BY:Michael I. Rudell
(Originally published in the Entertainment Law column in the New York Law Journal, January 23, 1998.)
In a widely publicized suit, a federal judge has denied a motion by Barbara Chase-Riboud to block the release of “Amistad” directed by Stephen Spielberg.1 Although the Court concluded that plaintiff did not meet her burden of demonstrating that the balance of hardships tips sharply in her favor, she was not precluded from proceeding with her claim that much of the “Amistad” screenplay was taken from her work.
For three years, Riboud had researched the story of the Spanish slave ship L’Amistad. In telling her story, she selectively used the historical record, and, when gaps in that record appeared, she filled them with fictional scenes and characters. In 1989, her novel “Echo of Lions” was published, and since that time has sold over 500,000 copies and been translated into five languages.
In 1993, plaintiff granted Punch Productions, Inc. a 12-month option for the right to license the theatrical motion picture rights to “Echo of Lions.” Punch renewed that option for two six-month periods and an additional one-month period. David Franzone, the writer who is credited as the screenwriter for “Amistad,” participated in attempts to sell the “Echo of Lions” project to major studios, including Warner Brothers. After Punch abandoned the project, Dreamworks retained Franzone as a writer.
Following the announcement that Stephen Spielberg would direct “Amistad,” plaintiff contacted Dreamworks to remind it that she previously had submitted her book to Amblin Entertainment, Spielberg’s production company. On October 16, 1997, Chase-Ribound filed a complaint against Dreamworks, Inc., Dreamworks Films LLC, Dreamworks Distribution LLC and Dreamworks LLC, alleging that “Amistad” infringes on her copyrighted historical novel, “Echo of Lions.” She then filed her motion for preliminary injunction.
The Court first discusses the standard for issuing a preliminary injunction which balances the competing claims of injury and the effect on each party of granting or withholding the requested relief. It then indicates that to establish copyright infringement, plaintiff must prove its ownership of the copyright and defendant’s copying, which requires access to the work and substantial similarity between the work and that of defendant.
The decision states that “the determinative factor in this case is whether there is substantial similarity between ‘Echo of Lions’ and defendants’ ‘Amistad’ or, more specifically, whether there is a likelihood that plaintiff will succeed on the merits at trial on the issue of substantial similarity.”
The Court sets the stage for its analysis by citing decisions which discuss a two-part test for determining whether substantial similarity exists — an “extrinsic” test which involves similarities of ideas and expression and an “intrinsic” test which asks if an ordinary reasonable person would perceive a substantial taking of protected expression. Later cases have referred to the two tests as “objective and subjective analyses of expression.”
The party claiming infringement may place no reliance on any similarity in expression resulting from unprotectible elements. Copyright protection does not extend to historical or contemporary facts (even if one were to assume that the alleged infringer was alerted to the facts in question by reading the purportedly infringed work), material traceable to common sources or in the public domain or “scenes à faire.”
Plaintiff’s book and defendants’ film both are based on the historical incident in which Joseph Cinqué led the slaves aboard the “Amistad” in a revolt which resulted in the death of most of the ship’s crew. After the slaves had sailed the ship from Cuba to Connecticut, they were arrested and charged with murder and piracy. Eventually, they were freed after appealing to the U.S. Supreme Court.
The Court analyzes nine similarities on which the plaintiff focuses in its motion. In a footnote, it indicates that because both works are based on historical events, the plot (except for the love story in “Echo of Lions”), settings and general sequence of events in the two works are inherently similar. The flow and pace of the two works are not similar, primarily because the love story in “Echo of Lions” influences these factors while the mood and pace of “Amistad” are dictated solely by the historical events surrounding the slaves. Plaintiff does not contend that the dialogue is similar.
The first similarity cited by plaintiff is that the characters Theodore Joadson and Henry Braithwaite serve the same plot function in both works. Defendants contend that these characters constitute “scenes à faire,” which are incidents, characters or settings which as a practical matter are indispensable or at least standard in the treatment of a given topic.
After concluding that these characters do not constitute “scenes à faire,” the Court discusses the differences between the two characters. It notes that although characters ordinarily may not be copyrighted, copyright protection has been allowed for characters which are especially distinctive. For example, copyright protection exists for cartoon characters because they have physical as well as conceptual qualities and are more likely to contain some unique elements of expression. In the instant case, notwithstanding plaintiff’s contention that defendants appropriated her protected expression by featuring a character who also serves the dramatic function of linking white and black America, providing a contemporary black voice to the “Amistad” story and being active in supporting the Africans’ cause, the Court finds that a general skeleton of such a literary character cannot suffice to establish one that is especially distinctive and therefore protectible.
