When Does a Movie Infringe a Novel's Copyright?
The Thin Blue Line Between Permissible and Impermissible Copying
By Attorney Lloyd J. Jassin
The headline in the Washington Post read: "Judge Refuses to Block Release
of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed."
Echoing Dorothy Parker's bon mot, that the "The only ism Hollywood
believes in is plagiarism," author Barbara Chase-Riboud, claimed that
Steven Spielberg's film Amistad infringed her novel about a real-life
mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically,
Chase-Riboud alleged that DreamWorks' script impermissibly copied "themes,
dialogue, characters, relationships, plots, scenes and fictional inventions"
from her 1989 historical novel, Echo of Lions.
Although Spielberg's production company had flown Chase-Riboud to Los
Angeles in 1988 to discuss optioning her novel, and there existed ample
evidence of overlap between ideas and characters in the novel and the
film, the court recognized that historical facts and basic character types
are not protectible. Since the only common elements between the book and
movie related to historical facts and broadly drawn characters, the court
determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial.
Consequently, her motion for summary judgment -- which would have assured
a quick resolution of her claim -- was denied.
What Copyright Protects -
Because copyright does not protect ideas and facts, or material traceable
to timeless themes, copying alone is not enough to prove copyright infringement.
To prove copyright infringement, a copyright owner must prove that the
infringer copied protected material. When courts are asked to determine
whether infringement has occurred, they must disregard noncopyrightable
elements (such as ideas and historical facts) and compare the copyrightable
elements in the works. Unfortunately, as this case illustrates, there
is no simple test to distinguish unprotected ideas from protected expression.
Under copyright law, only an author's particular expression of an idea,
and not the idea itself is protectible. Several prior law suits have held
that basic plot, stock settings and stereotypical characters (e.g., prostitutes
with hearts of gold, sympathetic mob bosses, corrupt cops, etc.) are not
protected by copyright. These devices -- which are part of every novelist's
and screenwriter's toolkit -- belong to a common pool of literary techniques,
analogous to unprotectible ideas.
The Copyright Infringement Test -
In a copyright infringement case, the plaintiff is required to prove that
the defendant actually copied its work, and that the copying was so "substantial"
as to constitute an unlawful taking of plaintiff's work. Unlawful copying
exists when there is not only substantial similarity between two works,
but substantial similarity between protectible elements.
In the Amistad case, since DreamWorks did not dispute having access
to Chase- Riboud's book, the only issue for the court to decide was whether
substantial similarity of expression between the two works existed.
Comparison of the Two Works
In finding DreamWorks did not violate Chase-Riboud's copyright, the court
looked at the "total concept and feel" of the two works -- the standard
test for assessing the substantial similarity of expressive elements between
a film and a book. The "total concept and feel" analysis looks at similarities
of plot, mood, text, setting, sequence of events and characterizations
from the vantage point of the average lay observer.
Because the plot, setting and general sequence of events of the two works
were -- in the court's opinion -- dictated by the historical record, the
court determined that the plaintiff could not sustain her burden of proof
on these factors alone. As a general rule, historical works, including
historical novels that track real events closely, receive less protection
than fictional works, or works loosely based on real events. Moreover,
the court noted that the mood and pace of Echo of Lions, which
contains a poignant love story, was much different from Amistad, whose
mood and flow was dictated solely by historical events.
Since Chase-Riboud also relied on certain specific examples of substantial
similarity to support her claim, those examples, too, were analyzed by
the court. But none of those basic resemblance, or common themes, were
enough. Interestingly, neither the court, nor Chase-Riboud cited specific
instances of dialogue appropriation.
Looking at certain specific claims, Chase-Reboud claimed that a fictional
black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore
Joadson. While both fictional characters are depicted as wealthy, erudite
black, abolitionistists residing in New Haven, according to the court,
they shared little else in common. For example, Amistad's Joadson was
a runaway slave, whereas Braithwaite, came from a land-owning family that
arrived in American in the mid-1600's. Unlike Chase-Riboud's character,
Joadson had a critical role in the African's defense, including interviewing
attorneys and urging John Quincy Adams to represent them at trial.
