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Christmas Came Early for Defendants Seeking Dismissal in “Krampus” Copyright Infringement Case

By Elizabeth A. Sloan

What does a mythical, half-goat, half-demon, who, during the Christmas season, punishes disobedient children have in common with Delaware? The District Court of Delaware actually found no substantial similarity between Legend Picture's movie and Plaintiff's book, dismissing the infringement case on the pleadings. Purohit v. Legend Pictures, LLC, 2020 U.S. Dist. LEXIS 50655 (D. Del., Mar. 24, 2020).

Background

According to medieval Central European folklore, Krampus is the anti-Santa. While Saint Nick leaves presents for the good children, this chain carrying, hairy, horned, hooved creature carts off the naughty ones. In the last decade, Krampus parties and parades have creeped into the Christmas season in this country as an antidote to what some believe is the over-commercialization and saccharinity of Christmas.

With the Krampus fascination gaining speed, in December 2015, Legend Pictures and Universal Pictures released the film Krampus, a comedy horror movie based upon Santa's evil counterpart. An original graphic novel titled Krampus: Shadow of Saint Nicholas was also released on November 25, 2015 by Legendary Entertainment, as a companion piece. Both joined numerous North American media works featuring this villainous public domain character.

Three years later, and after first filing suit in Canada, in November 2018, Kaylan Purohit sued Universal and Legend in the United States District Court for the District of Delaware. Purohit claimed the film, graphic novel, and related promotional materials infringed his copyrighted work, a self-published illustrated storybook, "The Krampus Night Before Christmas." Purohit also created a 2012 YouTube video reading of the novel, showing illustrations from the book – a derivative work he also claimed was infringed.

Motion to Dismiss

Legend and Universal moved to dismiss based on the first-filed Canadian suit and for failure to state a claim, arguing, inter alia, that Purohit had failed to allege a plausible claim of access to his work, and had also failed to allege substantial similarity between protectable elements of his book, and the Krampus film. On March 24, 2020, the Court dismissed Purohit's lawsuit.

The Court initially heard argument focusing on the first-filed Canadian case and suggested Plaintiff dismiss it or face a potential dismissal or stay in Delaware. After Plaintiff dismissed the Canadian suit, the Court turned to the issue of substantial similarity. Relying on the briefs as well as the works at issue, the Court found that the Krampus character is "unprotectable because it is an idea and in the public domain," id., at *7, and concluded that "only elements that distinguish the Book's illustrations of Krampus from the Krampus in the public domain may be protectable." Id. at *8.

Purohit argued that his book's specific depiction of Krampus with "horns like those of a Walia ibex, a lack of black fur, a pronounced hunch, a long beard, glowing slanted eyes, a tattered red robe, limply bent arms, and clawed hands" were infringed by similar images in the Krampus film. But, the Court concluded that these visual elements were not protectable because they are "too common and generic, and constitute scenes-a-faire that flow directly from historical depictions of Krampus and themes of both Christmas and horror entertainment." Id.

According to the Court, "a lay observer would not believe that the Film copied the Book's protectable elements of expression—the exact illustrations in the Book—such as to support a finding of substantial similarity." Id. Instead, "[t]he 'total concept and feel' of Krampus as expressed in the Film is significantly different from how Krampus is expressed in the Book," such that "[a] lay observer would not find substantial similarity between the two." Id. at *9-10. Having failed to establish direct infringement, the Court also dismissed Plaintiff's claims for indirect infringement.

The Court also rejected Plaintiff's "moral rights" claims, holding Plaintiff's works were not eligible for moral rights protection under the Visual Artists Rights Act ("VARA") because 17 U.S.C. §106A only applies to "works of visual art," which "does not include any . . . book." The Court rejected Plaintiff's argument under VARA that the book should be considered a "work of visual art" because it contains drawings and paintings, holding that the statute's protection only applied where fewer than 200 copies were involved, whereas Plaintiff alleged he sold over 500 copies. See Purohit, 2020 U.S. Dist. LEXIS 50655 at *10-11.

Purohit underscores the utility of a motion to dismiss for lack of substantial similarity, which can, in certain circumstances, be decided as a matter of law based on the complaint and the works at issue. Such a motion can be successful where, as in Purohit, protectable elements in the plaintiff's work are scarce and when claims of similarity appear strained. While substantial similarity is typically considered a question of fact, where the works are before the court, and are readily capable of review and examination without expert assistance, the Third Circuit recently held, in Tanksley v. Daniels, 902 F.3d 165 (3rd Cir. 2018), cert. denied, 139 S. Ct. 1175 (2019), that courts are empowered to dismiss copyright infringement cases "if no trier of fact could rationally consider the two works to be substantially similar." Id. at 171 (internal quotes and citations omitted). Thus, these motions to dismiss at the pleading stage can sometimes, like St. Nick, bring good cheer to defendants.

Elizabeth A. Sloan is a partner in the Wilmington, DE office of Ballard Spahr LLP. A special thank you to David Grossman, at Loeb & Loeb, LLP, who together with Ms. Sloan represented Legend Pictures and Universal Pictures in this action, and contributed to this article. Plaintiff was represented by Timothy Devlin, Devlin Law Firm, Wilmington, DE.

 
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