Yet Another 'Stranger Things' Copyright Suit Over A String Of Likely Non-Protectable Elements

from the idea-vs.-expression dept

As one of, if not the, largest player in the streaming platform wars, Netflix is oft the target of copyright infringement threats and lawsuits. These actions against it have by and large been found to be absolutely baseless. Whether it's estates of long-dead authors, private prisons, or the brother of dead drug kingpin Pablo Escobar, there are plenty of folks out there who see a wealthy company on the rise and try to get a piece of that cash for themselves by making dubious intellectual property claims.

But if Netflix is the biggest player in streaming, then certainly its hit show Stranger Things is its most notable contribution. And, so, it's no surprise that the show has faced copyright challenges in the past and is being sued once again by someone claiming the idea for the show was his first.

A lawsuit filed by Irish Rover Entertainment on Wednesday (July 15) in California federal court claims that Stranger Things has copied a number of things from Totem, a screenplay written by Jeffrey Kennedy (via TheWrap).

The suit alleges that the Netflix show lifted the “plot, sequence, characters, theme, dialogue, mood, and setting, as well as copyrighted concept art” from Totem.

The filing itself is embedded below, but it's exactly what one who follows this sort of thing would expect. Rather than alleging any concrete examples of directly copying Totem, the suit's allegations string together a zillion elements of supposed copying, none of which would be actionable on their own. This is a common tactic, with courts in the past having found that the composition of otherwise unprotectable elements can be afforded copyright protection if that composition on its own is creatively sufficient in a unique way. It's something roughly like how you can't copyright a single note from a guitar, but an original composition of notes can be protected.

But about those elements cited, well, have a look for yourself at some examples.

Some of the events in Totem take place in the woods where Agent Sam Miller, under Azrael’s control, chases Kimimela. Similarly, in Stranger Things, Eleven is also pursued by the “Bad Men” through the woods.

...okay, but...

Characters interact with Azrael in an alternate plane. The interaction is marked by Lightning. Characters interact with the Shadow Monster in an alternate plane is also marked by lightning.

Well, yeah, it's a creepy thriller movie about the supernatural, so you'd expect-

In Totem, the tag line “promise?” is used as a literary device in the dialogue throughout the script. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Stranger Things, the tag line “promise?” is used as a literary device in the dialogue throughout the series. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition.

But putting "promise?" at the end of dialogue is really common in both fiction and in life, so-

Sam Miller is an FBI agent who is involved in a crash near an industrial area. This is when Azrael takes control of Sam. Billy Hargrove also is involved in an accident in an industrial area. This is when the Shadow Monster takes control of Billy’s mind and forces him to do his bidding.

Those don't actually seem that similar at all?

It can be easy to get fooled by this sort of thing. What the lawsuit is listing is a bunch of ideas, some of which have similarities between Totem and Stranger Things. But there is an idea/expression dichotomy in copyright. Thematic elements, generic settings, and even character traits aren't afforded copyright protection. Instead, the specific expression of those ideas is. So, when Stranger Things' character isn't an FBI agent and is instead a rogue thug of a lifeguard, you don't have a copyright claim there.

And yet I listed only a small sample of the accusations in the filing. The hope with this sort of thing is that if you string together enough vague similarities among the non-protected elements, you can convince the court or jury that copying of the composition had been committed and that composition is what gets copyright protection. It's a strategy that rarely works, however, as seen in a previous lawsuit over Stranger Things.

This isn’t the first time the Duffer Brothers have been sued over the creation of Stranger Things. In 2018, the pair were accused of stealing the show’s concept by filmmaker Charlie Kessler. Kessler produced a short film in 2012 called Montauk and alleged that he and his agents pitched the idea of turning it into a full series to the Duffer Brothers in April 2014.

Kessler dropped his lawsuit the day before it was set to go to trial.

Here's a hint: when several people can file lawsuits against a single work claiming copying of essentially the same elements, then you're suing over non-protectable things.

Besides, everyone knows Stranger Things got all its ideas from Dungeons & Dragons.

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Filed Under: copyright, expression, idea, idea/expression dichotomy, jeffrey kennedy, stranger things, totem
Companies: netflix


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  • identicon
    Darryl Phase, 20 Jul 2020 @ 4:12pm

    I so hope that some day one of the courts will be with plaintiff

    That will open the floodgates for people wanting to sue companies such as Disney, Viacom, etc. and the the copyright cartel will be no more. That's one of the reasons I've cheered on the Blurred Lines ruling - if we had something like that but for movies/shows we'll be able to teach those big companies a lesson about creativity and making sure no one made anything similar (and if they did and Disney, etc. still wanted to make such thing, work a proper licensing deal).

