This article was originally published by on the Rodriques Law Blog. It is reposted here with permission.
Let’s say you’re a screenwriter, novelist or playwright. You’re a good storyteller. You know how to take the most trivial idea and tell it brilliantly. You’ve created a world and put your characters in it. You begin to plot your way through the lives of your characters. Then, you hit writer’s block. You are blocked because you have nothing to say. You search your own world, imagination and memory, but cannot find the information you need. To fix this, you go borrowing from other people’s work.
The source of all clichés is where the writer does not know the world he has created. They go stealing from other people’s work because they cannot find information in their own world.
A plagiarist is one who steals “substantial” parts of a copyrighted work. Courts regard acts of plagiarism as violations of U.S. Copyright law. Plagiarism is the piracy of another person’s intellectual property.
Litigation alleging plagiarism can be based on the appropriation of any form of writing, music, and visual images. For example, the plagiarist may take a scene of a play, or he may appropriate part of the dialogue. The question then is whether the part plagiarized is “substantial,” and not a “fair use” of the copyrighted work.
What constitutes copyrighted work?
A copyrighted work must be original. It does not need to be new. A work is original so long as it was independently created by the writer (as opposed to copied from other works), and it possesses at least some minimal degree of creativity. Even a compilation of facts entails originality. The writer must have insight for a creation which is fresh and original. To be original, a writer must create a story that sets itself apart from anyone else’s. An author is the originator of the story. An author is original. A plagiarist is not pro tanto an “author”.
The sequence of events by which the author expresses a story’s “theme” or “idea” is the plot. The “theme” is what the story is about. It is the controlling idea, generally expressed in a single sentence. For example, when you discover the meaning of your story, you must believe its truth. Your theme is your guide. Once you discover the meaning of your story, that meaning becomes the guide, theme, premise, or through line.
Under U.S. Copyright law, in its broader outline, a plot is never copyrightable. There can be no copyright in a movie’s general themes, motives, ideas, or “scenes a faire”. Scenes a faire are scenes or sequences of events which necessarily result from the choice of a setting or identical situation, or which necessarily must follow from certain similar plot situations or a particular genre. Therefore, the theme, the plot, and the ideas of another person’s copyrighted work may always be freely borrowed.
For a typical film, novel or play, the screenwriter, novelist or playwright, in general, will choose forty or more scenes or events in which to tell the story. For every event, something must happen in a character’s life. For example, woman goes to work, its dry; she comes out, it’s raining, she gets wet, ruins her hair. That’s the idea for one event. It’s pretty generic. You may borrow it. However, though you may copy the theme, plot, or ideas from an original work, you may not copy the “expression” of those ideas. The U.S. Copyright Act protects the mode of expression employed by an author within her original work.
Let’s say the author takes an idea and develops it further into an event by adding new, original material. The author provides vivid details of the character’s costume; her hair and makeup; the character’s mood (what she’s feeling, that is, her present mental state); the choices the character makes; her dialogue; levels of conflict; what other characters say to, or about her; and her setting (location, time, and the physical and social setting of the event). There is significant character and plot development. The author’s expression is what conveys specific insight into the life and world of the character. The author’s expression is that which illuminates our understanding of the character and the story. The author’s expression of a scene and other events of the story is entitled to copyright protection.
Dialogue is only a small part of an author’s means of expression. A work may be pirated without using any of the dialogue. For example, there can be piracy of a pantomime, of which, there is no dialogue. The author’s expression may draw from a combination of setting, words, costume, gestures, and from the very traits and appearance of the actors themselves, also known as characterization. Expression is how, by the author’s choice of action and/or dialogue, he strips away the masks of characterization to reveal character. The incidents, the characters, the mise-en-scène, the sequence of events, are entitled to copyright protection. In other words, ideas are not copyrightable but a sequence of events is. Therefore, an author’s presentation of her story line is entitled to copyright protection, and substantial copying of the author’s own new material without permission is plagiarism.
What is substantial Copying?
