Sally Yoon is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Russian theatres are turning to pirated films to stay alive during these trying times - and it may not be working. , some theatres in Russia have resorted to screening pirated movies to offset the Hollywood sanctions while others are practicing more caution by renting out spaces to show the films to certain individuals, with or without a fee.

Following the Russian invasion of Ukraine, Hollywood has protested by putting a halt to the release of films in Russian theatres. , going one step beyond its initial commitment to pause all future projects and acquisitions in the country, thereby putting an indefinite stop to the development of four Russian originals. Shortly after , marking the general suspension of the US film and TV business in Moscow. The harsh sanctions have particularly been interesting because . In fact, to ensure that their films would be released in Nazi Germany, Hollywood used from the credits during the 1940s.

Russians are avid cinemagoers and are particularly hard-hit by the sanctions. , Russia had the highest number of admissions in Europe – 145.7 million in 2021. Moreover, Russia’s cinema market seemed to also be bouncing back since the start of COVID. According to data from the International Union of Cinemas (UNIC), represented in the table below, Russia was one of the major territories that performed strongly in its recovery in cinema admissions. compared to 2020. , Paul Heth, CEO of Russia’s cinema operator Karo Group, predicted that they would achieve the near $1 billion box office receipts that they saw in 2019, this year. However, the current situation with Ukraine has prevented box office receipts from approaching anywhere close to those figures.

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So far, there seems to be no consequences for these illegal showings. In March, Russia in an effect to mitigate sanctions imposed by Western nations, thereby legalizing piracy of several entertainment forms, including films. , the Russian government has announced that its companies will no longer be required to pay patent holders from countries that have sanctioned the country for the use of intellectual property, effectively legalizing piracy throughout the country.

But despite efforts to keep the industry alive, the results have not been encouraging – compared to the same time last year. Moreover, the Association of Theatre Owners has that “at least half the movie theatres in Russia would go out of business in the next two months”. Russia is encountering further issues with screening costs, , there has been a sharp increase of about 80% in the cost of lamps and components for projectors, with an estimated 50% of the Russian cinema screens already dark because of the lack of films and equipment. For now, pirated films continue to keep the theatres dimly lit, but it might not be too long before the Russian cinema industry faces a total blackout.

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Booker Zhang is an IPilogue Writer and a 1L JD Candidate at the University of Manitoba.

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Imagine you are very interested in a three-hour movie that you do not have the time or patience to finish or a horror movie that you are too scared to watch. If a video condenses the film into short clips summarizing the plot, would you choose to watch the video instead? These movie recap videos have become extremely popular in China. While useful, they raise concerns of potential copyright infringement.

AmoGood, one of China’s most famous and influential movie recap bloggers, is well-known for his video series “Watching a Movie within X Minutes.” His on Bilibili, a popular Chinese video website, has over 2.42 million subscribers and 1400 videos. He has ��millions of likes on Facebook and YouTube. In 2017, AmoGood was involved in the first Chinese legal action against movie recap producers.

Five companies, including Walt Disney Company, Deltamac Co., Autoai Design Co., KKTV Co., and Garage Play, brought against AmoGood. They claimed that his videos infringed by using their movie clips without permission. , AmoGood argued that he used the materials for commentary, criticism, parody, news reporting, research, and scholarship, which do not require permission from rights holders. He also argued that his videos should not qualify as infringement as they are non-commercial (free to watch). After a two-year negotiation, AmoGood eventually reached an agreement with the plaintiffs. He released an official apology ��on his page in 2020 and compensated the claimed economic loss his videos caused.

Nevertheless, the lawsuit did not seem to deter AmoGood or other video bloggers of the same nature. AmoGood continues to make and post videos regularly. The market for this content has continued to grow, with an increasing number of creators uploading videos to YouTube and various video platforms. A Korean Youtuber began producing movie recaps in 2017 and has 1.84 million subscribers. His most popular video, explaining Gerald’s Game, has over 33 million views. The low cost and huge potential benefit of movie recaps are enticing.

