How does the concept of substantial similarities relate to copyright infringement? When we hear that only the expression of an idea and not the idea itself can lead to an infringement claim, we should use caution in assuming that only direct quotes or close paraphrasing will get us in trouble. We may mistakenly think, “Oh well, I am not using the exact words or close paraphrasing, so my work is risk-free of any infringement claim.”
Let’s look at two cases where consideration was given to elements beyond exact quotes or close paraphrasing:
- Peter Gallager, a self publisher of a novel entitled The Little White Trip: A Night in the Pines, filed an infringement claim over the 2012 horror picture The Cabin in the Woods seeking 10 million dollars in damages.
- The estate of J.D. Salinger brought suit against Fredrick Coulting, self-publisher of a book titled 60 Years Later—Coming Through the Rye, for infringement of Salinger’s novel Catcher in the Rye.
Cabin in the Woods
You may not think of plots, characters, and themes as being expressions of an idea, but rather see them as always the “ideas” of the story themselves and thus unprotected by copyright law. This month, the judge in the Gallager case mentioned above tossed the claim out of court. The outcome of the Cabin in the Woods copyright infringement case, where there was a consideration of these elements and a decision that no infringement was committed, might lead you to believe you only need to worry about direct quotations or close paraphrasing.
In the Cabin in the Woods case, the lawyers for Gallagher contended that there was substantial similarity between these elements in the two works:
“Comparing the book to the film, the plots, stories, characters, sequence of events, themes, dialogue, and incidents portrayed in the two works are fictional and, in many respects, the elements in the two works are virtually identical.” (https://casetext.com/case/gallagher-v-lions-gate-entmt-inc)
However, a federal judge has dismissed the 10-million dollar copyright infringement suit. He disagreed with these comparisons:
“The few alleged similarities that are not grossly misstated involve unprotectable forms of expression such as the group going to a cabin or the alpha-male character attempting a risky escape plan to bring back help. Accordingly, the list of random similarities only further convinces the Court of one thing; after thorough analysis of both works and application of the extrinsic test, The Cabin in the Woods and The Little White Trip are not substantially similar.” (https://casetext.com/case/gallagher-v-lions-gate-entmt-inc)
However, it would be a mistake to think similarities claimed in such elements are never found to be infringement. Often an analysis of copyright issues considers these elements individually and taken together as a whole to determine if there is substantial similarity between two works.
Deciding whether we are relying on past works for inspiration or crossing the line to copying too much from an author’s work can be difficult.
Catcher in the Rye
Should we assume after considering the Cabin in the Woods case that chances are we as authors are safe if we steer clear of copying direct quotations or close paraphrasing? Not really. Courts often do consider elements other than direct quotes or close paraphrasing in deciding copyright infringement cases and sometimes find for the plaintiff. In the suit brought by the estate of J.D. Salinger mentioned above, the judge found similarities in character, plot, and theme likely to be an infringement.
Learning the suit’s outcome might cause us to suppress any inclination to rely too heavily on works still in copyright. As an example, you can see from case excerpts below how Judge Deborah Batts considered elements such as plot, character, and theme of the two works in determining if there might be an infringement.
“. . . to the extent Colting claims to augment the purported portrait of Caulfield as a ‘free-thinking, authentic and untainted youth,’ and ‘impeccable judge of the people around him’ displayed in Catcher by ‘show[ing] the effects of Holden’s uncompromising world view,’ those effects were already thoroughly depicted and apparent in Salinger’s own narrative about Caulfield.”
See the judge’s statement regarding themes and Colting’s argument he was adding something new by means of a critical examination of character:
“. . . it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher.”
Here is the judge’s statement regarding elements other than direct quotes and dialogue:
“In addition to the use of Caulfield as protagonist, 60 Years depends on similar and sometimes nearly identical supporting characters, settings, tone and plot devices to create a narrative that largely models that of Catcher.”
The decision of the US District Court of the Southern District of New York to issue an injunction to ban the book from being published or distributed in the US was appealed, and the appellate court lifted the ban on Colting’s book but remanded the case to trial. It was this appellate court’s opinion in the end that the Colting novel would be found to be infringing.
The appellate judge’s determination that Salinger did have a case and his order that it proceed to trial led to a settlement agreement in which Colting agreed not to publish or otherwise distribute the print book, e-book, or any other editions of 60 Years Later in the U.S. or Canada until The Catcher in the Rye enters the public domain.
To see the case transcripts of the original decision in the Salinger vs Colting case and that of the appellate court go to:
Often the following question is asked by writers, “Am I merely gleaning inspiration from this work or is my effort so close to the original that I could be guilty of infringement?” Looking at past court cases as we do here helps put our use of another’s copyrighted work in perspective.
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