Moviegoers may be familiar with the cinematic musings of actress Nicole Kidman: “We come to this place for magic . . . That indescribable feeling we get when the lights begin to dim and we go somewhere we’ve never been before.” And just as the best films manage to enlighten and enchant audiences, there are several movie copyright cases which can illuminate relevant copyright law issues for film and TV industry professionals.
Presented below is a selection of movie copyright cases of which filmmakers and other audiovisual artists should be aware, as well as tangible takeaways from each. Part 1 of this blog will focus on the issues of copyrightability and movie copyright infringement cases. Part 2 focuses on movie fair use cases. Finally, Part 3 focuses on authorship.
Laying Out the Elements of Copyright Infringement: Copying-in-Fact and Improper Appropriation
There are two general requirements to establish copyright infringement: a plaintiff’s ownership of a valid copyright and a defendant’s unauthorized copying of protected elements of the work. Assuming that a work has a valid copyright, unauthorized copying breaks down into two additional factors: copying-in-fact and improper appropriation. The following television and movie copyright infringement cases explain these factors in more detail, and should provide useful insights for TV and filmmaking professionals who intend to include copyrighted works as props or in the background of their movies and TV shows.
The first element of copyright infringement is straightforward. A defendant must have created an infringing work by copying from a copyrighted work, rather than through independent creation. Aside from a defendant admitting to copying, the best evidence of actual copying would be a person who can testify to witnessing the defendant copying material from a copyrighted work. In cases where such strong evidence is unavailable, copying-in-fact can also be inferred through evidence that a defendant had access to a copyrighted work and that the allegedly infringing work bears sufficient similarities to the copyrighted work.
These two elements of actual copying—access and probative similarity—possess an inverse relationship. An insufficiency in the evidence of a defendant’s access to a copyrighted work may be supplemented by evidence of high degrees of probative similarities (and vice versa). In extreme circumstances, similarities may be so striking between two works that copying-in-fact will be presumed to have occurred even if there is little or no evidence of access. The theory of striking similarity rests on the belief that greater similarity in the expressions between the works indicates a lesser likelihood of coincidental independent creation.
This inverse relationship between access and probative similarity was illustrated in the movie copyright infringement case of Price v. Fox Entertainment Group, Inc. With insufficient evidence of access, the plaintiff screenwriters in Price alleged striking similarities between their 2001 screenplay for “Dodgeball: The Movie” and defendant’s 2004 film “Dodgeball: A True Underdog Story.” The similarities identified by the plaintiffs were that both works involved dodgeball competitions between teams of overmatched misfits and teams of bullies, and both works made the erroneous claim that the game of dodgeball had its roots in ancient China. However, the district court for the Southern District of New York held that this was insufficient to establish striking similarity.
While the existing similarities may have been probative of copying, the court found that these similarities alone were not enough to be striking because there remained sufficient dissimilarities between the two films. For example, the screenplay’s main characters were highschoolers while the film followed adults, and the protagonists of each work had different goals (winning romantic affection vs. preventing foreclosure of a gym, respectively). Therefore, the court required the plaintiffs to show access and probative similarity in order prove that actual copying took place.
Qualitative Improper Appropriation and Copyrightability
The second element of copyright infringement is often confusingly referred to as “substantial similarity” between works. Some courts opt for the distinct but more jargony term “improper appropriation.” This element looks to whether the similarities between a copyrighted work and an allegedly infringing work amount to actionable infringement, both qualitatively and quantitatively.
Qualitatively, improper appropriation asks whether a defendant copied something which is copyrightable, because not all aspects of a copyrighted work are protected by copyright. Copyright law does not protect indistinct character archetypes and plots, abstract theories, ideas, historical facts, or commonplace artistic conventions. For example, copyright law’s scenes-à-faire doctrine (from the French for “scenes that must be done”) prohibits copyright protection for stock artistic devices that are so foundational to the telling of particular stories that all creators must have unfettered access.
The scenes-à-faire doctrine is illustrated by the Second Circuit movie copyright case of Hoehling v. Universal City Studios, Inc. The plaintiff, author A.A. Hoehling, wrote a book titled “Who Destroyed the Hindenburg.” It was a reportorial-style book in which Hoehling speculated that Hindenburg crewman Eric Spehl destroyed the airship to please his communist girlfriend. The defendant, Michael MacDonald Mooney, wrote his own book titled “The Hindenburg,” which he admitted to consulting Hoehling’s book in preparing his own. Hoehling sued Mooney and Universal City Studios for copyright infringement over the studio’s motion picture adaption of Mooney’s book.