Though national governments are attempting to address copyright risks, the internet goes beyond borders. The Chinese National Radio and Television Administration introduced a in 2018 to prevent illegal capture, cut, stitching, and adapting audio-visual programs. Japanese police three people for posting a 10-minute move recap on June 23, 2021. However, YouTube, the most popular video website worldwide, adopts a “” copyright policy that allows the reuse of copyright-protected material under certain circumstances without permission from the copyright owner. This ��policy generates difficulties when interfering with domestic intellectual property laws in different regions. It must also be applied on a case-by-case basis, making it impossible for YouTube to identify and eliminate each and every suspicious video.

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Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow,��and a 2L JD Candidate at��Osgoode��Hall Law School

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Turning Red, a animated movie set in Toronto and directed by Canadian filmmaker was initially set to be released in theatres on . However, due to the surge of COVID-19 cases, Disney has moved the film’s release online to their streaming service . Streaming services have provided a platform for safely watching films from the comfort of your own home. Yet financially, films released via streaming sites can generate starkly different revenues than releases in theatres. In July 2021, Disney encountered legal issues when Marvel moved the film release to Disney+. The leading actress, Scarlett Johansson, felt that her contract did not the film’s streaming site release. Her legal team claimed that this release changed the actress’ . However, with the rise in streaming and general reluctance to go to in-person theatres, are streaming services the best profit mechanism for filmmakers? What could be lost when films are released on home screens?

Is the theatre dead?

In Canada, movie theatre chain Cineplex has suffered extreme losses due to constant closure from the COVID-19 pandemic. Cineplex recently chose not to renew its lease for its large theatre in . Many people were upset not only at the loss of a family outing, but also at the loss of potential Canadian often presented in Cineplex theatres. Although streaming sites deliver movies instantly for viewers, these sites may further detriment movie theatres in your hometown.

Implications for studios and directors

The decline in movie theatre releases affects many local businesses and takes away community activity. On a practical note, however, these streaming service releases may be the only way for big studios to justify a big budget. For instance, Universal Studios was one of the first to try a streaming service release instead of theatre. In , Universal released “Trolls World Tour” as an on-demand purchase at $19.99. The film earned over $100 million in the US within . In contrast, the first “Trolls” film released in theatres in earned only $120 million over a five-month theatrical run.

Disney would certainly factor in this rapid profit-making capability for streaming services after witnessing a 75% spike in after Hamilton was released on . Disney not only makes a quick profit, but streaming releases also promote Disney’s platform, allowing the company to earn additional revenue from Disney+ memberships. If Disney’s primary goal is revenue for every film release, streaming service releases seem to be the more profitable in a pandemic. ��

Domee Shi sets the film Turning Red in as an homage to her hometown. She explicitly wanted to highlight her life in Canada and Toronto’s diverse culture and scenery . As Canadian VP of Walt Disney Studios notes, “Turning Red is truly a love letter to Toronto and Canada.” With Korean-Canadian Hollywood Star as a lead voice actor in the film, Turning Red is intended to showcase all Canada has to offer in the arts. Unfortunately, the movie will not be released in any local Toronto theatres. The celebration of the film’s release and Toronto’s vibrant culture will be contained to our home screens.

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Source: Screenshot of Night of the Living Dead (1968) opening credit / Public Domain

Natalie Bravo is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

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Halloween season is just around the corner and who doesn’t love a good zombie movie? While many might rather shy away from frightening films, dedicated modern-day zombie enthusiasts live among us. The multi-billion-dollar zombie craze in horror today was popularized by George A. Romero’s Night of the Living Dead, an independent film released in 1968. The film curiously entered the public domain due to a slight error, allowing widespread accessibility and reproduction. The film made over , with the creators seeing little to no share of the profits. The release, paired with the copyright error, changed the horror movie genre and the independent film industry forever.

At the time of the film’s theatrical release, the US required notice to maintain enforceable federal copyright protection. The original distributor, The Walter Reade Organization (WRO) from Night of the Flesh Eaters to avoid confusion with the 1964 film . In doing so, WRO accidentally failed to add the copyright indicator (©) onto the prints. The symbol was not in the opening credits of the movie, the image above - that’s it. Imagine that! Without the symbol and the year of publication, the law specified that you lost copyright and the work enters the public domain forever. While a first print with the original name included the symbol, it was lost in a . Romero later attempted to sue the original distributor who made the error, but the organization declared bankruptcy in the 70s and dissolved. Today, copyright notices are no longer required thanks to the (US); sadly for Romero though, the act does not extend protections to his 1968 film.

