Misunderstood heroes.  Space travel.  Alien worlds.  Humanoids.  Greed.  Imperialism.  Violence.  Exploitation.  Intercultural war.  Redemption.  And Copyright Infringement?

Everyone’s seen the movie Avatar. How many people have read the book Bats and Butterflies? How many people have even heard of it?  The author of Bats and Butterflies alleges that James Cameron’s Avatar is a rip-off.

Background

Elijah Schkeiban, author of the book Bats and Butterflies, filed a lawsuit against Cameron, author, director, and co-producer of Avatar, and Lightstorm Entertainment, Inc., Twentieth Century Fox Film Corporation, and Dune Entertainment LP.  Schkeiban alleges in his lawsuit that he created the Bats and Butterflies “franchise of products” in 1988 based on his script and novel of the same name.  He alleges that he registered the copyrights for the script and novel in 2000 and 2001. 

Schkeiban alleges that in 2005 he started shopping the script to various people in Hollywood, including an actor named Billy Zane.  He alleges that Cameron’s Avatar copied Bats and Butterflies, and that the two stories are “substantially similar” in plot, sequence of events, characters, themes, moods, setting, and pace.  He alleges that Cameron and the other defendants therefore infringe his copyrights.   You can’t watch the movie Bats and Butterflies, to decide for yourself whether Schkeiban’s claims have merit, because the movie hasn’t been made.  But you could read the novel.

Anyway, the court dismissed his Complaint, noting (correctly) that the Complaint was missing an essential element of a copyright infringement claim:  it made no allegation whatsoever that Schkeiban gave or showed his script to Cameron or the other defendants, or that they had access to it.  This was a fatal omission. 

Schkeiban then filed an “Amended” Complaint, in which he now alleged that when he gave his script to Zane in 2005, he asked Zane to give a copy of it to Cameron, and that Zane later told him that he had done so.  Again, the court dismissed the Amended Complaint.  The court noted that Schkeiban’s new allegation only alleged that Zane allegedly told Schkeiban that he (Zane) had given the script to Cameron.  This allegation simply wasn’t enough, the court said, to establish that Cameron actually saw the script. 

Schkeiban responded by filing a Second “Amended” Complaint.  In this third pleading, Schkeiban pointed out that Zane is an actor who had been in Cameron’s previous film, Titanic, and therefore was close to Cameron.  Schkeiban further alleged that he had had a telephone call with Zane in 2005 in which Zane assured him that he had given the Bats and Butterflies script to Cameron.  Otherwise, there were no changes from the previous Complaints.

Copyright Law Protects the Expression of Ideas

Before turning to the court’s final decision, a little about copyright law.  Many people who don’t work in intellectual property don’t realize that copyright law cannot and does not protect ideas.  It protects only the actual expression of those ideas. 

• In literary works, such as novels or scripts, you can’t copyright what are called “scenes a faire,” meaning standard plots, scenes, characters, or themes. 
• You can’t copyright plots, such as “boy-meets-girl, boy-breaks-up-with-girl, boy-reunites-with-girl, and boy-and-girl-live-happily-ever-after.” 
• You can’t copyright scenes, such as “boy-meets-girl-in-a-dimly-lit-bar.” 
• You can’t copyright characters, such as heroes, villains, victims, etc. 
• And you can’t copyright themes, such as “misunderstood and conflicted soldier in invading culture falls in love with a member of the invaded culture, switches allegiance, and leads the invaded culture in repelling his own culture.  This persistent theme in human literature is nicely explored in the Wikipedia entry for the film Avatar.   (Consider:  the novel Tarzan and the film Dances With Wolves.) 

In order for a court to find copyright infringement in a script or novel, there has to be almost exact copying of the actual mode of expression – i.e., the words and sentences.  Therefore, Schkeiban would have to show not only that Cameron saw or had access to his script, but also that Cameron literally or almost literally copied from it.

The Court’s Decision – Avatar Not “Substantially Similar” to Bats and Butterflies

The court again dismissed Schkeiban’s Second Amended Complaint, pointing out that this was Schkeiban’s third attempt to make out a copyright infringement claim.  The court noted that to prove copyright infringement, a claimant must prove: 

1. ownership of a valid copyright, and
2. copying by the alleged infringer (Cameron) of elements of the infringed work (Bats and Butterflies) that are original to that work. 

In turn, copying can be proven by showing that: 

1. the defendant had access to the infringed work, and
2. that the works at issue are “substantially similar.” 

The court noted that, even on his third attempt, Schkeiban’s effort to show that Cameron had access to Bats and Butterflies was vague.  But, even assuming Cameron had access, the court found that the elements of Bats and Butterflies and Avatar are not “substantially similar.”  Bats and Butterflies is a fantasy work that involves a bullied human teenager, Joshua, who is magically transported to a planet and finds a war between bats and butterflies.  Joshua helps the butterflies defeat the bats and helps a caterpillar princess mature into a queen butterfly.  As we all probably know, Avatar involves a disabled war veteran/mercenary soldier who flies to a planet; through cloning technology is transformed into one of the native beings on that planet in order to spy on them; and eventually sides with the natives and helps them defeat the invading humans – his own people. 

Although both works involve humans who go to a distant planet and become involved in a war between two cultures there, the similarities end there, according to the court.  Schkeiban argued that his script and Cameron’s film were similar because both involved ideas of alien lands, deaths of family members, and battles between groups with competing interests.  The court found that the plots and sequences of events between the two stores are substantially different and that any similarities are merely general ideas, which cannot be copyrighted.  Similarities between Schkeiban’s hero, a bullied teenager, and Cameron’s hero, a paraplegic war veteran, are not copyrightable.  Any random similarities of plot scattered between the two stories are “scenes a faire.”  Both stories arguably involve themes of racism, genocide, imperialism, and environmentalism, but, again, themes cannot be copyrighted.  As a result, the court found that, after three attempts, Schkeiban could not prove copyright infringement, and dismissed his claim with finality (“with prejudice”).

Another note about copyright law:  In contrast to the standard “American Rule,” whereby each party in litigation pays its own attorneys’ fees, the copyright statute allows the prevailing party (here, Cameron, et al.) to recover its fees.  After persuading the lower court to dismiss Schkeiban’s Complaint, the defendants moved for recovery of their attorneys’ fees.  The court denied their motion.

The court docket reveals that Mr. Schkeiban has filed an appeal to the U.S. Court of Appeals for the Ninth Circuit.   Bats in the Belfry?

Stay tuned.