License to Steal: Good Ideas, Bad Ideas, and Copyright Infringement

Now that the Texas legislature has passed its incentive package for film production in Texas, maybe we truly are on our way to becoming the “Third Coast” for movie-making.  If so, that means it’s just a matter of time before a client will darken your door and exclaim, “Someone stole my idea!  I want to sue.”

Paranoia runs rampant among screenwriters.  I’ve talked to writers who refuse to disclose their great ideas, even to producers, for fear someone will steal them.  That creates a real dilemma, though.  How are they ever going to see their creation on the big screen if they refuse to show it to the very people who can make that happen?  Then they’ll spend the rest of their lives as lonely writers with their dozens of screenplays horded in their closets, never seeing the light of day. Boy, talk about being unappreciated.

The truth is, ideas can’t be “stolen” because ideas aren’t “ownable.” They are free as the wind, floating to and fro, making themselves randomly known to writers and non-writers all around the globe.  That’s why it’s not unheard of for writers in different places to come up with the same idea at the same time, independently of each other.  So if you can’t protect ideas, what do you protect?  Well, under copyright law, you can protect the expression of the idea – how you execute the idea on paper.[i] But sometimes that’s not all it’s cracked up to be.

Access, similarity, scenes a faire, and other legal mumbo-jumbo

Here’s what I mean:  In order to prove that someone infringed on your copyright, you have to show: (1) that you own a copyrighted creation; and (2) that someone else, acting without authority, copied the original elements of it.[ii] Sounds easy, doesn’t it?  Well, it’s not.  Oh, the first one is fairly easy, especially if the writer has a registration certificate from the U.S. Copyright office showing that he or she properly registered the script. It’s that second element that sometimes leaves writers, producers, and lawyers, alike, scratching their heads.

If you don’t have any direct evidence of copying (and who does, unless you caught the dastardly villain in the very act?), then you have to create an inference that someone else copied your work.  You do that by showing: (1) that the other person had access to your work; and (2) that person’s work bears a “probative” or “substantial” similarity” to yours.[iii] Courts have defined “access” as seeing or hearing, or having a reasonable opportunity to see or hear, your work and, thus, have an opportunity to copy it.[iv] Simple enough.  Plus, the timing’s got to be right.  If they didn’t have access to your work until after they wrote their screenplay – well, the conclusion is obvious.[v]

If you can’t prove access, but you know in your heart of hearts that the other guy had to have had access somewhere, somehow, then you may still succeed on your claim with the heightened evidentiary standard of “striking similarity.”[vi] That means the other script isn’t just sorta like yours; it means it’s so close to yours that it’s unimaginable the other writer could have come up with it without having had access to yours.  So how do you prove similarity – either substantial or striking?  The courts apply the “ordinary observer” test.[vii] The test is this:  Would the mythical ordinary observer – the guy in the back row of the multi-plex with Milk Duds[viii] and a Coke – have recognized the second script as having been copied from yours?  The analysis includes such things as themes, total concept, characters, plots, mood, dialogue, setting, and sequence of events.[ix]  

But (and you just knew there had to be “but,” didn’t you?) the analysis excludes what the law calls scenes a faire.  One court defined that as those elements that “necessarily follow from a common theme.”[x]  Or, as another court put it, scenes a faire are those “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.”[xi]

Now just what the heck does that mean?  Walker v. Time Life Films, Inc.[xii] involved a copyright infringement claim by the author of the book Fort Apache against the producers of the movie Fort Apache: The Bronx. In granting summary judgment to the producers, the court noted that any similarities between the two involved uncopyrightable elements.  The court said, “Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx . . . Foot chases and the morale problems of policemen, not to mention the familiar figure of the Irish cop, are venerable and often-recurring themes of police fiction.”[xiii]

We’ve all seen those same elements in most cop stories.  They are – say it with me, now – scenes a faire.  The Ninth Circuit put it beautifully when it said, “It merely reminds us that in Hollywood, as in the life of men generally, there is only rarely anything new under the sun.”[xiv]

But all is not lost.  The other guy’s script doesn’t have to be identical to yours before you have a good claim.  One court said, “A story has a linear dimension: it begins, continues, and ends.  If a defendant copies substantial portions of a plaintiff’s sequence of events, he does not escape infringement by adding original episodes somewhere along the line.”[xv]

On the other hand, “Copying deleted or so disguised as to be unrecognizable is not copying.”[xvi] If that wasn’t scary enough, an unscrupulous screenwriter or producer could actually steal your screenplay and, by making enough changes in it so that it is no longer “substantially similar” to your script, get off the hook for copyright infringement.[xvii] If that won’t make your hair stand on end, I don’t know what will.