Due to the oversight, anyone could copy and distribute the film for free. Hundreds of copies of the film were manufactured in different formats, ranging from VHS, Betamax, LaserDisc, DVD, and Blu-ray throughout the years. (A lifelong Living Dead fanatic and collector, Geoff Turner, has created a project called , in an effort to catalogue all of the releases of the film. Over a hundred fans donated almost $20,000 in a campaign to assist Turner. He even has checklists available for download on his webpage for those with the spirit and the storage!)

Before Night of the Living Dead, zombies were – they were typically only seen in Caribbean folklore, and not portrayed in the way they are today. Romero’s film created a , a re-imagined, brain-eating, re-animated corpse who could be quite literally anyone unlucky enough to be bitten. Romero’s specific traits and rules associated with his zombie characters that have lived on through the years. The film’s entry into the public domain allowed it to be licensed free of charge to any distributor. It also allowed non-affiliated remakes and sequels to follow. Romero could not own the copyright in his specific zombie caricatures due to the mistake, and therefore could not stop anyone from including the same interpretation in their own films. The Walking Dead, Game of Thrones, Zombieland, and many more could not exist in the same way today – or would have had to be licensed by Romero, had the distributor correctly added copyright notice. and would have been completely free to do so, without having to pay Romero anything.

While Romero and his team expressed regret at the error, they subsequently agreed that the mistake allowed them to garner popularity and recognition. In a , Romero stated “But that film really gave us our careers. I have no complaints.” The filmmaker passed away in 2017, but not before creating official zombie sequels and . Suffice to say, public domain means the zombie genre refuses to die. If interested, check out Night of the Living Dead for on most streaming platforms, or the .

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Prof. David Vaver is the Acting Director of IP Osgoode and a Professor of Intellectual Property Law at Osgoode Hall Law School. The following is a preview of a paper to be published in the Intellectual Property Journal.

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Something has recently gone awry with the law of copyright ownership in a movie or other film — a “cinematographic work”, as s. 2 of the [Act] calls it. ��

Part I of the Act deals with the ownership of copyright in works. Section 13(1) provides that the author of a work is its first copyright owner. Section 13(2) provides one exception: where the work is done by an author-employee for their employer as part of their job and there is no contrary agreement. All this applies to cinematographic works, a species of dramatic work, as the Quebec courts recently confirmed: at [12], aff’ing at [51]-[2] [Choko]. A copyright owner may of course transfer the right as it wishes (s. 13(4)); but apart from another exception on Crown works (s. 12), these provisions in s. 13 are the only ones that deal with the ownership of copyright in works. Another section in Part II of the Act (s. 24) deals with first ownership of copyright in subject-matter other than works: performer’s performances, sound recordings, and communication signals.

Owning copyright is one thing; proving ownership is another. Section 34.1(1) of the Act helps plaintiffs out by giving them certain presumptions if they sue for infringement or take other civil proceedings. The section reads (emphasis added):

"In any civil proceedings taken under this Act in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff to it,

(a)��copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and

(b)��the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright."

At first sight, the words in (a) — “work, performer’s performance, sound recording or communication signal” — appear to be paired with those in (b), in the same order, to mean “author [of a work], performer [of a performer’s performance], maker [of a sound recording], or broadcaster [of a communication signal]”. It would seem unnatural, for example, to read “maker” as referring to both a “sound recording” and a “work”. That however overlooks the fact that s. 2 of the Act defines “maker” as referring to both a work and a sound recording.

Does that definition apply here so as to disturb the apparent pattern of paras. (a) and (b)? Or do the words in context make s. 2 inapplicable? I suggest that they indeed do disapply s. 2 for cinematographic works and that, in context, “maker” in para. (b) means only the maker of the sound recording referred to in para. (a).

Not everyone thinks so — in particular, some judges of the Federal Court.

*

Section 34.1(1) is supposed to make a plaintiff’s life easier in starting and running a copyright claim in court. It neither creates presumptions outside civil proceedings nor creates, transfers, or changes anyone’s actual title, and any proceeds recovered from a defendant are held for the benefit of the true owner: see Hogg v Toye & Co [1935] Ch 497, 520 (CA) on the corresponding provision in the (UK) on which the Canadian section is based. If any presumption happens to be displaced by contrary evidence, the proceedings can be amended and other parties joined so that defendants are not put in double jeopardy.

