph Leary, Counter Defendant: Steven B. Simonis, LEAD ATTORNEY, St. Onge, Steward, Johnston & Reens, Stamford, CT.
[115 U.S.P.Q.2d 1661] ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Jeffrey Alker Meyer, United States District Judge.
This copyright case involves two non-fiction works about the so-called " Turtle," a Revolutionary War-era submarine built by a farmer from Connecticut named David Bushnell. The life of David Bushnell and his invention of the Turtle has captured the imagination of several writers. Plaintiff Joseph Leary is the author
and copyright owner of an unpublished manuscript on this subject, and so are defendants Frederic Frese and Roy Manstan, who wrote a later book published by defendant Westholme Publishing, LLC.
Plaintiff principally contends that defendants' book infringes on his copyright in the unpublished manuscript. I conclude that there is no genuine issue of fact to support this claim. It is true that the two works are about much of the same basic subject matter, but there is no claim that defendants engaged in verbatim copying or close paraphrasing of plaintiff's work. Copyright law otherwise affords only narrow protection to works of history, and subsequent authors may utilize the same facts, theories, and concepts contained in prior works so long as they do not copy another author's particular original manner of expression. In view of this rigorous standard and my comparison of the two works at issue in this case, I conclude that no reasonable jury could find that defendants' book infringes plaintiff's copyright in the manuscript. Accordingly, I will grant defendants' motion for summary judgment.
The Turtle--or the American Turtle, as it is sometimes called--is a fascinating historical curiosity. Well over a century before the advent of modern submarine warfare, David Bushnell built this one-man wooden submersible to conduct underwater attacks on the British naval fleet along American shores. Founding fathers like George Washington and Benjamin Franklin were aware of and supported Bushnell's efforts. Ultimately, the Turtle never accomplished its goal of destroying British ships. But in many ways the project was a success: the Turtle was the first submersible vessel used in a war, its revolutionary screw propeller design is still in use today, and Bushnell discovered how to make gunpowder explode underwater.
The history of David Bushnell and the Turtle submarine has long intrigued plaintiff Joseph Leary. In the 1970s, plaintiff worked with defendant Frederic Frese to build a working replica of the submarine.
[115 U.S.P.Q.2d 1662] The replica was launched with much fanfare in 1977, and today it is on display at the Connecticut River Museum in Essex. While working on the 1977 replica, plaintiff researched information about Bushnell and the various techniques that Bushnell used to build the Turtle. Plaintiff's research has continued in the ensuing decades, and over the years plaintiff has incorporated his discoveries into an ever-evolving (and as--yet--unpublished) manuscript weaving together a biography of Bushnell, historical information about the Turtle, and plaintiff's experiences building the replica.
At some point in the intervening decades, plaintiff gave Frese a copy of a version of his manuscript, which was then titled The Famous Water Machine from Connecticut. That version began with the following dedication: " This work is inspired by and dedicated to Frederic Frese . . . without whom I would know absolutely nothing about David Bushnell or submarines." Doc. #53-6 at 3. In 2002, plaintiff applied for and was granted federal copyright registration with respect to a subsequent version of the manuscript, which had by then been retitled David Bushnell and the American Turtle. Plaintiff continues
to work on the manuscript, and he intends to publish it once it is completed.
The 1977 replica of the Turtle would not turn out to be the only replica of Bushnell's submarine. Over two decades later, in the early 2000s, the National Maritime Historical Society became interested in building another replica of the Turtle. The Society asked plaintiff to participate in the project, and plaintiff, in turn, asked Frese to join. Defendant Roy Manstan, an engineer from the Naval Undersea Warfare Center, was also brought in to assist with the building of another ...