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 21 Jul 2020 @ 1:04am

      Re: I so hope that some day one of the courts will be with plain

      "That will open the floodgates for people wanting to sue companies such as Disney, Viacom, etc. and the the copyright cartel will be no more."

      Yeah. I've been saying it for years, whenever Baghdad Bob used to swing around on Torrentfreak hollering about copyright and pirates, that there are times when I wish the copyright maximalists did get everything they want. The last we'd see of them would be the major lobby groups vanishing under the frenzy of ten thousand copyright trolls and the total collapse of copyright as a concept.

      It's just a matter of time.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2020 @ 4:19pm

    I am totally suing you over timeworn tropes which i used in my work maybe before you did.

    reply to this | link to this | view in chronology ]

    • identicon
      Anon Y. Mouse, 20 Jul 2020 @ 7:46pm

      Re:

      And I'll be warning you and suing them for practicing
      "Procto-Theology©" and it's derivative forms without first obtaining
      a license to do so..

      I am the creator of "Procto-Theology©"
      which involves pulling an idea out of my ass and praying that it
      works and "Procto-Theological Engineering©"
      which involves pulling a design out of my ass and praying that it works..

      They are infringing my business model by engaging in
      "Procto-Theological Litigation©" without first having obtained my
      permission or even taken the basic courses required for a B.S. in
      "Procto-Theology©".

      You, I'll let slide and furthermore present you with an honorary
      "Developer's License" as I frequently LOL at your comments..

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Jul 2020 @ 5:39pm

    All ideas, ever, were stolen from the Bible or Shakespeare or Tolkien.

    reply to this | link to this | view in chronology ]

  • icon
    radix (profile), 20 Jul 2020 @ 7:18pm

    Apparently Totem has been around since roughly 2009, according to the filing.

    Perhaps before filing a lawsuit over a cop being possessed by a demon named Azrael, he should watch the 1998 movie 'Fallen' about a cop being possessed by a demon named Azazel.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Jul 2020 @ 10:56pm

      Re:

      Then, before that look at The Hidden, about a cop pursuing people possessed by an alien. Which, itself is really just a spin on Invasion Of The Body Snatchers. Which has its own predecessors...

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 20 Jul 2020 @ 11:02pm

      Re:

      "Azazel"

      Oh, and that name comes from the Bible. If that's all they have along with plot points that others used before they were writing, they have nothing.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 20 Jul 2020 @ 11:01pm

    The funny thing is that Stranger Things is something that wears its influences on its sleeve. They've very open about borrowing liberally from Amblin/Spielberg and Stephen King, and while both those sources have apparently stated they fine with the show I don't see how you could be writing this kind of material in the modern age and not be influenced by the same sources. What you essentially have here is people borrowing the same things the Duffer brothers borrowed, then getting mad because they got a successful project off the ground, while the actual originators are fine with it.

    Also, just as a quick thought - a friend of mine watched Stranger Things for the first time recently. He said it was OK, but felt it was ripping off the videogame Beyond Two Souls too much. Yet, as far as I know, it wasn't influenced by that at all and Sony aren't suing... It's all subjective, but we have some sore losers out there.

    reply to this | link to this | view in chronology ]

    • icon
      JoeCool (profile), 21 Jul 2020 @ 3:44am

      Re:

      It's all subjective, but we have some sore losers out there.

      Some sore losers AND a horde of lawyers desperate to make a living when there's already too many lawyers. Look behind anything crazy these days and you'll find a lawyer (or a whole company of lawyers) trying to scam some money out of people/the government/other companies because they can't get real law work.

      reply to this | link to this | view in chronology ]

  • icon
    drewdad (profile), 21 Jul 2020 @ 8:34am

    Pure advertising for Totem

    ...which you have just boosted tremendously.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 21 Jul 2020 @ 12:48pm

      Re: Pure advertising for Totem

      Sure, why not? If it ever turns into a thing, people may want to see it.

      reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 21 Jul 2020 @ 1:32pm

      If you say so...

      By pointing out what greedy idiots they are?

      Sorry to say but the term 'all publicity is good publicity' is not in fact a true thing, there are times when 'not being known' is better than 'being known for a bad thing'.

      reply to this | link to this | view in chronology ]

  • icon
    Janshibhai (profile), 21 Jul 2020 @ 10:33pm

    Then the mychart henry ford will aksed you to enter the informat

    Then the mychart henry ford will aksed you to enter the information like below: https://sites.google.com/view/picknsavecustomersatisfactions/henry-ford-my-chart?authuser=4

    reply to this | link to this | view in chronology ]


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