Django Infringed?

March 9, 2016
Did Quentin Tarantino’s 2012 film Django Unchained infringe the copyright in a 2001 screenplay with a similar premise? The news articles covering the lawsuit ask this question, quote a few allegations from the complaint—without linking to it—and leave you to wonder. It is interesting that plaintiffs in that case seek $100 million in damages and that Tarantino once said that he “steal[s] from every single movie ever made.” But while those tidbits make good newspaper copy, they are irrelevant to the merits of the copyright claim. The full complaint, though, tells a rich story to someone familiar with copyright law: the story of a lawsuit doomed to fail.

So much news is now published online (where additional pages cost nothing) that every article about a newly-filed lawsuit should include a link to the complaint. This  is not the first time someone has insisted that online news articles link to primary documents. The facts alleged in a complaint could all be false, but sometimes a plaintiff cannot win even if what he alleges is true. It is worth reading the complaint.

In this case, even before the parties begin discovery and determine whether Tarantino ever saw the plaintiffs’ screenplay, and even before we have seen the screenplay itself, the complaint can tell us a great deal about whether the plaintiffs are likely to prevail against Tarantino.

A lawyer evaluating a potential copyright claim gains insight from just reading the complaint, before anything else even happens in the case. Below is a discussion of what we can learn from just looking at the complaint itself.

Plaintiffs

Have the plaintiffs identified in the complaint—father and son Oscar Colvin, Jr. and Torrance Colvin—sold any scripts before?

The Internet Movie Database has profiles of both Oscar and Torrance Colvin, but only credits them with a single script: Sister Switch, which the Colvins produced themselves. You can view the 2 ½-minute trailer on Facebook here. Did Quentin Tarantino, who won an Academy Award for Best Original Screenplay for Pulp Fiction, find something worth copying in a screenplay written by the authors of Sister Switch? If you survived the trailer, you are probably shaking your head, but a judge should not dismiss the case just because it sounds ridiculous. Plaintiffs’ Freedom screenplay may be figuratively unreadable, but it is still possible Tarantino did read it and did copy it.

Counsel

Does the plaintiff’s lawyer practice copyright law? Does his engagement by the plaintiff signal anything about the strength of the case?

Plaintiff Torrance Colvin is a lawyer, and he is representing himself and his father in the lawsuit. The fact that an experienced lawyer took the case of an individual plaintiff sometimes signals that the case has merit—after all, a lawyer working on a contingency fee basis is only paid when his client receives a judgment or settlement. Taking on losing cases does not pay. But where the lawyer lacks experience, or when he represents himself, those signals do not apply.

Here, there is no indication that plaintiffs’ counsel has any experience litigating copyright claims. The Public Access to Court Electronic Records (PACER) system does not indicate that Mr. Colvin has represented anyone in a copyright lawsuit in the federal courts in D.C. (where he practices), Virginia, or Maryland. In fact, he only appears to have represented a small number of clients in any federal court, and his firm’s website indicates a focus on employment discrimination and personal injury cases, not intellectual property. The Colvins’ case could have merit, but their choice of counsel does not signal it.

The Court

Does the court where the case was filed—the U.S. District Court for the District of Columbia—hear a lot of copyright cases? What law will the judge apply to the claims?

This court is the federal trial court in Washington D.C. and applies the same federal copyright law that applies nationwide. Appeals of this court’s decisions are heard by the Court of Appeals for the District of Columbia Circuit (called the D.C. Circuit), so the district court’s interpretations of copyright law must be consistent with those of the D.C. Circuit.

Perhaps because the D.C. Circuit issues fewer opinions on copyright disputes than most other federal appeals courts, it often cites opinions interpreting copyright law from other circuits, such as the Second Circuit (which includes New York) or the Ninth Circuit (which includes California), where the courts hear more film and music copyright claims. That frequent borrowing makes circuit-specific interpretations of copyright law less relevant to predicting the outcome of the case because the court could apply any circuit’s interpretation.

It is also true that some courts have a reputation for favoring certain kinds of parties or claims, but this court does not have a reputation favoritism that seems likely to affect the outcome in this case. Torrance Colvin is a local, so a jury might favor him over Tarantino and the Hollywood studios, but it is unlikely that a federal judge will give him any special treatment.