Plaintiff contends that the depiction of Cinqué, unlike the historical factual record or any other treatment of this story, is her creation. The historical record reflects that he did not comprehend the judicial proceedings and did not materially assist in his defense, unlike how he is depicted in both “Amistad” and “Echo of Lions.” Defendants respond that he is an actual historical character described in a number of historical works and that the film faithfully presents him as he existed in history.
Because there is no protectible interest in historical and factual items, plaintiff must rest her claim on the creation of a Cinqué who was not reflected in the historical record. After analyzing the manner in which Cinqué is depicted in “Amistad” and “Echo of Lions,” the Court notes that at this preliminary stage it cannot conclude that plaintiff has established a reasonable probability of success of her claim that her “image” of Cinqué is entitled to copyright protection. Further, it indicates that even though both works contain a Cinqué with a voice which remains true to his roots, the expression of Cinqué differs in the two works.
Because each work appears to express Cinqué differently, the Court cannot conclusively state at this early stage that plaintiff has met her burden of establishing a probability of success on the merits of her claim.
Plaintiff next contends that the meeting between John Quincy Adams and Cinqué in which the men approach each other as equals could not have happened in history. The Court agrees with plaintiff that these meetings in both works do not constitute “scenes à faire” and do not appear at this time to be based on the sparse historical records.
However, it notes defendants’ contention that the meetings in each work are significantly different. The idea of a meeting between Adams and Cinqué as one between men of mutual respect is not subject to copyright protection. Because of the substantive differences in the expressions of the meeting in the two works, the Court cannot conclude that there is a likelihood that plaintiff will succeed on the merits at trial on this issue.
The decision quickly rejects plaintiff’s contention that no work other than “Echo of Lions” depicts this story from the vantage point of civil rights, primarily because of the factual dispute which exists between the parties as to this issue.
Plaintiff points out that her book is entitled “Echo of Lions” while an early version of the screenplay was entitled “The Other Lion.” In this case, however, the use by defendants of a similar title on an early version of a screenplay at most constitutes circumstantial evidence of copyright. It is of little value in determining whether the two works are substantially similar. The title of the movie as released bears no resemblance to “Echo of Lions” and thus this evidence is not sufficient to warrant the issuance of a preliminary injunction.
The Court dismisses plaintiff’s contention that the portrayal of the contemporaneous destruction of the slave colony with the rendering of the United States Supreme Court decision freeing the Africans constitutes impermissible copying. It also rejects plaintiff’s contention regarding the ability of the character Covey to speak near-perfect English based on the disputed nature of the historical accuracy of this subject.
Plaintiff contends that there is a historical error present in “Echo of Lions” which is copied in “Amistad.” The novel allegedly depicts Cinqué with one child when in reality he had three. The Court indicates that this contention appears to be of little consequence.
Finally, the Court rejects plaintiff’s assertion that the ending of the two works contains the same unique expression — a voice traveling back from Africa and a shot of a civil war battle. The expression of this idea is different in the two works. Given the unique treatment of this idea, the Court cannot conclude that plaintiff has established a probability of success.
In addressing plaintiff’s contention that she suffered irreparable injury because defendants’ virtually destroyed the market for film rights to her novel, the Court indicates that, although it does seem likely that no other film or television studio will seek to obtain rights to her book, the lack of a film or television market speaks to money damages. Regarding her contention that she has been deprived of the opportunity to receive credit for raising “in her own and unique fashion, public consciousness regarding slavery,” the Court notes that plaintiff’s book has been in print in 1989, has sold over 500,000 copies, has been translated into five languages and currently is available in public libraries. Thus, it appears that she already has received substantial credit for her important contributions in this area.
The decision concludes by noting that defendants have invested approximately $70-$75 million in the film. Although copyright law “does not condone a practice of infringe now pay later,” plaintiff has not met the burden of demonstrating that the balance of hardships tips sharply in her favor and, thus, she is not entitled to a preliminary injunction.
1 Chase-Riboud v. Dreamworks, Inc., et al., U.S.D.C., Central District California, No. CV 97-7619 ABZ (CD Filed December 8, 1997).