What Scares Me – a Halloween Thank You To Stephen King
In fifth grade, I discovered Stephen King, who I used to read beneath the covers and—at times—actually beneath the bed. Thanks to him, I was scared of clowns, rabid dogs, possessed cars, haunted houses, proms, and a vast array of everyday sights and experiences turned just slightly off kilter. His books clicked with something inside me, whatever story-generating impulse lurked in the lizard part of my brain, and I found myself constantly looking at the world around me, thinking, “What’s the worst thing that could happen right now?” Then I’d run the script in my head. Mayhem and destruction, Hitchcockian twists and turns, flights of dark fancy. The thing was I enjoyed it, often a lot more than, say, sitting in geometry or looking out the airplane window. So how I face up to my fears, I think, is by writing. Trying to summon the darkest, most wrenching scenarios I can summon and then seeing if I can wrestle them on the page. Since I’ve gotten older, the things that scare me have changed (except for clowns). When I first became a father, I remember being struck with the realization that I had more surface area to protect now, and so I think my latest books are my attempts to grapple with those new-found vulnerabilities.
Favorite Fan Email Ever
You sadistic SOB. I’m a 72 year-old man. I can’t handle too much strain. I have struggled through all of your other books on the edge of my chair and losing sleep, but this new one, “You’re Next” has brought me to the point of distraction. You touched on all the raw nerves in my body: the wife, the precocious child and doing what’s right for our Environment. This is the worst one yet. Like Kat, I hate you. Okay when’s the next torture chamber coming out? Of course I’ll get it. Keep on writing…
Taking the Lord’s Name in Vain, Damnit!
From time to time, I get emails or letters from readers taking issue with the language I use in my books. Usually it’s holy-than-thou nonsense claiming that my use of this word or that offended their pure eyes to such an extent that never again shall they check a Gregg Hurwitz book out of the library. I like responding with four-letter declamations because, well, I’m witty like that.
But the other day, I got an email that struck me for its civil tone. I’ll like to share it here and include my response.
–
Hi,
I just finished reading They’re Watching, which was absolutely awesome. It’s the first book that I’ve read of yours and I look forward to reading the rest of your books.
However I wanted to write you about something I find very dismaying. In your novel you frequently use God’s name in vain and I can’t understand why someone so educated finds it necessary to do so. Surely there are enough curse words in the English language that can be used as exclamations instead. I am an avid reader, since I’ve been keeping track of books I read in a database I’ve read 1104 books to date, I only mention this to show that I’m not a book a year reader. I’ve written to a bunch of authors regarding this matter and have received a response from some stating that the majority of people speak this way and they are merely just trying to make their characters realistic. A poll was taken that determined that 83% of Americans are Christian. So I believe it is the loud, vocal minority that speaks this way, especially Hollywood, and not the silent majority.
So I just thought I’d speak up for the silent majority. I think you are an excellent writer and taking God’s name in vain in your novels adds nothing to the story and leaving it out would take nothing from it. In fact, John Grisham and Brad Meltzer are authors who do not take God’s name in vain in their novels. So you see it also isn’t a requirement to become a famous author. I know you already are famous, all I’m saying is that it wasn’t a requirement for them to get there.
Just something I hope you’ll give some thought to when you write your next novel.
Sincerely,
Barbara
–
To which I replied:
Hi Barbara,
Thank you for writing. I’m so pleased you enjoyed the book, and I also appreciate your civil and thoughtful tone in conveying your issue with the language I use. Since you took the time to express your question, I’d like to answer it thoroughly.
To begin with, the percentage of Christians is indeed close to what you claim. The last demographics show Christians at 76% in 2008 (though continuing to decline). So — a clear majority. But conveying what is pleasing to a majority isn’t really the aim of a writer or artist. It is writing what is true and offers a veneer of verisimilitude. Indeed, as other authors have stated in their answers you, I do want to write in a manner similar (though not precisely similar) to how people really talk. And there’s no telling what will offend folks — whether they compose the majority or minority. If I eliminate seeming religion-referencing exclamations in favor of sharper swear words, that will upset people too (and has — I’ve received those emails as well).
Lastly, as one of the few Jewish kids in my Jesuit High School, I had the advantage of approaching religion — and the commandments — from a relatively fresh perspective. And what I was taught (and what makes sense to me) is that taking the Lord’s name in vain doesn’t really refer to a frustrated utterance, but rather using God’s name in pursuit of hypocritical, manipulative, or un-Christ-like aims. Like a preacher swindling his flock. Like waging an illegitimate war in the name of God. Like a cult leader abusing members in the name of Jesus. This makes intuitive sense to me. I understand why this would be more offensive to the moral parameters of a religion rather than naming God or Jesus in an utterance. I’ve always taken someone’s declaiming, “Jesus!” to be shorthand for nothing more than “Jesus help me!” or the like — not offensive to my mind.