The presumption was applied straightforwardly in Choko (above). The plaintiff claimed a declaration of copyright ownership in a documentary he had shot for the defendant, while the defendant counter-claimed that the copyright belonged to the defendant as the plaintiff’s employer. The court applied s. 34.1(1)(b) to presume ownership in the plaintiff, he being the “author” of the “work” (Choko, QCCS at [55]). The defendant lost at trial and on appeal because he failed to prove the contrary, i.e., that he employed the plaintiff under a contract of employment (Choko, QCCA at [13]).

The Federal Court of Canada has, however, in at least three decisions said that s. 34.1(1)(b) presumes that the film’s “maker” is the copyright owner of the “work” unless the contrary is proved: see at [24]-[6]; at [32]; at [47]. The ultimate result in these cases may be justifiable: agreement or employment may have given the plaintiff actual ownership in Interbox (see [24] & [26]-[8] of the decision); ownership was “uncontested” in CBC (see [36] of the decision); and certificates of registration would have shifted the presumption of ownership to the plaintiffs in Bell (see [53] of the decision).

Interbox nonetheless does appear to be a decision on the s. 34.1(1)(b) point and was treated as such in CBC at [32]. ��

The correct view however seems to be that, read in context, “maker” in s. 34.1(1)(b) refers only to the maker of a sound recording. Were it to include the maker of a cinematographic work, s. 34.1(1)(b) would be the only provision in the entire Act where "maker" alone bore this meaning. It would also make s. 34.1(1)(b) create two inconsistent presumptions on ownership of the same work, with no way to decide which should prevail. Suppose an “author” and “maker” of a film sue each other, each claiming to be the copyright owner: whose duelling presumption should prevail? To call the result a stalemate would stultify the point of having presumptions at all and would anyway probably be contrary to art. 15(1) of the [Berne], which requires the author to prevail if their name appears on the work in the usual manner.

The problem is that, although “author” and “maker” can mean much the same thing in ordinary parlance, they do not in copyright law. The Act does not define “author” but judicial decisions identify this person as the individual or individuals who give a work’s ideas their original form or expression ( (NBCA)) — a question of fact in each case. Authorship is established easily enough for the video shot on someone’s smartphone; less so for a complex production such as Star Wars, which could involve multiple authorship or the director as sole auteur, the individual responsible for translating the work’s vision into its final expression.

By contrast, “maker”��—��producteur��in the French version —��has a definition in s. 2 of the��Act��that spans both cinematographic works and sound recordings. For a cinematographic work, the “maker” is��“the person by whom the arrangements necessary for the making of the work are undertaken”; for a sound recording the same formula applies to the first fixation of sounds.����

In cases like��Choko��(above) which involved a single individual shooting and editing a film, the same person may coincidentally be both maker and author: the two roles are easily enough mistakenly conflated (see, e.g.,�� at [156]-[7], appeal dismissed 2021 ONCA 532 for non-compliance with order to post security). In many major commercial films, however, the maker and author��—producteur��and��auteur��—��will be different persons, particularly because the maker may be a corporation whereas an author must be a natural person, i.e., a flesh-and-blood human being:��,��234 [Massie].��

One might ask: if “maker” in s. 34.1(1)(b) really applies only to sound recordings, what is the point of having a definition of “maker” of a cinematographic work at all? The answer: to allow Canada to comply with Berne article 4 and ensure that films are protected in Canada even where none of the authors is a Berne national or resident, no matter who owns the work’s copyright. This s. 5(1)(b)(i) of the Act achieves (see Bell, above, at [47]) and also extends protection to other states as required by treaties such as the of 1994. The relevant part of s. 5 reads: ��

"5.(1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:

���������������������� …

(b) in the case of a cinematographic work, whether published or unpublished, the maker, at the date of the making of the cinematographic work,

(i)��if a corporation, had its headquarters in a treaty country, or

(ii) if a natural person, was a citizen or subject of, or a person ordinarily resident in, a treaty country [emphasis added]."

