Percy Jackson has won the day for his publisher, studios and author one more time. Reaffirming a previous judge’s opinion, a three-judge panel ruled Thursday in New York that Rick Riordan’s bestselling fantasy franchise is not a ripoff of other writers’ work. “By comparing the protectable elements of the parties’ works, with an eye toward the ‘total concept and overall feel,’ the district court properly determined that the two sets of books are not substantially similar as a matter of law,” the Second Circuit panel said in a summary order (read it here). Last year, Disney and 20th Century Fox successfully sought to have dismissed a 2010 copyright suit against Riordan and their companies by authors Robyn and Tony DiTocco. Disney-Hyperion is the publishers of the Percy Jackson books, and Fox distributed the 2010 Chris Columbus-directed Percy Jackson & The Olympians: The Lightning Thief. A sequel, Percy Jackson: Sea Of Monsters, is scheduled to come out on August 16, 2013.
In their initial suit two years ago, the DiToccos claimed Riordan’s five Percy Jackson books — the first of which was published in 2005 — heavily derived from their 2002 book The Hero Perseus: A Mad Myth Mystery and 2004’s Atlas’ Revenge: Another Mad Myth Mystery. Among the similarities between the works the DiToccos cited was that their books have as their hero a teenage boy named Percy John Allen, a descendent of Perseus from Greek mythology. In Riordan’s books, his main character is the son of a human and the Greek sea god Poseidon.
The DiToccos, represented by Malibu-based attorney Marc Toberoff, appealed the 2011 dismissal and arguments were heard from lawyers on both sides earlier this week. While noting the similar names of the characters, the panel yesterday in its reaffirmation of Judge Sidney Stein’s original September 2011 opinion pointed out the differences in the characters and the settings for the stories. Riordan’s books take place in the modern world, while the DiToccos’ are set in Ancient Greece. The panel also noted “the subject matter of these novels necessitates significant reliance on Greek mythology for many characters, settings and classic stories. This material has entered the public domain and is not protectable.” The defendants are represented by Sanford Litvack of the New York office of Hogan Lovells.