When Is a Story Too Similar? Lessons from the Avatar and Shape of Water Lawsuits

by Matthew P. Suzor and Henry Fina

The same films that draw crowds to theatres are sometimes the subject of legal drama off the screen. Movie script lawsuits are nothing new, and they are certainly not going away anytime soon, but how exactly do courts determine if a script is too similar? Two recent Hollywood lawsuits, Ryder v. Lightstorm Entertainment, Inc. (concerning James Cameron’s Avatar) and Zindel v. Fox Searchlight, Inc. (concerning Guillermo del Toro’s The Shape of Water), show how courts judge script similarity and the line between idea and expression.

Ryder v. Lightstorm Entertainment, Inc.: the Avatar Dispute

In 2009, Avatar dominated box offices. The multi-billion-dollar hit featured alien life contending with humans looking to exploit the lush world of a distant planet’s natural resources. James Cameron and his company, Lightstorm Entertainment, fended off several film copyright cases. The suit filed by sci-fi writer Eric Ryder in 2011 was the most notable of the bunch.

Between 1996 and 1998, Ryder wrote K.R.Z 2068 and began working with Lightstorm to develop the movie. K.R.Z 2068 follows a human investigator sent to a mining operation on one of Jupiter’s moons to act as a corporate spy but eventually leads to a revolt against the corporation. Ryder alleged that Lightstorm took ideas from development and later used them to create Avatar, which constituted a breach of express and implied contract. A judge eventually granted the defendant’s motion for summary judgment, ruling that Ryder failed to prove the defendants used his material, did not commit any contract violations, and that James Cameron created Avatar independently before Lightstorm worked with Ryder.

Zindel v. Fox Searchlight, Inc. : the Shape of Water Dispute

Guillermo del Toro’s The Shape of Water may have won accolades, including the Oscar for Best Picture, but it also drew controversy due to a lawsuit from Paul Zindel’s estate alleging that del Toro and Fox committed copyright infringement. Zindel authored the play “Let Me Hear You Whisper,” in 1969. Zindel’s play focused on an anti-social janitor at a military complex during the Cold War who frees an intelligent dolphin that the military is using for experiments. The Zindel estate’s movie script lawsuit contends that del Toro’s story about a mute janitor working in a secret military facility and attempts to rescue an intelligent amphibious creature bore enough of a resemblance to “Let Me Hear You Whisper” to constitute copyright infringement.

The court found the plaintiff’s 61 points of similarity to be unpersuasive and overly general. Eventually the judge granted the defendant’s motion to dismiss and determined that there was no substantial similarity, a cornerstone test in copyright lawsuits, beyond general ideas in the stories.

The Legal Standard: Idea vs. Expression in Film Copyright Cases

The idea–expression distinction is a common standard used to evaluate complaints in film copyright cases. While a movie script lawsuit focuses on script similarities, these similarities must extend beyond the general ideas in a plot. For example, two stories may share a similar originating idea, such as a love story between an amphibious creature and a human, but the expression of these ideas like specific dialogue, settings, and the general expression of an idea, or the total concept and feel, may distinguish the stories enough to constitute a substantial difference between the stories.

Just as courts carefully evaluate the weight and credibility of evidence in whistleblower cases under the False Claims Act, they apply similar scrutiny when determining whether script similarities rise to the level of infringement in a movie script lawsuit.

The Role of Genre and Tropes in Copyright Cases

Courts recognize that stories in certain genres, such as sci-fi and fantasy, share motifs and tropes. For example, sci-fi stories often share similar world-building tropes like the similarities between Cameron’s Avatar and Ryder’s K.R.Z. 2068. Similarly, fantasy stories often draw from fairy tale motifs, like a damsel in distress, a hero’s journey, or a forbidden love, which the court observed when evaluating del Toro’s The Shape of Water and Zindel’s “Let Me Hear You Whisper.”

Courts hold that common tropes and motifs are not protectable through copyright. The importance, instead, lies in the unique application of these tropes within the execution of the story, meaning plaintiffs in movie script lawsuits need to prove that similarities go deeper than just the beat points of the plot.

What Creators and Studios Can Learn from These Hollywood Lawsuits

Prior lawsuits serve as a useful blueprint for steps screenwriters, studios, and producers can take to protect themselves from infringement or future lawsuits. Screenwriters should document their work thoroughly and be aware of the notion that originality comes from execution and distinct expression, not general ideas, or premises. Studios should thoroughly vet potential scripts and maintain strict submission protocols to avoid potential disputes.

An understanding of copyright protection in film can help protect those who may need to file a movie script lawsuit or defend against one. Cameron and del Toro’s ability to demonstrate that their ideas were original, or preceded the work they allegedly copied, shows the importance of maintaining clear documentation and creative records. While their works may have shared premises with Ryder and Zindel the distinct execution and clear documentation regarding the origin of their work proved essential in defending their work from copyright infringement allegations.