When it comes to television shows, it not always clear what is “copyrightable.” Sometimes, filmmakers and screen writers can get into serious trouble if they don’t follow specific television copyright laws accordingly. Austin-based filmmaker Lex Lybrand watched the June 4th episode of the hit HBO series “Silicon Valley” to shockingly find strong similarities between the episode “The Patent Troll” and his own film “The Trolls.”
“The Trolls” tells the story of a Texas-based start-up that loses everything to a patent troll. In the “Silicon Valley” episode, the app created by the main characters is threatened by a patent troll. The “Silicon Valley” episode in question was written by Andrew Law, who has written for several other shows including Late Night with Seth Meyer, according to IMDB.
Lybrand wrote “The Trolls” in 2014, shot it in 2015 and premiered it in Austin in March 2016. According to him, the indie film is not unknown to HBO – in fact, he had conversations with them a couple of years ago about the film. KVUE reported that although Lybrand has yet to take legal action, he said his film was funded by an intellectual property law firm Cesari & Reed LLP.
Jed Wakefield of Fenwick & West recently sat down with IPWatchdog to discuss Lybrand’s case and the impact of copyright infringement when it comes to movie scripts. Wakefield focuses his practice on IP litigation, with an emphasis on trademark, copyright, trade secret and right of publicity matters, as well as licensing, technology transfers, and other commercial disputes. He also represents technology companies in advertising, privacy, unfair competition and other consumer related issues.
There are many legal implications of copyright infringement in the gaming, movie and television industry – the gaming, movie, and television industries depend on copyright for protection.
“Writers – particularly of commercially successful works – often face copyright infringement claims, but a lot of these cases fail,” he said.
Blockbuster movies tend to draw lots of lawsuits, many of which fail. For instance, there have been numerous unsuccessful lawsuits against James Cameron by individuals claiming that his science fiction films – including Avatar and the Terminator films – infringed their copyrights, according to Wakefield. Sometimes the lawsuits involved multiple people claiming that they that the same film infringed their different works. These cases have generally been unsuccessful, and courts have awarded Cameron his attorneys’ fees.
“The MPAA often advocates for stronger copyright laws and ever-increasing damages, particularly when it comes to intermediary liability,” he explained. “But companies and individuals operating in these industries also find themselves on the receiving end of copyright lawsuits in these sorts of alleged plagiarism cases, where the risk of high damages awards can force parties to settle even dubious claims.”
The side by side comparison that the filmmakers prepared to show supposed infringement is entirely unpersuasive, according to Wakefield. He represents real Silicon Valley technology startups in litigation all the time, and the fact pattern that these two stories present (a tech company getting a letter from a patent troll, consulting counsel, etc.) plays out very often in Silicon Valley.
“These plot elements strike me as wholly unoriginal. Even the use of the term ‘troll the trolls’ does not seem to be original to this filmmaker, either,” he said.
So, how can film writers protect themselves from copyright infringement?
Wakefield advises that authors keep records and notes of independent authorship, and they should register their works. He added, “Any author asked to review someone else’s script or treatment should think twice before doing so, and should return unread materials. Individuals and businesses should not enter into nondisclosure agreements without a good reason for doing so.”
“Many Hollywood movies take their inspiration from other movies or works—or go even further—without running afoul of the Copyright Act,” he explained. “Copyright law does not protect scenes or plot elements that are common to a genre.”
For example, in Walker v. Time Life Films, Inc., an author claimed that the film “Fort Apache, The Bronx” infringed the copyright in a book. Both the book and the film begin with the murder of a black and a white policeman with a gun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats; both feature as central characters third- or fourth-generation Irish policemen who live in Queens and frequently drink; both show disgruntled police officers and unsuccessful foot chases of criminals. The court found that these similarities did not support an infringement claim because they related to uncopyrightable material.
Wakefield said, “There isn’t always a clear difference between using something as inspiration vs. copying it. The line is not always clear, but generally ideas are not copyrightable–only original expression is.”