Claims of Infringement

In the wake of the monumental success of James Cameron’s film Avatar, six authors, claiming Cameron had infringed their copyrights, sued in the U.S., Canada and China. In every case they lost or abandoned their claims. In every case Cameron’s claim of noninfringement was vindicated. The plaintiffs came to court enumerating similarities between their novels, scripts and treatments, on the hand, and Avatar characters, scenes and setting, on the other. They came assuming Cameron’s familiarity with their works. They came concluding that he had found their creations so compelling that infringement was irresistible.

The seeming correspondence of elements in plaintiffs’ and defendants’ respective works is never conclusive of infringement. It’s not the purported facts, but the application of law to the facts that determines whether infringement has occurred or not.

Whether an author is alleging infringement or defending against a claim of infringement, our goal is to prepare aggressive complaints and informed responses.

I Wrote That: A Look At The ‘Avatar’ Copyright Cases
(by Mitch Tuchman, in Law360.com, April 13, 2016, 11:09 AM EDT)

He claims to have created “Avatar,” she claims to have created “Avatar,” but seven U.S. courts concurred that James Cameron created “Avatar” without any plausible evidence of reliance on the works of plaintiffs in a slew of suits decided between 2012 and 2015. Plaintiffs alleged — but failed to prove — that Cameron infringed their respective copyrights.

The plaintiffs came into court enumerating similarities between their novels, scripts and treatments, on the one hand, and “Avatar” characters, scenes, and settings, on the other. They came assuming Cameron’s familiarity with their works. They came concluding that he had found their creations so compelling that infringement was irresistible. And yet to man or woman, they lost. (Suits against Cameron in Canada and China were withdrawn by plaintiffs prior to judgment.)

Read singly, the opinions recount a litany of unavailing facts alleged by the plaintiffs. Taken together, the opinions reveal a widely held misconception that at trial facts speak for themselves.

The seeming correspondence of elements in plaintiffs’ and defendants’ respective works is never conclusive of infringement. It’s not the facts, but the application of law to the facts that determines whether infringement is present or not.

Applicable Law

Most of what you need to know about law in order to understand the “Avatar” cases is found in the Copyright Act and case law, that is, published opinions issued by courts following litigation. The act protects original works of authorship, including literature and motion pictures. To be sure, not every element of every work is protectable. Only original expression (expression originating with the author, not copied) is subject matter of copyright. Underlying ideas and themes found in a work are freely available to other authors as long as their own expression of those ideas and themes originates with them. Finally so-called “scenes a faire” (stock characters, settings or events that are common to particular genres) are free for all to use.

The act grants exclusive rights to copyright owners, including rights to reproduce and distribute protected works and to create derivative works, such as films derived from books or musicals derived from films. The copyright owner may exercise those rights or authorize others to do so. Infringement often takes the form of unauthorized derivatives. That was the issue in all of the “Avatar” cases.

To succeed with a claim of copyright infringement, the plaintiff must prove he owns a valid copyright and the defendant copied the protected elements of the copyrighted work. Of course, unauthorized copying is rarely done by the light of day, so courts have developed surrogate tests based on circumstantial evidence. A plaintiff may prove a reasonable possibility that the accused had access to the protected work and that the original and allegedly copied works are substantially similar.

Of course, the defendant will do his best to squelch all claims, asking the court to dismiss the complaint or grant the defendant’s motion for summary judgment. On every U.S. case Cameron won dismissals or summary judgments.

The Cases

Clay v. Cameron et al

Because she’d shopped her manuscript “Zollocco: A Novel of Another Universe” in New York as early as 1990, Cynthia Clay alleged that her unpublished work had been widely circulated in the entertainment industry and, given what she regarded as striking similarities, it surely must have come to Cameron’s attention prior to the creation of “Avatar.” Clay noted, among other things, that her heroine, Neighteeha, wears blue; Cameron’s heroine, Neytiri, is blue; both works involve sentient forests threatened by corporate interests; both involve bioluminescence. Cameron moved for dismissal due to the speculative nature of Clay’s access claim. The court agreed — a plaintiff must allege sufficient facts from which a court may draw an inference of access — and dismissed the case without addressing the putative similarities. Clay appealed the judgment to a court without jurisdiction; the matter ended there.

