One of my favorite television shows, Six Feet Under (HBO), has survived a copyright challenge by a woman who claimed the series infringed her murder mystery idea for “Funk Parlor.” She wrote a screenplay and sent it to HBO’s president for original programming. “Funk Parlor” (an early candidate for “worst title ever”) centered on the Funks, a family who runs a funeral parlor in Connecticut. When Gwen O’Donnell, Funk’s creator, saw HBO’s series about the Fishers, a family who runs a funeral parlor in Los Angeles, she was incensed, and sued.
She lost, on summary judgment, at the district court (trial) level, and her defeat was affirmed by the Ninth Circuit Court of Appeals. There are two interesting points about the case. First, the court rejects O’Donnell’s attempt to use the classic “sliding scale” between access and similarity to bolster her position. Traditionally, copyright doctrine holds that if an alleged infringer has more access to a copyrighted work – say, George Harrison hears the song “He’s So Fine” and unconsciously adapts it as “My Sweet Lord” – then the defendant doesn’t have to prove as much copying or similarity to show infringement. However, the Ninth Circuit found that the admittedly significant access that HBO had to “Funk Parlor” didn’t help O’Donnell, because there simply wasn’t enough similarity between “Six Feet Under” and the Parlor.
This brings up the second neat point: it’s possible to borrow a lot of elements from another work and still avoid infringement. Both shows involved family-run funeral parlors where the father dies and an estranged brother returns home to run, and save, the business. However, the specifics of how the two works adapted and implemented these plot elements diverged widely, and this prevented “Six Feet Under” from infringing. This is the classics “scenes a faire” doctrine from copyright: you’re welcome to write a novel about magical teenagers studying at a hidden school in Britain, and it’s only when you start giving the protagonist a lightning-shaped scar on his forehead and a talent for soccer on brooms that you’re treading close to Harry Potter. In short, common plot elements can’t be protected by copyright; it’s only the specific details of one’s creative expression that are guarded.
This case explains why movie and television studios typically reject – in fact, go out of their way to avoid – unsolicited scripts. The alternative is to be sued when your movie about a cuddly alien seems similar to a frustrated author’s failed script. (Law geeks, see Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984).) Moreover, this case is probably good for society overall – it gives us a lot of room to engage in our own creative expression without treading on each other’s copyrights.