That said, I do feel compelled to add that when I’m writing characters, each comes with his or her own morality which I allow them to express in full, whether that be in action or language. I’ve written rapists and serial killers and cult leaders and psychopath businessmen. And I’ve written my share of protagonists who are flawed and imperfect and, I hope, three-dimensional — who sound and act as we do. And in painting this ever changing cast, I try to make use of not just one moral perspective — nor just the moral perspective of the majority — but the vast and sundry approaches to life and language that characterize the human condition.
All best to you and thank you for writing,
Gregg Hurwitz
On the Closure of LA’s The Mystery Bookstore
I can’t think of another place that is as much a part of my LA experience as The Mystery Bookstore. When I first moved down here in 1997 as a 24-year old, I went to my first book signing at the old location (Bill Eidson and Sparkle Hayter at dueling podiums). The next year, I had a signing of my own at the store—also my first. Stalwart bookseller Sheldon McArthur held a “World Series of Serial Killers” event which featured me and John Connelly (in person) and Thomas Harris (in absentia, on his island). Shelly sold well over a hundred copies of The Tower, in the process spoiling me for all future events. The Mystery Bookstore is one of the only stores still standing at which I’ve signed all ten of my thrillers. Going there and seeing those familiar faces—staff and loyal customers—is for me as much a part of the book launch experience as choosing a cover or signing the first new title page. Read more
They’re Watching Goes On Tour
This is an email from a favorite reader. Love it!
“Like most journeys that lead to uncertainty and danger, there’s always a woman. And this one was no different. Actually, it was text book; classic 50′s detective stuff. Boat ride to South America. Jungles. Foreign cops, jails and jar-heads. The usual stuff. And the bombshell you knew was too good looking to hang with a mug like yours, which meant that she was playing a game; most likely at your expense. Even knowing that, I was sure to take the fall. Not the stereo-typical blonde type, you might expect. More of a “woman in red” with equally stunning red hair that makes Jessica Rabbit look like a two-bit crack head turning tricks…or maybe the way she looked at me…holding a copy of “They’re Watching” in her long, slender, knife scarred hands. Obvious cage fighter injuries, to be certain.
Bon voyage to Moon Knight. How he – and my comic brain – developed
This week’s issue of Moon Knight – the conclusion of the Shadowland event – will be my last.
When Marvel asked me to consider tackling Moon Knight, I told them I’d only do it if I could do something really different, as the character’s last reinvention – at the hands of Charlie Huston (and taken over by Mike Benson) – had been solid, innovative, and clever. It had reintroduced Moon Knight to a new generation of readers while keeping a great, dark, street edge on the character. I didn’t want to do more of the same because I feared I would only be doing a pale imitation of what they had already done so well. So my decision was to do Moon Knight BIG, bigger than any comic I’d yet written. My early work focused on the Foolkiller, Punisher, and Wolverine – street-geared, noirish crime stories where the killer-hero toted a gun, a sword, or a samurai blades attached to his hands. This was a natural transition for me coming out of my novels, particularly off the Tim Rackley series, which I considered my action-meditation on vigilante justice.
Fascinating decision in DISTURBIA vs. REAR WINDOW copyright infringement case
I wanted to post this decision here. This is based on the lawsuit brought by the copyright holders of the short story upon which the Hitchcock movie was based against Paramount, who made Disturbia (written by the inimitable Chris Landon). Fascinating reading, and a good primer for how legal decisions like this are made.
Case 1:08-cv-07810-LTS-JCF Document 128 Filed 09/21/10 Page 1 of 18
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
——————————————————-x
THE SHELDON ABEND REVOCABLE TRUST,
Plaintiff,
-v-
STEVEN SPIELBERG et al.,
Defendants.
——————————————————-x
APPEARANCES:
HANLY CONROY BIERSTEIN
SHERIDAN FISHER & HAYES, LLP
By: Steven M. Hayes, Esq.
112 Madison Avenue
New York, NY 10016
MORGAN & MORGAN, P.A.
By: Clay M. Townsend, Esq.
Keith R. Mitnik, Esq.
20 N. Orange Avenue
Orlando, FL 32801
Attorneys for Plaintiff The Sheldon
Abend Revocable Trust
No. 08 Civ. 7810 (LTS)(JCF)
WHITE O’CONNOR FINK &
BRENNER LLP
By: Lee S. Brenner, Esq.
Andrew M. White, Esq.
10100 Santa Monica Boulevard
Los Angeles, CA 90067
LAW OFFICES OF SCOTT
GOLDFINGER
By: Scott G. Goldfinger, Esq.
Allison S. Rohrer, Esq.
225 Broadway
New York, NY 10007
Attorneys for Defendants Steven Spielberg,
Paramount Pictures Corporation, DW
Studios LLC, Viacom Inc., Paramount Home
Entertainment, Montecito Picture Company
LLC, Cold Springs Pictures LLC and United
International Pictures, B.V.
LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE:
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OPINION AND ORDER
The Sheldon Abend Revocable Trust (“Plaintiff”), brings this action asserting
copyright infringement, contributory infringement, and vicarious copyright infringement
pursuant to 17 U.S.C. § 101 et seq. as well as common law breach of contract claims against
Defendants Steven Spielberg; DW Studios, LLC; Paramount Pictures Corporation; Viacom, Inc.;
NBC Universal, Inc.; Universal Pictures Company, Inc.; Universal City Studios, LLP; United
1
International Pictures, B.V.; and Does 1-10, alleging that the motion picture Disturbia – a film
produced by Spielberg, owner of DW Studios, LLC, which is in turn a wholly-owned subsidiary
of Paramount Pictures Corporation and its parent company, Viacom, Inc. – infringed upon
Plaintiff’s copyright in the short story Rear Window and upon the derivative Alfred Hitchcock
film of the same name.2 On October 27, 2009, Plaintiff filed its Second Amended Complaint,
adding defendants Montecito Picture Company LLC, Cold Spring Pictures LLC, and Universal
Pictures International, GmbH. Plaintiff asserted copyright infringement, contributory
infringement, and vicarious copyright infringement claims against these new defendants. The
Court has jurisdiction of Plaintiff’s copyright claims pursuant to 28 U.S.C. §§ 1331 and 1338.
The case is now before the Court on Defendants’ motion for partial summary
1
Pursuant to Joint Stipulations (docket entry nos. 40, 53), Plaintiff’s claims against
Defendants NBC Universal, Inc.; Universal Pictures Company, Inc.; and Universal
City Studios, LLP were dismissed on December 8, 2008 (Universal Pictures
Company, Inc.) and March 30, 2009 (NBC Universal, Inc. and Universal City
Studios, LLP). Because the contract claims in the First Amended Complaint were
asserted only against those defendants, those claims, too, have been dismissed.
Pursuant to a joint stipulation dated May 28, 2009 (docket entry no. 61), Plaintiff’s
claims premised upon similarity of Disturbia to the film version of Rear Window
have been dismissed.
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judgment dismissing Plaintiff’s copyright infringement claims. The Court has reviewed
thoroughly and considered carefully all of the parties’ submissions. For the reasons discussed
below, Defendants’ motion for partial summary judgment is granted.
BACKGROUND
The following material facts are undisputed, unless expressly noted.
In 1942, Cornell Woolrich wrote the short story Rear Window (also known as It
Had to be Murder and Murder from a Fixed Viewpoint) (“Short Story”), which was published in
the Dime Detective Magazine. Plaintiff currently holds the copyright in the Short Story.
In 1953, a predecessor to Defendant Paramount Pictures obtained the motion
picture rights to the Short Story, which was subsequently made into a film of the same title,
directed by Alfred Hitchcock, in 1954. Plaintiff relies heavily on the film in its claims of
substantial similarity and copyright infringement.
Defendants produced and distributed the motion picture Disturbia; distribution
began in April 2007. The record before the Court includes a published version of the Short Story
and a DVD copy of Disturbia.
Plaintiff has also submitted thousands of pages of exhibits, including: expert
reports; previous drafts of the screenplay; references to and copies of media articles and film
critics’ reviews likening Disturbia to the Rear Window film; and many lists, charts and DVDs
purporting to identify similarities among the Short Story, the Rear Window film, and Disturbia.
Defendants have proffered copies of numerous published works predating the Short Story, in
support of their contention that various elements of the Short Story are not protectable and/or not
original.
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DISCUSSION
Summary judgment is appropriate where the “pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). A fact is material “if it ‘might affect the outcome of the suit under the governing law,’”
and “[a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The evidence is viewed in
the light most favorable to the nonmoving party and all reasonable inferences are drawn in its
favor. Rubens v. Mason, 527 F.3d 252, 255 (2d Cir. 2008) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)).
Copyright Infringement
For a plaintiff to prevail in a copyright infringement case, “two elements must be
proved: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work
that are original.” Feist Publ’ns, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991).
The second criterion, copying of original constituent elements, may be proven with either direct
or indirect evidence: to prove copying via indirect evidence, a plaintiff must show (1)
defendant’s access to the allegedly infringed work; (2) actual copying; and (3) unlawful
appropriation of copyrightable materials. See Walker v. Time Life Films, Inc., 784 F.2d 44, 48
(2d Cir. 1986) (“Walker II”); Denker v. Uhry, 820 F. Supp. 722, 728 (S.D.N.Y. 1992). For
purposes of the instant motion, Defendants have conceded access and actual copying. Thus, the
only questions for resolution are whether there is a genuine dispute of material fact as to whether
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Defendants unlawfully appropriated copyrightable (that is, protectable) elements from Plaintiff’s
Short Story, and, if there is no such appropriation, whether Defendants are entitled to judgment
dismissing Plaintiff’s copyright infringement claims as a matter of law.
