[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2231
ANNE HILTNER,
Plaintiff, Appellant,
v.
SIMON AND SCHUSTER, INC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Anne Hiltner on brief pro se.
Peter Herbert, Milissa Mather, Lankler, Siffert & Wohl, Warren
M. Silver, Karen D. Kemble and The Silver Law Firm on brief for
appellees Simon & Schuster, Inc., and Stephen R. King.
Robert H. Stier, Jr., and Pierce Atwood on brief for appellee
Glassbook, Inc.
April 5, 2002
Per Curiam. Appellant Anne Hiltner sued Stephen
King, Simon & Schuster, and Glassbook, Inc., alleging that
Riding the Bullet, a novella written by Stephen King and
published on the Internet, was copied from an unpublished
manuscript entitled Robert Adams. This manuscript was authored
by appellant's late brother, and appellant apparently has an
ownership interest in the copyright for this work. Appellant
also asserts that certain events described in Riding the Bullet
are based directly on the actual hospitalization and emergency
surgery of appellant's mother. Based on the foregoing,
appellant claimed copyright infringement and invasion of
privacy. These claims fail, as a matter of law, for the
following reasons.
1. Copyright Infringement. It is plain from a
review of both works that they are not "substantially similar."
See 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §
13.01[B], at 13-8 to 13-9 (2001) (to state an actionable
copyright claim, a plaintiff must show that "the defendant's
work is substantially similar to [the] work [in question] such
that liability may attach"). In particular, neither the
sequence of events nor the development of the characters in
Robert Adams have been replicated in Riding the Bullet. See
id. § 13.03[A][1][b], at 13-32. Further, and despite
appellant's allegations to the contrary, she has failed to
identify any matter in Riding the Bullet which was quoted
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directly from Robert Adams. See id. § 13.03[A][2], at 13-45.
Appellant therefore has no copyright claim.
2. Invasion of Privacy. A tort action for the
following four kinds of conduct may be brought as a claim for
invasion of privacy: (1) "unreasonable intrusion upon the
seclusion of another"; (2) "appropriation of the other's name
or likeness"; (3) "unreasonable publicity given to the other's
private life"; and (4) "publicity that unreasonably places the
other in a false light before the public." See Nelson v. Maine
Times, 373 A.2d 1221, 1223 (Me. 1977) (quoting the Restatement
(Second) of Torts § 652A (1977); internal quotation marks
omitted). However, "[e]xcept for the appropriation of one's
name or likeness, an action for invasion of privacy can be
maintained only by a living individual whose privacy is
invaded." Id. at 1225 (quoting Restatement (Second) of Torts
§ 652I; internal quotation marks omitted and emphasis added).
Appellant has failed to demonstrate a claim for any of the
above.
First, her allegation that she has been under
surveillance for years is completely conclusory and is not
supported by specific facts. Second, because neither she nor
her mother possibly could be identified from anything in Riding
the Bullet, the defendants have not engaged in any
misappropriation of name or likeness. Finally, there is
absolutely no evidence that anything in Riding the Bullet
concerns appellant's private life nor places appellant in a
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false light. That is, appellant has not shown that anything in
the novella pertains to her.
Affirmed. Appellant's motion to hold this appeal in
abeyance until the University of Maine and the Maine Division
of Mental Health file briefs is denied as moot.
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