THR Esquire

Funky copyright case could be a blockbuster

Like expensive CGI and flashy premieres, defending copyright lawsuits by writers who think their screenplays have been ripped off is just another cost of doing business for studios. But a string of recent court cases suggests federal judges are taking a more hostile view of stolen-script claims, which could benefit studio bottom lines like a "Transformers"-size blockbuster.

Writers who allege their screenplays have been stolen are required to demonstrate that they own a valid copyright in the work and that it was copied by the defendant. In order to prove copying, courts have required that the writer show the studio both had access to the work and that the "protected elements" — meaning the unique, copyrightable parts of the plot, setting, characters and dialogue — are "substantially similar" to the studio's film.

However, in 2002, the 9th Circuit Court of Appeals, which governs copyright claims in California, appeared to loosen that tough standard, ruling in a case involving producer Stephen Bochco's "City of Angels" that the particular way an author strings together unprotectable elements — meaning more generic components that aren't themselves copyrightable — could itself deserve protection (assuming the studio also had access to the work). Lawyers for disgruntled screenwriters applauded the decision because it made it easier for a writer to get a case past a judge and in front of a jury, which makes risk-averse studios much more likely to offer the writer a rich settlement.

But what the 9th Circuit giveth, it can taketh away. In an August decision called Funky Films v. Time Warner, the appellate court refused to find that HBO's "Six Feet Under" was substantially similar to a script called "The Funk Parlor," even though both stories involved a family-run mortuary and a prodigal son who is inspired by his younger brother to help run the business after their father dies.

It's still a recent decision, but the Funky Films case may have started a funky trend for plaintiffs. This month, district courts on both coasts have followed the 9th Circuit's lead, granting dismissals of copyright cases brought by scribes who claimed the screenplays for Sony's "White Chicks" and Disney's "Sweet Home Alabama" were ripped off.

"Slowly but surely we're getting judges to apply the rigorous test that is supposed to weed out cases that aren't meritorious," says Marty Katz, Disney's litigator on the "Sweet Home" case.

True, but some non-studio lawyers are wondering if the difficulty of getting a copyright claim past the summary judgment phase will chill legitimate cases from being filed — or encourage potential copycatters to redraft a few aspects of a script and pass it off as their own.

"I'm getting the sense from the 9th Circuit that if you change the hubcaps and put on different windshield wipers and repaint it, that's enough if you want to use the same car," says litigator Dale Kinsella, who, based in part on Funky Films and other cases, filed a recent stolen-script complaint for writer-actress Laura Kightlinger against "Year of the Dog" writer-director Mike White in state court (even though potential damages in federal copyright cases often are much higher).

We may even see fewer cases as the high hurdle for copyright infringement lawsuits causes upset writers to think twice before making the leap.
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