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A lawsuit filed Thursday against Sony Pictures has all the makings of an intellectual property horror story.
The plaintiff in the case is Phame Factory, which had planned to digitally distribute a movie titled Flay only to get served with several cease-and-desist letters from Sony, which alleges that the main character in Flay blatantly copies the mysterious Slender Man, its bigger-budget horror flick set to be released Aug. 10. Phame Factory is now seeking a declaratory judgment that its promotion, distribution and advertisement of Flay doesn’t infringe Sony’s trademarks and copyrights. What’s more, Phame Factory asserts that Sony’s IP rights “are either indefinite, encompass free to use by all public domain property or lack the requisite legal requirements to be protectable and enforceable.”
What makes this case so intriguing is the origins of “Slender Man.”
In 2009, according to this article in The Washington Post, Eric Knudson went on the user forums of Something Awful, a humor site, and posted two photos of children haunted by a tall, shadowy figure. He later contributed more doctored photos, newspaper clippings and child’s drawings of Slender Man. A myth was created, and other users contributed their own stories.
A few years later, the meme took on a different sort of life when a 12-year-old Wisconsin girl was lured into the woods and stabbed 19 times by two other classmates in what the police were later told was an effort to prove to Slender Man that the perpetrators were worthy of being servants. (Earlier this year, the attempted murder resulted in a 40-year sentence to a mental institution.)
Sony’s Screen Gems division acquired motion picture rights to the Slender Man from Knudson, who, according to one of the cease-and-desist letters to Phame Factory, registered his character for copyright in 2010. The studio has proceeded with the film despite the victim’s father complaining that the movie is “extending the pain all three of these families have gone through.”
The pic will now become controversial for another reason.
While the complaint filed in Texas by Phame Factory (read here) doesn’t go into the origin story of Slender Man, there’s clearly some potential in the road ahead. In responding to the cease-and-desists, Phame Factory continually asked Sony about what specific copyright elements are claimed to be owned. Sony’s attorney Linda Burrow has dodged getting specific.
This Slender Man case calls to mind some other situations.
Back in 2011, Warner Bros. purchased movie rights to a story posted on Reddit and, at the time, we pointed to the social site’s “user agreement” providing a non-exclusive license. We asked: Does Warner Bros. really have exclusive rights? The question never got to court, and it appears the movie adapting that Reddit story was never made.
Another dispute that’s perhaps relevant happened over modded video games, where fans of Warcraft III: Reign of Chaos contributed stories and characters in new versions — leaving quite a mess over authorship and ownership.
If the Phame Factory case goes far, there could perhaps be similar exploration about who contributed what — and under what licensing scheme — back in 2009 on a message board. For now, Sony heads into a film release with an intriguing challenge to its intellectual property. It will need to not only show it has properly acquired rights, but spell out how the character is sufficiently delineated, a la Godzilla.
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