To prove unlawful appropriation of protectible elements, a plaintiff must show
that there is substantial similarity between protectible elements in the two disputed works.
Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir. 1992). The appropriate test for
substantial similarity is “whether an ordinary observer, unless he set out to detect the disparities,
would be disposed to overlook them, and regard [the] aesthetic appeal as the same.” Yurman
Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir. 2001) (citations and internal quotations
omitted); Walker II, 784 F.2d at 51 (noting that Second Circuit generally judges substantial
similarity “by the spontaneous response of the ordinary lay observer”).
Where, as here, a work is an amalgamation of protectible and unprotectible
elements, a “more discerning” ordinary observer test is employed, Knitwaves, Inc. v. Lollytogs,
Ltd., 71 F.3d 996, 1002 (2d Cir. 1995), which requires that the court first filter out from
consideration any non-protectible elements. The remaining, protectible elements are then
analyzed for substantial similarity. Id. (“[W]here [courts] compare products that contain both
protectible and unprotectible elements, [their] inspection must be ‘more discerning’; [courts]
must attempt to extract the unprotectible elements from our consideration and ask whether the
protectible elements, standing alone, are substantially similar.”). Thus, similarities between
unprotectible elements in the disputed works may not contribute to a determination of substantial
similarity.
Because questions of substantial similarity often present close questions of fact,
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Arnstein v. Porter, 154 F.2d 464, 468-69 (2d Cir. 1946), court have historically been hesitant to
grant summary judgment on copyright infringement claims. See Hoehling v. Universal City
Studios, Inc., 618 F.2d 972, 977 (2d Cir. 1980) (“[S]ummary judgment has traditionally been
frowned upon in copyright litigation.”). However, “[t]he question of substantial similarity is by
no means exclusively reserved for resolution by a jury . . . in certain circumstances, it is entirely
appropriate for a district court to resolve that question as a matter of law, ‘either because the
similarity between two works concerns only non-copyrightable elements of the plaintiff’s work,
or because no reasonable jury, properly instructed, could find that the two works are
substantially similar.’”3 Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63
(2d Cir. 2010) (citing Warner Bros. Inc. v. Am. Broad. Co., 720 F.2d 231, 240 (2d Cir. 1983)).
In considering the issue of substantial similarity a court must base its determination on “its
considered impressions upon its own perusal” of the disputed works. Nichols v. Universal
Pictures Corporation, 45 F.2d 119, 123 (2d Cir. 1930); Williams v. Crichton, 84 F.3d 581, 583
(2d Cir. 1996).
Substantial Similarity
A determination of copyright infringement requires a side-by-side comparison of
the disputed works themselves.4 Williams, 84 F.3d at 583. The elements that should be
3
Plaintiff, seeking to apply a rule referred to in this Circuit as the inverse ratio rule,
argues in its Opposition that Defendants’ concession of access and evidence of
actual copying lessens plaintiff’s burden to prove substantial similarity. That rule,
however, is irrelevant here, as it is applied only in the determination of whether
there was actual copying. Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548,
553-54 (2d Cir. 1994). As noted above, Defendant has conceded copying for
purposes of this motion practice.
4
The opinions of experts or other third parties are irrelevant to a determination of
substantial similarity. See Laureyssens, 964 F.2d at 140 (while expert opinion may
be relevant to the issue of actual copying, it is irrelevant to the question of
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considered in analyzing two works for substantial similarity include “such aspects as the total
concept and feel, theme, characters, plot, sequence, pace, and setting of the [plaintiff's] books
and the [defendants'] works.” Id., at 588.
In considering the similarities between these elements, the proper inquiry is
“whether an ordinary observer, unless he set out to detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic appeal as the same.” Yurman Design, 262 F.3d at 111.
The test does not, however, require the Court to ignore dissimilarities. However, if the
dissimilarities between two works exceed the similarities and the similar elements “are – when
compared to the original work – of small import quantitatively or qualitatively, a finding of no
infringement is appropriate.” See Rogers v. Koons, 960 F.2d 301, 308 (2d Cir. 1992). Thus, in
considering the question of substantial similarity, an analysis of both the similarities and the
differences is appropriate. The Court has reviewed both works carefully.