Under U.S. Copyright law, in order to establish copyright infringement, a plaintiff must show that he owns a valid copyright, which, the defendant copied, and that such copying was an improper or unlawful appropriation of her work. In other words, if you borrow from another writer’s work, make sure that you either get their permission, or your copying is not unlawful.
Unlawful copying is typically established by a showing that your work bears a “substantial similarity” to the earlier copyrightable work. Of course, if there are no similarities, there can be no unlawful copying. However, if similarities exist, it must then be determined whether the similarities are sufficient to prove that improper copying (actionable copying) has occurred.
“Substantial similarity” requires that the copying be quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. The qualitative component is concerned with “what” is copied. Of course, the qualitative analysis is concerned with copying of the particular expression of ideas, not the ideas themselves. It is not concerned with general themes, plot, facts or true events (even if they were discovered through original research), works in the public domain, or poorly developed characters. As a matter of fact, the less developed are the earlier writer’s characters, the less likely that they can be afforded copyright protection. On the other hand, the quantitative component is concerned with “how much” of the protected work is copied. To rise to the level of substantial similarity, the amount of the copying, or the degree of similarity between works, must be more than “de minimis.” The de minimis rule allows you to literally copy a small, trivial and insignificant portion of the copyrightable aspects of another author’s work.
What if you only copied a small amount of creative expression? Perhaps you lifted a quote, or paraphrased a sequence of events, a scene, a few words or phrases, a character, or pirated the “concept and feel” of the prior work. The rest of your work consists of your original material. In an analysis of substantial similarity, the question is not how much of your work that is original in comparison to the amount that was copied. The question is how much of the prior work that is copied. This can be answered by comparing the two works, and if a reasonable observer could find similarities in the works, that are not trivial, abstract or related to noncopyrightable material, courts will conclude that there is actionable infringement. A taking may not be excused merely because it is insubstantial with respect to the infringing work. But where the two stories differ in total concept and feel, in mood, details or characterization, and if both merely deal with the same idea, general plot, or theme, there can be no finding of plagiarism or copyright infringement.
“Any experience the writer has ever suffered is going to influence what he does, and that is not only what he’s read, but the music he’s heard, the pictures he’s seen.” – William Faulkner
U.S. Copyright law protects similar (even identical) works if the second work was independently created without knowledge of the earlier writer’s work. However, unconscious or unintentional plagiarism is just as infringing as deliberate theft. To defeat an actionable infringement claim, the substantial similarities between the two works must be proven to be the work of coincidence. As to the latter, access becomes important.
Accidental similarity assumes a low degree of probability the work was the product of independent thought and imagination. Where you had access to the other writer’s copyrighted work, this will be used as circumstantial evidence of actual copying. Access raises a presumption that the similarity is not accidental, that there is a high degree of probability that the similarity results from plagiarism, and was not independently created. However, if there’s no evidence of access, for there to be a finding of violation of copyright, the similarities would have to be so striking that it is impossible that the two works could have been independently created.
Once it is determined that you actually copied from another writer’s work, the next question is, was there a fair use.
What constitutes fair use?
Under § 107 of the U.S. Copyright Act, the substantial copying of an earlier writer’s work constitutes infringement unless excused as “fair use”. Under U.S. law, a prior author’s consent to a “reasonable and customary” use of his copyrighted works is always implied.
In determining whether a particular unauthorized copying is not actionable or is fair, courts will consider: (1) the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.
(1) Purpose and Character of the Use
The fair use defense is normally invoked when the purpose of the use is for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, research, and the like. Your use may be for a literary work of fiction, nonfiction, etc. However, it is not fair use where your use merely “supersedes” or substitutes for the original.
When you copy from existing material, you must take no more than is reasonable for the purpose. In addition, if you quote from or reproduce another writer’s entire work and use it for its original purpose, without adding something new, the doctrine of fair use is unavailable. On the other hand, if you take the material copied and transform it into something new: adding new information; new aesthetics; shedding light on the original work; using different characters; substantially altering the prior work with new expression, meaning, or message; or commenting on and criticizing it, your new work is said to be “transformative” and fair use.
Although such transformative use is not absolutely necessary for a finding of fair use, the more transformative the new work, the less will be the significance of other factors, like its commercial nature, and impact on the market for the original.
