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A Californian District Court has dismissed a
claim by Deborah Thomas against Walt Disney and Pixar for breach of
copyright concerning the animated movie Finding
Nemo.
The
Facts
The plaintiff wrote an original literary
work entitled Squisher the Fish
in 2000. In April 2001 she submitted it to Disney "for the purpose of
selling her work for use as a movie, published book, television show, game
or other commercial application." Two months later Disney returned the
screenplay and informed her that they did not consider unsolicited
submissions. The plaintiff claimed that during the time Disney had her
screenplay they copied it and incorporated it into their movie Finding Nemo.
The Copyright
Claim
In considering the defendants' motion to
dismiss the copyright claim the court looked at both screenplays and
compared their plots, their sequence of events, their characters, their
mood and their setting.
a) The Plot
The court found that although Squisher the Fish and Finding Nemo both begin with an egg
hatching into a young fish, that was one of the few ways the plots of the
two stories were the same. While Squisher
focuses on Squisher's discovery of the ocean and his eventual capture
by divers, Finding Nemo focuses
on Marlin's attempt to find Nemo after he was captured by divers. While
Squisher's capture and placement in an aquarium is the culmination of his
story, Nemo's capture is the catalyst for his father's adventures which,
together with Nemo's attempt to escape from the fish tank in a dentist's
office, are the central plot of the Disney/Pixar story.
The court observed that on a general level
"both stories deal with young fish in the ocean that are captured by
divers and put in a fish tank." However, it went on to observe that
"courts have consistently held that such basic plot ideas are not
protected by copyright law." Reviewing earlier authority, it noted
that "no-one can own the basic idea for a story because general plot
ideas are not protected by copyright law ... rather such ideas remain
forever the common property of artistic mankind."
b) The Sequence of Events
The plaintiff argued that despite the
differences in the overall story lines, "the Defendants have copied
the entirety of the fundamental essence and structure of her work and
Nemo's story cannot begin or end without the Squisher story." The
court, however, concluded that "a comparison of the sequence of events
in the two works does not support a finding of substantial
similarity."
c) The Characters
The plaintiff argued that the title
characters are both "curious and inquisitive" and
"cautioned ... to be wary of dangers". The court found,
however, that a young character who is inquisitive and whose curiosity leads
him/her into danger was merely "a stock character". It also found
that the plaintiff's description of Squisher was not reflected in any of
the physical characteristics of Nemo, who was an orange clown fish with
wide eyes and white stripes whereas Squisher was described as "a tiny
yellow fish". Later it is disclosed that he has a "blue
circle" marking.
The court also rejected the suggestion that
the characteristic of the injured/deformed fin which was found in Squisher and found twice in Nemo was a protectable
characteristic.
d) The Mood
The Defendant argued rather disparagingly
that "Plaintiff's work does not have a mood while Nemo's mood is
exciting and suspenseful." The plaintiff claimed that the works both
had the mood of a "happy, light, chilled children's tale" and of
"wonderment for the ocean and its inhabitants". The court found
that the comparison of the moods of the two works did not support a finding
of substantial similarity.
e) The Setting
Both stories took place on a reef in the
ocean and in a fish tank. The court found that this "naturally and
necessarily flows from the basic plot premise common to the two stories, of
a fish captured from the ocean and put into a fish tank."
The court concluded that none of the factors
weigh in finding of a substantial similarity between Squisher the Fish and Finding
Nemo, and the plaintiff's copyright claim therefore failed.
The
Breach of Confidence Claim
The court found that "a breach of
confidence claim requires a confidential relationship that arises when an
idea is offered to another in confidence and is voluntarily accepted by the
offeree in confidence." It observed that a plaintiff may raise an
inference of a confidential relationship in a number of ways including
through "proof that the material submitted was protected by reason of
sufficient novelty and elaboration" or proof that she "offered
the idea upon condition of confidence and a clear understanding that
payment would be made upon use."
The plaintiff claimed that the defendants
either knew or should have known that the screenplay was submitted in
confidence. However, no assertion of confidence was made in the covering
letter which also failed "to provide a clear basis from which to infer
that the Plaintiff expects a payment if her story was used." The court
observed that California law
clearly requires "understanding or voluntary acceptance of the
confidential disclosure" on the defendant's part. It found that
"the content of the Plaintiff's cover letter, together with the
Defendant's return of her submission without review belies any such
understanding on acceptance."
Would
the Outcome have been different in the UK?
The
finding of the US court that there was no implied duty of confidence in
these circumstances is in contrast to the position in the UK, where there
is a clear indication in Fraser v
Thames Television that unsolicited submissions can be made in
circumstances where a court implies a duty of confidence.
This suggests that a breach of confidence
claim in the UK
based on the same facts might have had better prospects of success than in
the US
court. The copyright claim would surely have been dismissed in the UK
for much the same reasons, as was the claim in respect of the Da Vinci Code
where similarly vague assertions of copyright infringement were rejected by
both the trial judge and the Court of Appeal.
Jonathan
Coad
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