Tell Yes artist: “No. No. Fifty million times no.”
If the federal copyright complaint that you file on behalf of your client includes an assertion that “[the d]efendants… knew or should have known that they were violating [the p]laintiff’s rights,” then you probably want to be sure that you’re not bringing an ill-conceived lawsuit, because what copyright law does cover in this country—and what it doesn’t—is something a lawyer should know.
The lawsuit brought this week by the world-famous English visual artist Roger Dean against the world-famous moviemaker James Cameron alleging, principally, infringement of Dean’s original works by Cameron’s Avatar is making me angry. (It’s here.) And it’s not at all because I think either Cameron or Avatar is untouchable. In fact, I thought Avatar was nothing special, and I haven’t really liked a Cameron film since Aliens (although his work as special effects director for Piranha Part Two: The Spawning is exemplary).
No, I just think that Dean’s lawsuit is gold-digging of the worst kind. The “critically-acclaimed and highly lucrative” Avatar has—according to the complaint, anyway—to date grossed $2 billion… and Dean wants $50 million of it.
The only thing standing in Dean’s way, however, is that his own complaint hints at his (and his lawyers’) misapprehension of American copyright law.
Dean—perhaps best known to the masses as the artist responsible for many unique album covers used by the bands Yes and Asia—is claiming, essentially, that Cameron and others involved in the production and distribution of Avatar—featuring the very un-Earthlike, visually-arresting alien planet Pandora—willfully and deliberately copied, disseminated, and exploited elements of original images created by Dean, without license, and without crediting or compensating Dean.
But while Dean alleges that Pandora features elements such as “floating mountains” and “stone arches”… “key tree forms”… a “double helix pathway”… and other “Signature Landforms,” Dean’s strongest specific allegations of copying are that “[t]he native inhabitants of Pandora have markings the same as those previously created by [him],” and that “[t]he antennae and markings of the various flying creatures on Pandorra[sic] are copied from [Dean’s] body of work.”
Worse, Dean asserts, the defendants “voluntarily utilized [his] ideas and creations knowing full well that [he] would be entitled to, and would have clear expectation of[,] payment in the event [that his] work were[sic] utilized by Defendants in Avatar or any other feature film”… and therefore an implied contract exists among the parties.
Putting aside that ideas are not protectable under copyright law in this country—something that not everyone knows, but every lawyer filing a federal complaint should know—the rest of the assertion is just bunk. And even if it isn’t bunk, Dean is effectively asking for $50,000,000 (and he asserts that his “losses are ongoing”) because the bugs on Pandora look like bugs in Dean’s own prior-created artwork.
Maybe this lawsuit would have merit on Pandora itself, where every inhabitant is a walking, crawling, flying, or just standing still infringement of Roger Dean’s intellectual property rights, but here on Earth, in the United States of America, where copyright law makes some kind of sense, it doesn’t.