Section ��34.1(2)(c) reinforces this provision, as Berne art. 15(2) requires, by providing that “if, on a cinematographic work, a name purporting to be that of the maker of the cinematographic work appears in the usual manner, the person so named shall, unless the contrary is proved, be presumed to be the maker of the cinematographic work” — note, not the “copyright owner”, an error made in Wiseau (above) ONSC at [156], although the court ultimately found the person who wrote, acted in, and produced the film to be its “author” and at least a co-owner (ibid at [157]).

Sections 5(1)(b)(i) and 34.1 (2)(c) are the only provisions to which the definition of “maker” of a cinematographic work applies. Had the drafters integrated the contents of s. 34.1(2)(c) into s. 5(1), as they could easily have done, the definition of “maker of a cinematographic work” could also have been shifted from s. 2 to s. 5(1). The mischief its location in s. 2 causes would have disappeared. Such are the potential effects of drafting decisions that are thought to be stylistic but which others misunderstand as having a substantive effect.

Let us examine more closely why s. 34.1(1)(b), in context, cannot include the maker of a cinematographic work. Admittedly, s. 2 could make it include that person — which raises the question: had the drafters intended to confine “maker” to sound recordings, why did they not just add the phrase “of a sound recording”? The answer is because, in the context of section 34.1 and the Act as a whole, the drafting in this respect is often elliptical, and the drafters here thought that meaning was already implied.

The drafters used a similar ellipsis in the next subsection, s. 31.1(2), where the word “maker” in the phrase “author, performer, maker or broadcaster” in the concluding portion of s. 31.1(2)(a), and in s. 31(2)(b)(i) and (ii), clearly means the “maker of the sound recording” specifically mentioned earlier in s. 31.1(2)(a)(iii).

They also used the same ellipsis elsewhere in the Act. Thus s. 29.21(1)(b) requires the creator of user-generated content to name their available source if they are to avoid infringement. The source is stated to be “the author, performer, maker or broadcaster” of the prior “work or other subject-matter.” “Other subject-matter” is the shorthand used throughout the Act for a performer’s performance, sound recording, or communication signal, and the preceding section (s. 29.2(b)(iii)) again makes it clear that the “maker” referred to is the “maker of a sound recording”.

The fact is that the words found in s. 34.1(1)(a) “work, performer’s performance, sound recording or communication signal” in either their singular or plural form appear as a set throughout the Act and are typically linked distributively to the set of persons the Act designates as their respective first owners: “author, performer, maker of a sound recording, or broadcaster” (see, e.g., s. 2, definition of “collective society”). Thus s. 13(1) designates the author as first owner of a work and sections 24(a), 24(b), and 24(c) respectively — and significantly, in the same order — designate the performer, maker of a sound recording, and broadcaster as first owner of their respective subject-matter.

The maker of a cinematographic work would be the odd one out in s. 34.1(1)(b), for the provision otherwise designates the presumption only in favour of first owners. Nothing in the Act, other than employment, contradicts s. 13(1)’s grant of first ownership to the work’s author. The Act nowhere suggests that the maker of a film displaces the author as first owner. Nor does the Act bridge the gap between “maker” and “author” the way UK law does by deeming a film’s author to be its maker — or “producer,” as UK law has it—together with the principal director ( (UK), s. 9(2)(ab)). Although Canadian and UK ownership rules may differ, both are internationally compliant: Berne art. 14^bis(2)(a) allows member states to decide ownership rules for films for themselves since the states had widely disparate views on the matter and no agreed position could be struck at Berne.

It is equally noteworthy that the maker of a cinematographic work is omitted from the list of persons whose interests may be recorded on the Copyright Register — namely, “authors, performers, makers of sound recordings, broadcasters, owners of copyright, assignees of copyright, and persons to whom an interest in copyright has been granted by licence” (s. 54(1)(b)). All these categories are persons whom the Act designates as first or later owners of copyright or an interest in copyright. The omission of the maker of a cinematographic work as such — nowhere designated as a category of owner or holder of an interest — is striking were it is indeed presumed to be an owner for civil proceedings. ��

In general, it makes sense when civil proceedings are brought, to start with a presumption that the person the Act designates as the first owner of any copyright is still its owner unless someone proves the contrary. It generally makes no sense to start with a presumption that a person that the Act nowhere designates as such as first or any owner should currently be presumed the owner. The only exception is where material is anonymous or pseudonymous: for reasons of privacy, s. 34.1(2)(b) provides that the publisher whose name appears on a work is presumed to be its owner — even though the publisher is likely not the first owner and, as Berne article 15(3) states, is really only “deemed to represent the author” to vindicate the latter’ s rights.

