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By Tamlin Bason
Sept. 19 — Anonymous Internet comments discussing possible similarities between a plaintiff's artwork and the colorful flora and fauna featured on Pandora in the hit movie Avatar are irrelevant to a substantial similarity determination, the U.S. District Court for the Southern District of New York said Sept. 17.
James Cameron, who wrote and directed Avatar, has been plagued by numerous infringement lawsuits since the 2009 release of the feature film.
This latest action was brought by an English artist who has designed album covers for rock bands, including Yes and Asia. He claimed that the ornate biosphere that Cameron created for Pandora—the fictitious planet on which the film took place—infringed 14 of his paintings.
The court dismissed the claims, giving Cameron another victory.
Not only was there no substantial similarity between the plaintiff's paintings and the depictions of Pandora, but most of the evidence that was submitted to demonstrate substantial similarity was irrelevant, the court said.
For instance, “[T]he opinions of third parties—even experts—are ‘irrelevant to a determination of substantial similarity,' ” the court said, quoting relevant circuit case law. Thus, the anonymous Internet comments were of no benefit to the plaintiff, the court said.
The court said that it could not determine from William Roger Dean's amended complaint what specific features of the film allegedly infringed his paintings. The court, however, was able to determine, from the parties' briefs, that “there are five aspects of Avatar's ecosystem in dispute.”
Judge Jesse M. Furman said those features included a mountain range, a number of distinctive trees and “some Pandoran wildlife, including ‘banshees,' ‘thanators,' ‘wolf-like predators,' ‘six-legged horse-like creatures,' and ‘woodsprites, small, bioluminescent jelly-fishlike creatures.' ”
In order to prevail on his copyright infringement claim Dean bore the burden of demonstrating both that Cameron had actually copied his work and that the copying was prohibited because it rendered the two works substantially similar to one another.
When ruling on a defendant's motion to dismiss, however, a court may assume actual copying and proceed directly to the substantial similarity inquiry.
Here, “several of Plaintiff's efforts to show substantial similarity are plainly misguided,” the court said. For instance, Dean attempted to introduce numerous side-by-side comparisons showing his work and Avatar images.
“Many of the ‘Avatarimages' he includes, however, are not from the film itself, but are taken from books about or derived from Avatar,” the court said. Since Dean did not assert any infringement claims against the books, those images have no bearing on a substantial similarity inquiry, the court said.
to the extent that he includes images from the film itself, not only does he take them out of context—presenting single static frames from scenes comprised of hundreds if not thousands of frames, in which camera angles, lighting, and focus rapidly change—but he also manipulates the images (not to mention his own images) by cropping them, rotating them, and the like. Such tactics cannot be used to bolster an infringement claim.
The court then said that the anonymous Internet commentary that Dean sought to introduce was “irrelevant in two senses.”
First, a substantial similarity inquiry focuses on the works themselves and not on public discussion of those works, the court said.
Second, the actual commentary that Dean sought to introduce was about whether Avatar may be derivative of Dean's artwork. But the court noted that that was not the relevant question. Rather, the only relevant inquiry was whether, as a whole, there was a substantial similarity between Avatar and the protectible elements of Dean's paintings.
“The answer to that question is plainly no,” the court said.
The court proceeded to examine the images side-by-side before determining that many of the things for which Dean sought protection were unprotectible elements under the scènes à faire doctrine.
Moreover, “[T]o the extent that those elements are protectible, any similarities between Defendants' and Plaintiff's works are overwhelmed by their differences,” the court said. It thus granted Cameron's motion to dismiss.
Cameron was represented by Jonathan Zavin of Loeb & Loeb LLP, New York. Dean was represented by Steven Michael Hayes of Hanly Conroy Bierstein Sheridan Fisher & Hayes LLP, New York.
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