At some point — probably during a conversation with one of your insufferable film school friends — you may have heard a movie described as “high concept.” Although the phrase sounds like it should describe something terribly sophisticated and respectable (like Downton Abbey with a twist of Kenneth Branagh), it usually actually refers to the opposite, i.e., any artistic work that can be easily described by a simple premise. A movie pitch from 30,000 feet.
A good high concept project can be summed up in a short “what if?” (What if dinosaurs could be cloned? What if the world was all one big virtual reality lie? What if a man had to live the same day over and over?) The best (and worst) high concept projects can be understood by their names alone. (Planet of the Apes [best]. Planet of the Apes [worst]. Jaws [best]. Snakes on a Plane [worst]. Ace Ventura: Pet Detective [best]. Hobo With a Shotgun [best of the worst].) And while some high concept projects can be elevated by good storytelling and universal themes, usually we aren’t talking about great works of art.
Audiences and studio marketing executives both love high concept fare. But from a lawyer’s perspective, when a dispute arises and you’re worried that someone may have stolen your work, the higher your concept, the lower your chances in court. That lesson may soon be learned the hard way by comic book artist Steven John Busti, whose 1995 9-page comic, Cowboys and Aliens, is (at least in title) just an AP style guide edit away from the 2011 film, Cowboys & Aliens (and the 2006 graphic novel series on which it was based).
Back in December 2011, Busti sued graphic novelist Scott Rosenberg, along with Platinum Studios, Universal Pictures, DreamWorks, claiming that the defendants’ Cowboys & Aliens graphic novel and movie infringed the copyright in his obscure 1995 9-page comic of the same name. Busti’s legal argument can be vaguely summed up as follows: “Sure, I don’t own cowboys. Or aliens. But put them together? That’s all me.” Busti’s lawsuit also spotlighted certain other “striking similarities” between his comic and the defendants’ work, such as a spacecraft zooming over the main cowboy character’s head; discovery of the spacecraft by Native American warriors who are then attacked; and cowboys putting aside their differences to work with the Native Americans to fight off the invaders.
Earlier this month, the defendants’ lawyers fired back with a fairly blistering motion to dismiss, which is as notable for the panache with which it presents its legal arguments as it is for the arguments themselves.
The problem with Busti’s lawsuit is that the same characteristics that make for a strong “high concept” project make for a weak copyright claim. High concept works draw their potency from big-picture, easily-explainable concepts, which are used to explore universal and comfortingly familiar themes; the details are practically incidental. On the other hand, because (as we often repeat here at Law Law Land) copyright does not protect ideas, but rather, only the expressions of those ideas, a creative work essentially draws its protectability from specificity — well-drawn non-stock characters, detailed and original plot points, specific and finely-crafted dialogue and characterization, and the like. When courts compare two works for the purposes of assessing a copyright infringement claim, those are the sort of elements they look at. But when an artist’s creative work can be fairly reduced to the formula, X + Y, it is simultaneously the case that (a) someone else is more likely to have independently developed that same idea without reference to the artist’s work, and (b) the concepts are so general and elements so well-worn that the law offers the artist little or no protection in any event.
And so, the defendants in the Cowboys & Aliens case make all the arguments you’d expect to see in this scenario: what the plaintiff considers “striking similarities,” the defendants regard as mere “generic plot elements” (my scorecard: Plaintiff 0, Defendants 1); what the plaintiff claims are protectable original expressions, the defendants argue are vague (and largely derivative) ideas (my scorecard: Plaintiff 0, Defendants 2); and while the plaintiff says the works are so similar that he doesn’t even have to provide evidence that the defendants ever read his comic, the defendants pretty effectively argue that even the similarities cited by the plaintiff aren’t actually similarities, and that nobody ever read the thing, least of all the defendants (my scorecard: Plaintiff 0, Defendants 3; game, set, and match).
But these basic arguments aside, there are two things that make this motion particularly special. The first is the comically blatant, complete, and utter disregard that the defendants’ lawyers seem to show for the plaintiff’s work. Essentially, they are sending a message to the judge that says, “Not only did we not copy his comic, nobody would have, because it is just too terrible”:
The self-published story involved a generic cowboy character, two generic Native American characters, and a giant alien monster named Morguu, who recently arrived on earth from the “Voltan Empire” in a classic round UFO disc — the most cliché of spaceships. In the Comic, which is only nine pages long, the alien spaceship is discovered by both the cowboy and the Native Americans, both of whom — after their respective brief struggles with the alien — set off to make plans to protect their respective people and/or defend against the alien. The story ends as they set off on their respective missions to protect their people. That is the end of the Comic, and there were no future works.
The observation that the story was self-published, the “Voltan Empire” in quotes, “the most cliché of spaceships” — the disdain virtually oozes from the page. This is a line that was just written to be uttered by a PBR-swigging, skinny jean-wearing, film school dropout, Silver Lake hipster who has a really great mumblecore script in the works. And that last line — “and there were no future works” — would be scathing enough in its subtle implication, if the lawyers hadn’t also seen fit to drop a footnote that observes, “The Comic ends with a note that the ‘Next Issue’ will be ‘Showdown’, but Plaintiff has not alleged infringement in anything other than the Bizarre Fantasy #1 and has not presented evidence of registration of any other continuation of the story (or evidence that a continuation of the story exists).”
Ouch. (Maybe in his opposition, Mr. Busti can find a way to work in a footnote about the Cowboys & Aliens movie’s anemic 44% fresh rating on Rotten Tomatoes.)
Equally fascinating, though, is the defendants’ discovery that Mr. Busti’s lawsuit may be as worn out as his creative premise. Apparently, not only have plenty of others already combined cowboys and aliens into creative works (a creative tradition which the defendants trace back to Gene Autry’s “The Phantom Empire” serial in 1935), enough people have done it to already yield a lawsuit — Power v. Universal Studios — and a judicial decision (albeit unpublished) holding that the concept of cowboys battling aliens in the Old West is not protectable by copyright. (Luckily, the original, unsuccessful plaintiff in Power probably won’t be suing Busti for stealing his idea.)
It’s easy to look at a lawsuit like this one and assume that Busti is trying to shake down some deep-pocketed producers for a payout, but actually, I expect that Busti feels genuinely aggrieved by the release and success(-ish) of Cowboys & Aliens. A creative work almost always feels original to the person who is creating it, and writers and artists feel justifiably connected to and invested in their own creations. When a struggling artist sees something that looks a little too familiar making other people rich, it’s easy to imagine the artist drawing the conclusion that somebody else is profiting from his or her hard work. Unfortunately, even if Busti’s outrage is genuine, it doesn’t mean that the creators of Cowboys & Aliens (that is, the Cowboys & Aliens anyone has ever heard of) ever saw his work, or even if they had, that they did anything illegal or wrong by using it as inspiration.
Maybe Busti will have better luck with his next genre mash-up. I vote Zombies vs. Merpeople.