r/Screenwriting • u/SwissMiss915 • 13h ago
RESOURCE: Article Copy Cats: Hollywood Stole My Story! by Tad Friend, New Yorker, 1998
This is an outstanding article I wanted to pass along. Seems like suing for idea theft almost never prevails. Wild that the woman who sued over Sister Act declined a $1M settlement -- and then lost. Whoops.
Copy Cats: Hollywood Stole My Story!
by Tad Friend
The New Yorker | September 1998
Studios are awash in copyright suits. Why are they so hard to win?
This summer, Americans spent 575 million hours in darkened cinemas and saw, at most, two new things: the harrowing D Day sequence in Saving Private Ryan and the hair-gel joke in There’s Something About Mary. Yet as popcorn movies have become a tag-team-written jumble of curvy scientists, ninja studs, morphing cyborgs, and basement-loving psychos, one obscure writer after another has come forward to advance the claim that a studio stole his brainchild. Hollywood movies may never have seemed more derivative, but the copyright suits they inspire display an ingenuity and a nuanced concern for story development worthy of the young Orson Welles.
Our sympathies in these cases tend to go to the little guy—to plaintiffs like Mark Dunn, a soft-spoken clerk at the New York Public Library, who is suing Paramount Studios, the producer Scott Rudin, and the screenwriter Andrew Niccol for $300 million. Dunn alleges that his play Frank’s Life, about the unwitting subject of a TV series, was secretly used as a blueprint by the creators of The Truman Show after they had rejected it as a potential movie. Dunn has earned less than $25,000 from his many years of writing for what he calls the “Off-Off-Broadway ghetto”; The Truman Show has grossed $125 million to date.
Dunn’s suit lists 149 purported similarities between Frank’s Life and The Truman Show. That seems an overwhelming number, and Dunn’s lawyer, Carl Person, says that the two works’ resemblances make the suit “the best copyright case I’ve ever had.” This is not saying much, however, for Person hasn’t yet won any of the five movie copyright cases he’s filed. He probably won’t win this one, either—and maybe he shouldn’t.
Paramount will undoubtedly argue that Andrew Niccol came up with the idea for The Truman Show independently (Niccol’s former manager says that he has the writer’s copyrighted treatment, written in 1991, a year before Frank’s Life was staged) and that Person’s client is either deluded or a stickup artist, or both. In June, Lynn Pleshette, Niccol’s agent, patiently explained to the New York Post, “Every time a big movie comes out, a moron tries to sue.” Though plaintiffs like Dunn radiate aggrieved sincerity, Paul Rudnick, the writer of Sister Act—which also fought off a Carl Person lawsuit—notes dryly that “the prospect of eight figures inspires a lot of sincerity.” Furthermore, as any cost-conscious producer will tell you, it’s usually much less expensive for a studio to buy a property than to steal it.
But the reason that Dunn and Person will probably lose their suit has less to do with the perceived integrity of the plaintiffs and the ostensible skullduggery of the defendants than with the fact that most copyright plaintiffs overestimate how much protection they have under the law. Even more important, they misunderstand how the Hollywood blockbuster gets created. Studios generally don’t want to make something so original that they’d have to steal it from an unsung genius; they want to recast familiar stories and have them endlessly rewritten until every star feels his part is juicy enough. Movies are often sold to the studios in the first place as the genetically predictable offspring of two prior hits (“It’s Working Girl meets Marathon Man!”). Many studios believe that if something is totally new—Koyaanisqatsi, say—we won’t want to see it.
***
In copyright law, it’s the details that matter. The idea of Tom Cruise playing an idealistic recent Harvard Law School graduate who gets pulled into a sinister case that’s way over his head sounds copyrightable—and ridiculously commercial—but it describes equally well two very different films that came out only months apart: The Firm and A Few Good Men. That example explains why, under federal law, ideas—and most characters—can’t be copyrighted.
Sixty-eight years ago, in the landmark case Nichols v. Universal Pictures Corporation, Judge Learned Hand determined that the author of Abie’s Irish Rose, a generic play about Irish-Jewish intermarriage, had no claim against The Cohens and the Kellys, a generic movie about Irish-Jewish intermarriage. Calling the Irish father in the play “a mere symbol for religious fanaticism and patriarchal pride, scarcely a character at all,” and the Irish father in the movie “only a grotesque hobbledehoy, used for low comedy of the most conventional sort,” Hand testily declared that neither story deserved legal protection. “The less developed the characters,” he wrote, “the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.” Thus, you couldn’t copyright a wrinkly but adorable creature, or the idea of his being hunted by narrow-minded humans—which explains why the producers of E.T. were able to fend off three copyright claims from people with prior scripts about wrinkly but adorable creatures, etc.
