Hey, IndieWire: I’m a filmmaker working on my first feature and this article about the plagiarism allegations against “The Letter Room” read like my worst nightmare. I don’t want anyone to rip me off — and for that matter, I don’t want anyone accusing me, either. Is there any way I can protect myself and my collaborators from a situation like this?
Name withheld, Los Angeles
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Georges Polti says there’s 36 dramatic situations. Christopher Booker offers “The Seven Basic Plots.” And Leo Tolstoy has often been quoted as saying all great literature fits into two stories: A man goes on a journey, or a stranger comes to town. (The source actually appears to be John Gardner.) All of which points to a short answer for your question: Your original ideas might not be so original, and therefore are subject to much less legal protection than you might think. “Nobody creates in a vacuum,” said John L. Geiger, an IP attorney, screenwriter, and co-author of “Creativity and Copyright: Legal Essentials for Screenwriters and Creative Artists.”
“You’ve got 2,000 years of western drama, and as artists we all stand on the shoulders of that,” he said. “There are certain genre expectations and certain tropes that really are structural. You may deviate from those, but standard setups, standard stock characters, many of the things that an artist thinks are protectable within their work actually is not protectable.”
For example: the plague film. “There are standard genre tropes to a plague film,” Geiger said. “An epidemic has broken out, a disenfranchised hero — while fending off those who are already infected — races against time to find the cure, but first they have to find the cause. You can come up with dozens of examples that fall into that, going back to ‘The Iliad’ or the Book of Exodus. ‘Contagion’ didn’t preempt ‘Outbreak’ which didn’t preempt ‘The Andromeda Strain.'”
Copyright infringement — in layman’s terms, copying a copyrighted work without permission — could have more potential for legal standing, but judges who consider copyright infringement cases can get even more granular. Before they compare protectable elements of the works, they filter out the non-protectable elements like genre conventions and stock characters. Often, that doesn’t leave much for copyright to protect.
A judge threw out a 2019 case against the filmmakers behind “Nightcrawler” after deciding that both the Jake Gyllenhaal thriller and another film, “Falling,” belonged to a tradition of “stringer films” — movies about freelance news videographers who scour Los Angeles freeways to capture footage of wrecks. The judge argued that since all stringer films share necessary similarities, those elements that cannot be copyrighted.
In the case of “The Letter Room,” the Oscar-nominated short that faced plagiarism accusations from the director of the 2019 Turkish feature “Passed by Censor,” Geiger offers a generic reading of the two films’ lead characters, both prison-letter censors: “The lone protagonist who seeks companionship through an imagined world.”
If that seems disheartening, Geiger has some advice — although he suspects many won’t like it. “What can a filmmaker do to make their work more infringement proof? Filmmakers are going to groan at the answer, but it’s make your works better, make them more unique,” he said. “I hear them already — “That’s exactly what we try to do!” Then you’re doing the right thing.”
Geiger’s other piece of advice: To avoid accusations of plagiarism and the like, screenwriters should do their research and check for comps. It’s good for self protection as well as the pitching process. “I’m also going to want to know how fresh it is,” he said. “Is there nothing else like it, or does it immediately get identified with preexisting work? I think if you’re a short filmmaker in 2022, you better know what feature films were released in 2019 and take into consideration: “Am I speaking to the same market? Am I doing something as fresh and different?”
Filmmakers often consider fact-checking and other annotations as matters for obtaining E&O insurance, but Geiger also recommends documenting inspiration.
“Any filmmaker is well served by keeping an annotation of their own works in process to know where the material came from,” he said. “A heightened awareness of your sources certainly serves well because the first thing that happens [with an infringement accusation] is you’re not going to end up in court; you’re going to end up in the blogosphere with folks making accusations. It’s good for, if nothing else, a public relations standpoint to be able to honestly, quickly, and accurately come out with a source annotation.”
Bottom line: Nothing is truly original — but smart creators can avoid internet backlash and threats of lawsuits. “I think the touchstone really is if you’re going to take and borrow from others, don’t do it to such an extent and such a manner that you’d be pissed off somebody took that from you,” Geiger said. “The Golden Rule.”
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