Morawski v. Lightstorm and Cameron

Access was not at issue here. Subject to a nondisclosure agreement, Gerald Morawski pitched his ideas for “Guardians of Eden” to the defendants in 1991, four years before Cameron wrote the “Avatar” treatment. Under the NDA, Lightstorm Entertainment Inc. renounced ownership of Morawksi’s exclusive property, provided it had not been derived from Lightstorm materials. “[S]hould Lightstorm wish to acquire your property,” the NDA stated, “the parties will negotiate therefor.” Ultimately Lightstorm took a pass.

After seeing “Avatar,” Morawski sued, alleging unlawful use of his original ideas and therefor breach of the NDA, a claim arising under state, not federal, law. Indeed, Morawski alleged similarities between the parties’ works that might have given rise to a plausible infringement claim, had they not been scenes a faire. In both works, a struggle takes place between evil mining interests and an indigenous tribe that lives in harmony with its rain forest environment; the hero is a veteran physically disabled as a result of military service; the veteran is found in the forest by a second protagonist, the daughter of a tribal leader; they marry, and he becomes a tribal leader himself; another protagonist is a capable female scientist; an army of mercenaries, led by a former military officer, works for the mining company; in a battle between the protagonists and mercenaries, the indigenous population prevails despite inferior weapons. The defendants denied use of the plaintiff’s ideas.

In a 45-page affidavit, Cameron identified the sources of each claimed similarity in his own work — produced and unproduced screenplays, including “Xenogenesis; Chyrsalis” (during a mental journey, the protagonist escapes his wheelchair, transcending his physical form); “Mother” (a corporation establishes mines on another planet; one research station is run by female scientist); “Wind Warriors” (valuable mineral is found in Brazilian rainforest; well-armed mercenaries battle natives armed only with primitive weapons); and “Rambo II” (Rambo, aided by a Vietnamese native, with whom he falls in love, fights with the Vietnamese against technologically superior Russian forces) — each predating Morawski’s pitch. Add to that, Cameron pointed to additional sources, including, among others, the history of European colonialism and genocide, the story of Pocahontas and “Dances with Wolves.” Because Morawski did not present evidence to refute Cameron’s claim of independent creation and because evidence of independent creation is sufficient to rebut an inference of infringement, the court granted defendants summary judgment on the ground that they had not breached the NDA. Affirmed on appeal. Further appeal was denied by the U.S. Supreme Court.

Ryder v. Lightstorm, Cameron et al

Eric Ryder pitched “KRZ,” his transposition of Joseph Conrad’s “Heart of Darkness” to outer space, in 2000. At trial, Lightstorm did not deny the pitch or subsequent comments it provided Ryder but claimed that the substantive points of comparison between the works at issue were present in Cameron’s 80-page treatment, written four years earlier. Filtering out any common elements that were already in the treatment, the court ruled that the remaining elements in Ryder’s claim, including a water escape, maps, executives acting badly, explosions and an outer space setting, were too trivial or commonplace to support a finding of substantial similarity and, in any case, weren’t similarly depicted in the two works.

Because the plaintiff could not raise a presumption of unauthorized use of his materials, the court granted Lightstorm summary judgment on Ryder’s breach of contract and other alleged harms; indeed, Ryder presented no evidence of the existence of a contract to be breached. Finally, as in Morawski, the court held that independent creation by Cameron was sufficient ground to grant defendants’ motion for summary judgment. A California appeals court affirmed the decision on March 25, 2016.

Schkeiban v. Cameron

The court in Clay dismissed the plaintiff’s complaint based on the inadequacy of her allegation of defendants’ access to her work. It was therefore unnecessary for the court consider whether the works at issue were substantially similar. The court in Schkeiban took the opposite approach with the same result. On the defendants’ motion to dismiss, the court focused on similarities between the plots, themes, dialogue, mood, setting, pace, characters, and sequence of events in “Avatar” and plaintiff Elijah Schkeiban’s novel “Bats and Butterflies,” about a 13-year-old boy, bullied by schoolmates, who travels to a distant planet, where he helps butterflies defeat bats and a caterpillar princess to mature into a queen.

The plaintiff, acting without advice of counsel, made three attempts to articulate his complaint. The court, its tolerance worn thin, ruled that the plaintiff’s compilation of similarities scattered throughout the works were mere scenes a faire, dialogue similarities were random, general thematic similarities — saving the world and battles between good and evil — are not subject to copyright, and the mood, setting and pace of the works were not substantially similar. The court therefore dismissed the case without addressing the inadequacy of the plaintiff’s allegation of access. It was affirmed on appeal.

