Joss Whedon and Lionsgate were just hit with a copyright infringement lawsuit for his 2012 movie, Cabin in the Woods. I read the complaint and I have a feeling that Peter Gallagher (Plaintiff) might win this one against Whedon and Lionsgate (Defendants). Although, I don’t have time to do a full analysis right now (I have to wake up at 7:00 am for my copyright law class and it’s already 2:00 am), here are my initial thoughts on this matter:
1) In order to prove copyright infringement, Gallagher has to meet the two prong test laid down by Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991): “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”
2) According to the complaint, Peter Gallagher owns a valid copyright in his novel: The Little White Trip: A Night In the Pines. Pursuant to 17 U.S.C. §106, Copyright holders enjoy the exclusive rights of 1) reproduction, 2) making derivative works, 3) distribution, 4) public performance, 5) and public display. Cabin in the Woods violates all five of Gallagher’s exclusive rights. Therefore, Gallagher meets Feist‘s first prong.
3) In order to meet Feist’s second prong, Gallagher needs to prove that Whedon and Lionsgate copied his novel as a factual matter. He can show this through direct evidence or if that is unavailable, by evidence that Whedon and Lionsgate had access to the copyrighted work and that their movie Cabin in the Woods is so similar that the United States District Court for the Central District of California may infer that there was probative similarity (or in other words, factual copying). In the complaint, Gallagher asserts that a majority of his book sales were made in Santa Monica, a short distance from where Whedon resides and where Lionsgate’s maintains its principal place of business. (see Complaint at 3, Gallagher v. Lionsgate Entertainment Inc., et al., Case No. 2:15-cv-02739 (2015)). Once Gallagher proves probative similarity, he must also prove substantially similarity. And, here there can be no doubt that there was both quantitative and qualitative copying. (see Complaint at 11-15, Gallagher v. Lionsgate Entertainment Inc., et al., Case No. 2:15-cv-02739 (2015)).
4) Whedon and Lionsgate will likely not be able to claim a fair use defense pursuant to 17 U.S.C. §107 either. Factors 1, 3, and 4 weigh heavily against them. (I’ll expound on this later).
Other relevant analysis:
1) This case strongly reminded me of the Nichols v. Universal Pictures Corp. et al., 45 F.2d 119 (2d Cir. 1930) case. There, Judge Learned Hand laid down the rule for the “abstractions” test (idea-expression dichotomy). Essentially the test embodies the following:
“Upon any work . . . a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the [work] is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the [author] could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”
Nichols, 45 F.2d at 121.
In the complaint, it is alleged that Gallagher “developed the idea for what would become the Book… [and] subsequently created a short outline of the idea for the Book in 2004.” (Complaint at 5, Gallagher v. Lionsgate Entertainment Inc., et al., Case No. 2:15-cv-02739 (2015)). And as was mentioned above, the complaint goes on to compare the amount of substantial similarities between Gallagher’s book and Whedon’s movie. (see Complaint at 11-15, Gallagher v. Lionsgate Entertainment Inc., et al., Case No. 2:15-cv-02739 (2015)). At least after a cursory glance, it seems like Whedon took more of Gallagher’s expression of his idea rather than the idea itself. (Ideas are not copyrightable – only patentable! Expression is copyrightable).
2) Gallagher’s characters are also copyrightable. (see Anderson v. Stallone, 11 U.S.P.Q.2d 1161 (C.D. Cal. 1989)). The court in Stallone determined that the characters from the original copyrighted work were afforded copyright protection using Judge Learned Hand’s standard in Nichols, i.e., copyright protection is afforded when a character is developed with enough specificity to constitute protectable expression. Id. I have not read Gallagher’s The Little White Trip: A Night In the Pines, but if it is clear to the United States District for the Central District of California that Whedon’s movie was a derivative work then it can be given no protection. (see 17 U.S.C. §106(2), establishing derivative works [to be] the exclusive privilege of the copyright holder). Furthermore, the court could even apply the ordinary observer test to make this determination. (see Lyons Partnership v. Morris Costumes, 243 F.3d 789 (2001), see also Dawson v. Hinshaw Music, Inc., 905 F.2d 731, 733 (4th Cir. 1990) holding The notion of intrinsic similarity [redacted] requires the court to inquire into “the `total concept and feel’ of the works,” but only as seen through the eyes of the ordinary observer.)
3) Curiously enough, Cabin in the Woods was released on April 13th, 2012 and this complaint was filed on April 13th, 2015. According to 17 U.S.C. §507(b), the statute of limitations for a copyright infringement action is 3 years. I wonder why Gallagher waited until the very last minute to file his suit.