What, exactly, does copyright law protect?

We have discussed how photographs and other images we might find online are probably protected by copyright. Designs, drawings, songs, sound recordings, movies, television programs, books, and other creative works are all subject to copyright protection. That really only scratches the surface, though.

Copyright Law, in Brief

A particular copyright may only apply to a particular representation of a creative work. The compositions of Beethoven, having been written centuries ago, are in the public domain. A recording of a performance of a Beethoven symphony, however, is probably copyrighted. The same goes for the works of William Shakespeare, written about five hundred years ago; and the Shakespeare films of Kenneth Branagh, the oldest of which dates to 1989.

The federal statute defining “copyright” includes a broad list of works that may be copyrighted, including literary works, musical works, choreographic works, films, sound recordings, architectural designs, etc. It specifically excludes, however, “any idea, procedure, process, system, method of operation, concept, principle, or discovery.”

Some processes or discoveries may be subject to protection under patent law, but an idea, by itself, is almost never subject to copyright protection. This point is particularly important for freelancers who might find themselves invited to submit proposals to potential clients who actually just want free ideas.

Two Movies, Similar Ideas

To offer an example of how an idea can work its way into multiple creative works without causing copyright problems, I present the case of two early 1980’s sci-fi films.

In December 1984, Columbia Pictures released Starman, starring Jeff Bridges and Karen Allen. The film tells the story of an alien who comes to Earth in response to the invitation included on the Voyager 2 spacecraft. When his craft enters the atmosphere, however, the U.S. government shoots it down, and it crashes in northern Wisconsin.

The alien visitor, who basically looks like a glowing blob of energy, enters a house that belongs to a recently widowed woman. It uses DNA from a lock of hair to clone the body of the woman’s deceased husband, to her great consternation. He enlists her help—not at all voluntarily at first—to get to Barringer Crater in Arizona, where he will rendezvous with his “people.” They have three days to get there, or else he will die. Along the way, he learns about being human and they fall in love. Government agents chase them every step of the way.

The film was generally well-received, making about $28.7 million at the box office. It earned Jeff Bridges Oscar and Golden Globe nominations for Best Actor.

Just over a year earlier, in September 1983, a low-budget film entitled Wavelength was released by the Rosenfeld Company. This film follows a couple, played by Robert Carradine (of Revenge of the Nerds fame) and Cherie Currie (of the band the Runaways), who discover a group of aliens held captive in a secret government facility.

Currie’s character begins hearing voices in her head, which they eventually trace to the supposedly-abandoned military facility near their house in the Hollywood Hills. They discover three aliens, all played by young boys, and help them escape to the Mojave Desert, where they are expecting to rendezvous with their “people.”

I remember seeing this film when I was a kid, probably around the time it premiered on cable. It has not enjoyed the longevity of Starman, and is currently not available on DVD. The entire film is available on YouTube, but I am not going to link to it because I do not know if it is an authorized upload or not.

Similarities between the Movies

Both movies are about alien visitors to Earth, the government agents who are either chasing them (or have already caught them), and the people who are trying to help them. That seems like quite a few similarities, but did you catch the parts about taking the aliens to a rendezvous in Arizona/the Mojave Desert? (Spoilers ahead.)

There’s another similarity between the two films, which is what led me, in a moment of nostalgic Googling, to find out about the copyright dispute.

This is the spaceship sent to retrieve the aliens in Wavelength:


And this is the spaceship that comes for Jeff Bridges’ character in Starman:


Those are remarkably similar, but is there a copyright problem here?

The Lawsuit

The producers of Wavelength filed suit against Columbia Pictures in a Chicago federal court in 1985, claiming that Starman infringed their copyright. In order to prevail, they would have to prove that they owned the copyright in Wavelength, that it was an original work, that the defendant copied their work, and that a “substantial degree of similarity” existed between the two works. “Substantial similarity” proved to be the deciding issue.

The Court’s Ruling in Wavelength Film Co. v. Columbia Pictures Industries, Inc.

The court found that the two works did not meet the legal requirement of “substantial similarity,” and that the plaintiff therefore did not have a case for copyright infringement. It dismissed the lawsuit in 1986. The many seeming similarities between the films, the court found, were outweighed by the differences. The court noted that:

  • The aliens were portrayed differently, i.e. three children versus one 35 year-old man.
  • One film shows a “parent-child relationship” develop between the aliens and the human protagonists, while the other shows a “mature love relationship.”
  • One film is set entirely within California, while the other encompasses a road trip crossing “half of the United States.” That both films end up in a desert setting is legally insignificant.
  • The aliens have very different “disposition[s] towards earth people,” with the Wavelength aliens “‘suck[ing] the energy and life’ out of many earth people” while the Starman alien is generally benevolent towards people.
  • The two spaceships were only similar in “color and shape,” with all other features being different. The court also noted that “the concept of a spherical spacecraft is not new or unique.”

Any other similarities between the two films, the court held, constituted “scenes a faire,” which are not subject to copyright protection. The court defined “scenes a faire” as “characters, settings, or events which necessarily follow from a certain theme or plot situation.”

Rulings Following Wavelength Film Co. v. Columbia Pictures Industries, Inc.

A handful of court decisions have specifically cited the Wavelength decision in finding that two works with a similar concept or style are not “substantially similar,” such as:

  • Beal v. Paramount Pictures Corp. (1994): Alleged similarities between the plaintiff’s book, The Arab Heart, and the defendant’s film, Coming to America, did not constitute copyright infringement.
  • Gentieu v. Tony Stone Images/Chicago, Inc. (2003): A stock photo company did not infringe the copyright of a photographer who primarily shoots photos of infants when, after contracting with the photographer to use some of her images, it gave similar assignments to other photographers.

For other examples of the principle that an idea is not copyrightable, see the many clusters of Hollywood films with common plot elements, such as the asteroid/comet-hitting-Earth films Armageddon and Deep Impact (both released in 1998), or the slew of underwater films released in 1989, including The Abyss and various movies no one remembers.

Coming soon: Defamation, the right of publicity, and other legal problems freelancers should try to avoid.

Photo credits: Wavelength GIF created by David C. Wells, based on film © Wavelength Film Co., via YouTube; Starman GIF created by David C. Wells, based on film © Columbia Pictures, via YouTube.