The Wayans Brothers stole my script.  Or, did they?

Which brings us to the Wayans Brothers and that uproariously funny (note the sarcasm) movie called White Chicks.  For those of you who haven’t seen it (and I count myself among that lucky horde), White Chicks stars Shawn and Marlon Wayans as African-American FBI agents who go undercover disguised as wealthy Caucasian girls.  As you might expect, hijinks ensue.[xviii] And A Slice of Pie Productions, LLC, sues.[xix]

Here’s what happened:  In 1997, the three principals of A Slice of Pie wrote a screenplay called Johnny Bronx, about an African-American FBI agent who goes undercover in the Mafia disguised as a white Italian-American.  A Slice of Pie submitted the screenplay to an agent at a management company who represented the Wayans Brothers.  It’s not entirely clear what happened, but in 1999, the management company told A Slice of Pie that the Wayans weren’t interested.  Although the Wayans ultimately testified that they had never read the script, there was some question as to whether representatives of Wayans Brothers Productions (WBP) had access to it.[xx]

In 2001, WBP began to develop White Chicks, supposedly inspired by the movie Legally Blonde (about a wealthy Caucasian girl who attends Harvard Law School).  They decided to throw in that old saw about cross-dressing men (Some Like it Hot, Mrs. Doubtfire, Big Momma’s House), a laugh riot every time.  The ultimate result was White Chicks, released in 2004.[xxi] As already noted, hijinks and a lawsuit ensued, not only against the Wayans Brothers, but also against Revolution Studios and Sony Pictures, which ultimately distributed the film.  When the defendants moved for summary judgment, the court noted that, to carry their claim, the plaintiffs either had to show actual copying or establish copying circumstantially by showing access to the copyrighted material and similarity between the two works.[xxii] The court then applied the test of similarity in the eyes of the “average lay observer” (the dude with the Milk Duds I mentioned earlier).[xxiii]

While there were a number of similarities between the two scripts, the court concluded that most of them were either uncopyrightable ideas and concepts, or scenes a faire.  There is nothing particularly novel, it said, about undercover FBI agents, disguising one’s race, or cross-dressing.[xxiv] “Neither is the theme of satirizing some component of social culture with exaggerated use of stereotypes . . . remotely novel.”[xxv] The court noted that the plots of the two scripts were “markedly different” and concluded that “when the Court parses out the unprotectible elements and scenes a faire, there was nothing left in the two works that could be found to be substantially similar.”[xxvi]

The Court, in discussing the issues of total concept and feel, theme, characters, plot, sequence, pace, and setting, observed the following differences[xxvii]:

  • Johnny Bronx was darker and more violent than White Chicks.
  • The method of execution of an old idea was different.
  • Any similarities in characters were non-protectible elements; most of the characters were stereotypical.
  • The plots were dissimilar.
  • The sequence was similar “with three parts – the first depicting the main characters failing at their jobs and on the verge of being fired, the second during which the main characters transformed themselves into Caucasian characters, and the third in which the main characters successfully stopped the crimes, saved their jobs, and repaired their romantic relationships.”[xxviii] The court concluded that “the structure is not unique.”[xxix] In fact, any beginning screenwriting student will tell you that this same three-act structure is a staple of most screenplays and is taught in film schools across the country.
  • The pace of the works have some similarities, but “the pace, without more, does not create an issue of overall similarity between the works.”[xxx]
  • The settings are substantially different.  Johnny Bronx is primarily in “slightly sketchy” New York City,[xxxi] while White Chicks is primarily at a luxury hotel in the Hamptons.  Both contain scenes in FBI offices, but those are scenes a faire for films about FBI agents.[xxxii]

As you might have guessed from the court’s discussion, it granted summary judgment to the defendants that, as a matter of law, there was no infringement.[xxxiii]

Copyrighting historical events

All of that may be well and good when you’re talking about original screenplays, but what about when the screenplay is based on actual historical events?  Well, that produces its own unique set of problems, as novelist Barbara Chase-Ribaud found out when she dared go up against the great Steven Spielberg.[xxxiv]

In 1989, Chase-Riboud published her historical novel, Echo of Lions, based on the true events surrounding the slave ship Amistad.  She painstakingly researched the story for three years, then used the historical record to tell her story, filling in gaps in the record with fictional scenes and characters.  (I’ve seen the same thing done in some legal briefs, but that’s another article.)  The novel sold over 500,000 copies and inevitably attracted the attention of Hollywood.[xxxv] Sales of half a million will do that!