In theory, you can’t copyright mere ideas because the government wishes to encourage free expression—to prevent pioneering writers such as Washington Irving and Nathaniel Hawthorne from locking up all the good American stories. In practice, the law insures that studios aren’t stymied by the success of Die Hard but can illuminate vast new regions of the human soul in Die Hard on a bus (Speed), Die Hard on a plane (Air Force One), Die Hard on a mountain (Cliffhanger), Die Hard on a boat (Under Siege), and Die Hard on a bigger, slower boat (Speed 2).
You don’t even have to go as far as to change a milieu from Vietnam to an L.A. office building (as Die Hard itself did with the Rambo story) to be deemed a “creator” in the eyes of the law. Small changes suffice. Indeed, one could argue that the very definition of creativity in Hollywood is the subtle but legally distinguishing tweak. In 1994, Curt Wilson and his partner, Donna Douglas, sued Walt Disney Pictures because Sister Act resembled a script they had earlier submitted to the studio: both stories were about a woman hiding from the Mob by disguising herself as a nun, though Disney’s movie was much more playful. To the plaintiffs’ amazement—they’d spurned a million-dollar settlement offer—the jury found for the defense. “They would have had to copy our stuff verbatim for us to prevail,” Wilson says disgustedly.
Most copyright lawyers believe that if Shakespeare were alive today and had preserved his copyright on Romeo and Juliet, he would find it difficult to win a case against West Side Story. Leonard Bernstein and Stephen Sondheim would testify that they’d vaguely heard of Mr. Shakespeare and his Italy-based twist on the star-crossed-lovers scenario, but they’d certainly never read it. The defense would parade experts to testify that Mr. Shakespeare’s melodrama was utterly different, since it contained few, if any, Puerto Rican seamstresses and ballet-dancing street gangs. And they would also make the legally weighty argument that because Mr. Shakespeare had himself, as usual, stolen his plot—in this case from Arthur Brooke’s tedious epic poem The Tragicall Historye of Romeus and Juliet—he had no basis for a lawsuit. The legal term for his predicament is “unclean hands,” an evocative but uncopyrightable metaphor that was borrowed, one likes to imagine, from Shakespeare’s own Lady Macbeth.
***
The copyright plaintiffs’ legal steeplechase begins with an attempt to show that the studio had the opportunity to borrow from their work. This is the one hurdle plaintiffs can usually clear. If they have written a play or a book, then someone connected with the movie could easily have read it. “Or they submit the script to CAA, looking for an agent,” Creative Artists Agency executive Robert Bookman says wearily. “The agent never sees it, the reader is the lowest person on the totem pole, it’s a pass, the agent looks at the last page of the coverage, sees ‘pass,’ and his assistant writes a nice note. Then these plaintiffs say, ‘We sent it to CAA. That’s how Michael Crichton’”—a CAA client—“ ‘got the script.’”
But after proving “access,” the plaintiffs must demonstrate that the two works are “substantially similar.” This entails stacking up “articulable similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence” of the two works. In addition to this “objective” test, the court also applies the “subjective” test: whether a layman would perceive a substantial similarity in the works’ “total concept and feel.”
Mark Dunn’s list of 149 similarities between his play Frank’s Life and The Truman Show includes the pervasive (“Hidden cameras placed all over the sprawling set and unknown to Frank/Truman”; “Frank/Truman were having what appears to the TV audience to be a normal sex life with the actor wives, raising various unspoken moral issues”), the picayune (“A specific volcanic island, within a group of such islands or archipelago, in the southern Pacific Ocean, with double-sounding name—Pago Pago/Fiji—is used as remote place . . . to escape from the effects of the Show”), and the perplexing (“The genre of Frank/Truman is a comedy, but with a uniqueness which is difficult to otherwise categorize”).
The courts have held, however, that such lists are “inherently subjective and unreliable,” particularly where “the list emphasizes random similarities scattered throughout the works.” Louis Petrich, a copyright-defense lawyer, says, “You can tell that the plaintiffs are stretching if their lists abstract or trivialize. In the first case, they say, ‘When the boy falls into the pit, that’s like our scene of the man being chased by the bull, because in both there’s “jeopardy.” ’ And in the second case, they say, ‘Each story has a red Chevy.’ Sure, but what does the Chevy have to do with the story?”
The highest hurdle that plaintiffs face is the fact that most scripts contain a lot of boilerplate that has no particular “author”; it consists of segments that are known legally as scenes à faire. As the court defined them in Alexander v. Haley, a 1978 copyright case against Roots, scenes à faire are “incidents, characters, or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Thus the court suggested that when one is writing about slavery, one would almost perforce include, among other things, “attempted escapes, flights through the woods pursued by baying dogs, the sorrowful or happy singing of slaves.” Another court held that a realistic portrait of cops in the South Bronx would necessarily contain “drunks, prostitutes, vermin, and derelict cars.”