Van v. Cameron, Lightstorm et al

In comparing “Avatar” with Kelly Van’s novel “Sheila the Warrior: The Damned,” the court based its similarity analysis on the same factors adopted by the Schkeiban court, factors mandated by the Ninth Circuit Court of Appeals. On each factor the court found that plaintiff either failed to establish substantial similarity or failed to plead sufficient facts. Case dismissed. This setback notwithstanding, Van promotes her book on Amazon with reference to the case, absent the result: “Having been involved in a copyright infringement law suit wherein the defendant was accused of basing a high profile movie on this very book, you are in for a very fast paced exciting read, indeed. The movie involved in the copyright infringement law suit was AVATAR.”

Dean v. Cameron, Lightstorm et al

Neither plot nor theme nor character was at issue here. At issue was Pandora’s ecosystem of bioluminescent flora, exotic fauna, airborne mountains and megatrees. Roger Dean is a protean English artist, set designer and illustrator whose visionary landscapes and imaginary creatures appear on scores of album covers. Dean alleged that “Avatar” embodied 14 of his works in the conceptualization and execution of Pandora’s resplendent world. To support his allegations, Dean attached to his complaint for comparison’s sake his drawings and the purportedly derivative “Avatar” scenes.

Citing past cases, the court enunciated a nuanced test for substantial similarity, barring protection for ideas and scenes a faire, while declining to dissect “Avatar” into a monumental compilation of individual frames because “it fails to address the underlying issue: whether a lay observer would consider the works as a whole substantially similar to one another.” Add to that, the court criticized Dean’s choice of images to represent “Avatar” as they were taken, not from the film, but from books about the film. Further, the court noted that Dean had flopped and cropped images to substantiate his infringement claim. Finding Dean’s allegations rooted in unprotectable ideas — noting particularly that floating islands have been around since at least as early as “Gulliver’s Travels” (1726) — and other evidentiary frailties, the court held that the parties’ works simply do not provide evidence of copying. The case was dismissed.

Moore v. Lightstorm, Cameron et al

For the purported infringement by defendants of his screenplays “Aquatica” (1994) and “Descendants: The Pollination” (2003), Bryant Moore demanded $2.5 billion in actual and punitive damages. Finding Moore’s access claims speculative — for instance, a person to whom he had given a copy of “Aquatica” might have taken it with him to a job interview at Lightstorm — and finding no substantial similarities in the protectable aspects of plot, theme, characters, setting, pace, mood and dialogue between the parties’ works, the court granted the defendants’ motion for summary judgment. This was affirmed on appeal and review by the Supreme Court was denied.

Malak v. Cameron, Lightstorm et al

Taking the opportunity presented by Lightstorm’s “Dark Angel” shooting exteriors near his Vancouver restaurant in 2001, Emil Malak inquired how he might submit his screenplay titled “Terra Incognita” for Lightstorm’s consideration. He subsequently sent the work Tom Cohen, described in various cases as a Lightstorm agent, creative director and possibly the man who answered to the description of someone who might have interviewed the intermediary to whom Moore purportedly had given his script. In any event, Lightstorm failed to respond. Malak filed suit in the Federal Court of Canada, Vancouver division, but withdrew the case after a single day’s testimony.

Zhou Shaomou v. Cameron

The earliest of the cases reported here, Zhou Shaomou, alleging that 80 percent of “Avatar” plot and characters were copied from his online novel, “The Legend of the Blue Crows” (1999), filed a complaint against Cameron and Twentieth Century Fox in Beijing No. 1 Intermediate Court in March 2010, requesting the equivalent of $150 million in damages. The court, recognizing inadequacies in Zhou’s evidence, declined to hear the case. Four months later, Zhou submitted an amended claim, which the same court accepted for prosecution. Zhou himself withdrew his claim in 2011.

Takeaways

  • Know how the game is played before you suit up.
  • Know the applicable law, including nuances that prevail in the circuit where the case is to be tried.
  • Know what copyright does not protect as well as what it does.
  • Be objective about purported similarities between the works at issue. Ask a friend or, better yet, ask a stranger to make the comparison.
  • Hire a lawyer who does more than dabble in copyright.
  • Go see the movie a second time. Skip the popcorn. You’ll need your hands free to take notes.

Mitch Tuchman is of counsel in the Durham, NC, office of Morningstar Law Group. The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.