substantial similarity); Nichols 45 F.2d at 123 (in copyright infringement cases,
expert testimony “ought not be allowed at all”). Nor are lists or charts, in any
medium, of purported similarities relevant to a determination of substantial
similarity. See Williams, 84 F.3d at 590 (Lists are “inherently subjective and
unreliable, particularly where the list emphasizes random similarities scattered
throughout the works . . . . Such a scattershot approach cannot support a finding of
substantial similarity because it fails to address the underlying issue: whether a lay
observer would consider the works as a whole substantially similar to one
another.”). Furthermore, because “the Court considers the works as they were
presented to the public,” Walker v. Time Life Films, Inc., 615 F. Supp. 430, 434
(S.D.N.Y. 1985) (“Walker I”), aff’d 784 F.2d 44, 51 (2d Cir. 1986), earlier drafts of
a book, manuscript, or screenplay are irrelevant. Opinions of third parties published
in secondary materials are also irrelevant. Walker I, 615 F. Supp. at 434; see Crane
v. Poetic Prods., 593 F. Supp. 2d 585, 595 (S.D.N.Y. 2009). Accordingly, the Court
has focused on the Short Story and the finished film Disturbia, rather than Plaintiff’s
voluminous submissions of expert reports, similarity comparisons and other
materials. The Court has also found it unnecessary to consider the “prior works”
submitted by Defendants.
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Summary Overview of Each Work
Cornell Woolrich’s Rear Window
The Short Story spans four days and depicts, through first-person narrative,
protagonist Hal Jeffries’ observations of his neighbors’ activities which eventually lead him to
discover and solve a crime through deductive logic. It is set in New York City.
At the opening of the Short Story, the reader learns that Jeffries is incapacitated
such that he can only move from his bed to a chair near the window of his second floor bedroom.
(Brenner Decl., Ex. A., 1.) The reader learns little of Jeffries’ background and personality, as the
character is minimally developed.
To pass the time, Jeffries observes from his window the goings-on in several of
his neighbors’ homes. He watches a young couple with an active social life, a young widow and
her child, and a couple whom he later learns are the Thorwalds. (Id. 1, 10.)
Mrs. Thorwald, he notices, is in chronic poor health. (Id. 2.) At first, her
husband, Lars Thorwald (“Thorwald”), appears concerned about her health but, as Jeffries
observes the Thorwalds over a period of days, he notices that Mrs. Thorwald has disappeared.
(Id. 8.) Jeffries speculates that Thorwald has murdered her. (Id.) He phones his old friend,
Detective Boyne, to report his suspicion, and Boyne institutes an investigation. (Id. 10-11.)
Following a lead that Mrs. Thorwald’s belongings had been shipped to the countryside, the
police encounter a woman who identifies herself as Mrs. Thorwald. (Id. 14-15.) Boyne then
stops the investigation, to Jeffries’ dismay. (Id.)
Undeterred from the belief that Thorwald murdered his wife, Jeffries enlists the
assistance of his faithful servant, Sam, in obtaining proof of the murder. (Id. 15.) Sam’s
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character is also minimally developed. Jeffries instructs Sam to slip a note that reads “What
have you done with her?” beneath Thorwald’s door. (Id.) Upon receiving the note, Thorwald
becomes agitated, and paces his apartment nervously. (Id. 16.) His pacing closely parallels that
of a realtor showing a newly renovated apartment two floors above Thorwald, but Jeffries does
not immediately recognize the significance of this coincidence. (Id. 16-17.) Thorwald’s
reaction to the note, however, convinces Jeffries that Thorwald is, in fact, guilty of murder. (Id.
16.)
To obtain more concrete evidence of murder, Jeffries phones Thorwald,
pretending to be a blackmailer, and convinces Thorwald to meet him in a local park. (Id. 17-18.)
When Thorwald sets out to pay off his blackmailer, Jeffries dispatches Sam to Thorwald’s
apartment with instructions to make it appear as if the apartment has been searched, in order to
make Thorwald believe that his blackmailer has obtained concrete evidence of the murder. (Id.
18-19.) Sam does as he is told. (Id. 19.) When Thorwald returns, Jeffries immediately phones
him, pretending to have discovered evidence, but Thorwald does not believe him. (Id. 19-20.)
Thorwald then unexpectedly phones Jeffries, and, hearing his voice, deduces that
Jeffries is his blackmailer. (Id. 21.) After this phone call, Jeffries suddenly recalls the mirrored
movements of Thorwald and the realtor two floors above. (Id. 22-23.) He realizes that, when
passing from the kitchen to the living room, the realtor’s height relative to the window changed
while Thorwald’s remained the same because, as part of the ongoing renovations to the building,
a raised kitchen floor had been poured in concrete for decorative effect. (Id.) Jeffries deduces
that Thorwald buried his wife’s body in the still-wet concrete of the fifth floor apartment, which
was under renovation. (Id. 26.)
Jeffries attempts to phone Inspector Boyne, but the line goes dead: Thorwald has
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entered Jeffries’ building and severed the telephone line. (Id. 23.) Jeffries realizes Thorwald is
coming to kill him. (Id.) Rendered unable to escape by his cast, Jeffries conceals himself with a
rug, and places a bust sculpture upon his shoulder, hoping that in the dark Thorwald would be
tricked by the ruse. (Id. 23-24.) As Thorwald enters and shoots the bust, Inspector Boyne
arrives. (Id. 24-25.) Thorwald escapes out the window, climbs to the roof of his own building,
then shoots into Jeffries’ apartment. (Id. 24-25.) Inspector Boyne returns fire and strikes
Thorwald, causing him to fall to his death. (Id. 25.)
