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Fandom Law Discussed Here
in our COFFEE SHOP AU where everyone's interested in copyright & trademark law, fandom law, privacy and social media issues. Basically Snopes for IP and fan-creativity issues. Created and maintained by fandom lawyer/Board Certified Specialist in Intellectual Property Law Heidi Tandy aka travelingheidi/heidi8 with Hannah aka hllangel and other guestbloggers. Nothing we post here is legal advice. Ask us anything (but we won't give legal advice)

September 26, 2014

Do you want to be a plaintiff?

A woman is suing Disney over Frozen, claiming that the story of her life was stolen for the film.

The A.V. Club sums up the alleged similarities between the book and Frozen quite well:

Look at the facts: Both stories have sisters in them. Both concern characters who struggle to fit in—one because of language barriers, another because of cryokinetic powers that cause her to produce ice at will. Both have talking snowmen pals (Olaf or “Julie,” whatever you want to call them). Both feature salient recipients of reflections that are tacitly and expressly addressed. Both center on the Peruvian earthquake of 1970 in Huaraz, the events of which Frozen turned into the hit song, “Let It Go.” And needless to say, Peru has a bustling cocaine trade, and “snow” is sometimes used as slang for “cocaine.” The evidence is damning.

Sarcasm is strong at The AV Club, which is a subset of The Onion, but factualish and focused on culture and entertainment. Seriously, though, their article points out just how dissimilar the book is from Frozen, and provides more support for the true fact that anyone can sue anyone over anything - and sometimes, just suing will drum up publicity for whatever the Plaintiff wants to promote.

Back in 2000, a woman named Nancy Stouffer sued J.K. Rowling, claiming that the Harry Potter series was stolen from her “Legend of Rah and the Muggles” - a 2002 summary after the litigation ended notes that Ms. Stouffer was fined $50,000, in part because she fraudulently created documents to match up with claimed publication dates. B.K. deLong wrote about the suit in 2001 on The Leaky Cauldron, and our heidi8 covered it for years at HarryPotterForGrownUps. There have been other cases through the years where someone complains that their story or their life were taken for a popular film or book or series - and sometimes, there’s truth to that. The copyright issues regarding the film Raging Bull were before the US Supreme Court this year,

But there have to be substantial similarities within the text for such a suit stemming from a book to be successful - and from what we’ve seen thus far, as the AV Club says, there aren’t any.

What this case does show is that it’s possible to sue anyone for anything. We know there have been concerns both in the fan community and from the publishing/entertainment industry that if fanfic is “okayed” by The Powers That Be, some fanfic writer will sue a novelist or TV show or film production company because a plot point in some fanfic is similar to something that happens in the commercialized story. We’re not saying that can’t happen - we’re saying that could happen, but (a) it wouldn’t necessarily mean bad PR and horrible problems for the source-story, and (b) it could theoretically happen regardless of whether fanworks are ok with The Powers That Be, because as this Tanikumi lawsuit shows, anyone can sue anyone over anything.

The question for lawyers at The Powers That be is whether someone can win such a lawsuit - and to win such a case, the plaintiff generally must show that the defendant had access to, and actually read, the story she’s claiming was infringed upon. That’s why authors and showrunners and movie producers generally avoid reading fanfic while they’re still writing in that ‘verse.

We’ve looked over the complaint (hosted at E!) and note that as a matter of law, a plaintiff doesn’t have to provide evidence in connection with a complaint - although she did in Exhibit A - and when you’re representing yourself, as Ms. Tanikumi is, the process is relatively cheap - unless and until a judge decides that the suit is baseless and orders the plaintiff to pay the defendant’s attorney’s fees.

Exhibit A does discuss tropes that are allegedly in Ms. Tanikumi’s book and in the film Frozen, but as we know, copyright infringement does not vest where tropes and ideas are similar between two works - it only comes into play if the actual expression of the ideas is identical. As the US Copyright Office says, “In no case does copyright protection … extend to any idea, concept [or] principle." Nobody can own a trope, or hold a copyright in a trope, and Ms. Tanikumi hasn’t provided any allegations that Disney used any sentences or paragraphs from her books in their films. Therefore, she hasn’t, at this stage, actually alleged copyright infringement, even though she’s suing over it.

Over on Twitter, Torger Kielland, an IP prof at the University of Bergen (Norway) reminded us of the phrase scènes à faire - it means that there are certain scenes or plot points that must be done in certain kinds of stories. Scènes à faire are not copyrightable, and as the 9th Circuit said in 2000, the courts will "not protect a copyrighted work from infringement if the idea underlying the work can be expressed only in one way, lest there be a monopoly on the underlying idea. In such an instance, it is said that the work’s idea and expression “merge.” Under the related doctrine of scenes a faire, courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from a commonplace idea…. ”

We’ll keep an eye on this lawsuit if it moves through the courts - or at least until the Motion to Dismiss/Motion for Summary Judgment stage.

9:09am | URL: https://tmblr.co/ZlK2rs1Ri_PSp

(Notes: 29)