Christenson v. Family Life Publishing, No. 6:13-cv-254-AA, 2013 WL 5781276 (D. Or. Oct. 23, 2013)

Plaintiff Laloni Christenson claimed that defendants Family Tree Publishing and Campus Crusade for Christ, Inc. stole, i.e., infringed her manuscript, “Christ for Christmas: An interactive Christmas devotional guide for the whole family.” The District Court of Oregon disagreed, finding as a matter of law the plaintiff’s copyright in her Nativity-themed manuscript was thin and could not be infringed absent identical copying, which was not present.

In 2003, the plaintiff authored her manuscript, which focuses on the characters from the Nativity scene and is designed for parents to engage their children in different devotional exercises in the days leading up to Christmas. The manuscript advises to wrap each Nativity piece in Christmas wrapping paper and then open one gift per day; the last gift instructs children on how to give their lives to Christ as a gift.

After registering the manuscript for copyright protection, the plaintiff sent it to the defendants, who rejected it but did not return it to her. In 2005, the defendants published a children’s book entitled “What God Wants for Christmas.” The plaintiff sued for copyright infringement, alleging that the concept and feel; theme and message; and sequence, organization, and pace of the defendants’ work were substantially similar to her manuscript. The defendants moved to dismiss her claims.

Focusing on the issue of whether the works were substantially similar, the court set out the Ninth Circuit’s two part test: (1) first the court determines whether the works are objectively similar, i.e., whether they share “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events,” and (2) it considers whether the works are subjectively similar in that an ordinary person would subjectively find the works substantially similar.

The plaintiff conceded that neither the Nativity story nor its characters were protectible and acknowledged that individually, the Nativity scene characters, the family-centered exercises of unwrapping gift boxes with figurines of the characters, the message of giving one’s life to Christ as a Christmas gift, etc., were too generalized to warrant copyright protection. Nevertheless, the plaintiff contended that the particular combination and mode of expressing all of those elements in her work did merit protection. Noting that the plaintiff’s argument conflated the extrinsic and intrinsic tests, the court refused to gauge the overall feel and similarity in the works (intrinsic test) absent a showing by the plaintiff that there were protectible elements in her work (extrinsic test).

Finding that the elements alleged by the plaintiff to be protectible—sequencing, instructions, questions, gifts, variations, and how to lead someone to God—merged with unprotectible ideas and subject matter, the court held that there was “little left” for it to evaluate and therefore the plaintiff’s copyright was thin. Because there was no argument or evidence of virtually identical similarities, the plaintiff’s claim was due to be dismissed.

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