Common across Hoehling’s book, Mooney’s book, and Universal Studio’s movie was a scene taking place in a German beer hall on the eve of the Hindenburg’s final voyage, during which all three works used commonplace German greetings and songs. The Court of Appeals held these similarities to be scenes-à-faire. It would be virtually impossible to tell this tragic historical tale of the soon-to-be-victims in a vibrant setting without using the German greetings and songs necessary to establish setting. Creativity would be severely hindered if such ubiquitous devices as these could be owned by only a handful of creators. The Court of Appeals also held that the essential plot of Hoehling’s book, specifically that Eric Spehl was identified as the saboteur of the Hindenburg, was not copyrightable because fact-based interpretations of historical events are not copyrightable.
Another example of insufficient qualitative copying is the seminal case of Nichols v. Universal Pictures Corp., where a playwright wrote a Romeo-and-Juliet style play about a forbidden love affair between the children of Jewish and Irish Catholic families. The playwright sued Universal Pictures for copyright infringement after the studio produced a film with the same general plot structure. The Second Circuit Court of Appeals held that the common characters and plots between the two works were too generic to be copyrightable. All creators require access to broad ideas, plots, and tropes which they can use as the foundation of their unique works. Even so, the Nichols court did note that a more detailed, distinct plot or character could very well be protectable. For instance, there is no copyright protections in the story of a sheltered youth raised by his aunt and uncle who is led on a grand adventure by a mysterious stranger. However, add lightsabers and a mystical “force” to the story and you have “Star Wars”; conversely, add magic wands, broomsticks and a lightning-shaped scar and you have “Harry Potter.” (For further reading on Nichols, see the Copyright Alliance’s previous blog on Literary Copyright Cases Writers and Publishers Should Know).
The lesson here is that when filmmakers create their movies and movie universes, they should keep in mind that creating and going beyond simple stock settings and characters will result in stronger copyright protections, since plots, tropes, and other generic and abstract elements are not copyrightable elements of a creative work.
Quantitative Improper Appropriation and the De Minimis Exception
As explained above, qualitative improper appropriation means copying something which is protected by copyright. Quantitatively, improper appropriation also requires an alleged infringement to have taken copyrighted material which is more than “de minimis non curat lex” (Latin that translates to “trivial such that the infringement is not actionable”). The law does not concern itself with trifles, so insignificant amounts of copying defeat a finding of infringement.
Noteworthy TV and movie copyright infringement cases involving the de minimis exception usually result from the display of copyrighted works as props or background and set pieces. For example, in Gottlieb Development LLC v. Paramount Pictures Corp., Gottlieb’s “Silver Slugger” pinball machine appeared in the background of the movie “What Women Want.” In Sandoval v. New Line Cinema Corp., a photographer brought suit for the use of ten of his copyrighted photographs in the movie “Seven.” And in Ringgold v. Black Entertainment Television, Inc., Ringgold sued over the inclusion of her copyrighted poster during a scene of a single episode of the show “Roc.”
When determining whether copying in a film or TV show is de minimis, courts consider factors including, but not limited to:
- the prominence of the copyrighted work;
- observability of the work;
- screen time, both continuous and disjointed; and
- qualitative importance to the scene and setting.
In Gottlieb, the District Court for the Southern District of New York found that the use of Gottlieb’s pinball machine was de minimis because the machine appeared only in one three-and-a-half-minute scene, and then “only for seconds at a time, always in the background, and always partially obscured” either by actors or other set pieces. The court also found that there were no thematic or qualitative connections between the pinball machine and the film itself.
Likewise, in Sandoval, the Court of Appeals for the Second Circuit held the use of the ten photographs to be de minimis because the photos appeared in poor lighting, at great distance, and only for brief periods (less than 36 seconds in a full-feature length film) in several separate shots. However, in Ringgold, the very same court held the use of plaintiff’s poster to be more than de minimis, even though the work was largely out of focus, often partially obstructed, and never visible for more than five seconds at a time (and on screen for less than 30 seconds total).
Sandoval was decided a year after Ringgold, and the Court of Appeals distinguished the cases by noting that unlike Sandoval’s photos, Ringgold’s artwork was “clearly visible” and “recognizable as a painting … with sufficient observable detail” such that the “average lay observer” could make out the subjects and style of the poster. Furthermore, the court held that brief but repeated shots of Ringgold’s poster reinforced its prominence, while the shots of Sandoval’s photos had no cumulative effect because the photos were not distinguishable.
The takeaway for TV and filmmakers is that it is often best to ask permission of copyright holders before using their works. This is surely the safest course of action because the substantial similarity question is a subjective one, so any given judge or jury may view a use as more than de minimis. However, if permission is not requested or granted, then the unauthorized use should be so minimal that viewers cannot identify the works.
To Be Continued
Copyright infringement and copyrightability can be difficult concepts to understand, but we hope this selection of TV and movie copyright infringement cases has illuminated those issues for TV and filmmakers. Stay tuned for the next installments of this blog presenting movie copyright cases which address copyright law’s fair use doctrine and the meaning of authorship.
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