Friday, February 25, 2011

Why You Don't Have a Copyright Infringement Case

A lot of people come to my firm seeking representation in copyright matters. For some reason, I end up evaluating a lot of these cases. 99% of them are the same. Someone (hereafter “PC” for Potential Client) wrote a book or movie script (hereafter “the work”). They send it to someone at some point in time, maybe an agent, publisher or movie studio. At this point, one of four things happens: (1) PC gets a letter back saying thanks but no thanks; (2) PC gets the work returned, with no other communication at all; (3) PC gets a letter back saying they don’t accept unsolicited admissions; or (4) radio silence. Usually PC has lost or thrown away ("I was just so devastated") any written communications they had with this party. Then some amount of years later a movie or television show comes out, and PC believes it is stolen from the work they released into the world.

Look, PC. I’m impressed you wrote a book or movie script. It’s admirable. I understand you poured your blood, sweat and tears into it. I understand you thought it would take off and you would be a millionaire sitting on Oprah’s stage with your book as her “Book of the Month.” You pictured movie deals, the Oscars, rubbing shoulders with the rich and famous, and book tours. I get all that. Unfortunately, that isn’t what happened. I don’t mean to be the dark lining in your silver cloud, but a lot of people write books and movie scripts. That doesn’t mean they are any good. Anyone can take pen to paper.  Being good at it is something else entirely.  I mean, take a look at all the fan fiction out there. Holy moly. The PCs of the world have no ability to look at their work objectively in comparison to the allegedly infringing work. Every little thing jumps out at them as COPYING. They imagine that whoever they sent their work to thought it was so brilliant that they clutched it to their bosom like a golden ticket and hid it away for years until the right time emerged, where they could copy it and make millions! But even if – even if -- someone took PC’s work and used it as inspiration for what they did, or even if they were partially inspired by it, that doesn’t mean PC has any legal recourse against them. Here’s why:

An idea cannot be protected by copyright. It is the expression of the idea that merits protection. Here are two examples to explain the difference:

Idea: Aliens from outer space come down to Earth
Expression of Idea: District 9, E.T., V, Superman, Men in Black

Idea: Two people who initially hate each other end up falling in love
Expression of Idea: Green Card, The Proposal, French Kiss, You’ve Got Mail, What Women Want, What Happens in Vegas, Pride & Prejudice, One Fine Day, Sweet Home Alabama

Although the underlying idea in the above movies and television shows is the same, the expression of the idea is very different. Think about all the movies and books that are based on very similar plotlines or stories, but yet are very different. The next level of detail up from the idea is where they start to come into their own. The idea can also be much broader than the brief examples I’ve given, and even constitute plot points. There are also stock characters, such as the wizard in a science fiction novel, or the mean headmistress in a novel about girls at boarding school, or the quirky friend in a romantic comedy. Characters such as these appearing in certain works just don’t raise huge red flags. There is also something called the scenes a faire doctrine, which are scenes that are considered standard for certain plotlines. For example, a plotline involving college students might show a party at a fraternity house, a plotline involving a wedding might have a a trip to the bridal dress shop, a plotline about a first date might involve a visit to a restaurant. This is standard stuff that can be used in almost any story and simply isn’t protectable standing alone. When PCs point to alleged similarities, it starts to get ridiculous at times and these types of conversations ensue:

PC: But when he got to her house she asked him if he wanted coffee and he said no! That is exactly what happens at page 104 of my book.
Me: Really? She asked a guest at her home if he wanted coffee? God, I’ve never heard of such a thing.
PC: And then they went to a restaurant for dinner. It’s exactly the same.
Me: A restaurant? For dinner? Shocking.
PC: But that’s where they realized they were truly in love. It’s the same thing.
Me: On a date they realized they were in love. Again, shocking. The copying is blatant.
PC: I know!

I’m kidding, of course. But sometimes it is that bad. More importantly most of them are missing the most crucial thing: access. The person you are accusing of copying must have had access to the work. This is usually the nail in the coffin for these types of cases. A valid defense to copyright infringement is independent development. You know the old story about a bunch of monkeys pounding on the typewriters long enough could probably write a Shakespeare work? Well, the same also goes for writing stories, books, and movies. It’s entirely possible that someone on the other side of the country simply came up with the same idea and similar expression of idea that you did. It doesn’t mean they ever saw your work, much less copied your work. I mean, we all live in the same world and have a lot of the same influences and things surrounding us. Maybe whatever inspired you also inspired them. There absolutely has to be some timeline and linking up of your work to the person you are accusing. Most PCs don’t have this other than through vaguely circumstantial, well maybe this person gave it to this person who gave it to this person kinds of facts. This is also hard to buy when PC’s work…to put it mildly…sucks.

These cases are always sad to turn down, because by the time PC gets to us, they are desperate. Usually they have been a starving writer for years, and they are looking for any kind of compensation they can find to make up for the lost time they spent writing and trying to sell their work. Unfortunately, you can’t just go around accusing people of copying. This is particularly important when you are trying to accuse a hugely popular and successful writer or producer of somehow stumbling across your work, thinking it was the best thing they ever read, and copying it. Those scenarios usually don’t pass the smell test, at least for me.  I mean, no PC ever comes here accusing Mr. No Name of copying his work.  It's always the big guys, who have made the most money.  I can't imagine why that is....

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