created a television show or movie that bears a striking similarity to the idea or storyline pitched to the producer a few years earlier. The court must now decide whether there is a case to be made for copyright infringement.
COPYRIGHT TEST
To succeed with a case of copyright infringement in the scenario set out above, the claimant will need to prove that the respondent not only copied his work, but also that there is a substantial similarity between the two works. The copying of the works must be so substantial and similar that it can be shown that such works was a slavish copying of the copyright owner’ s works.
THE AMISTAD CASE
The court in the US dismissed the Chase-Riboud’ s application, citing several reasons pointing to Spielberg’ s defence that no copyright infringement had taken place. In the first instance, the court found that the only common elements between Chase-Riboud’ s work and that of Spielberg’ s script / movie were the historical facts and the broadly described characters which, the court reasoned, was not sufficient to constitute copyright infringement.
The court looked at the total“ concept and feel” of the two works. The court analysed and compared the two works by looking at the“ plot”,“ general characters”,“ mood and setting” and“ sequence of events” from the vantage of a casual observer. The court stated that issues of historical context in the two works are not protected under copyright laws, as such historical contexts were in the public domain and available to any person. Similarly, the court argued that in comparing the characters of the novel and the movie script, Chase-Riboud’ s characters described in her novel were not copied by the respondent as, while there may have been certain general similarities, the claimant’ s characters were not‘ distinctive” and a clear creation of the mind of Chase-Riboud. The court also argued that, while the plot and theme of the two works may appear, at first blush, to be similar, their structure and sequencing was not, and that any casual observer referencing the two works would not be misled to believe that the movie was related in any way to the novel.
PROTECTION
It is generally said that copying is“ the mother of all invention”. It is in society’ s best interest for people to take hold of an idea and make it better. If we did not do so, there would, for example, be no new technical advancements in most areas of life, music would be one-dimensional and movies would be limited to single genres. This, however, does not give license to infringe the hard work of another person and the copyright laws of the world will come to the assistance of a copyright holder in cases of copyright infringement.
The copyright owner will, however, have to prove not only his copyright but also its infringement. This is especially where a case is to be made against a producer or public broadcaster, who has allegedly stolen an idea and usurped it for its own good without recognition or compensation to the copyright owner. To do so, the best protection is to ensure that a paper trail of the idea, storyline, characters, plot and plot sequence is kept by the creator. It is also a good idea that, in promoting the concept to a third party, you obtain from the producer or broadcaster a confidentiality and non-use of idea agreement. Doing so creates a contract between the parties and, should there be an infringement by a producer or broadcaster, the copyright owner can then claim not only copyright infringement but, as an alternative, sue for breach of contract.
It is also a good idea in these situations to register a story, plot, and series with the local writers’ guild. The date of registering such material with the writers’ guild establishes an important evidentiary record of when you first established the story, and will be a significant factor taken into account by our courts in any copyright infringement case. Think about it!.
office + 27( 0) 21 556-9451 fax + 27( 0) 86 543-4242 email sean @ bosse-associates. co. za
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