While noting that well-developed characters -- especially visually depicted
ones -- are eligible for copyright protection, the court held that since
the idea of a Black abolitionist appearing in both works was predictable,
and only superficial similarities existed between Braithwaite and Joadson,
no reasonable juror would find the characters substantially similar from
a copyright point-of-view.
Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and
plot devices -- not supported by the historical record -- relating to
a historical character named Cinque, who was featured in both works. However,
the court held that Chase-Riboud's portrait of the slave Cinque, which
included a relationship with John Quincy Adams, was not the stuff that
infringements are made of. While "both" Cinque's shared certain similarities,
the court held that Chase-Riboud's character was not sufficiently distinctive
to enjoy copyright protection. Moreover, since both works "expressed"
Cinque differently, the court held that there was no substantial similarity.
Moving beyond the characterizations, the court found that other specific
claims of similarity, including common endings tied to the Civil War,
and the destruction of a slave colony with the rendering of the Supreme
Court decision freeing the slaves, were sufficiently different as to defeat
Conclusion What this case shows is that copyright infringement is not
about taking an author's generalized themes, but her particular expression
of those themes. What this means is that an author's exclusive rights
are largely confined to the details and method of her presentation. Moreover,
copyright in historical research only occurs if there is extensive copying
of an author's selection or arrangement of historical facts, or the way
in which those historical facts are described.
In determining similar cases, courts will continue to evaluate plots,
moods, scenes, sequences, events and characterizations to determine whether
the defendant has captured the "total look and feel" of plaintiff's work.
As seen in the Amistad case, courts will also review differences, as well
as similarities, between two works when making infringement decisions.
In short, even assuming a film is adapted from a novel, a subsequent author
may legitimately avoid infringement by making sufficient changes in a
work which would otherwise be substantially similar to plaintiff's. Of
course, doing so is very risky business, since the test for copyright
infringement is at best, vague, if not, arbitrary. Therefore, when in
doubt, obtain an option, or draw from the well of timeless literary themes,
or your own reserve of creativity.
While copyright is very important, a work may be protected under other
legal theories. For example, under the law of idea misappropriation --
which varies from state to state -- if you submit a story idea to someone,
and the idea is used, provided there was a prior understanding you would
be paid for your idea, an enforceable contract may exist. Perhaps the
best way to protect against idea misappropriation is to create a paper
trail. Keep a record of who you sent your script to, and when. Use Federal
Express, which requires recipients to sign for packages. It also a good
idea to send a self-serving confirmation letter after a pitch meeting,
confirming that you met to discuss your project. Since producers may claim
that they had a similar project in development, it is important to document
the idea before sharing it with others. Therefor, it is a good idea to
register your work with the Writers Guild of America (WGA) before putting
you screenplay into circulation.
NOTICE: This article represents copyrighted material and may only
be reproduced in whole for personal or classroom use. It may not be edited,
altered, or otherwise modified, except with the express permission of
the author. This article discusses general legal issues of interest and
is not designed to give any specific legal advice pertaining to any specific
circumstances. It is important that professional legal advice be obtained
before acting upon any of the information contained in this article.
LLOYD J. JASSIN is a New York-based publishing and entertainment
attorney in private practice. He is coauthor of the bestselling Copyright
Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors
and Publishers (John Wiley & Sons, Inc.), available at bookstores
or at www.copylaw.com. Mr. Jassin has written extensively on negotiating
contracts in the publishing and entertainment industries, and lectures
frequently on contract and copyright issues affecting creators. He is
counsel to the Publishers Marketing Association and Vice Chair of the
Small Press Center. He may reached at Jassin@copylaw.com or at (212) 354-4442.
His offices are located at 1560 Broadway, Suite 400, New York, NY 10036.
(c) 1999. Lloyd J. Jassin. All Rights Reserved.
This article originally appeared in "Creative Screenwriting Magazine"