From the available information, Jeffries completes his theory of the case for the
reader: Thorwald had been poisoning his wife for some time, but killed her outright when she
discovered what he was doing; and he concocted a scheme with another woman, likely his lover,
to suggest that his wife had gone upstate. (Id. 26-27.) The other woman impersonated Mrs.
Thorwald when the police investigated, and was going to stage her suicide. (Id.) In the closing
lines of the story, a doctor arrives to remove the cast and notes, ironically, that Jeffries must have
been bored while sitting around. (Id. 27.)
Disturbia
The events depicted in Disturbia span more than a year. The story’s chief
protagonist is Kale Brecht, a troubled teenager who, sentenced to house arrest, spies on
neighbors to stave off boredom and, after learning of the disappearance of several women in the
area, discovers that his neighbor may be to blame.
Kale is introduced to the viewer while on a fishing trip with his father. In a
picturesque wilderness setting, Kale and his father joke and bond. On the trip home, however,
while Kale is driving, a horrific accident occurs and his father is killed. A year later, Kale has
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become a troubled and depressed teenager. After assaulting a teacher, Kale goes to court and is
sentenced to three months of house arrest in suburban California. His probation officer outfits
him with an ankle bracelet that confines him to a 100-yard radius from the receiver in his
kitchen.
Kale begins to entertain himself by watching his neighbors live their unrestricted
lives. He observes his new neighbors moving in, and takes particular note of their attractive
teenage daughter, Ashley.
Among other things, he notices, almost in passing, Robert Turner, a neighbor who
constantly mows his lawn. After hearing news reports about a missing woman, and of a string of
missing women in Texas, Kale recalls that Turner’s car matches the description of the suspect’s
vehicle, right down to a dented fender. Venturing outside, Kale spies on Turner. Kale’s friend
Ronnie joins Kale in his surveillance of Turner and in spying on Ashley. Eventually, Ashley
catches them watching her and confronts them. Ronnie explains their interest in Turner, and she
joins them in the stake-out. During their stake-outs, a romance develops between Kale and
Ashley.
One night, Kale observes Turner escorting a red-haired woman to his home, and
then later sees her panicked and trying to escape the house. A reflection of Kale’s video camera
alerts Turner to the fact that Kale is watching. Kale later sees a redhead leaving Turner’s house,
and reasons that he may have been mistaken (although the viewer later learns that it was, in fact,
Turner wearing a wig). Some time later, at Turner’s house, there is a scream and blood spatters
across the inside of a window.
Ashley later notices Turner dragging a blood-covered blue bag into his garage.
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Kale, Ashley, and Ronnie decide to investigate Turner’s garage. With Ashley acting as a look
out and Kale watching via live-feed video camera, Ronnie finds the blue bag, in which he sees
something decomposing. Ronnie panics, and, fearing for his friend, Kale rushes to Turner’s
house wielding a baseball bat, triggering his ankle bracelet, and summoning the police. He tells
the police about the blue bag, in which they discover the decomposing carcass of a deer.
Upon reviewing the footage that Ronnie shot while sneaking about Turner’s
house, Kale notices the face of a dead woman, visible in the basement through a heating grate.
At the same time, Kale’s mother is attacked by Turner in Turner’s home. Turner then comes to
Kale’s house and attacks Ronnie and Kale, rendering them unconscious. Kale awakens, bound
with tape. Turner informs Kale of his plan to frame Kale for murdering his own mother and to
stage Kale’s suicide. Ashley arrives at the last moment, however, and in the course of a struggle,
Kale and Ashley escape to safety by jumping off Kale’s roof and into Ashley’s pool.
Kale then returns to Turner’s house, armed with hedge clippers, to rescue his
mother. He discovers the body of the dead woman he had seen in Ronnie’s video, as well as an
operating room filled with gruesome mementos. Summoned by Kale’s ankle bracelet, a police
officer arrives at Turner’s house, but is killed by Turner. Meanwhile, while searching the
basement of Turner’s house for his mother, Kale falls into a pool of water filled with the dead
bodies of Turner’s previous victims. Kale locates his mother just as Turner arrives. Kale, his
mother, and Turner fight, culminating in Turner being stabbed and falling into the pool.
The next day, Kale’s parole officer removes his ankle bracelet, releasing him
from house arrest early for good behavior. The film ends with Kale and Ashley kissing while
Ronnie attempts to videotape them.
