I often receive calls from potential clients that start something like this: “I wrote a script about Story X. I read yesterday in The Hollywood Reporter that Studio Y announced that it is coming out with a movie that is based on Story X. Should I sue them for infringement?” Even if the stories really are very similar, I often answer “no.” The potential clients are incredulous. “What do you mean? It is the exact same story!” That is when I explain the difference between inspiration and infringement.
Writers are entirely free to be inspired by the prior creative works they have read (books), watched (TV, movies), performed (plays) or played (video games). Using a preexisting idea or story as inspiration in a new work is not improper. It is a cliché. Writers are fond of saying that there are only seven basic stories in all literature. Story ideas are told and re-told numerous times in innumerable ways. The fact that someone used your story is not usually actionable as infringement — in large part, because you probably took the same idea from someone who preceded you.
For example, in 2005, I read a book called Battle Royale, by Koushun Takami. The story is as follows: in a time different than our own, a totalitarian government kidnaps 50 high school students and transports them to an isolated island. Those students learn that they are to perform in a scientific study being conducted by the military. In reality, the government uses this “Program” to intimidate the populace into conforming and not revolting against the oppressive regime. Every year for the last 50 years, a new group of students are chosen and forced to fight to the death until only one is left alive. The students are given certain tools to survive, such as food and weapons and one other item that varies from student to student. The whole thing is broadcast as a macabre reality television show.
Then, just last week, I read current L.A. Times best-seller The Hunger Games, by Suzanne Collins, a “young adult” novel that my 8th grade daughter was reading. The back cover describes the story as follows: “In the ruins of a place once known as North America lies the nation pf Panem, a shining Capitol surrounded by twelve outlying districts. The Capitol is harsh and cruel and keeps the districts in line by forcing them all to send one boy and one girl between the ages of twelve and eighteen to participate in the annual Hunger Games, a fight to death on live TV.” The Hunger Games are fought in a force-field-enclosed arena. The arena contains food, weapons and other useful items that the children must fight for in order to survive and kill each other. The winner is the last child alive.
If one read Battle Royale and The Hunger Games, and nothing else, one could easily conclude that the latter was a copyright infringement of the former because the basic underlying story was so similar (if one read Battle Royale and The Hunger Games, and nothing else, one should also expand one’s literary horizons…seriously, hypothetical person, you should read more). I could very easily see the author of Battle Royale calling to ask whether I could represent him in a lawsuit against the author of The Hunger Games. But it is not that simple (because if the law were ever that simple, I might quickly become obsolete).
The first question I always ask the potential client is “what inspired you?” I ask this question because very often the stories that inspired my potential client might also have inspired the alleged infringer.
Ms. Collins’ website explains in some detail what inspired her to write The Hunger Games. Her main source of inspiration was the Greek myth of Theseus and the Minotaur, which turns out to be very similar to both Battle Royal and The Hunger Games, at least as I described them above. In short: King Minos of Crete was a despot who ruled over Athens. He demanded that Athens send 7 girls and 7 boys to Minos every nine years (or, under some versions, every year) to fight the Minotaur in the Labyrinth. In the third year, Theseus volunteered to go in order to try to slay the monster. (In The Hunger Games, protagonist Katniss Everdeen volunteers to go in place of her sister.) To my knowledge, there are no force-field enclosures (but if the Greeks could have imagined such a thing, there might have been).
Again, I ask: sound familiar?
Of course, the magic — like the devil — is in the details, and there are significant differences between the Theseus myth and The Hunger Games…just as there are significant differences between The Hunger Games and Battle Royale. They are both great books with the same underlying plot device, but everything else about the books is different. The characters are different. The settings are different. But most importantly, the way in which the stories are told is totally different. To me, they are clearly “different books.” Indeed, they are just as different from each other as they are from William Golding’s The Lord of the Flies, Stephen King’s The Running Man and The Long Walk, Shirley Jackson’s The Lottery (in The Hunger Games, the children are chosen by a lottery), William Nolan’s and George Johnson’s Logan’s Run, and the motion picture The Island (oh wait, that last one generated plenty of controversy, and at leastone lawsuit, on its own…whoops) — all of which are clearly narrative, stylistic, or thematic predecessors to both books.
Which brings me back to my hypothetical client: if the use of the same story is not a basis to sue, then what is? As we often find ourselves explaining, it is not the story or the underlying idea that is protected under the law; it is the expression of that idea. Do the two stories actually follow scene-by-scene (Nimmer on Copyright gives as an example of infringementWest Side Story’s scene-by-scene copying of Romeo and Juliet — which, lucky for Arthur Laurents, Leonard Bernstein, and Stephen Sondheim, is in the public domain)? Is the dialogue between characters identical or almost identical? Is there something in your work that is truly unique and found nowhere else in literature? Unless the alleged infringer has really copied the “whole thing” or has copied something word-for-word, this type of analysis is complex and time consuming to perform.
In the end, I like to remind potential clients that many of the best creative works in this world were inspired by — and, a daring person might say, stolen from — the creative works that came before. Maybe there are no unique stories left; maybe there are only unique methods of telling the same story. But at least there are still plenty of original ways to be entertained.