This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It analyzes the recent lawsuit filed by Irish Rover Entertainment against Netflix, through which the former claimed that the latter infringed its copyright through the blockbuster-hit show, Stranger Things.
Ever since its July 2016 release, ‘Stranger Things’ has been one of the most popular series on the online streaming platform, Netflix. The show has picked up a handful of Emmy’s, turned star Millie Bobby Brown into a household name, and burnished Netflix’s slate of original television. The plot of the show is primarily centred around a group of teenagers fighting off supernatural monsters and bringing down evil organizations.
On July 15, 2020, Irish Rover Entertainment (Irish Rover) brought a lawsuit against Netflix in Los Angeles Federal Court. Irish Rover accused the online streaming platform and the Duffer Brothers of lifting almost everything from the screenplay of Jeffrey Kennedy’s ‘Totem’. Jeffery Kennedy claimed that he had entirely derived the idea of his screenplay from the events surrounding Clint Osthimer, one of his childhood friends. Clint used to have regular episodes of epileptic seizures, which as claimed by him, would transport him to an alternate supernatural dimension. Terming his epilepsy as a “personal demon”, Kennedy credits him as the inspiration behind such a story.
The lawsuit filed by Irish Rover Entertainment claims that Netflix’s Stranger Things imitated the “plot, sequence, characters, theme, dialogues, mood and setting, as well as copyrighted concept art” from Totem. For instance, one of the protagonists of Totem is a girl named ‘Kimmela’ or ‘Kim’ for short, who possesses psionic powers. She helps her friends track down the opening to a supernatural plane, and helps them fight off monsters such as a dark spirit named Azrael and his army of Blackwolf. In Stranger Things, ‘Kimmela’ or ‘Kim’ has been replaced by ‘Eleven’ or ‘El’. Eleven possesses similar psychic abilities and helps her friends fend off monsters such as the Shadow monster, similar to the dark spirit Azrael in Totem. Even the smallest of details are used as accusations by the plaintiffs. Like the word “promise” at the end of several conversations between Eleven and Mike.
This isn’t the first time when Netflix has been sued with regards to Stranger Things. Back in 2018, a lawsuit was filed by Charles Kessler, director of the short film ‘Montauk’, which had debuted in the Hamptons International Film Festival in 2012. There do seem to be some striking similarities between Montauk and Stranger Things. For instance, both works are primarily centred around evil organizations performing scientific experiments, missing boys, and monsters from supernatural dimensions. Kessler alleged that he had pitched his film to the Duffer brothers (executive producers of Stranger Things), and later on gave them the ‘script, ideas, story, and film’, in order to have them direct a full-length feature film ‘The Montauk Project’.
The Duffers never went on to direct the film, but rather created Stranger Things. While Kessler demanded a share of the profits made out of the alleged adaptation, the Duffers claimed that they had neither watched Kessler’s short film nor had they spoken to him about it. Therefore, they possessed no prior knowledge of Montauk, and Stranger Things had essentially been an outcome of their creativity and hard work. The lawsuit was dropped a couple of days before the trial when documents were produced before Kessler proving the truth in the Duffers’ contentions.
Irish Rover heavily relied on the unpublished decisions of the Ninth Circuit Court in Zindel v. Fox Searchlight Pictures, Inc. and Alfred v. Walt Disney Co. Through these cases, the plaintiffs basically wanted to contend that a copyright infringement cannot be dismissed merely based on the criteria of pre-discovery and that expert testimony is indispensable for determining the similarity index.
Zindel v. Fox Searchlight Pictures, Inc.
A copyright infringement claim had been made against the creators of the film The Shape of Water, the winner of the 2018 Academy Award for Best Picture, as well as the publisher of the film’s novelization. The plaintiff alleged that The Shape of Water infringed the copyright to his father’s 1969 play Let Me Hear You Whisper. The Shape of Water is centred around a female janitor, who falls in love with an aquatic beast that has been placed in an aquatic tank for scientific testing. When the janitor learns that the scientists are planning on killing it, she helps him escape using a laundry cart. Let me hear you whisper contains a fairly similar premise, centred around a female janitor who develops a strong bond with an intelligible dolphin. In order to save the dolphin from excruciating experiments being performed on it, she helps him escape using a laundry cart.
While deciding the case, the district court made an implied reference to the ‘idea-expression dichotomy’ while stating that “although the play and the film share the basic premise of an employee at a scientific facility deciding to free a creature that is subjected to scientific experiments, that concept is too general to be protected”. The judge dismissed the plea on the grounds that the defendant’s film was not substantially similar to the plaintiff’s play.
However, on appeal, the Ninth circuit court reversed the judgment, based on the following points:
- The district court had reached its conclusion in a hasty manner.
- The criteria of pre-discovery dismissal in case of copyright infringement is virtually unheard of.
- There could be varying opinions with regards to the extent of the similarity. For instance, the court regarded the premise of a female janitor forming a connection with an aquatic animal, and helping it escape using a laundry cart’ to be substantially similar.
- Therefore, in order to resolve contrasting opinions, expert testimony is extremely important for determining the extent of similarity between the two works.
