Plaintiff Rogue Satellite Comics
recently sued DreamWorks Animation for copyright infringement. Rogue owns the
copyright to a comic character named "Kingfish" (© 1996). In its complaint,
Rogue alleges that the Kingfish character was copied by DreamWorks and used for
the character "Minion" in the 2010 motion picture Megamind.
As described by Rogue:
Kingfish
is unique in that the conscious part of the character is a fish. The fish controls
a robot. The character is such that the robot forms the body of the character.
The head of the character is a fish bowl with the conscious fish residing
there. The character's body is a large, muscular robot with metal components on
his torso and limbs. The character's words are spoken by the fish that swims
inside the tank. The fish is a sham-toothed fish with distinctively visible
teeth. The fish in the Kingfish character is not physically connected to
anything inside the tank or to any part of the robotic body of the character. The
words of the character come through a speaker at the base of the fish bowl
head.
The Minion character is described as:
- The
conscious part of the Minion character is a fish.
- The
fish in the Minion character controls a robot.
- The
Minion character is such that the robot forms the body of the character.
- The
head of the Minion character is a fish bowl with the conscious fish
residing there.
- The
Minion character's body is a large, muscular robot with metal components
on his torso and limbs.
- Minion's
words are spoken by the fish that swims inside the fish tank.
- The
fish is a sharp-toothed fish with distinctively visible teeth.
- The
fish in the Minion character is not physically connected to anything
inside the tank or to any part of the robotic body of the character.
- Minion's
words come through a speaker at the base of the fish bowl head.
In asserting accessibility to the
copyrighted work, Rogue highlighted, among other things, the Facebook page of Kingfish
creator Kevin Atkinson. The complaint highlights Mr. Atkinson's Facebook
relationship with several individuals who helped develop the Minion character. For example:
In
January 2009 Kevin Atkinson posted photos of the character Kingfish on his
Facebook page. Significantly, at that time and continuing through present,
Kevin Atkinson has not restricted access to content on his page via Facebook's
privacy settings. Instead, he has kept his page or account totally open and
available for anyone to see. Thus, any person using the internet can access
content on Kevin Atkinson's Facebook page-including pictures of Kingfish-not
just Mr. Atkinson's Facebook "friends" and/or other Facebook users.
Kevin
Atkinson has Facebook connections with several individuals who worked to
develop the Minion character.
Kory
Heinzen worked on Megamind as a
visual development artist. Specifically, he had responsibilities for the design
and development of the Minion character. As of 2010, Kory Heinzen shared 23
Facebook friends with Kingfish creator Kevin Atkinson. One of Kory Heinzen's
Facebook friends posted comments on Facebook about Kevin Atkinson's drawings. Kory
Heinzen had access and exposure to the Kingfish character through these connections.
Kory
Heinzen created drawings as part of the development of the Minion character.
These drawings use the same fish tank head design as Kingfish, the same design for
the hoses connected to the tank, the same design for the bezel at the bottom on
the fish tank, and the same design for the speaker on the bezel of the fish
tank head.
Moreover, Andy Bialk, who worked for
DreamWorks in developing the Minion character, allegedly admitted to copying
the works of other artists in an effort to develop the Minion character. As set
forth in the complaint, Bialk stated in his blog that, "It's pretty clear that
I referenced [illustrator] Jack Kirby on some of my designs .... seemed to be the right
direction for the film in the early stages." The complaint also references the
filmmaker's commentary for the following:
During
the filmmaker's commentary, when discussing the origins of the Minion character,
the following dialogue takes place between Director Tom McGrath, Producers Lara
Breay and Denise Nolan Cascino, and Writers Alan Schoolcraft and Brent Simons:
MCGRATH:
.... I remember [Producer] Lara [Breay] was flipping through some old designs of
different villains, I think, and-and had found the gorilla fish head.
OTHERS:
Right.
MCGRATH:
And we both agreed it would be fun for animation-and fun for 3D, too. And it
just kind of worked into Minion being his-being given to him on his home planet
to take care of him, you know.
View or
download the entire complaint in Rogue Satellite Comics v. Dreamworks Animation, 11-cv-00253 (E.D. Tex. May 17, 2011)
For
more information, read:
4-13 Nimmer on Copyright § 13.02 Access (Non-subscribers
can purchase Nimmer on Copyright at the LexisNexis Store)
Some
courts have defined access as the actual viewing and knowledge of plaintiff's
work by the person who composed defendant's work. 1 It is submitted that this
definition is erroneous in that it ignores the underlying policy considerations
that permit proof of access (and substantial similarity) as substitutes for
direct proof of copying. 2 Just as it is virtually ....
1-2 Nimmer on Copyright § 2.08[B] Pictorial, Graphic, and
Sculptural Works - Works of Art (Non-subscribers can purchase Nimmer
on Copyright at the LexisNexis Store)
Included
within the Section 102(a)(5) category of pictorial, graphic, and sculptural
works are " 'works of art' in the traditional sense ... [and] also works
of graphic art, and illustration, art reproductions ... and works of 'applied
art.' " 48 This includes not only the fine arts of painting, drawing, and
sculpture, but also (subject to the qualifications discussed below), 49 works
of applied art. 50 ....
1-2 Nimmer on Copyright § 2.12 Characters (Non-subscribers
can purchase Nimmer on Copyright at the LexisNexis Store)
The
issue of whether a character from a work of fiction is protectible apart from
the story in which such character appears, is in a sense more properly framed
as relating to the degree of substantial similarity required to constitute
infringement 1 rather than in terms of copyrightability per se. 2 However, the
increasing prevalence of "sequels" in novels, motion ....
Walt Disney Prods. v. Air Pirates, 581
F.2d 751 (9th Cir. Cal. 1978)
This
case involved the admitted copying of plaintiff Walt Disney Productions'
("Disney") cartoon characters in defendants' adult
"counter-culture" comic books.
Gary Friedrich Enters., LLC v. Marvel
Enters., 713 F. Supp. 2d 215 (S.D.N.Y. 2009)
Plaintiffs Gary Friedrich Enterprises, LLC ("GFE") and its
principal, Gary Friedrich, brought this action against defendant Marvel
Entertainment, Inc. ("Marvel")
and ten other co-defendants alleging unlawful use of the plaintiffs'
"Ghost Rider" characters and story.
Walker v. Viacom Int'l, Inc., 2008 U.S.
Dist. LEXIS 38882 (N.D. Cal. May 13, 2008), aff'd ,362
Fed. Appx. 858 (9th Cir. Cal. 2010)
Plaintiff
Troy Walker sued defendants Viacom International Inc., Nickelodeon Studios,
Inc., Paramount Studios, Inc., and Stephen Hillenburg, the creator and
Executive Producer of the animated children's television series on Nickelodeon
called SpongeBob SquarePants ("SBSP"), alleging that defendants'
series infringed plaintiff's copyright for his comic strip "Mr. Bob
Spongee 'The Unemployed Sponge.'"
Sapon v. DC Comics, 2002 U.S. Dist.
LEXIS 5395 (S.D.N.Y. Mar. 28, 2002)
Plaintiff
Jeffrey W. Sapon ("Sapon") alleged that defendant DC Comics infringed
his copyright in drawings of the "New Batman," renamed the
"Black Bat." Defendant DC Comics alleged in its counterclaim that
Sapon's creation violated its exclusive right to create derivative works based
on its copyright in Batman under 17 U.S.C. § 106(2).
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