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Comparison of the Works
Plot
It cannot be disputed that both works tell the story of a male protagonist, confined
to his home, who spies on neighbors to stave off boredom and, in so doing, discovers that one of
his neighbors is a murderer. The voyeur is himself discovered by the suspected murderer, is
attacked by the murderer, and is ultimately vindicated. Although it is possible to characterize the
plots of both works so they appear indistinguishable, such similarity is not, standing alone,
indicative of substantial similarity. The law of copyright only protects an author’s particular
expression of an idea, not the idea itself. Arden v. Columbia Pictures Indus., Inc., 908 F. Supp.
1248 (S.D.N.Y. 1995).
Upon any work . . . a great number of patterns of increasing generality
will fit equally well, as more and more of the incident is left out. The
last may perhaps be no more than the most general statement of what the
[work] is about, and at times might consist of only its title. But there is
a point in this series of abstractions where they are no longer protected,
since otherwise the [author] could prevent the use of his ‘ideas,’ to
which, apart from their expression, his property is never extended.
Nichols, 45 F.2d at 121. Here, as will be explained in the analysis that follows, the expression of
the voyeur-suspicion-peril-vindication plot idea is quite different in the two works. This broad
plot idea, or premise, is not a protectible element. Similarity at this level of generality is not
probative of the question of infringement.
Characters
Plaintiff contends that “[c]haracter elements of . . . Disturbia are derivative of (i.e.
substantially similar to) Rear Window, notwithstanding some differences.” (See Pl.’s Opp. 24.)
“In determining whether characters are similar, a court looks at the ‘totality of [the characters’]
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attributes and traits as well as the extent to which the defendants’ characters capture the ‘total
concept and feel’ of figures in [plaintiff's work].” Hogan v. DC Comics, 48 F. Supp. 2d 298,
309-10 (S.D.N.Y. 1999) (citing Walker II, 784 F.2d at 50) (internal quotations omitted). “No
character infringement claim can succeed unless plaintiff’s original conception sufficiently
developed the character, and defendants have copied this development and not merely the
broader outlines.” Smith v. Weinstein, 578 F. Supp. 1297, 1303 (S.D.N.Y. 1984), aff’d mem.,
738 F.2d 419 (2d Cir. 1984).
The bar for substantial similarity in a character is set quite high. For example, in
Adrand v. Columbia Pictures Industries, Inc., the protagonists of the two disputed works were
both self-centered bachelors in their mid-thirties who pursued love interests and became trapped
in a repeating day. 908 F. Supp. 1248, 1261 (S.D.N.Y. 1995). The district court found that “any
similarity between the two characters exists only at a level of abstraction too basic to permit any
inference that defendant[s] wrongfully appropriated any ‘expression’ of plaintiff’s ideas.” Id. In
Hogan, the two main characters were both half-human, half-vampires named Nicholas Gaunt;
both were young white males with pale skin, a medium build, dark, tired eyes, and dark, scraggly
hair; both sought to learn the truth about their origins; both learned about their origins through
flashbacks or memories; both faced the choice of pursuing good or evil; and both were
indoctrinated into the forces of evil. 48 F. Supp. at 310. The Hogan Court nonetheless found
that the two Nicholas Gaunts were not substantially similar because the similarities were among
“unprotectible ideas and themes that do not represent any original elements of plaintiffs’ work.”
Id.
Because substantial similarity should be determined based on the Court’s
“considered impressions,” Nichols, 45 F.2d at 123, a comparison of some of the disputed
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characters is warranted. The protagonists of the respective disputed works at issue here are not
substantially similar. While Plaintiff correctly points out that both Kale and Jeffries are
confined, single men, such generalized similarities are not protectible. Furthermore, Jeffries’
character is far less developed than the Kale character in Disturbia. Kale Brecht is a troubled
teen, struggling to cope with the loss of his father, and is confined to his house on house arrest.
Hal Jeffries is a male of indeterminate age. Kale has, at least initially, other pastimes to stave off
boredom – television, video games, and music – while Jeffries has none. While Kale
consistently finds himself in trouble with a police officer, Jeffries’ close friend is a detective.
Any similarities between Kale and Jeffries are too general to be afforded protection under
copyright law, and when the “totality of [the characters’] attributes and traits” are considered,
Hogan, 48 F. Supp. 2d at 309, the dissimilarities vastly outweigh the similarities, which are
qualitatively and quantitatively insubstantial in this regard. Indeed, the decisions in Arden and
Hogan demonstrate that similarities far more numerous can be insufficient to support a finding
of substantial similarity.
Nor are the antagonists in Plaintiff’s Short Story and Defendants’ Disturbia
substantially similar. Turner is a single middle aged man who is suspected – and later is
confirmed – to be a serial killer. Thorwald is a married man, who kills his wife – apparently the
first and only woman he murders – to be with another woman. Plaintiff attempts to demonstrate
substantial similarity between the antagonists by characterizing Turner as a neighbor suspected
of killing women and Thorwald as a neighbor who murders a woman. (Compl. ¶ 86.) The
similarity between these two characters ends, however, with their middle age and their position
as the protagonist’s neighbor: a serial killer is distinguishable from a one-time killer. These
similarities amount to nothing more than age, sex, and status as a personification of evil living
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next door – a basic character type – and therefore do not rise to the level of protectible
expression of an idea. See Hogan, 48 F. Supp. 2d at 310 (“A stock character or basic character
type, however, is not entitled to copyright protection.”).
