Ripping Off the Movies – Who Owns the Stories We Tell

Billion dollar blockbuster?  You can be sure there will be lawsuits to follow.  They will claim that stories they wrote while being employed by a movie studio, stories they wrote in their own published books, and stories they wrote on napkins during a moment of inspiration and sent to movie directors, were stolen to create Hollywood’s newest blockbuster.  Surely there exists some legal protection against movies being made based on previously existing stories.  But how far does that protection extend?  When are the limits of protection reached?

Ancient Stories

I will call ancient stories those written more than two thousand years ago.  There are no protections for those antiquated stories likely finding their origin in Egypt or China or even around campfires around the world.  If any of those stories have survived to our times, anyone can shamelessly retell those stories in whatever media they wish and also make changes to the stories that the original storytellers may have vehemently disagreed with.

You are not going to get away from another cinematic telling of Hercules.  And if the heirs of the original writer of the Hercules story were ever found, they would not have any legal basis to stop you from retelling it or from changing the story.

Stories from the 1900s

Depending on when a story was written in the 1900s and when the author passed away if at all, it may be that the original author or the heirs of the original author still have legally enforceable rights in a story penned in the 1900s.

Under the Copyright Act in Canada, an author receives protection for a story during the author’s life and for fifty years following the author’s death.  It is generally the same rule around the world with some countries having a different period of protection following death.  In the case of a work that more than one author creates, the term of protection is generally the life of the last surviving author and for fifty’s years after such last author’s death.

Those wishing to adopt stories created in the 1900s had better closely examine whether the story is still protected under the law or whether it may now be used free from anyone else’s legal rights.

Contemporary Stories

Stories written in the present time are protected under our Copyright Act.  As a result you will not be permitted to adapt or use that contemporary story as the basis for another kind of work without the consent of the original owner.

Film Stories in Dispute

In the context of the lawsuits concerning films the facts typically go as follows: a plaintiff, who was not involved in the making of the film, claims that it created an original story that was fixed in some tangible form, e.g. a software file or a handwritten story.  The plaintiff claims that the defendant director, writer, and/or movie studio, took substantive parts from its original story in order to create the plot for the film.  If the film makes millions of dollars, the plaintiff claims a right to a portion of those profits.  The defendants typically deny the plaintiff’s claim and argue that the story used for the film was an original work that someone on the payroll of the movie studio created.

The Question of Originality – Film Lawsuits

Disputes between large movie studios and authors usually revolve around whether the filmmakers had created an original work and whether that work was made by copying in whole or in part someone else’s work when creating the relevant movie.

Seth MacFarlane was sued for allegedly stealing the movie idea for Ted, a comedy about a foul-mouthed animated teddy bear.  The plaintiff in the lawsuit made “Charlie The Abusive Teddy Bear” which was a web series created in 2009.  The plaintiff alleged that Charlie “has a penchant for drinking, smoking, prostitutes, and is generally vulgar yet humorous character” similar to the Ted character in the movie.

Tom Cruise along with ten other defendants was sued for $1 billion for allegedly stealing the idea for the plot of Mission Impossible – Ghost Protocol.  The plaintiff alleges that his original 1988 script for Head On was shown to Tom Cruise’s agent.  On watching the Mission Impossible movie, the plaintiff alleged that the script for the movie has been illegally written and produced from Head On.

The author of two autobiographical books about her upbringing in the Andean mountains of Peru has filed a lawsuit alleging that Disney stole her story, characters, plots, and subplots, to create the movie Frozen.  The author claims that her works include a betrayal, as her first love played with her affections and did not return her love; the plaintiff compared that with Anna’s first love Hans who played with her affections and did not return her love.  This was no mention of a talking snowman in the plaintiff’s books.  Disney representatives have stated that the plaintiff needs to “let it go”.

James Cameron has been sued at least eight times over claims that the movie Avatar stole the storyline of their works.  Plaintiffs have claimed that the movie has stolen ideas about blue aliens, flora/plant life, unbreathable atmospheres, and matriarch support of hero vs. heroine.

The crux of all of these lawsuits is the consideration of whether a copying or a substantial copying of the stories took place.

Originality in Storytelling

At first glance, it seems as if writing an original story should be quite simple.  However, if you read some academic books on stories, you will hear claims that every kind of story has already been written, at least as far as the general framework goes.  Though the particulars of newly created stories may indeed be original, the fact that a story unfolds in a certain way, the characters have certain experiences, and a certain resolution or ending is achieved, is not something that lends itself to genuine endless possibilities, especially in film which has limits on running time.

Copyright Infringement in the Law

Under the Copyright Act the creator of an original story owns it and has the exclusive right to reproduce that story in any form, such as a film.  That means that the form of the original story, for example a printed book, is irrelevant to whether the original story was infringed as a result of the making of the film.  It is copyright infringement to copy or substantially copy someone else’s work without their consent.

The Supreme Court of Canada has stated in Cinar Corporation v. Robinson, 2013 SCC 73, that its approach to assessing copyright infringement will be a holistic and qualitative one.  The Court said that one has to look at two competing works as whole works and not as isolated parts.  In assessing whether substantial copying has occurred, the analysis should not be conducted piecemeal where a work is dissected into its component parts.  Rather, the cumulative effect of the features copied from the original work must be considered to determine whether those features amounted to a substantial part of the original work.  In determining substantial copying, the Court said you have to assess whether the copied features constitute a substantial part of the plaintiff’s work, not whether they amount to a substantial part of the defendant’s work.  Simply because a defendant has altered copied features or integrated them into a work that is noticeably different from the plaintiff’s work does not necessarily preclude a claim that substantial copying of a work has occurred.

As a result, a court’s approach, when assessing allegations of infringement, will be to examine the story as a whole, so an underlying similar or identical narrative will not be determinative of whether infringement happened.  Instead, the examination will look at the narrative and all other elements in the story, such as characterization, to determine whether a succeeding work infringed the copyright of the first work.  Further, a court will have to examine whether the features the defendant is alleged to have copied constitute a substantial part of the plaintiff’s work.

Infringement of a Story in Film

As the holistic and qualitative approach is the method to determine copyright infringement in Canada, it stands to reason that plaintiffs who believe that their stories have been unfairly used in films will launch lawsuits against such alleged infringement.  The reason being is that it is very difficult to predict what kind of decisions a court will make under the holistic and qualitative approach.

In that case, filmmakers need to carefully document who contributed what to a film script and ensure that all legal rights have been managed.  It is critical that scriptwriters and others who work on the original plot for a film detail carefully how and when the plot for the film took shape.  In actions where film makers were able to establish that they completed the script well before a plaintiff sent their own script to the film production company, lawsuits were quickly dispensed with.  Furthermore, filmmakers should avoid to the greatest extent all unsolicited idea and draft scripts sent to them in order to limit their liability from the lawsuits sure to follow a successful film.  And if filmmakers do draw inspiration from other people’s stories, they must make sure that they do not copy a substantial part of the other party’s work.