Plaintiff Elijah Schkeiban, author of a short story titled Bats and Butterflies, brought suit against defendants James Cameron and other entities involved in the production and distribution of the movie Avatar, for copyright infringement. On his third attempt to state a claim for copyright infringement, the district court granted defendants’ motion to dismiss the second amended complaint, finding that the works were not substantially similar as a matter of law. Reasoning that the lack of substantial similarity was a defect that cannot be cured by an amended complaint, the court dismissed plaintiff’s claim with prejudice.
Although the court noted that plaintiff’s pleadings as to access were vague, in that it was unclear how plaintiff’s script was delivered to Mr. Cameron or why Mr. Cameron would read the script, the court decided the case solely on the basis of lack of substantial similarity. To compare the similarities of ideas and expressions in the two works, the court employed the Ninth Circuit’s “extrinsic test”—an objective test focused on articulable similarities between the expressive elements of plot, themes, dialogue, mood, setting, pace, characters and sequence of events.
Considering first the respective plots and sequence of events in the two works, the court found these to be substantially different. In Avatar, a paraplegic ex-marine takes a six-year journey to the moon Pandora, where he inhabits a genetically engineered avatar body, learns the customs of the indigenous tribe, falls in love with a member of the tribe and eventually chooses to defend the tribe against his employer. In contrast, Bats and Butterflies tells the story of a 13-year-old boy bullied by classmates, who is magically transported to a distant planet inhabited by bats and butterflies, where he helps the butterflies defeat the bats and helps a caterpillar princess mature into a queen butterfly. Plaintiff argued that the plots were similar because both involved alien lands, deaths of family members and battles between groups with competing interests. Reasoning that the extrinsic test looks beyond the vague abstracted ideas of a general plot idea and instead focuses on the objective details of the works, the court found that even though the two works overlap, the random similarities scattered throughout the works were unprotectible scenes a faire.
Next, the court found that the characters and dialogue were dissimilar as a matter of law because, for example, the similarities between a bullied teenager and a paraplegic war veteran were mere general themes or plot ideas, and the dialogue was similar in only random ways at best. With respect to themes and expressions of themes, the court found they were not substantially similar because Avatar directly conveyed themes of racism, genocide, imperialism and environmentalism, while Bats and Butterflies conveyed these themes only symbolically, if at all. Further, the court held that general similarities, such as saving the world or battles between good and evil, were not protectible.
Lastly, the court found that the mood, setting and pace were not substantially similar. Avatar was a three-hour movie involving a complex story of a conflicted protagonist that took place over a period of months, and many of its battle scenes took place roughly two-thirds of the way through the movie. In contrast, Bats and Butterflies was a children’s short story of a simple protagonist that involved fewer twists and turns, took place in days and quickly jumped into action.