In February of 1993, Punch Productions optioned the film rights to the book and attached screenwriter David Franzoni (Gladiator, Jumpin’ Jack Flash, Amistad – take note of that last one) to help in pitching the project to various studios, including Warner Brothers.  When they could find no takers, Punch abandoned the project.[xxxvi] Shortly after that, Dreamworks announced that Steven Spielberg would direct the movie Amistad, from a screenplay by – you guessed it – David Franzoni.  Chase-Riboud decided this would be a good time to contact Dreamworks and remind them that, oh, by the way, I submitted Echo of Lions to Amblin Entertainment a while back.  Coincidentally or not, Amblin just happened to be Spielberg’s production company.[xxxvii] It just got curiouser and curiouser.

After being given what amounted to a brush-off by Dreamworks, Chase-Riboud filed suit against various Dreamworks entities, alleging they had infringed on her copyright in Echo of Lions.  It’s when she moved for a preliminary injunction that things came to a head. Because to establish her right to an injunction meant she had to establish a likelihood of success on the merits, Chase-Riboud faced the daunting task of establishing that the defendants had infringed her copyright in a book that was premised upon actual historical events that were in the public domain.[xxxviii]

To prove copyright infringement, the plaintiff had to prove she owned the copyright and that the defendants had copied it.  To prove the latter, she needed to establish that the defendants had access to her copyrighted work and that there was substantial similarity between the two works.[xxxix] The first element was easy – nobody really argued that the defendants didn’t have access to the work.  “Access is proven when the plaintiff shows that the defendant had an opportunity to view or copy the plaintiff’s work.”[xl] It was that latter element – substantial similarity – that would be tricky.  After all, history is history, and it only made sense that two different stories based on the same historical events would be similar.

The court next noted that the Ninth Circuit followed a two-part test to determine whether a “substantial similarity” existed.  The first prong, the “extrinsic” test, was whether there is a similarity of ideas.  The focus is on “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events.”[xli] The second prong, the “intrinsic” test, asks essentially the question I raised above about the ordinary observer in the theater:  “if an ‘ordinary reasonable person’ would perceive a substantial taking of protected expression . . . The ‘intrinsic’ test looks for substantial similarity in the ‘total concept and feel’ of two works.”[xlii]

So how did all of this play out in the Echo of Lions/Amistad conflict?  For starters, the court had to determine which elements of the novelist’s work were protectable.  “Copyright protection does not extend to historical or contemporary facts, material traceable to common sources, or in the public domains, and scenes a faire.”[xliii] With that groundwork in place, the Court plunged ahead.

The leading “similarities” the plaintiff pointed to had to do with the fictional characters of Henry Braithwaite (in Lions) and Theodore Joadson (in Amistad), the historical character of Cinque, and the relationship between John Quincy Adams and Cinque.  The plaintiff contended that Braithwaite and Joadson had the same characteristics and served the same plot function in both works; i.e., that both characters “(1) link the Black and White communities and link Black America and Africa; (2) provide a contemporary Black voice to the Amistad story; (3) were both members of the abolitionist cause; and (4) printed abolitionist pamphlets.”[xliv] The major difference was that that Braithwaite was a wealthy landowner while Joadson was a runaway slave.[xlv]

The real problem for the plaintiff, though, is that copyright protection for characters is extended only to those who are “especially distinctive.”[xlvi] That includes cartoon characters, with “physical as well as conceptual qualities” that are “more likely to contain some unique elements of expression,”[xlvii] superheroes,[xlviii] (but aren’t we all superheroes in our own right?) and “characters visually depicted in a television series or in a movie.”[xlix]

Although Echoes and Amistad both contained “an erudite, Black male abolitionist who provides a modern voice,” the court concluded, rightly, that “a general skeleton (defined by function) of such a literary character cannot suffice to establish a character that is ‘especially distinctive’ and therefore protectable.”[l] The Court noted that, even if the novelist had created the “idea” of using such a character, ideas . . .  well, you already know about ideas.[li]

If the plaintiff stood on shaky ground as regards the fictional character she created, the ground was downright trembling when it came to the character of Cinque, an actual historical figure.  Even though the plaintiff claimed that both her character of Cinque in her book and the movie’s portrayal of him differed from the historical record in the same respect – both works portrayed him as understanding what was happening to him and participating in his defense – the court found that her “fictionalized” Cinque embodies nothing more than an “unprotected idea.”[lii] So we’re back to that old “ideas” thing again.

