In reversing the district court, the U.S. Court of Appeals for the Tenth Circuit held that the "supersubstantial" similarity test was incorrectly applied in the context of protected elements of a fact-based World War II memoir. Jacobsen v. Deseret Book Co., Case No. 01-4027 (10th Cir., April 19, 2002).
Jacobsen wrote a personal memoir entitled Who Refused to Die, recounting his survival of the Bataan Death March and subsequent imprisonment and torture during World War II. Deseret Book was the publisher of a series, Children of the Promise, a fictional work portraying the life of a Mormon family during World War II. The story of one of the family’s sons closely follows the experiences related in Who Refused to Die.