Timing

The plaintiffs’ delay in bringing the case suggests that they lack confidence in their claim. They filed their complaint on December 24, 2015—one day before the end of the three-year statute of limitations period that started to run on Django Unchained’s December 25, 2012 release date. 17 U.S.C. § 507(b). Also, the defendants do not need to answer or move until after plaintiffs serve them with the summons and complaint, and the docket sheet in the case does not indicate they have served the defendants yet (plaintiffs have 90 days after filing to serve them). Fed. R. Civ. P. 4(m).

The owner of a copyright in a screenplay infringed by a motion picture has the most leverage before the movie is released. At that time, a court could grant a preliminary injunction that would prevent the film from being released at all. 17 U.S.C. § 502(a). See also, e.g., Salinger v. Colting, 607 F. 3d 68 (2d Cir. 2010) (explaining standard for granting injunction in copyright case).  The Colvins’ decision to forego that leverage and wait until after Django Unchained was no longer in theaters does not suggest that they are confident in their claim.

Because courts can award attorneys’ fees to a prevailing defendant in a copyright case, 17 U.S.C. § 505, the defendants’ lawyers may have made the Colvins pause by threatening to seek fees here if the case went forward. See, e.g., Arrow Prods., Ltd. v. Weinstein Co. LLC, 44 F. Supp. 3d 359, 372, 374 (S.D.N.Y. 2014) (granting Weinstein Company’s motion for judgment on the pleadings dismissing copyright claim but denying its motion for attorneys’ fees).

You would not want to wait an extra three years to collect your multi-million dollar judgment, and the Colvins probably do not either. Their delay suggests that they believe their best strategy is something other than a speedy trial and verdict.

Prayer for Relief

The Prayer for Relief comes at the end of a complaint and explains the remedies a plaintiff seeks, such as damages from the defendant or an order from the court. The second paragraph of the Colvins’ prayer for relief says that they seek damages “in an amount believe[d] to exceed $100 Million.” That number is so high that it hurts the credibility of the rest of the complaint by association.

If the Colvins prove copyright infringement, they will be entitled to the portion of Django Unchained‘s profits that were attributable to what Tarantino copied from their Freedom screenplay. 17 U.S.C. § 504(b). No screenplay has ever sold for even $10 million, so a $100 million demand just seems silly. If we do not believe a complaint reflects a correct understanding of copyright damages, it is hard to feel confident in the complaint’s assertion that a copyright was infringed.

The Screenplay

The best and only way to know if Django Unchained copied plaintiff’s Freedom screenplay is to compare the works themselves. Proving a claim of copyright infringement requires that there is “substantial similarity” between the allegedly infringing work and plaintiff’s work. The test for substantial similarity differs slightly between circuits, but it boils down to whether the author of one work has copied something—variously referred to as the expressive nature of plaintiff’s work, or its total concept and feel—factoring out or ignoring various unprotectable aspects of the works. See Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010) (“Gaito”). See also Benay v. Warner Bros. Entm’t, Inc., 607 F. 3d 620, 624 (9th Cir. 2010). Courts have acknowledged that the test for infringement is “of necessity vague,” Gaito, 602 F.3d at 63, but in most cases it is still possible to apply it with relative confidence. The analysis of substantial similarity requires a comparison of the actual works: here, the Colvins’ Freedom screenplay and the film Django Unchained. Unfortunately, the Colvins did not attach their script to the complaint to let us compare for ourselves.

You can search the Copyright Catalog for the plaintiffs’ registration number—VA0001905411—and see that they did register their screenplay in 2014. But the Copyright Office will not send you a copy of a deposited work unless you own the copyright or are involved in a lawsuit over it. 37 C.F.R. § 201.2(d)(2). If the defendants move to dismiss the complaint, they will attach the script to their motion papers. That may not happen for months, after plaintiffs serve them with the complaint, and at that point the defendants may decide to file an answer instead of moving to dismiss, which will further delay the public disclosure of the script. In the meantime, we can assume that the Colvins tried to pick the strongest examples of copying in Django Unchained for their complaint. Based on those examples, the case is not likely to survive a motion to dismiss.