Furthermore, even though the historical record shows that Cinque and John Quincy Adams actually met, the scenes in the respective works don’t appear to be based on the historical record.  The court agreed with the plaintiff that these were not scenes a faire, but noted that “the meetings in each work are significantly different.”[liii] Furthermore, “the idea of a meeting between Adams and Cinque as one between men of mutual respect is not subject to copyright protection.”[liv] After evaluating all the factors, the court concluded that “Plaintiff has not established a probability of success” and denied her motion for a preliminary injunction.[lv]


If you’ve been wondering if there’s a point in all this, somewhere – well, there is. The point is this:  If your client is a screenwriter, advise him or her not to just write the same old, generic, seen-it-a-hundred-times-before drivel.  Instead, come up with a great idea, then turn it into a screenplay that is brilliantly original.  They’ll either scare others away from copying it because it’s so original as to be truly unique, or it’ll be really easy to prove in court if someone is foolish enough to copy it.  They might even increase their chances of selling it if it’s that brilliantly original – if it’s something “new under the sun.”

And, oh yeah, don’t forget to tell them to register their copyright.

[i] Mazer v. Stein, 347 U.S. 201, 217 (1954); Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498, 500 (2nd Cir. 1982).

[ii] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

[iii] Peel& Co. v. The Rug Market, 238 F. 3d 391, 394 (5th Cir. 2001) (“To prevail on a copyright infringement claim, a plaintiff also must show substantial similarity between the two works.”).

[iv] Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F. 2d 1157, 1172 (9th Cir. 1977).

[v] In Meta-Film Associates, Inc. v. MCA, Inc., 586 F. Supp. 1346 (C.D. Cal. 1984), the owners of the rights in an unproduced screenplay called Frat Rats sued the producers of that all-time classic, Animal House, for copyright infringement.  Among numerous problems with their claim was the fact that, to the extent anyone connected with Animal House had access to the script, which was debatable at best, that access didn’t happen until after the 110 page treatment for Animal House had been written.

[vi] Ferguson v. Nat’l Broad. Co., 584 F.2d 111, 113 (5th Cir. 1978) (“Even without proof of access, plaintiff could still make our her case if she showed that the two works were not just substantially similar, but were so strikingly similar as to preclude the possibility of independent creation.”)

[vii] Towler v. Sayles, 76 F. 3d 579, 584 (4th Cir. 1996) (In this suit against John Sayles, the writer/director of Passion Fish, the court held that the test was “whether the intended audience could determine that the works are substantially similar, usually without the aid of expert testimony.  In this case, the intended audience is the movie-going public.”)

[viii] This is not intended as an endorsement of Milk Duds; however, I have always been told to “write what you know,” so . . .

[ix] Towler v. Sayles, supra, 76 F. 3d at 584; Williams v. Crichton, 84 F.3d 581, 589 (2nd Cir. 1996).

[x] Reyher v. Children’s Television Workshop, 533 F. 2d 87, 91 (2nd Cir. 1976).

[xi] Alexander v. Haley, 460 F. Supp. 40, 45 (S.D.N.Y. 1978).

[xii] 784 F.2d 44 (2nd Cir. 1986).

[xiii] 50.

[xiv] Berkic v. Crichton, supra, 761 F. 2d 1289, 1294 (9th Cir. 1985).

[xv] Warner Bros., Inc. v. American Broadcasting Cos., 720 F. 2d 231, 241 (2nd Cir. 1983).

[xvi] See v. Durang, 711 F. 2d 141, 142 (9th Cir. 1983).

