Plaintiffs, author and illustrator of a children's book, “My Mother Is The Most Beautiful Woman In The World,” sued defendants who published a “Sesame Street” TV skit and magazine story with a similar title and plot. Both plaintiffs’ and defendants’ stories featured a lost child describing its mother as the most beautiful woman in the world when strangers perceived her as homely. The defendants argued that the similarity was only in unprotectable ideas or what was taken from the public domain. The district court concluded there was substantial similarity between the plots but that defendants were not infringing because the plaintiffs’ book was a derivative work based on a story in the public domain where the plot was entirely derived from the public domain work. The district court found no literal copying of plaintiffs’ original expressions.
The Second Circuit affirmed that the defendants’ works did not infringe but noted that plaintiff’s work was not a derivative work.
First, the Second Circuit rejected the lower court’s “derivative work” reasoning. Although Reyher, one of the plaintiffs, based the book on a story her mother told her as a child, she borrowed only the idea from the public domain work.
Nonetheless, the circuit court upheld the district court’s finding of noninfringement because the only similarities between the defendants’ works and the plaintiffs’ book were uncopyrightable ideas and scènes à faire. Both defendants’ and plaintiffs’ stories were about a lost child finding the mother, claiming she was beautiful even though no one else agreed. The court opined that “Copyrights . . . do not protect thematic concepts or scenes which necessarily must follow from certain similar plot situations.” The court pointed out that when a child is lost, it is common for the child to find its parents again, so such a plot cannot be protected.
In addition to Hand’s “abstraction test,” the court compared the "total concept and feel" of the works (a test laid out by the Ninth Circuit in Roth Greeting Cards v. United Card Co., 429 F.2d 1106 (9th Cir. 1970)) because it was better suited for children’s stories which did not lend themselves to many levels of abstraction. This was the first time the Second Circuit introduced the “total concept and feel” test. Because the stories each had a different setting, focus, and morals, the court concluded that the stories were not substantially similar.