Plaintiff also asserts that the supporting characters in each work are substantially
similar. Notwithstanding the fact that Ronnie and Ashley are, in fact two people, and Sam is but
one, Plaintiff attempts to demonstrate substantial similarity by designating their character types
as “the Assistant(s).” (See, e.g., Compl. ¶ 86.) The characters of Ronnie and Ashley however,
bear no resemblance to Sam, beyond the most generalized level of supporting characters. Such a
basic character type and functional role warrants no copyright protection. See Hogan, 48 F.
Supp. 2d at 310.
Setting
Plaintiff contends that there is substantial similarity between settings in the Short
Story and Rear Window. Plaintiff’s position cannot withstand scrutiny. Disturbia is set in a
house in suburban California while the Short Story is set in an apartment in New York City. The
setting of the Short Story is Jeffries’ bedroom, and more specifically, his chair within that
bedroom and the view from that chair. In contrast, Disturbia’s setting encompasses all of Kale’s
house and much of his yard, as well as a shopping center, a parking garage, Ashley’s house and
yard, a courthouse, the wilderness, a classroom, and Turner’s home. Furthermore, where
Jeffries’ room is impersonal – the only detail the author provides is that the books and sculpture
in Jeffries’ room were left by a previous tenant – Kale’s room reflects his personality, and his
house is furnished and decorated with personal items and photographs. Jeffries’ world, as
expressed in the short story, consists of what he can see from his single bedroom window. Kale,
on the other hand, roams from room to room, utilizes windows throughout his home, and goes
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outside. The role of the windows is similar only at a high level of generalization, and thus is not
protectible. See Walker I, 784 F.2d at 48-49 (citing Warner, 654 F.2d at 208) (The Court must
determine “whether the similarities shared by the works are something more than mere
generalized idea[s] or themes.”).
“Total Concept and Feel”
Plaintiff argues principally that Disturbia is, as a whole, substantially similar to
the total concept and feel of the Short Story. The total concept and feel of a work is comprised
of the way an author “selected, coordinated and arranged the elements of his or her work,” Feist,
499 U.S. at 358. Where the total concept and feel of the works is markedly different, summary
judgment is appropriate. Denker, 820 F.Supp. at 731.
There is no substantial similarity between the total concept and feel of the Short
Story and that of Disturbia. The main plots are similar only at a high, unprotectible, level of
generality. Where Disturbia is rife with subplots, the Short Story has none. The setting and
mood of the Short Story are static and tense, whereas the setting and mood of Disturbia are more
dynamic and peppered with humor and teen romance. The pace of the two works is dramatically
different: the Short Story takes place in just four days, while Disturbia spans more than a year
and the main action takes place over an indeterminate period of days or weeks.
The Short Story and Disturbia thus are only similar at very general levels of
abstraction. Their similarities derive entirely from unprotectible elements and the total look and
feel of the works is so distinct that no reasonable trier of fact could find the works substantially
similar within the meaning of copyright law. There is, thus, no genuine issue of material fact
and Defendants are entitled as a matter of law to summary judgment dismissing Plaintiff’s
copyright infringement claims.
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Sci-fi spec script – EXPULSION – sold to Warner Bros
Very excited about this one — the biggest script I’ve ever written by a long shot (I blow up the solar system in the first act).
Nikki Finke Deadline Hollywood coverage here.
And Variety story here.
July 8: THEY’RE WATCHING — On Sale Today
They’re Watching Film Rights
I wasn’t going to post this just yet, but it seems word has already leaked out, so what the hell. Here’s the announcement. There’s a great team assembled for this one — can’t wait to get underway.
– — –
Rights to Gregg Hurwitz’s latest thriller, They’re Watching, have been snapped up by David Dobkin (The Wedding Crashers, Shanghai Nights, Clay Pigeons) and Jeff Kleeman’s Big Kid Pictures, with an eye for Dobkin to direct. Big Kid Pictures is currently in pre-production on Jack the Giant Killer, (directed by Bryan Singer), The Change Up starring Ryan Reynolds and Jason Bateman, and is developing a Man from U.N.C.L.E. movie for Warners. Jeff Kleeman oversaw and developed The Thomas Crown Affair, The Hunt for Red October, Golden Eye, Tomorrow Never Dies, and The World Is Not Enough. Playwright and Emmy-award winning screenwriter Craig Wright (Lost, Six Feet Under, The Pavilion) will adapt, and Hurwitz will produce.