None of this will come as any surprise to corporate broadcasters and film producers. They have known for decades that they cannot rely on the presumption in s. 34.1(1)(b) favouring a film’s “author” since in Canada, as noted earlier, the term “author” is reserved for flesh-and-blood human beings: Massie (above) at 234. They have also known for decades of the “intolerably heavy” burden and “serious handicap” the author/ownership presumption imposes on them or any other plaintiff who happens not to be the author: , 605. They also have known for decades of the cheap and effective way to overcome this burden and handicap, as endorsed by Circle Film, itself a case on cinematographic works: before filing infringement proceedings, just spend the $50 and the few minutes it takes to apply online to register the film’s copyright with the Canadian Intellectual Property Office, and get a certificate of registration stating one’s copyright ownership. Registration then provides all the contrary proof needed for the registrant to rebut the author/owner presumption (Act, s. 53(2); Circle Film, at 606-7). That is why no practical need has existed to amend the law to include a presumption of ownership in favour of the maker of a cinematographic work. Registrations can go where presumptions fail to tread.

It is therefore hard to understand why s. 34.1(1) has been pressed into doubtful service where clear and simple alternative means of initially establishing copyright subsistence and title for film “makers” so readily exist. The sooner the Federal Court clears the matter up, the better.

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Meena Alnajar is an IPilogue Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School.

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American actress Scarlett Johansson, known for playing the Black Widow in Disney & Marvel’s The Avengers franchise, took action against Disney on July 30, 2021 for an alleged breach of contract involving the recent Black Widow film’s distribution. According to , Johansson’s contract read that Black Widow would be guaranteed a ‘wide release’, meaning that “the film would be shown .” The caveat here in the streaming service age is the term ‘screens.’ Johansson’s legal team argues that ‘screens’ means movie theatre screens exclusively. This implies a theatrical release, where a . Disney countered the argument, stating that Black Widow received a theatrical release, but that this release does not imply an exclusive release to theatres only. As such, Disney was within their rights to simultaneously launch the film on their streaming service, Disney Plus.

Experts argue that this may be a case of ambiguity with the phrase ‘wide release.’ In contract law, ambiguity is addressed in several ways. Absent fraud or misrepresentation, the court may choose to examine —verbal agreements made between parties, usually in the negotiation stage. Johansson’s legal team stated that they between them and Marvel’s Chief Counsel, Dave Galluzzi. In the email, the studio attorney promised a release “like our other pictures” and that if plans should change, they would be “discussed with [Johansson’s legal team].” Further, even without the email, courts generally resolve ambiguity , which in this case is . Therefore, Johansson is likely to win in court.

On August 21, 2021 Disney responded to Johansson’s suit with a motion to move the suit to . Arbitration is a method of whereby parties choose a sole arbitrator and venue of arbitration to settle a dispute. The arbitrator’s ruling is . Hollywood dispute lawyer would make this move back in July. Moving this issue to arbitration helps and contract drafting out of the public eye and protects their public image from damage. But Disney’s representatives counter this view, stating that they simply wish that was agreed upon between both parties to the contract. Disney also argues that the company made good on its contract by displaying the movie on .

Additionally, instead of coming after Marvel, as the party involved in the contract, Johansson’s team is pushing for a public suit against the parent company Disney. Disney suggests that Johansson is participating in “gamesmanship” by making Johansson’s compensation Disney’s responsibility, rather than carrying out the dispute in arbitration with Marvel. is a dubious technique where lawyers create additional expense or agitate the other side to put them in a tough position where they must either settle or abandon the case. Since arbitration is often dispute resolution than a public lawsuit, Johansson’s team may indeed be partaking in gamesmanship with the constant push for a public lawsuit.

Whether the parties decide to settle the dispute confidentially or publicly, this contractual disagreement emphasizes the new contractual landscape for actors and production companies. With the rise in streaming services and decline of theatre capacity during the COVID-19 pandemic, movie production companies should work to be more explicit in their compensation plans and in their definition of ‘wide release.’ 30,000 movie theatre screens versus 30,000 users on Disney Plus can make millions of dollars of a difference.