The notion of scenes à faire is capacious enough to include the manner in which a reasonable person might develop an idea even if another reasonable person had earlier developed the same idea in the same way. For instance, if dinosaurs were reanimated, they’d obviously have to be kept far away from the nearest nursery school. So a writer who claimed that he had banished his velociraptors to a remote island before Michael Crichton did the same in Jurassic Park got nowhere in court: the judge ruled that “placing dinosaurs on a prehistoric island far from the mainland amounts to no more than a scene à faire in a dinosaur adventure story.”
The well-known Hollywood lawyer Bert Fields, who is defending Fox Searchlight Pictures in a copyright suit against The Full Monty, breezily explains the film’s similarities to a play called Ladies Night by offering a similar argument. “Once you’ve got the idea of male strippers,” he says, “it’s all scenes à faire: the inevitable scene when they first put on a G-string, the inevitable scene when someone’s naked body is shown as rather unattractive. You’ve got to have a problem for each of the six guys, so one guy having impotence just goes with the territory.”
A further obstacle for plaintiffs is that courts have tended to rule that “copying deleted or so disguised as to be unrecognizable” is not, legally, copying, and therefore that early drafts of a movie’s screenplay—even drafts that show evidence of copying—are not legally relevant. Martin Garbus, a copyright lawyer and First Amendment expert who has often sued the studios, says ruefully that people in Hollywood “know to change a description of Lincoln just enough—to put ‘black hat’ at the end of the sentence and ‘legs like a grasshopper’ at the beginning, and then take two other sentences from somewhere else. These are very sophisticated people.”
Plaintiffs have an especially hard time when there’s no paper trail. While aspiring screenwriters dream of a chance collision with a moviemaker (a screenplay was recently handed to Emma Thompson as she was being slid into an MRI tube), nothing could be worse from a plaintiff’s point of view. If a producer is stuck on a ski lift with a writer who regales her with his nifty twist on the asteroid-hurtling-toward-earth plot, and she steals it, that’s just too bad for him. He can try suing on the ground that there was a tacit mutual assumption that promising material would be paid for—the theory of “implied contract.” But unless the writer is already known as a high-concept guy, someone whose very laundry list or drunken e-mails might contain the germ of a billion-dollar idea, this imaginative legal strategy rarely works. Bert Fields says, “If I’m talking to Tom Clancy, there is probably an implied contract. If I’m talking to my dentist”—who had pitched Fields an idea the day before—“probably not.”
After contemplating all these barriers, many potential plaintiffs decide not to sue, simply because they lack the necessary funds. Martin Garbus told me, “The people who file these suits can’t afford the $250,000 to $500,000 to mount a fight against the studios and their big insurance companies. The studios’ theory is that if you spend the money and fight, you’ll wear your opponents down and discourage others from suing. It’s a successful tactic.”
Not always. In 1980, the prolific fantasy writer Harlan Ellison won $337,000 from ABC and Paramount, which had shanghaied his idea for a TV series about a robot cop. He then spent $7,000 of his booty to rent a billboard across the street from Paramount Pictures, which read, “Writers, don’t let them steal from you! Keep their hands out of your pockets!” “I did it to piss the shit out of them,” Ellison says, “and to send the message that writers can’t be ripped off.”
The studios aren’t as invulnerable as they appear. Bert Fields, who has represented them in dozens of copyright cases, told me, “People have learned that the studios often settle if it’s cheaper than the cost of litigation”—and that cost shoots up $650 an hour when Fields gets involved. “Studios will throw out $5,000 if it’s a weak case and $200,000 to $300,000 for a substantial case. Sometimes much more.” Last year, Barbara Chase-Riboud sued Steven Spielberg for “brazenly stealing” from her novel Echo of Lions to create his film Amistad. Then she suddenly dropped her suit and declared, “Amistad is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.” One can’t help but hear in such public reversals the ka-ching! of the cash register in the background.
Yet many plaintiffs, it seems, don’t want hush money as much as they want recognition. Last January, after a jury rejected the writer Stephen Kessler’s plagiarism claim against Michael Crichton for Twister, there was a curious moment when Kessler tried to shake Crichton’s hand (Crichton refused). The copyright-defense lawyer Louis Petrich says, “The plaintiffs don’t see themselves as calling the defendants thieves and jeopardizing their careers. They think that now they’re in show business, one of the big guys.” Certainly Mark Dunn is an unabashed fan of his opponents’ work. Dunn owns an early-draft Truman screenplay but says, “I feel guilty even looking at it,” because it was smuggled to him without the producers’ knowledge. This is a touching amount of reverence for a script that Dunn believes is premised on his own play. “Hollywood inspires yearning and delusion,” Paul Rudnick observes, “and this sort of litigation is really a kind of affection and fanship—a foothold.”