The Allegations of Copyright Infringement

Plaintiffs’ allegations about what Tarantino copied from Freedom, if true, do not indicate that the case should survive a motion to dismiss. Even if Tarantino copied those things, it would not qualify as copyright infringement.

  1. Ideas (and concepts and premises) are not protectable.

Plaintiffs’ allegations about what Tarantino copied describe ideas, and copyright does not protect ideas from being copied. The Colvins claim that Tarantino copied plaintiffs’ “uniquely original concept of a slave attempting to rescue his family from a brutal plantation owner” (Prologue), their “uniquely original beat” of “a slave returning to the hellish realm of the South to purchase the freedom of his loved one(s) with the assistance of a Caucasian in the South” (Par. 9), and their “uniquely original idea—an escaped slave voluntarily returning to the plantation to retrieve his family.” (Par. 29) (italics added). It is basic copyright law that “ideas are not copyrightable.” Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003). See also 17 U.S.C. § 102(b) (copyright protection does not “extend to any idea, … concept, [or] principle….”). Copyright therefore does not protect a “basic plot premise” to prevent others from using it to “tell very different stories.” Benay, 607 F. 3d at 625. It is not enough that Tarantino copied something unprotectable, like the basic premise for a story.

  1.            If it is not in the “Work,” copying it does not infringe the “Work.”

The Colvins allege that they posted their Freedom screenplay on the Triggerstreet.com website and submitted it to the William Morris Agency, and that they received feedback from both sources proposing changes to the screenplay. (Pars. 13, 14). They also allege that Django Unchained copies the (unidentified) proposed changes, but do not say that they had actually incorporated those proposals into their screenplay. The Colvins own a copyright in their screenplay, but they do not own a copyright in proposals other people made to their screenplay that they did not incorporate into it.  See, e.g., White v. Twentieth Century Fox Corp., 572 Fed. Appx. 475, 477 (9th Cir. 2014) (in case alleging infringement of plaintiff’s screenplay by films, screenplays of allegedly infringing films were irrelevant).

  1.            The specific similarities are not protectable.

In addition to alleging that Tarantino copied general features of Freedom, Paragraph 43 of the complaint lists twelve features of their Freedom screenplay that were allegedly copied in Django Unchained:

  1. The protagonist is a slave who risks re-enslavement and death to attempt to rescue his family from slavery.
  2. An opening scene features chained slaves before (Freedom) or after (Django Unchained) they were sold.
  3. The white character who assists the protagonist is portrayed as hostile to slavery.
  4. The protagonist realizes that his wages will be insufficient to purchase his relatives’ freedom.
  5. A slave is whipped for wasting food.
  6. The protagonist asks to be whipped instead of his relative.
  7. The protagonist’s wife is raped (but the complaint says that the scene was “cut from final edition” of Django Unchained).
  8. The protagonist’s last name is Freeman.
  9. The protagonist is defiant toward whites, and kills one or more white characters.
  10. The protagonist has “antipathy upon initial meeting” with other black characters (Freedom) or does not have “cordial relationship[s]” with other slaves (Django Unchained).
  11. The Black protagonist and a white character work together to rescue the protagonist’s family from slavery.
  12. The white character assisting the protagonist kills another white character at the plantation where the protagonist’s relative(s) are enslaved.

The biggest problem with this list is that many of the similarities simply describe the premise: a Black man, freed or escaped from slavery, joins forces with a white man to rescue his enslaved family member(s) by force. As explained above, copyright does not protect a basic premise. Anyone is free to retell a general type of story in a new way. Although this story is somewhat novel, it is still too general to qualify for copyright protection on its own and prevent others from telling a similar story.

Likewise, copyright does not protect aspects of a story that flow naturally or necessarily from the basic premise. General plot ideas, stock scenes and themes that are staples of literature, and so-called “scenes a faire”—situations and incidents that flow necessarily or naturally from a basic plot premise—are not protectable. Benay, 607 F. 3d at 624-25.

In telling the story of a former slave and a white man who join forces to rescue the slave’s family from bondage, it is almost unavoidable that the slave in the story is defiant toward white authority and kills one or more white characters (No. 9), that he only starts killing people after he comes to the realization that force may be necessary to rescue his family because his wages are insufficient to purchase their freedom (No. 4), and that the white character who helps him is opposed to slavery (No. 3).

