To give you a real-world working example of script copyright infringement here are edited highlights from a 2014 court case relating to a film script called ‘The Immortals’, in which the writer Thomas Althouse claimed was ripped off by ‘The Matrix’ trilogy. It serves as a good example for us to look at how scripts are analysed in court to determine similarities.
You can download a PDF of the full judgement at stephenfollows.com/resource-docs/Matrix-court-judgment.pdf
According to US law, to successfully establish a copyright infringement claim, a plaintiff must establish all of the following;
- Ownership of the copyright (this is why we register scripts)
- The defendant’s access to the copyrighted works
- Substantial similarity between the copyrighted works and the allegedly infringing material.
The summary of the case is as follows;
- Thomas Althouse (“Plaintiff”) filed a complaint against Warner Bros. Entertainment, Inc. (“WBEI”), Andy Wachowski, Lana Wachowski, and Joel Silver (“Silver”) (collectively, “The Defendants”).
- He claimed that “The Matrix Trilogy” was copied from the film script he wrote in 1992 called “The Immortals”
- He had sent the script to Warner Bros in 1993 and he is claiming that Joel Silver found it and then used it as a the basis of ‘The Matrix’.
- The judge looks at the two films, comparing theme for similarities between the plot, characters, themes, dialogue, setting, mood, pace and sequence.
To the layman, the two films don’t seem to have similar plots;
- “The Immortals” follows a present-day CIA agent, Jim Reece, who is provided a drug that makes him immortal. Jim eventually finds himself in the year 2235 AD, attempting to spoil the plot of Adolf Hitler’s son, Wagner, and a party of immortal Nazis, who intend to wipe out the entire population of “Short-lifers,” those who are not immortal.
- “The Matrix Trilogy” follows Neo, who learns that the present-day world is actually a virtual reality known as “the matrix.” The real world is overrun by machines who harvest humans’ energy while keeping their minds imprisoned in the “matrix.” When a group of rebels frees Neo in the real world, he learns that he has been chosen to defeat the machines and free the humans.
However, the judge can’t just say “They are different” – he needs to go through a rigorous comparison of the two scripts to assess similarities and differences.
The detailed comparison
The judge assesses the strength of the plaintiff’s case by comparing the two films, looking at;
- Mood, Pace and Sequence
The only similarity in plot is that both stories portray a protagonist attempting to prevent a dominant group from oppressing and annihilating a subservient group. However, the extrinsic test “looks beyond the vague, abstracted idea of a general plot and instead focuses on the objective details of the works.” Berkic, 761 F.2d at 1293. Looking at the details of the plot, which are potentially protectible, the Court finds no substantial similarities. In The Immortals, Hitler and the Nazis are cryogenically frozen and then reanimated at a time when their cohorts have successfully created an immortality drug. The protagonist, Jim, must fight the now-immortal Nazis who seek to oppress and destroy all “Short-lifers.” In contrast, in The Matrix Trilogy, machines harvest humans’ energy while trapping their minds in a virtual reality known as the “matrix.” The protagonist, Neo, seeks to free humans from enslavement by the machines and protect a group of rebels who live freely in the real world. The basic premises of The Matrix Trilogy and The Immortals are so different that it would be unreasonable to find their plots substantially similar.
Turning to the works’ characters, the Court finds no substantial similarity for any protectible expression. In the SAC, Plaintiff alleges a number of general similarities. For instance, Jim and Neo both attempt to free people from their situation (SAC 9); both characters have nightmares of their significant other dying (SAC 12); and both characters have an enemy who they hate (SAC 11). These are all standard elements, commonly found in films and literature. None of these characterizations are protected by copyright law. After examining the alleged similarities between the works’ characters, the Court finds no protectible features that overlap between the works.
Although Plaintiff alleges similarities in themes between The Immortals and The Matrix Trilogy, copyright law does not protect any of the aspects alleged to be similar. For example, Plaintiff alleges that both stories have allusions to Christ. (SAC 32.) However, allusions to Christianity in literature date back hundreds of years and are not generally protectible. Looking at the details of the works, the two works express these themes very differently. The Christian allusions in The Immortals concludes with the literal Second Coming of Christ, whereas The Matrix Trilogy concludes with a metaphorical reference to Christ, as Neo sacrifices himself to save others. Even Plaintiff’s ore specific allegations regarding thematic similarity, like renewal of the world following the Christ-figures’ actions (SAC 30), are scenes a faire elements and not entitled to copyright protection. Overall, the Court finds no substantially similar and protectible thematic elements between the works.
For a court to find substantial similarity in dialogue between two works, the Plaintiff must demonstrate “extended similarity of dialogue.” Olson v. National Broad. Co., Inc., 855 F.2d 1446, 1450 (9th Cir. 1988). The Court does not find any substantially similar portions of dialogue between the two works, let alone any “extended similarity.”
Although both works are science-fiction stories that take place both in the present day and in the future, the works share no protectible expressions of setting. The Matrix Trilogy shifts back and forth between the virtual reality “matrix,” which looks like the present day, and some time around 2199 AD, where the world is in ruins and the only free humans dwell in a subterranean, rebel city called Zion. In contrast, The Immortals begins in the present day and shifts to 2235 AD Washington D.C. Although the “Short- lifers’” city in The Immortals is also partially in ruins, there the ruins are recognizable landmarks and the action takes place above ground. By contrast, the ruins in The Matrix Trilogy do not contain recognizable landmarks and the action takes place below ground. Many science fiction movies are set in a futuristic society with ruins, and this general setting is not protectible. Plaintiff points to more specific similarities in the setting such as: the fact that characters in The Matrix Trilogy have a jack in the back of their necks and characters in The Immortals have “enhancers” in their necks (SAC 8); the blue electric plasma that the machines emit in The Immortals and the blue lighting that emits from certain weapons in The Matrix Trilogy (SAC 25); and the use of flying transports in both works (SAC 25-26). However, these features can be traced back to films like Star Wars and Terminator, and are neither original nor protectible.
F. Mood, Pace, and Sequence
The mood, pace, and sequence of the two works also do not share any protectible elements. For example, although both works are fast-paced action films, The Matrix Trilogy includes high-speed car chases and physics-defying martial arts, neither of which are found in The Immortals.
The Court does not find it necessary to continue an exhaustive list of dissimilarities between the two films. The Court has read The Immortals and viewed all three films of The Matrix Trilogy. The Court finds no substantial similarity as to any protectible element of plot, characters, theme, dialogue, mood, setting, pace, or sequence. Even if Plaintiff could prove that Defendants had access to The Immortals script, no reasonable jury could possibly conclude that The Matrix Trilogy is substantially similar to The Immortals in any of these categories. As a result, the Court grants Defendants’ Motion for Summary Judgment on Plaintiff’s copyright infringement claims and finds that The Matrix Trilogy does not infringe The Immortals.
Unsurprisingly, the judge found in favour of the defendants, ruling that there was no copyright infringement between ‘The Immortals’ and ‘The Matrix Trilogy’.