High School Teacher's Copyright Suit Against Netflix Gets Dismissed Because Coincidence Isn't Protectable

from the class-dismissed dept

Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.

It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter's series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:

In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.

“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”

It's a useful high-level takeaway on the majority of issues with the lawsuit, but it's worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different -- a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. -- , some of the claims detailed out in the dismissal are downright absurd.

As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.” [19] at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.

It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:

In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.

Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten's novel.

The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of "avian themes" and the like is nonsensical.

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Filed Under: copyright, idea expression dichotomy, kevin wooten, outer banks
Companies: netflix


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  • icon
    That One Guy (profile), 27 May 2021 @ 8:07pm

    Double ouch

    Nothing like not only losing your case and having the judge point out what a poor writer you are in one go, somehow I'm thinking that was not the outcome they were expecting or hoping for.

    reply to this | link to this | view in chronology ]

    • identicon
      MightyMetricBatman, 28 May 2021 @ 12:43pm

      Re: Double ouch

      I am just amazed and horrified it took five years to dismiss this case at the motion to dismiss stage. Unless this went through court of appeals at some point that sent it back to the dismissal motions.

      reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 27 May 2021 @ 8:52pm

    Poetic justice

    Someone should make a movie about this and sue Kevin Wooten.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2021 @ 9:18pm

    The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients

    When neither the Bar nor the courts are willing to punish lawyers for even the most egregious actions, "common sense" is that lawyers should accept any case that someone is willing to pay them for.

    Or: "It is difficult to get a man to understand something when his salary depends upon his not understanding it," the lawyer edition.

    reply to this | link to this | view in chronology ]

  • icon
    TKnarr (profile), 27 May 2021 @ 11:09pm

    I really think the courts need to rethink their standards for sanctions. It's one thing when the defendant has to bring up things not mentioned in the complaint to get the complaint dismissed. But when the defense can win a motion for dismissal based solely on what's in the complaint, not sanctioning the plaintiff's attorney should be the exceptional case.

    At the motion-to-dismiss stage the judge can rule only on matters of law requiring no determination of facts, and any ambiguity has to be taken in the light most favorable to the plaintiff. Given that, if the judge can find from the plaintiff's own complaint that the complaint doesn't state a case then the plaintiff's attorney certainly should have been able to come to the same conclusion. So either they filed it knowing it was baseless (which they're required not to do) or they filed it without doing their research on what the law and precedent say about it (which is also an ethical no-no) or they need to go back to law school. If it's really a valid complaint then they should be able to find at least one case that's still good law with a set of facts close enough to theirs to require a determination of facts to decide, which would let the complaint survive the motion to dismiss.

    reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 30 May 2021 @ 1:58am

      Re:

      If it's really a valid complaint then they should be able to find at least one case that's still good law with a set of facts close enough to theirs

      Such a rule would prevent novel or new issues and really rank older decisions from being litigated. Pace v. Alabama, 106 U.S. 583, would still be the law, the appeals leading to the decision thereof being sanctionable. And of course the Lovings' [Loving v. Virginia, 388 U.S. 1] attorney and the McLaughlins' [McLaughlin v. Florida, 153 So.2d 1, rev'd, 379 U.S. 184] attorney would likely have been subject to sanction under your rule.

      At least you would not have to share public facilities with uppity darker-complected persons, such as Homer Plessy. It should also be noted that Scott v. Sandford, 60 U.S. 393, has not been overturned, though there are some cases suggesting that the central language of that case may no longer be good law. Would that be enough to avoid sanctions under your proposed rule? It probably depends on the judge.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 May 2021 @ 11:32pm

    Those who can, do.
    Those who can't, sue!

    reply to this | link to this | view in chronology ]

  • icon
    PeterScott (profile), 28 May 2021 @ 4:03am

    If only the courts did a similar job for Infringing music case

    Recent ones like "Blurred Lines" are nonsensical, basically turning over a complete style of music to copyright holders.

    reply to this | link to this | view in chronology ]

  • icon
    john Katos (profile), 28 May 2021 @ 6:14am

    Birds

    The copyright holders of the "Maltese Falcon" should by sue Kevin for a bird themed treasure hunt./s

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2021 @ 6:44am

    +1 for “tropish”

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 May 2021 @ 7:16am

    To many lawyers of questionable ability.

    Perhaps it is time those in charge actually provide oversight & punishments rather than worrying about how that might make the profession look. I mean come on they ignored Prenda for a decade & then magically decided maybe we'll suspend them while they are in prison. o_O

    reply to this | link to this | view in chronology ]

  • identicon
    Tom Raven, 28 May 2021 @ 9:00am

    "It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this."