[xvii] Warner Bros. v. ABC, supra, 720 F. 2d at 241; Eden Toys, Inc. v. Marshall Field & Co., 675 F. 2d 498, 501 (2nd Cir. 1983) (This case involved a claim by Eden Toys that Marshall Fields had infringed its copyright in a stuffed snowman by selling a similar snowman manufactured by a Korean company.  The court held than any similarities between the two were “exclusively the result of features common to all snowmen.”  And just how silly do you think he felt writing that in a legal ruling?

[xviii] Look up the “plot keywords” for the movie on and you find “gender disguise,” “bisexual,” “cross dressing,” “flatulence,” “toilet scene,” and “vomit.”  Almost the very definition of “hijinks.”

[xix] A Slice of Pie Productions, LLC v. Wayans Brothers Entertainment, 487 F. Supp. 41 (D.C. Conn. 2007).

[xx] Id. at 44.  The plaintiff submitted the Johnny Bronx screenplay to agent Lisa Blum at the Gold/Miller Company, which also represented the Wayans Brothers.  Later, an agent at the Gersh Agency also sent a copy of Johnny Bronx to Blum, but Blum testified that “she has no recollection of ever receiving or reading the screenplay.”  But the Gersh agent also sent the script to Rick Alvarez, a producer at Wayans Brothers Productions, though Alvarez also denies any recollection of receiving or reading the screenplay.  Finally, the plaintiff claims he sent the script directly to Marlon Wayans, but Marlon declared that he had never read the screenplay.

[xxi] Id. at 45.

[xxii] Id. at 46.

[xxiii] Id. at 47.

[xxiv] One need only visit the French Quarter in New Orleans to verify the latter.

[xxv] Id. at 48.

[xxvi] Id.

[xxvii] Id. at 48-50.

[xxviii] Id. at 50.

[xxix] Id.

[xxx] Id., citing to Williams v. Crichton, supra, 84 F.3d at 590.

[xxxi] Id.

[xxxii] Id.

[xxxiii] Id. at 52.

[xxxiv] Barbara Chase-Riboud v. Dreamworks, Inc., 987 F. Supp. 1222 (C.D. Cal. 1997).

[xxxv] Id. at 1224.

[xxxvi] Id.

[xxxvii] Id..

[xxxviii] Id. at 1226, citing Narell v. Freeman, 872 F. 2d 907, 911-12 (9th Cir. 1989) (“Historical facts and theories may be copied, as long as the defendant does not bodily appropriate the expression of the plaintiff”) and Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 974 (2nd Cir. 1980) (“The scope of copyright in historical accounts is narrow indeed, embracing no more than the author’s original expression of particular facts and theories already in the public domain.”)

[xxxix] Id. at 1224.

[xl] Id. at 1225, citing to Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., supra, 562 F. 2d at 1172.

[xli] Id., citing to Kouf v. Walt Disney Pictures & Television, 16 F. 3d 1042, 1045 (9th Cir. 1994).

[xlii] Id., citing to Litchfield v. Spielberg, 736 F. 2d 1352, 13656 (9th Cir. 1984).

[xliii] Id. at 1226, citing to Walker v. Time Life Films, Inc., 615 F. Supp. 430, 435 (S.D.N.Y. 1985).

[xliv] Id. at 1228.

[xlv] Id. “Defendants also note that Joadson, unlike Braithwaite, plays a critical role in assisting the Africans defense by interviewing prospective lawyers, searching for evidence, and urging John Quincy Adams to take the case.”

[xlvi] Olson v. National Broadcasting Co., 855 F. 2d 1446, 1452 (9th Cir. 1988).

[xlvii] Walt Disney Prods. v. Air Pirates, 581 F. 2d 751, 755 (9th Cir. 1978).

[xlviii] Warner Bros. v. ABC, supra, 720 F. 2d at 240-245 (protecting Superman).

[xlix] Olson v. NBC, supra, 855 F. 2d at 1452.

[l] Id. at 1228, citing to Olson, 855 F. 2d at 1452.

[li] Id., quoting Warner Bros. v. American Broadcasting Cos., 654 F. 2d 204, 208 (2nd Cir. 1981): “It is axiomatic that copyright protection extends only to the expression of the author’s ideas, not to the idea itself.”

[lii] Id. at 1229-30.

[liii] Id. at 1230.

[liv] Id.

[lv] Id. at 1232.

Nothing in this article should be construed as legal advice.  You should always consult with an attorney on your particular question, because the answer can vary on a case-by-case basis.

%d bloggers like this: