Pennsylvania Record

Monday, October 21, 2019

Appeal filed in lawsuit over 'Albert the Tree' by children's author


By John Breslin | Jun 28, 2018

PHILADELPHIA - An appeal has been filed to the U.S. Court of Appeals for the Third Circuit in a case in which children's author Jennie Nicassio claims a major publisher and media company ripped off her idea in order to publish a strikingly similar book and air a television special.

Earlier this year, the U.S. District Court for the Western District of Pennsylvania dismissed the claim, ruling that the two books in question, both tales of Christmas trees dreaming of making it in New York, were not substantially similar.

The district court ruled that, legally, the two books were not similar enough for the lawsuit to proceed, despite Nicassio's claim that various characters and plot lines that were in her book, "Rocky, the Rockefeller Christmas Tree," were like those in "Albert the Tree," a book published by defendant Penguin Random House LLC.

The lawsuit claimed that "Rocky" was first sold in 2009, "Albert" was published in 2016, and an Albert movie aired on Nickelodeon, which is owned by defendant Viacom International Inc.

Nicassio alleged that Viacom and Penguin Random House are liable to her for copyright infringement, unfair competition and destruction of intellectual property.

However, U.S. District Judge Nora Barry Fischer dismissed the complaint with prejudice, ruling that Nicassio could not file an amended complaint.

In its order, the district court acknowledged similarities between the two books, including that both use the phrase “the most famous Christmas tree in the world,” and both depict trees vying to be displayed before a New York landmark.

But these, she said, were "random scattershot of various aspects of the works," which “would be expected when two works express the same idea or explore the same theme.”

The defendants requested dismissal on the basis that the "generic plot idea of a little Christmas tree with dreams of being on display in not protectable, and does nothing to support a claim of copyright infringement.”

Nicassio, who copyrighted "Rocky" in 2007 ahead of its publication and sale on Amazon two years later, claimed there were numerous similarities between the two stories.

After it was placed on Amazon, "Rocky" "quickly rose to the highest selling children’s book in the site’s holiday category," Nicassio said in her complaint. She released three editions, the final one in 2016.

The author said she also wanted Rocky to be adapted into an animated movie or television show and sent copies of the book to many people involved in the entertainment business, including Viacom.

Nicassoio claimed that sales of her book plummeted after "Albert" was released and no deal emerged for a Rocky movie or show.

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