For those of us (males) who entered adolescence in the early ‘90s, Angelina Jolie is a semi-celestial being whose very presence makes us want to cry out “we’re not worthy.”  Okay, so maybe the 13 year-old in me still wants to be Crash Override spelling out “CRASH AND BURN” for Acid Burn after defeating The Plague.  But that is neither here nor there.

bloodandhoneyThe news of the day is that a Croatian author/journalist named Josip Knezevic has filed a federal lawsuit (using an Americanized version of his name) against Angelina and several persons/entities related to her upcoming film, In the Land of Blood and Honey, for copyright infringement.  According to Mr. Knezevic, he wrote a book entitled, The Soul Shattering (not to be confused with the World of Warcraft aggro reducing spell,SoulShatter), which Angelina’s executive motion picture producer, Edin Sarkic, allegedly ripped off.  The case is interesting because it not only provides a detailed description of what was ripped off, but it also provides a plausible explanation for how the alleged rip-off occurred.

The Rip-Off Allegations

Nobody would ever believe that Angelina ripped anyone off.  This is Lara Croft we’re talking about.  And Salt.  She has the word “angel” in her name and adopts children from places like Phnom Penh, Addis Ababa and Ho Chi Minh City.  She is a female Airwolf — beyond reproach.

But Mr. Knezevic does not allege that Angelina herself — who is the director and credited writer of theIn the Land of Blood and Honey — ripped off The Soul Shattering.  Instead, he alleges that her executive producer, Edin Sarkic, met with Knezevic “at least three times to discuss details of [the book], including plot and character development and the story’s cultural significance and historical accuracy.”  Mr. Knezevic also alleges that his conversations with Sarkic “evolved into pursuing the possibility of creation a motion picture from [the book]” (although he never alleges that there was a contract or even an implied one).  And then, of course, he allegedly learns that Sarkic is producing a movie without him that rips off his (incredibly dark, depressing) ideas.  Specifically, Knezevic alleges that:

  • Both works are love stories that take place in war-torn Bosnia and Herzegovina in the early 1990s;
  • In both works, the main female character is a Croatian with a Muslim background, who lives near Sarajevo, and who is captured and imprisoned in a Serbian concentration camp located in a village (apparently this detail is important because most camps were located in abandoned industrial or agricultural complexes);
  • In both works, the main female character is subject to continuous abuse and rape by soldiers and officers in the camp and is forced to be a servant at the camp;
  • In both works, the main male character is a camp commander who’s father is a high-ranking “Greater Serbian” and important officer of the Yugoslav Peoples Army; and
  • In both works, the main male character struggles with the polarity of his emotions and military duty and eventually helps the female protagonist escape.

Are these allegations sufficient to support a claim for copyright infringement?  (Or, as some would suggest, did his ideas become, after voluntary communication to others, free as the air to common use?  Wait, those ideas weren’t communicated on the Internet, so I guess that argument doesn’t apply.)

What Would the Learned Hand Say?

When in doubt, always use duct tape.  And if that doesn’t work, seek guidance from the Learned Hand.

handAs it happens, Judge Hand wrote a famous opinion about a similar case in 1930.  In Nichols v. Universal Pictures Corp., a plaintiff alleged that a “motion picture play” called “The Cohens and the Kellys” ripped off his play called “Abie’s Irish Rose.”  Both works involved secret marriages between a Jewish boy and an Irish Catholic girl where the families quarreled about the union after its discovery.  But both works also bore significant differences.  Judge Hand wrote that “[t]he only matter common to the two is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.”  And that’s not enough.  Although the plots were similar, the expression of the ideas was different.  (Remember, copyright law only protects the expression of ideas — not the actual ideas themselves.)

Judge Hand teaches that when an author copies “an abstract of the whole,” we must examine the characters and the “sequence of incident.”  In other words, we must examine similarities between the plots, themes, dialogue, mood, setting, pace, characters, and sequence of events.

In Mr. Knezevic’s case, he has probably sufficiently alleged that The Soul Shattering and In the Land of Blood and Honey are similar enough to prevent his case from being thrown out (at least initially):  he has alleged that the works share the same setting, location, time period, theme, and involve similar characters with similar backgrounds, facing identical challenges.  Although none of these similarities are protectable when considered individually, the particular form and sequence of their expression is protected.  And, it helps that Knezevic has a plausible, straightforward explanation for how his ideas made their way into the film, which doesn’t rely on traditional theories like “they read my unsolicited submission,” “their agent’s wife attended a play at my daughter’s school, where I talked about my project during intermission,” or “the government is broadcasting my thoughts to them while I sleep.”

This does not necessarily mean that Mr. Knezevic will be able to obtain a preliminary injunction.  Far from it.  In all likelihood, unless the case settles (which it may), Mr. Knezevic will have a long road ahead of him before he reaches a jury.  Because of the high standard courts apply in assessing substantially similarity between motion pictures, Knezevic will probably want to be able to point to specific examples of shared dialogue.  In addition, he’ll need to avoid the dreaded (to plaintiffs) scènes à faire doctrine, which excludes from the copyright analysis genre-specific stereotypes, such as femmes fatale in spy novels, the crusty old lawman in Westerns, and (arguably) gruesome war crimes in Bosnian war stories.  (For this reason, plaintiffs in these cases tend to prefer pursuing breach of contract claims, which are not subject to the same rigorous similarity analyses as copyright claims.)

And even if a court finds that that Mr. Knezevic is likely to prevail at the end of the day, the enormous time and resources that go into a major motion picture release may convince a judge not to grant a preliminary injunction anyhow.  (In fact, it was just that argument that helped Warner Bros. avoid a preliminary injunction when a judge found that it had probably infringed a tattoo artist’s copyright in Mike Tyson’s face tattoo.  Here’s betting the decision was still good enough to score the artist apretty sizeable settlement, though.)

Nevertheless, it will be interesting to see just how similar (or dissimilar) the characters and event sequences are.  Since someone apparently “lost” my invitation to the premiere of In the Land of Blood and Honey (possibly after reading an early draft of the first paragraph of this post), I will have to wait until the film is released in theatres later this month before being able to provide any more definitive analysis.  Until then, feel free to enjoy this instructional video on how to do your makeup like Angelina Jolie’s character from Hackers.