Alfred v. The Walt Disney Company
In this case, the plaintiffs accused The Walt Disney Co.’s film ‘Pirates of the Caribbean: The Curse of the Black Pearl’ of infringing their copyrighted screenplay. The district court did decipher and agree that there were some similar elements in both works. For instance, both the film and the screenplay begin with a prologue that takes place 10 years prior to the main story, introduce the main characters during a battle at gunpoint, involve treasure stories taking place on islands and in jewel-filled caves, include past stories of betrayal by the former first mate, contain fearful moments driven by skeleton crews, focus on the redemption of a young, rogue pirate, and share similarities in dialogue and tone. However, the court dismissed the plea on the grounds that most of the common elements were merely pirate-movie ideas, and therefore incapable of being protected.
However, the Ninth Circuit court reversed the district court’s judgment and held that it is often difficult to determine which elements of a work can be protected, and which cannot be. By this, the court implied that differentiating between ‘an idea’ and ‘an expression of the idea’ is often a tedious task. Therefore, expert testimony is incumbent in such cases, in order to help decipher the idea-expression dichotomy and thereby determine the extent to which the two works are similar.
Reasonable knowledge of prior work
“Mr Kennedy has been peddling these far-fetched conspiracy theories for years, even though Netflix has repeatedly explained to him that The Duffer Brothers had never heard of him or his unpublished script until he began threatening to sue them”, commented a Netflix representative in a statement to The Wrap. Through this statement, the representative seemed to have made an implied reference to the case of Erickson Productions Inc. v Kast, wherein the Ninth Circuit clarified that an accused willful infringer must either know about or recklessly disregard the copyright in the suit. This requires proof of the infringer’s intent. The Duffers claim to have possessed no prior knowledge of Totem before creating Stranger Things, and therefore the show was an original creation.
The substantial similarity test
In its attempt to defend Stranger Things, Netflix laid down a detailed analysis of the two works, showcasing that Stranger Things was not ‘substantially similar’ to Totem.
The substantial similarity test is a famous test where the court conducts an objective analysis of similarities between the competing works’ plot, themes, dialogue, settings, pacing, characters, and sequence of events after filtering out non-protectable similarities. This test is used keeping in mind the notion of the general idea, historical fact, and the scenes-a-faire element.
Infringement of the owner’s right to reproduction could take place either in the form of verbatim copying, or modified copying. The former involves straightforward reproduction, such as photocopying a book or reproducing a protected photo on a dress. Complications arise in circumstances where the work has lifted parts, and modified them to form an altogether new creation. In such cases, the courts generally bring forth ‘the substantial similarity test’ in order to help them determine whether the defendant’s actions did actually constitute a violation of the plaintiff’s right and deprive him of benefits, or not.
Harney v. Sony Pictures Television
Harney v. Sony Pictures Television, Inc. and A& E Television Networks, LLC. is a landmark case concerning this test. Back in April 2007, freelance photographer Donald Harney stopped by a Boston church and requested a pair of father and daughter to photograph them for a newspaper. The father reluctantly agreed, and Harney captured a shot of the young Reigh Storrow Mills Boss being carried on her father’s shoulders, who was presumed to be Clark Rockefeller at that time. Later on, when Harney had the photo published, many official authorities realized that the father in the picture was Christian Gerhartsreiter. Later on, Sony Pictures Television, Inc. and A& E Television Networks, LLC. collaborated to make a movie titled ‘Who is Clark Rockefeller’.
One of its significant scenes bore a striking resemblance to Harney’s picture. On discovering so, he sued for copyright infringement. The court, on assessing the intricacies of both works, came to the conclusion that the defendant’s work did not infringe upon the copyright of the plaintiff. There were certain elements in Harney’s picture that entailed copyright shelter, while certain others did not. Since the court discovered substantial differences between both works with regards to the protected elements of the former, there was no infringement.
The idea-expression dichotomy
The defendants claimed that the elements of similarity such as evil organizations, monsters from supernatural dimensions, psychic children, etc., as pointed out by the plaintiffs, were merely ideas and therefore incapable of being protected. According to the idea-expression dichotomy, an idea per se is not eligible for copyright protection. Rather, a novel expression of the same is. For instance, the films ‘Carrie’ and ‘Matilda’ have similar plots centred around the idea of telekinetic abilities.
Another example could be the popular films ‘Taken’ and ‘Finding Nemo’, both of which revolve around the basic plot that the single and protective father goes through a dangerous series of events in search of his lost/ abducted child. The reason for deriving such a distinction is fairly obvious. Ideas are too precious to be copyrighted. Creativity, the very basis of progress, was to reach a standstill if all ideas got copyrighted. According to Netflix, Stranger Things has been independently conceived by the Duffer brothers and is an outcome of their creativity and hard work.
The District Court did not agree with Netflix’s demonstrations showcasing Stranger Things not to be substantially similar to Totem. Instead, it relied heavily on the Ninth Circuit’s unpublished decision in the Alfred case, declaring that expert testimony was indispensable in determining the extent to which the two works were similar. Accordingly, the court denied the motion to dismiss.
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