article first appeared on www.entertainmentlawmatters.com -- an entertainment litigation
blog from Frankfurt Kurnit Klein & Selz. Reprinted with permission
from Frankfurt Kurnit Klein & Selz. All rights reserved.
It looks as though Steven Spielberg has succeeded where Alfred Hitchcock and
Jimmy Stewart failed. In 1990, the United States Supreme Court held that
the classic 1954 film Rear Window infringed the copyright of Sheldon
Abend, a literary agent who purchased the renewal rights to It Had to be
Murder, the short story on which Rear Window was based. The
landmark decision, Stewart
v. Abend, 495 U.S. 207 (1990), articulated what is now known as the Abend
Rule, which applies to older works where there was an original and renewal
term of copyright protection. Under that rule, the grant of the right to
create a derivative work did not extend into the renewal term of copyright if
the grantor died before the renewal term began.
Some twenty years later, Hollywood geared up for a sequel. The Sheldon
Abend Revocable Trust (Sheldon having died in 2003) sued Spielberg and other
producers of the film Disturbia for copyright infringement of the same
short story. The 2007 hit film stars Shia LeBeouf (Hollywood's go-to
actor for the role of "unwitting-youth-in-peril") as a troubled teenager who
relieves the tedium of house arrest by spying on his neighbors and uncovers a
serial killer, played by the incomparable David Morse (Hollywood's go-to actor
for the role of "creepy-guy-who-may-or-may-not-be-evil"). Although,
comparisons between Disturbia and Rear Window abounded at the
time, few reviewers mentioned the original short story.
Disturbia's producers recently won summary judgment in The
Sheldon Abend Revocable Trust v. Spielberg, No. 08 Civ. 7810 (S.D.N.Y.
Sept. 21, 2010). The court held that, despite similarities between
the works, Disturbia did not infringe It Had to be Murder,
because none of the short story's "protectible elements" were appropriated.
After summarizing each of the plots, the court succinctly described their
[B]oth works tell the story of a male protagonist, confined to his home, who
spies on neighbors to stave off boredom and in doing so, discovers that one of
his neighbors is a murderer. The voyeur is himself discovered by the
suspected murderer, is attacked by the murderer, and is ultimately vindicated.
Those similarities were not only obvious, they were intentional: the
producers of Disburbia admittedly had access to the original work and
copied certain elements. Thus, the only question for the court was
whether there was a "substantial similarity between protectible elements in
the two works." (emphasis added). As the court explained, although plots
can be summarized so that "they appear indistinguishable, such similarity is
not, standing alone, indicative of substantial similarity." Specifically,
the "broad plot idea, or premise, is not a protectible element." After
analyzing the characters (including the protagonist, antagonist, and supporting
characters), the setting (New York apartment building vs. California suburb),
and the "total concept and feel" of the two works, the court concluded that
none of these elements were substantially similar.
Ironically, the plaintiff attempted to rely "heavily" on Hitchcock's film, Rear
Window, to support "its claims of substantial similarity and copyright
infringement" against Disturbia's producers. The court rejected
that evidence, along with reams of expert reports, previous drafts of the Disturbia
screenplay, and other documents the court deemed irrelevant to the
substantial similarity analysis. According to the court, "the proper
inquiry is whether "a lay observer" viewing the two works as they "were
presented to the public" would consider them "as a whole substantially similar
to one another."
Because several media reports have mischaracterized the result in Abend
v. Spielberg, it should be emphasized that the ruling relates only to the
original short story, not to the film Rear Window. Nevertheless,
the court's analysis suggests that the result would likely be the same, since Rear
Window contains many of the same elements that distinguished It Had to
be Murder from Disturbia.
Although the Disturbia decision may not have the same far-reaching
implications of the Abend Rule, it will be interesting to see whether
it will embolden producers to resurrect more old plotlines, or whether the
litigation risk alone will have a chilling effect on this trend.