Thursday 22 February 2018

Where there's a hit there's a writ

The old saying doesn't work so well now we don't have writs any more, but anyway the litigation reported by the BBC today is taking place under US law. That also means that considering how it might pan out under English law is pretty speculative, but it does serve to illustrate some important points of copyright law.

The story is about the family of a playwright (a Pullitzer Prize winner, Paul Zindel) suing several parties concerned with the film The Shape of Water. The fact that it is tipped to win an Oscar or two goes some way to explaining why it has generated litigation - the simple fact is that if it wasn't a hit, it would not be worth the price of a writ.

The plaintiffs (they still have them in the USA) argue that the film is "in many ways identical" to Mr Zindel's play Let me hear you whisper. The defendants say they never heard of that play, although the article says that there was a TV production of it at about the time the idea of the film was forming in its writer's mind. The writer might have been exposed to it, and it's possible that subconscious copying took place. It's also possible that nothing of the sort happened, and that the "at least 61" ways in which the films are identical are down to the fact that if you tell a story about an aquatic creature kept in a laboratory and its relationship with a cleaner or janitor those similarities are going to happen. Like Hoehling v Universal Studios  618 F.2d 972 (2d Cir. 1980) which turned partly on the point that if you're going to make a film set in Nazi Germany you are bound to have scenes in beer halls and people giving straight-arm salutes.

US copyright law works differently from the way our copyright law works. Because it expressly excludes ideas from protection, US law requires the judge to go through what has become formalised as a three-step process of abstraction, filtration and comparison - to reduce the work to a copyright-protected "golden nugget" before putting it beside the alleged copy to compare the two. The equivelant in our law is the rule that copyright is infringed if the defendant has taken the whole or a substantial part of the work - it all comes down to substantiality at this stage. In other words (and if an American friend should happen to read this I stand to be corrected), US copyright law protects elements of a work which qualify for protection (which are the author's original work, basically) whereas the UK law looks at the work as a whole and asks whether it meets the originality standard, then considers whether a substantial part has been taken. This is a point that I have discussed before on this blog: it seems unlikely that any element which is not the author's original work could be regarded as a substantial part, but this is not an area of the law where everything is set in stone at present.

The news story is by no means a comprehensive disclosure of the facts, so it would be wrong to speculate much about the possible outcome, but an interesting illustration of copyright principles.

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