Recently the creators of the hit Netflix series Stranger Things, Duffer brothers, were sued by Charlie Kessler who claims that the popular TV series infringes the copyright of his short film Montauk and his script for a feature film.
Kessler claims that he shared the idea of turning his short film into a TV series with Duffer brothers at the Tribeca Film Festival in 2014. He alleges that he provided the brothers with the script, idea, story and a copy of his movie which, according to his suit, was used to make the Stranger Things series. Kessler points at the fact that the show was even titled Montauk before being changed to its current name. Kessler claims that the Duffer brothers have breached the implied contract to not use, disclose or exploit his shared work, without permission, compensation or credits. In his suit before the Supreme Court of California, he seeks compensation and destruction of all material violating his copyright. However, as of the date of writing, Kessler, following threats from the fans of the show, has amended the suit to drop the demand of taking the show down from Netflix.
Montauk is a short film that released in 2012, which went on to win an award at the Hamptons Film Festival. The movie is about a secret government project with kids with psychological abilities and monsters from another dimension. Sounds familiar? That’s because it is based on a real urban legend.
Montauk was an actual US Air Force station at Long Island also called as Camp Hero. After this military base closed down in the 1980s, it became the hotbed of conspiracy theories largely due to the Montauk book series written by Preston Nichols and Peter Moon. These books, albeit their questionable veracity, have a cult following among conspiracy theorists.
The books speak about secret government projects that were alleged to have been conducted at Camp Hero for the creation of psychological warfare techniques, contacting aliens, enabling time travel and teleportation, and opening portals to another dimension which let loose a monster.
The concept of people with psychic abilities, monsters and portals to other dimensions are a recurring theme through Preston’s book, Kessler’s movie and Duffer brothers’ series as they share the same source. It is an established legal principle that no one person can claim ownership over a fact, in this case, a publicly-known-questionable ‘fact’.
Our contributor, Ms. Ishan Johri rightly points out that the Montauk Project has inspired various other books, articles, documentaries and films spanning four decades. Therefore, Kessler’s short film itself is based on an unoriginal and common idea which leaves room to many different expressions. This coupled with the availability of many previous works to take inspiration from may act in favour of the Duffer brothers.
This case is a classic example of idea-expression dichotomy – a principle which states that an idea is different from its expression and only the expression of an idea is granted protection and not the idea itself. This has been upheld by Supreme Court of India in its landmark of R.G. Anand v. Delux & Ors., AIR 1978 SC 1613, and several subsequent judgments.
When two expressions are based on the same idea, the courts adjudicate on copyright infringement claims by looking into 3 aspects –
- Whether Defendant had access to Plaintiff’s original work.
- Whether a common man who views both works feels that the subsequent work is an unmistakable copy of the original.
- Whether there is evidence of substantial copy when the works are compared as a whole.
Substantial copy can be determined only when all the similarities and dissimilarities are seen together. The mere use of certain common motifs, themes or elements or even the co-incidental placing of these in a certain juxtaposition does not amount to copyright infringement as per Bombay High Court in Mansoob Haider v. Yashraj Films, Suit no. 219 of 2014. Similarities can be measured by extrinsic factors such as location, characterizations, plotline and dialogues, and intrinsic factors such as the look and feel of both the works.
Kessler’s claims will have to be viewed in light of all of the above tests. As per his suit, he claims to have met the first ground when he allegedly shared his work with the brothers. We will have to stay tuned to see if he will be able to prove the other two factors.
The attorneys for Duffer brothers have denied all charges made by Kessler. They claim that they have emails exchanges documenting the process of script development to prove that they did not steal anybody’s work. This is one of the most important procedures one must follow when creating a copyrightable work, says Ms. Johri. She advises creators to document everything.
“I often advise my clients to email the work to themselves to create a date stamp on the work. All activities surrounding the creation of a work including employing writers, creation of drafts, its revisions, and finalisation of the script should be recorded. It is one of the best defences one can take in suits for copyright infringement.”
An excellent example of the benefits of documentation are seen in the case of Mansoob Haider v. Yashraj Films, where the Defendant production house was able to disprove a claim of copyright infringement by submitting a five-volume compilation of 66 revisions made to the film Dhoom-3’s script over 4 years. This helped the Court come to the conclusion that the two key factors which the Plaintiff claimed where brazenly copied from his work were infact subject to multiple revisions before been finalised thereby proving the Defendant’s originality of work.
Another suggestion which Ms. Johri gives to all creators is to apply for registration of copyright as soon as the work is completed. Other than the final work, the interim by-products are advised to be protected under copyright or other regimes ex; a movie, which once completed, should be registered as a cinematograph work: additionally, the script can be copyrighted much earlier as a literary work or with Screenwriters Association.
Further, she advises that all disclosures of the work should be regulated vide a Non-Disclosure Agreement (NDA) which details all the information that is shared and the reason for such sharing. Written contracts are much more effective and enforceable than implied contracts. Kessler’s suit rests on breach of implied contract which is a flimsier ground. Ms. Johri opines that “A well-drafted NDA may have increased his (Kessler’s) chances at a favourable judgment.”
While this article aims to understand the suit in the light of Indian laws and regulations, it will be interesting to see how it unfolds in the Supreme Court of California with the application of American law and precedents. The judgment, we believe, has the potential to turn everything ‘upside down’ for one of the parties.
DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.