Someone Stole My Script! (Maybe)

Maybe the only real inspiration involved in Star Wars was to set its sci-fi galaxy in the pop-culture past, and to turn old-movie ineptness into conscious Pop Art. – Pauline Kael, The New Yorker, September 26, 1977.

Pauline Kael’s famously raw critique of the sleeper film that spawned the mega-franchise was grounded in the fact that Star Wars: A New Hope is composed almost entirely of action, compositions, and even dialogue from other motion pictures—especially Westerns. So, why wasn’t George Lucas’s screenplay the target of a flurry of copyright infringement claims?

Many writers worry about theft of their work, especially (it seems) material written for the screen, or which will be adapted for the screen. It may be the high-stakes, competitive environment of the industry that elevates these anxieties; but without presuming to know why writers worry about theft of their work, it is clear from many complaints I see that there is a lot of misunderstanding about what it means to “steal” a screenplay—i.e., what constitutes copyright infringement.

“Substantial Similarity” Claims Are Tricky Copyright Cases

To claim that another writer or producer has illegally copied your work, you must prove two things: 1) that they had access to your script; and 2) that their script is “substantially similar” to yours. If your screenplay is already known to the public (e.g., produced as a movie), proving access may be fairly easy or obvious, but if you’re still developing or shopping a script, the burden to prove that the alleged thief had access may be quite difficult. In certain courts (e.g., in California), the more similar the other material is to yours, the more likely access may be assumed, but those similarities must be, well, substantial.

Any good attorney you might approach about a case like this will need evidence showing some combination of access and similarity, and it is the second question that often confuses writers about what is and is not protected by law. The good news is that the limits on what may be protected are the same limits that allow hundreds of scripts to exist at the same time without legal conflict. And the other good news is that the limits on what copyright law protects likely complement the creative demands you put on yourself as a writer.

For instance, if you are writing witty dialogue among best friends sitting in a diner, you will want to write something in your characters’ voices that will be distinctive from countless other scenes that fit this general description. And it is your “originality” in expression that is at the core of what copyright law protects in your script. In a potential lawsuit alleging the kind of theft we’re talking about, one of the first jobs of the court would be to separate the protectable expression from the unprotectable elements based on certain limiting doctrines, and understanding the basics of these limits can help you consider what is truly protected and, perhaps, even alleviate some of the anxiety about theft.

Independent Creation

Great minds think alike, right? Copyright law allows for the possibility that more than one author could plausibly create almost identical (if not identical) works without being aware of one another’s work. Naturally, the more complex the works—and especially if at least one work is in the public consciousness—the less likely it is to reasonably assume independent creation. But this is one of the first limits a court would consider in a substantial similarity claim. Independent creation is, by definition, not infringement.

Idea/Expression Dichotomy

“They stole my idea!” is a common refrain and one which tells any copyright attorney listening that your copyright rights have not been infringed. This is because copyright does not protect ideas; it protects original expression of ideas. This rule known as the idea/expression dichotomy is one of the most important doctrines in copyright law and may be the most important limit that fosters a gazillion movies all sharing common themes and ideas.

Neither you nor any other writer may protect the idea of having witty dialogue among friends in a diner—or car chases, shootouts, narrow escapes, alien invasions, and so on. Neither may anyone protect genres or familiar tropes or plot devices.  What is protectable is the “selection and arrangement” of ideas or common elements and the “original” way in which you express these things.

Naturally, a screenplay is the basis for a motion picture that will eventually comprise a lot of creative expression that is not on the page. But to the extent you can express a unique vision for a scene that may otherwise be familiar territory, the more you may establish “original” expression in the script itself, which can be protected by copyright.

Merger

The merger doctrine recognizes that there may be only one way, or just a few ways, in which to express something. For example, most feature film screenplays follow a three-act structure with certain beats that should be hit to move the story forward and arrive at a logical conclusion somewhere around page 120. These structural “rules,” are considered “merged” with the expression and are, therefore, not part of your original expression. Similarly, there are only so many ways for a director to block and photograph a dialogue scene so that the audience knows how the characters are situated in space and that they are speaking to each other.

In a copyright lawsuit comparing two screenplays or two motion pictures, the “merged” elements of the works would be excluded from any claim of unlawful copying. And because screenplays and motion pictures entail a lot of common devices, techniques, tropes, and rules, merger abounds. And so does the next limit.

Scènes à Faire

From the French “scene to be made” or “scene that must be done,” the doctrine called scènes à faire recognizes that, within a given medium, certain choices must be made. For example, once you set your characters in motion on their journey through the plot, the range of logical and satisfactory conclusions narrows and will likely be some variation of a denouement that has been done before. It may be a long-awaited kiss, a moment of redemption, a ride into the sunset, a vanquished foe, a smart-ass remark, a gaze toward a new horizon, or a reveal of that inscrutable detail (the sled in the snow) that tells the audience what they’ve been wondering since Scene 1. Motion pictures are filled with scènes à faire, and again, it is the selection and arrangement of many common elements adding up to a whole that becomes protectable expression under copyright law.

Short Phrases

Here’s lookin’ at you kid. Frankly, my dear, I don’t give a damn. Show me the money. Stupid is as stupid does. Make him an offer he can’t refuse. I’m walkin’ here! I’ll be back. You’re gonna need a bigger boat. Using famous lines in your screenplay may lead to accusations of unoriginality, but short phrases on their own are not protected by copyright law, and that goes for your bon mots as well.

An alleged thief would have to copy more than a line or two (no matter how good) for there to be a reasonable claim of infringement of your work. If they copy the whole scene and the character who says the line, infringement may exist. But even then, we know that when Han Solo says, “Sorry about the mess” after shooting Greedo under the table, this is an American Western cliché reprised on Lucas’s invented planet in his invented universe.

Fair Use

Fair use is the copyright limit most often mentioned, so naturally, it is the most often misunderstood. Without getting into a dissertation, though, fair use is a defense to a claim of copyright infringement, but one that typically applies to copying part of a work and usually for the purpose of commenting on the work copied. A classic example of fair use commentary in entertainment is parody.

Because comment is not typically a factor in allegations of outright theft or plagiarism, fair use is not a likely defense to such a claim. This is especially true if you believe your work was stolen and copied before it was ever made available to the public. If your script has been produced or otherwise made publicly available, and someone else makes use of some part of it for the purpose of commenting upon it, then a reasonable fair use defense may exist.

De Minimis

Lawyer talk for “a little bit.” Copying a very small amount of a protected work is generally non-infringing. There is not much more to say about de minimis.

Wide Angle

Writing is always personal. It doesn’t matter if you’re working on a screwball comedy, material from your own memoir, or a biopic about a historical figure. Translating experience, ideas, and feelings onto the page always draws a little blood, and it is hard not to feel protective of your work—both personally and financially. But when it comes to fears about theft of that work by other writers, it is important to take a breath and a step back. Like music composers, screenwriters are working with a finite set of common elements and tools. There is a limited number of notes and chords to assemble and rearrange on the page according to certain rules, which means that of all the scores and scripts written, many will share common characteristics.

While it is true that copyright’s limiting doctrines can make it difficult to claim that another writer has stolen your material, without these limits, copyright law would make your career as a screenwriter nearly impossible. These limits are, in fact, what allow for constant adaptation and variation within the finite boundaries of a given medium. It’s why you can own your version of a fish-out-of-water story—because nobody gets to own fish or water. And you wouldn’t want it any other way.

And register your specs with the Copyright Office! It’s the only way to be fully protected under the law.

*Feature Image by Ron Lach (Pexels)