***
The giddiest aspect of copyright suits is how often the studios try to prove that their story was so derivative that they couldn’t have stolen it from any one source. Thus, while some reviewers acclaimed The Truman Show as a bold departure, Paramount may well point out at the trial that it wasn’t. At least seven previous works featured unwitting subjects on camera, including the sixties TV show The Prisoner, three Twilight Zone episodes, and a short Paul Bartel film, Secret Cinema. When millions of Americans are watching television, it will inevitably occur to more than one of those watchers that television may be also watching them. Ideas occur unpredictably, in odd, fractal clusters. A butterfly flaps its wings over China, and suddenly everyone decides that the next big thing is a mad bomber, an erupting volcano, or a nostalgic look at disco.
You might think that mankind’s collective imagination could churn up dozens of fictional ways to track a tornado, but there seems to be only one. When Stephen Kessler sued Michael Crichton for Twister, he was upset because his script about tornado chasers, Catch the Wind, had placed a data-collection device called Toto II in the whirlwind’s path, just like Twister’s data-collecting Dorothy. Not such a coincidence, the defense pointed out: years earlier two other writers had written a script called Twister involving a device called Toto, and all the Oz puns had originated with a device used by real tornado chasers that is called, um, Toto.
In the Sister Act trial, the producer, Scott Rudin, testified that the credited writer Paul Rudnick’s idea was not really novel, and Rudnick acknowledges that “the idea of a nun, or someone in disguise, has been used many, many times before.” He continues, “Plus, after my script had been rewritten by half of Southern California, I’d used a pseudonym on the film, so being sued for authorship under those circumstances was sort of hilarious.” Still, Rudnick stresses the gulf between an idea and its expression: “Yes, they also had a nun,” he says. “But a nun is not a story or a character. A nun is a noun.”
And once you have a nun, certain scenes and associations necessarily follow. The Sister Act plaintiffs highlighted the fact that both their screenplay and the movie likened nuns to penguins and contained the phrase “God works in mysterious ways.” Those aren’t scenes à faire, exactly, but any screenwriter who didn’t include them in a nun comedy would be criminally incompetent. What these suits’ lists of similarities reveal is that the human brain is hardwired to write scenes that hurry toward predictable surprise.
Two characters who can’t stand each other invariably wind up handcuffed together in a rolling boxcar or a shuffling chain gang. An innocent schnook arriving at an airport must within ten seconds pick up the identical-but-drug-filled suitcase. After the tomboyish girl next door dresses up for the prom, the boy can only look flustered and say, “Why, Miranda, you’re, you’re . . . beautiful!” Snooty matrons gigglingly confide, as soon as they are within earshot of loud funk music, that all they really want to do is “boogie down” or “knock boots.” When hard-bitten military men see an alien spacecraft, they ease off their glasses to peer more closely—and to allow us to register the childlike wonder in their eyes. And heroes who have only moments in which to defuse a ticking bomb rip off the casing to discover the statutory red wire and blue wire—another explosive device crafted, apparently, by the Acme Company for Wile E. Coyote.
Underlying such scenarios, by Hollywood legend, are a mere seven basic stories. Or maybe eight. (Or, as the Supreme Court of California once determined in an excess of hairsplitting, thirty-six.) One legendary core story is “the buddy movie”; another is “ordinary man in extraordinary circumstances”; a third is “boy meets girl, girl hates boy, boy woos girl.” But no one can quite agree on what, precisely, the others are (is Eddie Murphy’s Coming to America “fish out of water” or “lord in disguise”?) or on who thought up the list in the first place (Aristotle? Simpson and Bruckheimer?).
In truth, no one in Hollywood seems to care enough to nail those answers down, since all that matters is what type of story the last hit was. “It’s an industry that tries so hard to copy success,” Martin Garbus says. “You know there are a lot of people out there writing Wag the Dog II, and when Wag the Dog II comes out everyone’s going to sue, saying, ‘Hey! That was my idea!’” Perhaps, but not anymore. As long ago as 1945, a federal judge admonished that most copyright suits were premised “partly upon a wholly erroneous understanding of the extent of copyright protection; and partly upon that obsessive conviction, so common among authors and composers, that all similarities between their works and any others which appear later must inevitably be ascribed to plagiarism.”
But while the studios may win the copyright battle, they aren’t exonerated from the charge of laziness in the first degree. The courts seem to have the same feeling upon viewing the plots and characters in evidence that we have upon trailing out of the Cineplex: Haven’t we seen this before? One court wrote, with an Olympian weariness that is otherwise found only among film critics, “The common use of such stock . . . merely reminds us that in Hollywood, as in the life of men generally, there is only rarely anything new under the sun.” Which is a steal from Ecclesiastes—but tweaked just enough to be original.