A recent decision out of a Federal District Court in Utah once again demonstrates why copyright is not the huge drag on free speech that opponents contend that it is. The fact is that copyright will not operate to suppress a work where the similarities that exist between two works arise from the treatment of common ideas.
The case, Dutcher v. Bold Films LP, 1 focuses on two movies where the central character is a “stringer;” a freelance videographer seeking to sell footage to television news outlets. Plaintiff’s movie Falling was made in 2007 and received a limited release. 2 Defendants’ 2014 movie Nightcrawler was very successful, and the films’ screenwriter was nominated for an Academy Award for best original screenplay. 3
The basic plot ideas are the same for both films. Both track the activities of a “stringer” who finds himself drawn into seeking more and more sensational footage, until the point where he films a dying murder victim without attempting to save him. 4
The problem for the Plaintiff here is that many of the similarities of the two movies naturally arise from sharing a similar plot idea. As the Court states: “the court must exclude from consideration elements that are ‘standard, stock, or common’ to the stringer profession, including material that ‘necessarily follows’ from that theme and setting.” 5
So, the fact that both protagonists drive around Los Angeles at dark, listen to police scanners for tips, and rush to crime scenes to grab sensationalistic video footage cannot be considered as actionable similarities, as they arise naturally from a common plot idea. Indeed, as the Court notes, there have been prior “stringer” films and “[t]hose prior works contained all of the significant stringer themes that Plaintiff claims are independent creations.” 6
Indeed, the Plaintiff really pushes his luck by asserting that since both films contain the phrase “if it bleeds, it leads,” this is proof of copying by the Defendants. 7 This, as the Court notes, is a “clichéd journalism phrase…,” 8 so much of a cliché that it is mentioned in the Robert Redford film Up Close and Personal, which predates Plaintiff’s film by about 10 years. 9
The thought that all similarities are proof of infringement is not a new problem.
“While both the ‘Dinosaur World’ books and the ‘Jurassic Park’ works share a setting of a dinosaur zoo or adventure park, with electrified fences, automated tours, dinosaur nurseries, and uniformed workers, these settings are classic scenes a faire that flow from the uncopyrightable concept of a dinosaur zoo.” 10
“Elements such as drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx. These similarities therefore are unprotectible as ‘scenes a faire,’ that is, scenes that necessarily result from the choice of a setting or situation. Neither does copyright protection extend to copyright or ‘stock’ themes commonly linked to a particular genre. 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. As such, they are not copyrightable except to the extent they are given unique—and therefore protectible—expression in an original creation.” 11
Or consider the “alien-being” movie. The fact that it is an alien, and not of this Earth, implies that the alien will possess powers beyond those of human beings. This naturally flows from the plot point of them being aliens in the first place. Next, the “alien-being” movie will flow in one of two directions. Either the alien is benevolent and means no harm to humans such as E.T. or Starman, or the alien is hostile and wishes to kill all the humans that it comes in contact with, such as Alien, Predator or The Thing. The hostile alien will use its extraordinary powers to its advantage: The alien of Alien has no eyes, but can sense human presence, giving it an advantage in the dark. The “Predator” has the powers of invisibility and infra-red eyesight. The “Thing” is a shape-shifter that can take any form.
Again, these are points that naturally flow from the idea of an alien-being and are not copyrightable.
Or consider the iron-clad 5 basic plot points of any romantic comedy.
- Boy meets girl (In old Hollywood, they used to say “meet cute”)
- Boy loves girl
- Boy wins girl
- Boy loses girl
- Boy gets girl back
See Singing In the Rain, Notting Hill, Pretty Woman, Pretty in Pink, 10 Things I Hate About You, When Harry Met Sally, etc.
Actually, I think these are the plot points for every movie Meg Ryan has ever made.
But, I digress.
Back to the case at hand, once stripped of the similarities that naturally result from the treatment of common ideas, the Court finds that the works are not substantially similar.
“[T]he plot and overall theme of the movies are not substantially similar. Falling has heavy religious overtones and includes a main character who is struggling with his identity as a stringer. Nightcrawler does not involve religion or morality in the same way but rather focuses on an amoral character who is not developing or changing morally throughout the film.
The murder scenes are also not substantially similar. In Falling, Eric happens upon a gang mugging during the day on the street and tapes the man assaulted rather than attempting to assist him. In Nightcrawler, Lou unlawfully enters the private residence of a crime victim and tapes one of the victims as he dies. In another Nightcrawler scene, Lou intentionally places his intern in danger, causing him to be shot by police. Neither of the murder scenes in Nightcrawler is substantially similar to the scene in Falling.” 12
“[T]he significant similarities between the films are properly excluded from consideration, because they are consistently found in Prior Stringer Works. Accordingly, Nightcrawler is not substantially similar to Falling under the reasonable observer standard.” 13
- 2019 WL 3899584, District Court of Utah ↩
- Id.at 1 ↩
- Nightcrawler (film) ↩
- 2019 WL 3899584 at 1 ↩
- Id. at 2 ↩
- Id. at 2 ↩
- Id. at 3 ↩
- Id. ↩
- Up Close and Personal ↩
- Williams v. Crichton 84 F.3d 581 Second Circuit Court of Appeals 1996 ↩
- Walker v. Time-Life Films 784 F.2d 44 Second Circuit Court of Appeals 1986 ↩
- 2019 WL 3899584 at 3-4 ↩
- Id. at 4 ↩