    They got paid, didn't they?

    reply to this | link to this | view in chronology ]

  • icon
    brad (profile), 28 May 2021 @ 9:28am

    that Pennywise book is so, so hilariously bad-sounding:

    reply to this | link to this | view in chronology ]

    • icon
      brad (profile), 28 May 2021 @ 9:28am

      Re: that Pennywise book is so, so hilariously bad-sounding:

      sorry missed adding the actual content:

      "The treasure contains the Holy Grail, and the professor wants to protect it from an evil scientist named “Darwin” who “plans to test Jesus’s DNA, prove he was an ordinary man, and undermine Christianity,” defense attorneys said."

      reply to this | link to this | view in chronology ]

      • icon
        Samuel Abram (profile), 28 May 2021 @ 12:06pm

        Re: Re: that Pennywise book is so, so hilariously bad-sounding:

        For real? That sounds like one of those Christian nutcases here in the US who think Adam, Eve, and/or Jesus rode dinosaurs...

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 28 May 2021 @ 12:19pm

        Re: Re: that Pennywise book is so, so hilariously bad-sounding:

        Bloody hell, ignoring that the plot shoots itself in the back(if the DNA did come back as 'just an ordinary man' then that would prove the scientist right, if not then it would prove him wrong) that's a plot so bad I'm tempted to point the GAM guys towards it for one of their 'god awful minis'...

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 28 May 2021 @ 1:22pm

          Re: Re: Re: that Pennywise book is so, so hilariously bad-soundi

          Yes, because clearly Jesus would have half Mary DNA and half magical God DNA. I mean, what the facepalm?

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 28 May 2021 @ 1:53pm

            Re: Re: Re: Re: that Pennywise book is so, so hilariously bad-so

            Even within the context of the story I'm left scratching my head over that one as if that's the motivation then either the character does think that 'there's nothing magical about the DNA' would be a compelling finding that would 'undermine christianity' and expects that that's exactly what the scientist would find, hence why it's so vital to keep the grail from him, or they do think that the blood would/should have some magical traits in which case... why keep it from the scientist, as that would be a huge find that would if anything lend credence to the religion?

            It's not like I expect much from a story with such a blatant hate-boner for Darwin but come on, at least try to make your character motivations make sense.

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 May 2021 @ 1:20pm

        Re: Re: that Pennywise book is so, so hilariously bad-sounding:

        I became suspicious... and now i don't even have to go look. FFS.

        Wondering if the estate of Blackbeard will be suing for ... whatever the hell are the "rights" these people sue over. And if everyone were like this guy, the ghosts of a thousand story writers would be suing him and each other over their pirate treasure hunt shit. (And also the patent on cleverly writing "Christians are so persecuted" allegories.)

        reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 30 May 2021 @ 1:40am

        Re: Re: that Pennywise book is so, so hilariously bad-sounding:

        "plans to test Jesus’s DNA"

        I'd be interested in finding out what the supposed source for the DNA is. I'm assuming the Holy Grail from that description, but surely the blood would have degraded too far over the last 2000 years to be of any real use, it's not like it will be preserved like a mosquito trapped in amber.

        Then, what would they be testing for? Unless there's a special God DNA they could account for, the only thing that can be proven with such a test is that Jesus was created by his father using the same building blocks as all other life. Not that I expect this author to understand real world science, but proof doesn't work in this scenario.

        "prove he was an ordinary man, and undermine Christianity"

        I'm not entirely sure if this author has ever met a Christian, especially of the Evangelical variety, but they're not known to adjust their thinking in light of devastating new evidence. There's nothing here that wouldn't immediately be waved away with excuses.

        reply to this | link to this | view in chronology ]

  • icon
    Mononymous Tim (profile), 28 May 2021 @ 10:28am

    It's crazy just how many lawsuits get filed by full grown adult lawyers who don't seem to understand this.

    Greed and stupidity tend to go hand in hand.

    Makes me wonder about the quality of "lawyer schools" these days...

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 30 May 2021 @ 1:43am

      Re:

      The lawyers probably know what they're doing - if they face no consequences for filing dumb lawsuits like this, their billable hours are the same as if they were doing something useful.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 May 2021 @ 10:46am

    I imagine the plaintiff never meant to take this to trial. It's fairly standard to ask for a nuissance amount of money that's conveniently less than what a trial would cost the defendent, even if they won.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 29 May 2021 @ 11:10am

    Coincidence Isn't Protectable

    Someone should tell Alara Mills.

    reply to this | link to this | view in chronology ]


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