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IP/Entertainment Case Law Updates

Buggs v. Dreamworks, Inc.

Court grants summary judgment in favor of defendants in a copyright infringement action alleging that the defendants’ film “Flushed Away” infringed plaintiff’s copyrighted screenplay for “Critter Island,” finding that the two works were not substantially similar with respect to any protectable elements of the works.

The plaintiff is the author of a screenplay for “Critter Island,” a story about two teenage leaders of rival cockroach gangs -- the Water Bugs and the Brown Bandits -- living in a Harlem, New York, retirement home. The defendants are the creators and developers of the film “Flushed Away,” the tale of Roddy, an upper-class rat living in a posh London home who is flushed down a drain into a sewer rat colony called Ratropolis.

In “Critter Island,” the two ethnic gangs of cockroaches are in constant rivalry. However, Mario, the leader of the Water Bugs, develops romantic feelings for Vicki, the leader of the Brown Bandits. Mario and Vicki learn of the humans’ plan to exterminate both gangs of cockroaches, but are flushed down a drain pipe before they can warn their respective gangs. With each other’s help, they are able to return to their home and evacuate many of the cockroaches to Critter Island and escape extermination.

In “Flushed Away,” once in the sewer Roddy encounters a female rat, a boat captain named Rita. Rita has stolen a fake ruby from an evil Toad, and the two must attempt to return to Roddy’s home while being hunted by the Toad. Upon returning home, Roddy learns that the Toad has plans to flood Ratropolis, killing its inhabitants. Roddy is flushed once again and returns to the sewer to defeat the Toad, saving Rita and Ratropolis.

Plaintiff sued defendants for copyright infringement, arguing that “Flushed Away” was substantially similar to the screen play for “Critter Island.” The court disagreed, finding that the two works were not similar with respect to any protectable elements. In deciding the issue of substantial similarity, the court applied the “extrinsic test,” which requires that the court filter out and disregard the non-protectable elements of each work, and then determine whether there are any articulable similarities between the specific expressive elements of the works. Although each work involved anthropomorphic pests being flushed into the sewer, developing unlikely alliances, and saving their communities, the court held that “the basic plot idea of pests with human attributes getting flushed and saving their communities is not protectable.” The court held that, upon closer examination of the details, the works were substantially dissimilar. For example, the two works involved different types of pests living in different cities under different economic circumstances. Additionally, the “flushing” of the principal characters in “Critter Island” created a substantial hardship for the characters, whereas the flushing of the rat in “Flushed Away” proved beneficial to Roddy. “Flushed Away” also lacked any theme of racial unity and contained no hint of racial tension.

Plaintiff argued that her burden of proving substantial similarity should be reduced under the “inverse ratio rule” because individuals associated with the defendant had a high degree of access to plaintiff’s work. The court declined to apply the rule, finding that “Flushed Away” was based on screenplays created by third party writers who had no access to plaintiff’s work. Even if the court were to apply the inverse ratio rule, the court found that the defendant would still prevail because the plaintiff failed to show any concrete or articulable similarities between the protectable elements of the two works. Accordingly, the court found that defendants had not infringed plaintiff’s copyright and granted summary judgment for the defendants.

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