The Colvins’ complaint also seeks to monopolize various “scenes a faire.” Scenes a faire are situations and incidents that flow naturally or necessarily from a basic plot premise. Williams v. Crichton, 84 F.3d 581, 587 (2d Cir.1996); Berkic v. Crichton, 761 F. 2d 1289, 1293 (9th Cir. 1985). An example would be a wrap-up scene in a mystery novel in which the detective talks to the various suspects before revealing “who did it.”

Applying that principle, no one screenplay can claim a monopoly on portraying slavery using chained slaves at an auction (No. 2), slaves being unjustly whipped for trivial mistakes (No. 5), or the hero volunteering for punishment to spare the innocent (No. 6). The website tvtropes.org catalogs the various stock elements and clichés in film and TV, including in Django Unchained. Those do not all qualify as “scenes a faire” for copyright purposes, but they give a good idea of things that appear in countless other films and that a court is unlikely to find protectable.

The surname Freeman (No. 8) was often adopted by freed slaves, and a similar character name does little to prove substantial similarity. See Gallagher v. Lions Gate Entm’t, Inc., Case No. 2:15-cv-02739-ODW, at 15 (C.D. Cal. Sep. 11, 2015) [link] (noting that similarity of character names is not strongly probative of substantial similarity).

Finally, the allegation about similarity number 7—the rape of the protagonist’s wife—seems to complain that Tarantino intended to copy something in Django Unchained, then changed his mind. Copyright law does not punish thinking about copying a work and then reconsidering.  See White, 572 Fed. Appx. at 477.

It is true that, to some extent, every story is a combination of non-original tropes, themes, events, and other elements, and copyright law recognizes that fact. So even if every feature that is common to both works is in itself unprotectable, copyright still protects an original selection or combination of unprotectable elements. Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003). See also Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 109 (2d Cir. 2001). Also, similarities count toward a finding of substantial similarity notwithstanding how many other differences between the two works there are. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 851 (9th Cir. 2012). See also Williams, 84 F.3d at 588 (2d Cir. 1996).

But here, the alleged similarities appear too thin for the copyright claim to survive.

  1.            What about other similarities besides the ones in the complaint?

There could be other, better similarities between their Freedom screenplay and Django Unchained that the Colvins left out of their complaint. The complaint focuses on similarities in the plot, characters, and setting, but there could be other similarities between aspects of the works such as mood, pace, setting, and themes that could also contribute to a finding of substantial similarity. Metcalf v. Bochco, 294 F. 3d 1069, 1073 (9th Cir. 2002). See also Williams, 84 F.3d at 589.

The court, reviewing the works themselves in connection with a motion to dismiss, may conclude that there is enough similarity to state a claim of copyright infringement and give plaintiffs a chance to amend their complaint (or just decide that, given those similarities, amendment is not needed). The federal rules strongly favor allowing amendment where it would fix the problems with the existing complaint. If the Colvins omitted, for example, that Tarantino copied an entire scene of dialogue verbatim, they will most likely be allowed to amend their complaint and go forward with their claim. But without something like that, or many additional significant similarities, the court will probably grant a motion to dismiss.

Screenplay copyright claims are everywhere, but successful ones are very rare. There appears to be only one case in which the claim that a film infringed a plaintiff’s screenplay survived a motion to dismiss on the grounds that there was no substantial similarity. See Price v. Fox Entm’t Group, Inc., 05 Civ. 5259, 2007 WL 241389, at *9 (S.D.N.Y. 2007) (substantial similarity between plaintiffs’ screenplay and Dodgeball movie a fact question for the jury). It appears that all other courts that have considered motions about whether a movie was substantially similar to a plaintiff’s screenplay dismissed the claims. Like most informal surveys of legal decisions, this result probably reflects canny settlement practices by studios, not insurmountable legal standards. Movie studios probably pay more to settle stronger infringement claims, pay less to settle weaker claims, and try to dismiss the worst ones.

Which outcome will we see in the Colvins’ case, and in the next few screenplay lawsuits we will see? Let’s hope the articles link to the complaints so we can make educated guesses, applying the type of analysis shared here.