Writers face unique challenges in navigating copyright law. In this article, I examine the complexities of copyright infringement through the lens of a high-profile lawsuit involving Steven Spielberg's Amistad and Barbara Chase-Riboud's novel Echo of Lions, analyzing how courts distinguish between protectable creative expression and unprotected historical facts or ideas.
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The headline in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed." Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor Barbara Chase-Riboud claimed that Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.
Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.
What Constitutes Copyright Infringement for Writers?
Because copyright does not protect ideas and facts or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.
"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."
The Difference Between Protectable and Non-Protectable Elements in Writing
Under copyright law, only an author's particular expression of an idea, not the idea itself, is protectable. Prior copyright infringement lawsuits against writers have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.
How Does a Writer Prove Copyright Infringement?
In a copyright infringement case, the plaintiff must prove that the defendant actually copied its work and that the copying was "substantial" enough to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.
In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.
While copyright is important, a work may be protected under other legal theories. For example, under the law of idea misappropriation—which varies from state to state—if you submit a story idea to someone and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist.
Comparison of the Two Works
In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.
Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.
Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.
Looking at certain specific claims, Chase-Riboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.
While noting that well-developed characters—especially visually depicted ones—are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point of view.
Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different to defeat Chase-Riboud's claims.
Case Settled
Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other
documents and evidence, my lawyers and I concluded that neither Steven
Spielberg nor DreamWorks did anything improper, and I instructed my
lawyers to conclude this matter in a timely and amicable fashion. I
think Amistad is a splendid piece of work, and I applaud Mr. Spielberg
for having the courage to make it.”
The Takeaway
Not all similarities amount to copyright infringement. Regarding copyright protection for historical works, an author's exclusive rights are confined to how their ideas and facts are selected, organized, and presented. In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.
If you are a writer and have questions about copyright infringement, fair use, how to protect a book title or defamation law, contact me for a consultation.
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DISCLAIMER: This article is protected by copyright and may only be reproduced in its entirety for personal or educational purposes. Any editing, alteration, or modification is strictly prohibited without the author's permission. The content of this article addresses general legal issues and is not intended to provide specific legal advice for any individual situation. It is recommended to seek professional legal counsel before relying on any information contained herein.
Lloyd J. Jassin is a publishing and entertainment attorney based in New York City and a former publishing executive. He co-authored The Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons) and previously served as the director of publicity for a division of Simon & Schuster. Throughout his career, he has been a vocal advocate for creators' rights, offering extensive writings and insights on contract negotiation, copyright, trademark, and defamation law. He is a sought-after speaker, regularly lecturing on legal matters that impact content creators and media professionals. His legal practice is committed to helping clients navigate the ever-evolving landscape of publishing and entertainment law, ensuring their intellectual property is protected and their creative visions are realized.
He can be reached at Jassin@copylaw.com or (212) 354-4442. His offices are located at 1501 Broadway, FL 12, New York, NY 10036, and in Madison, NJ. For more information, visit www.copylaw.org.
(c) 1999 - 2024. Lloyd J. Jassin.
This article originally appeared in Creative Screenwriting Magazine.
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