Some woman writes a story about her life in a remote village in the Andeas, a story about deep sibling love, betrayal, true love, and tragedy that goes to the root of the love shared by two close sisters. Sounds like a lot of other stories you have read, doesn’t it? It may even sound like Frozen, or at least that’s what one author, Isabella Tanikumi, thinks (yeah, I’d never heard of her, either). She has filed suit against Disney claiming $250 million in damages. The claim? That Disney took the theme, characters, and plot from a book she wrote about her life.
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Tanikumi's book, Yearnings of the Heart, is one of the books that Tanikumi claims was copied. The covers sure do look alike, don't they?
Before you chalk this one up to crazy and vexatious litigation, the type of case in intellectual property that is akin to the multimillion dollar McDonald’s hot coffee case, lets put on our objectiveness goggles and look at this seriously for a moment. This is what lawyers have to do whenever a client comes to them with the scintilla of a thought that they might be the next multimillion dollar award winner in a groundbreaking case. At base, the lawsuit involves a claim of copyright infringement. A work written by Tanikumi (an original work of authorship, protectable by copyright) had portions of its copied by Disney. To prove copyright infringement, the aggrieved writer has to show that they have a valid copyright and that somebody else copied parts of the work that are original.
Breaking these elements down a little bit more, what exactly is original? Original doesn’t mean never before written about or that the underlying story in the copyrighted work is even that creative. After all, the standard for creativity isn’t really all that high. Don’t ask me about how much creativity one actually needs. I can only say for sure that the Supreme Court hasn’t set the bar very high here and seems to think that rote recitation of factual points or data (such as in the Yellow Pages, for example) is not sufficiently creative. For fictional and non-fictional works, meeting the requirement of creativity really isn’t that hard because both types of writing involve either the creation of a plot and characters by the author or a compilation of facts combined with commentary. So assuming that Tanikumi didn’t herself just copy her story from someone else, her copyright in her autobiography should be recognized.
The next hurdle to clear for Tanikumi is showing that Disney copied elements of her work. The copied elements cannot simply be common or factual elements because those are uncopyrightable. And the accused copier doesn’t even have to be directly copying the work; mere “access” (i.e. knowledge of the work) and substantial similarity between the copied work and the accused’s work is sufficient. As you might have guessed, “substantial similarity” is a legal term of art which basically consists of an analysis conducted by the judge. It has two parts: an extrinsic and intrinsic. “Extrinsic” basically references the objective similarities between a copyrighted work and the accused infringing work. “Intrinsic” is what an ordinary person thinks of the work. The extrinsic part requires a judge to look at whether there are similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. The thing to be analyzed is not the plot itself but the actual elements that make up to whole sequence of the book (including the characters and how they interact with each other and the plot).
As you might imagine, books cover a lot of overlapping territory (just like movie titles, it turns out that human intelligence really is finite). Take the following common elements, for example:
Perhaps you’ve heard of the one about a character that is immensely rich, but who is unhappy or has a vice that turns out to be his downfall, despite their great riches or laundry list of desirable traits? (The Great Gatsby, Emma, A Street Car Named Desire)
Or maybe you’ve heard of a character that is ostensibly human but embodies several super-human characteristics, and has a big heart to help the weak and vulnerable? (Batman and Spiderman)
Reading audiences like certain types of characters and plot lines precisely because the reader can either identify with the story or because the story is a romanticization of real-life sequences that adds flare or zest. Other types of plot lines and characters may be necessary to convey particular messages. If there are limited ways to convey certain ideas or a particular idea is so common across multiple works, why should one writer out of a thousand be given the exclusive rights to a plot or character type for 100 years? Well, they shouldn’t. After all, copyright law extends only to works of creative expression. And that’s exactly why there are limits to the scope of copyright. One of these limits (the so-called “scenes a faire” doctrine, to capture the concept of common themes that run across multiple books) could probably be applied in the case of Tanikumi’s claim because her story seems to incorporate a lot of standard themes that many other authors have included in their works.
I’ll break down this concept and have more ruminations on the battle over Frozen in Part II of Frozen in Time (sounds kind of soap-operaish, doesn’t it?)
Breaking these elements down a little bit more, what exactly is original? Original doesn’t mean never before written about or that the underlying story in the copyrighted work is even that creative. After all, the standard for creativity isn’t really all that high. Don’t ask me about how much creativity one actually needs. I can only say for sure that the Supreme Court hasn’t set the bar very high here and seems to think that rote recitation of factual points or data (such as in the Yellow Pages, for example) is not sufficiently creative. For fictional and non-fictional works, meeting the requirement of creativity really isn’t that hard because both types of writing involve either the creation of a plot and characters by the author or a compilation of facts combined with commentary. So assuming that Tanikumi didn’t herself just copy her story from someone else, her copyright in her autobiography should be recognized.
The next hurdle to clear for Tanikumi is showing that Disney copied elements of her work. The copied elements cannot simply be common or factual elements because those are uncopyrightable. And the accused copier doesn’t even have to be directly copying the work; mere “access” (i.e. knowledge of the work) and substantial similarity between the copied work and the accused’s work is sufficient. As you might have guessed, “substantial similarity” is a legal term of art which basically consists of an analysis conducted by the judge. It has two parts: an extrinsic and intrinsic. “Extrinsic” basically references the objective similarities between a copyrighted work and the accused infringing work. “Intrinsic” is what an ordinary person thinks of the work. The extrinsic part requires a judge to look at whether there are similarities between the plot, themes, dialogue, mood, setting, pace, characters, and sequence of events. The thing to be analyzed is not the plot itself but the actual elements that make up to whole sequence of the book (including the characters and how they interact with each other and the plot).
As you might imagine, books cover a lot of overlapping territory (just like movie titles, it turns out that human intelligence really is finite). Take the following common elements, for example:
Perhaps you’ve heard of the one about a character that is immensely rich, but who is unhappy or has a vice that turns out to be his downfall, despite their great riches or laundry list of desirable traits? (The Great Gatsby, Emma, A Street Car Named Desire)
Or maybe you’ve heard of a character that is ostensibly human but embodies several super-human characteristics, and has a big heart to help the weak and vulnerable? (Batman and Spiderman)
Reading audiences like certain types of characters and plot lines precisely because the reader can either identify with the story or because the story is a romanticization of real-life sequences that adds flare or zest. Other types of plot lines and characters may be necessary to convey particular messages. If there are limited ways to convey certain ideas or a particular idea is so common across multiple works, why should one writer out of a thousand be given the exclusive rights to a plot or character type for 100 years? Well, they shouldn’t. After all, copyright law extends only to works of creative expression. And that’s exactly why there are limits to the scope of copyright. One of these limits (the so-called “scenes a faire” doctrine, to capture the concept of common themes that run across multiple books) could probably be applied in the case of Tanikumi’s claim because her story seems to incorporate a lot of standard themes that many other authors have included in their works.
I’ll break down this concept and have more ruminations on the battle over Frozen in Part II of Frozen in Time (sounds kind of soap-operaish, doesn’t it?)
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