Reference: StudentFilmmakers Magazine, November 2007. What You Should Know About Copyright Infringement and Protecting Your Work: Three precepts: access, significant similarities, and the ordinary observer test. by Myrl Schreibman. Pages 48 & 49.
Inexperienced filmmakers look to the story, its characters, the shot, and elements that pertain to the visual approach and often forget that everything on a project must legally be protected in writing. This includes written agreements for talent behind and in front of the camera, production and post production services, locations, music, and most importantly, the property itself including any underlying rights to the story. Thus the reason for a lawsuit filed by producer Robert Clark against Warner Brothers for allegedly infringing upon the copyright to his obscure 1975 United Artists film, Moonrunners. The television rights to his movie were sold to Warner Brothers for the TV series, but they allegedly failed to obtain the movie rights from this underlying source before producing the movie of The Dukes of Hazzard. Because of this, Warner Brothers agreed to pay Clark a $17.5 million settlement.
Copyright infringement lawsuits happen every year; the most famous of which was the Art Buchwald / Paramount Pictures copyright infringement suit in regards to Coming to America. Most of these lawsuits one never hears about or is swept under the carpet with settlements before they get to court. While copyright law protects the expression of an idea, it does not protect the idea itself. The distinction between “idea” and “expression” is a fundamental part of U.S. law, but it is not always clear. Quoting from the 1976 Copyright Act: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.“
If your work is protected, it cannot nor should be infringed upon. Copyright protection requires a registration with the copyright office at the Library of Congress, whether it is your screenplay, teleplay, novel, or project itself. Spoken conversations that are unrecorded are not protectible. If two individuals create a story that by coincidence is nearly identical, but each was created without the knowledge of the other, infringement will not apply since there is no copying and this becomes a defense of independent creation. But technically, this is not a defense since without copying there is not an infringement to begin with.
Let’s take this scenario:
“Clones are created and raised in a secret compound where they believe they will eventually go to a beautiful idyllic location and live in perfect happiness. In reality the clones are bred to perfection and then used to provide body parts for their original counterparts. One of the clones questions his environment and discovers what he is and the purpose of the compound. He escapes to find his original to seek help.” If this sounds familiar to you and you recognize it as the 2005 move, The Island, a Michael Bay movie from DreamWorks and Warner Brothers, you are wrong. It is a 1978 movie called Clonus (aka The Clonus Horror), a film that I co-wrote and produced three decades ago. The Island was the cause of a copyright infringement law suit that was brought against both DreamWorks and Warner Brothers, and one which brought home the reminder for producers and filmmakers to acquire all underlying rights to any story or property.
Granted, attorneys will tell you that it is very difficult to prove copyright infringement. And, indeed, it is. But it is possible. To establish infringement of a copyright, the copyright owner must demonstrate copying either by direct evidence of copying or by indirect evidence. Three precepts include access to the copyrighted work, similarities that are significant of copying between the works, and the ordinary observer test which is demonstrated by expert testimony.
“Access” is established either by demonstrating that the infringed work has been widely, disseminated, or a particular chain of events exists by which the alleged infringer might have gained access to the copyrighted works. Did you submit to a producer a written treatment or screenplay of your project for their consideration which was the basis for the project that they finally produced? This would show access. But only if you can prove you submitted it. This is one of the reasons why you should always use a submission release form. Or perhaps, as in The Island / Clonus situation, Clonus although released theatrically in 1978, it aired on Showtime several times, was a very successful VHS video in the early eighties and played on the hit series, Mystery Science Fiction Theater, multiple times in the first five years of this century. Possible Access? Yes. And since that show had a high viewer audience? Well, what do you think?
Maybe you were at lunch in a popular restaurant discussing with your friend an idea you had about an alien with a long neck who gets stranded on earth and tries to find a way to get home. In the next booth is a studio executive who overhears your conversation. Lo and behold, eight months later the movie ET is released. Access? Who knows? But then again, ideas cannot be copyrighted, and you had a casual conversation.
“Significant Similarities” is an element of copyright infringement which demonstrates that any copying is unlawful if there is a substantial similarity between the protectible elements in the two works. Similarities such as character, dialogue, plot, structure, or in the case of a movie being infringed upon, such elements as shots, production design, music, locations, etc., which are substantial, would constitute significant similarities.
However, the concept of scenes a faire exists. Simply put, scenes a faire provides for a situation in which two movies may have an event which must follow one another. For example in two movies about prisoners who escape from a prison, the fact that the prisoners must escape is considered scenes a faire and not that of a significant similarity. But with two movies in which a clone who learns his reality is not true and sets out to discover the evil truth of his existence and the existence of others like him while at the same time finds out certain realities about humans is such an original premise and concept that choices can be made to provide vast amounts of further creative expression. And yet if those choices are identical between the two movies significant similarities can be seen.
The ordinary observer test speaks to expert objective testimony which compares the work and finds that in all probability copying was done. Or, perhaps the average audience member or critical reviewer views both movies and compares them, one to another, in print or on the internet.
However, copyright infringement cases hinge the ordinary observer test on expert testimony of unimpeachable witnesses.
Producers believe that their Errors and Omissions policy will cover any lawsuits especially as it relates to copyright infringement. But in truth, it will not if the infringement of copyright is proven, since to acquire an Errors and Omissions insurance policy you must show that you own the underlying rights to your project. So remember protecting your project begins with your filing for and receiving a copyright. Without it you may be inviting problems. But if problems do occur and you are involved as a plaintiff in a copyright infringement case you will indeed learn a lot about copyright infringement, industry integrity and fiscal motivation between colleagues. As to The Island / Clonus case. It settled!
Myrl A. Schreibman is a Producer/Director, professor at UCLA Film School, and author of the book, “The Film Director Prepares, A Practical Guide for Directing Film and Television.”