Same scene, different book

'Is it legal', 'can I do this' type questions and discussions.
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MrPunch
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Same scene, different book

Post by MrPunch »

Hello again!

Where do I stand with this? I am writing a fictional novel. A scene in the novel is almost identical to a scene in an existing novel and movie - same geographical location, similar bleak near future, events unfold identically and then a masked protagonist intervenes dressed and behaving in a very similar manner to the other work.

It was meant as a parody and I assume that offers a little leeway but is it enough? And what if the work was not parody... what then?

For example: If I had a science fiction scene where the young hero is hanging from a great height as a villain in black chops his hand off and reveals he is actually his father? (Empire Strikes Back, by the way) ... and its not a satire... where does copyright stand?

Is an aside, I am reminded of a recent case 2016 with the movie LOCKOUT. The producers were sued for plagiarism for its similarities to an earlier film. I see similarities, but more an homage, if anything.

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AndyJ
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Re: Same scene, different book

Post by AndyJ »

Hi Mr Punch,

It's really hard to give you any definitive guidelines on this, as very often the risk you face of being sued has more to do with the attitude of the creator of the other work, rather than any legal background. For example if you wanted to closely follow the plot and/or characters of a George Lucas film I would suggest you face a much higher chance of being sued than if you chose a James Bond film to parody. Some producers/film studios have a well-deserved reputation for going after their imitators as a matter of policy, almost regardless of the strength of their legal argument. This is less prevalent among authors but not unheard of. A case from 2006 which covered much the same the ground as your question, concerned a claim brought by the authors of a book entitled The Holy Blood and the Holy Grail against the Da Vinci Code author Dan Brown. The claimants said that the Da Vinci Code copied very large chunks of their earlier book. In the end the court found that there was no infringement, and although the claimants appealed against it the Court of Appeal upheld the first court's decision. While that case didn't involve the element of parody, it is illustrative of the kind of examination of the facts which the court applies in cases where substantial copying is alleged.

It may also be relevant whether the original work in your case (the novel) was written by a UK or American author. The US courts have tended to follow a more variable analytical process when it comes deciding if there has been substantial copying. For example on occasion they have chosen to examine even relatively trivial details of characterization or descriptions of scenery etc in a way which ranks them alongside the main plot features of a book*. This is in contrast to the more holistic view of the works taken by the UK courts (for instance in the Da Vinci Code case). Thus if an American author or publisher is involved they may have a different expectation of what constitutes infringement in such circumstances and may be more ready to embark on an ill-advised claim, whereas a British publisher advised by British lawyers might be more reluctant to enter the fray.

As I assume you are intending to self-publish your novel, you may be wise to submit the manuscript for a legal opinion before publishing.

* I have in mind a case in the USA between the estate of Arthur Conan Doyle and Miramax who produced a film called Mr Holmes which was said to infringe Conan Doyle's copyright. More details here.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

MrPunch
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Re: Same scene, different book

Post by MrPunch »

I think I shall rework the scene entirely!
Thanks again.

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