(2) The Nature of the Copyrighted Work
In general, fair use is less likely to be found when you copy from fictional (creative) works, rather than factual works. As such, you will generally have a stronger claim of fair use borrowing from a news broadcast and historical works than copying from movies, TV shows, plays, scripts, fictional short stories and novels.
Though the fair use defense is available for published works, it is unavailable for unpublished works. The fact that a work is unpublished is a critical element of its “nature.” For example, the U.S. Supreme Court found unfair use where a magazine publisher quoted only approximately 300 words from a manuscript of more than 200,000 words, and the quotes were drawn from isolated passages in disparate sections of a public figure’s unpublished manuscript.
(3) The Amount and Substantiality of the Copyrighted Work Used
A determination of the amount and substantiality of the copyrighted work used requires an evaluation of substantiality in quantitative and qualitative terms. The amount and substantiality of the portion of the copyrighted work used must also be examined within the context of the purpose and character of the use.
The fair use defense is available if the amount and value of the material copied are reasonable to further the purpose of the copying, such as, for news reporting, criticism, comment or parody, etc., even if the portion taken constitutes the “heart” of the original. In a parody, for example, the Supreme Court stated that a writer must be able to copy at least enough of the original work to make the “object of its critical wit recognizable” and then determined whether the amount of the original work copied was “no more than necessary” to satisfy the purpose of the parody. In contrast, it was not fair use where a writer copied the characters and sequence of incident of a play, those being the “substance” of the author’s work.
(4) The Impact of the Use on the Market for the Original
The U.S. Supreme Court has declared this fourth factor to be the single most important element of fair use. It is not fair use where the amount copied supersedes or substitutes for the original work in the market, and your use has the potential to interfere with the value of, or the demand for, the original copyrighted work or “derivative works”.
The more transformative your use, the less likely that it substitutes for the original. Unlike works of fair use, derivative works take forms of expression for purposes that are not transformative. Since a copyright owner has exclusive control over, not only the right to copy, but also the right to incorporate his original work into derivative works, courts will consider the potential impact your use has on the market for derivative works. A derivative work is defined as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.”
Thus, under this fourth factor, where your use is transformative, it would be fair to use your copy for the purpose of a scathing movie review, or a lethal parody, which might well suppress or even destroy the market for the original work or potential derivative works. The role of the courts is to distinguish between “biting criticism that merely suppresses demand and copyright infringement, which usurps it.”
There is no fair use, and copyright infringement will be found, where the copyright owner demonstrates a reasonable possibility that injury will result from your proposed use. To escape liability, you must demonstrate that you had not impaired the copyright owner’s ability to demand compensation from (or to deny access to) any group who would otherwise be willing to pay for any rights in the copyrighted work. In addition, the fact that a given market for the copyrighted work would not be available to the copyright owner were it not for your infringing use does not permit you to exploit that market without compensating the owner of the copyrighted work.
The takeaway from this? Never accept the first idea off the top of your head. Be skeptical. It could be another person’s work or cliché. Great writing comes from sterner, deeper stuff. And, if you borrow more than a trivial amount of another author’s originality, and if the similarity is not the work of independent thought, or is not fair, you are plagiarizing or violating copyright.
The Black TV & Film Collective a 501c3 organization that operates as a NYC film collective. In our work, we support all artists of color including but not limited to black filmmakers. We are a collaborative platform that represents diversity in film and supports inclusion in Hollywood and TV. Our professional network of New York City filmmakers gives knowledge to those who want to learn how to produce film, how to make a web series, how to budget film projects and more. We host NYC film workshops that welcome a variety of experience levels from first time filmmakers who are either students in film school or to notables within the television and film industry. See how you can make a difference in the world of cinema by becoming a member of our NYC film collective
Donovan Rodriques concentrates his business and entertainment law practice in the area of film and television development, financing, production and distribution. He represents producers, talent, entertainment companies and entrepreneurs, including a number of start-ups and emerging companies in media, sports and entertainment technologies. Donovan is a member of the Black TV & Film Collective.