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Looks Like the Cabin May Have Been Double-Booked for the Weekend

In the , Gallagher alleges that Whedon and co-writer and director Andrew Goddard took the idea for their successful horror movie ��from Gallagher's 2006 novel entitled The (filed in the U.S. District Court, Central District of California – Western Division) names Whedon and Goddard as defendants along with Whedon's production company Mutant Enemy Productions, and Lions Gate Entertainment. Gallagher's claim (which can be read in full ) explains the ways in which his novel and the movie are similar, including shared plots, themes, and even characters.

For example, Gallagher states: "Like the Book, Cabin in the Woods tells the story of five friends (three guys and two girls) between the ages of 17 and 22 who take a trip to a remote cabin in the woods…In the end, it is revealed that the friends are being filmed and manipulated by persons behind the scenes, thus becoming inadvertent characters in a real-life horror show for the enjoyment of others." He noted that: "Even the names of the lead characters are similar. The name of the lead blonde in the Book is Julie and in the Film it is Jules. Similarly the name of the lead brunette in the Book is Dura and in the Film it is 'Dana'…The cabin in the book is referred to as the 'Brinkley Cabin' and in the film it is the 'Buckner Cabin.'" Gallagher includes a detailed list (beginning on page 11) comparing similar elements of the two works side-by-side. When paired with descriptions like those noted above, the list is admittedly quite convincing in favour of his claim.

Additionally, Gallagher provides evidence demonstrating Whedon and Goddard would have had access to the book prior to creating their film. The evidence references the popularity of his book and the location in which the novel was marketed and distributed: Los Angeles neighbourhoods in close proximity to the defendants' residences and business operations.

But Might Gallagher Emerge from the Woods Successful?

The American test for copyright infringement is described in That case established that infringement occurs upon proof of two elements: [1] ownership of a valid copyright; and, [2] copying of constituent elements of the work that are original. As the copyright holder of his novel, and considering the substantial evidence suggesting substantial similarities between the works, it would seem��at first glance that Gallagher has the law on his side (note: a brief analysis of the infringement claim was done by IP law blogger Inayat Chaudhry ).

However, Gallagher's seemingly strong claim, based on the evident similarities between the works ("Julie" and "Jules" are not exactly miles apart), may not be as strong when applied to more rigorous legal review. Commentators have rightly that copyright laws do not protect ideas, facts, or "material traceable to timeless themes." As such, pure copying is not infringement; there must be copying of protectable (original) material. This principle will be significant if the case is litigated. Gallagher's claim admits that both works employ "a self-referential awareness of classic horror movie tropes." Attorney and blogger highlights that many of the shared clichés between the novel and movie are those "which the Scream franchise has milked for laughs over the years." Michelen concludes that Whedon's legal team will "likely argue that at best the plaintiff can prove that they are similarities but they are not substantial, and that both of them used age-old teen horror movie plot devices to move their works along."

Consequently, it appears the case will turn on the facts – are the shared elements so substantially similar that it will be impossible for the defendants to argue they are are the result of pure coincidence, and found in the realm of classic scary story-telling? In my opinion, this is not an easy case. The evidence in the complaint weighs in favour of Gallagher, but the principles of copyright law sway towards Whedon. Nonetheless, in his complaint Gallagher has demanded a jury trial. It is likely that the layperson sitting in a courtroom would see the list of similarities, the timeline of the pieces, and the evidence regarding the availability and accessibility of the novel to Whedon and Goddard and conclude that unlawful copying occurred. I would not be surprised if the powerhouses of Whedon, Goddard, and Lions Gate met with Gallagher (perhaps in a cabin) and settled this matter quietly and without the costs of litigation. Until then, I suspect Whedon will not be taking any backwoods vacations for the next little while.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.��

The post A Shared Cabin in the Woods? Joss Whedon Hit with $10 Million Dollar Copyright Infringement Lawsuit appeared first on IPOsgoode.

Since the Quicksilver��character came into being in the��Uncanny X-Men��comics, but became a member of��The Avengers��in 1965, each upcoming summer sequel (X-men��produced by 20th Century Fox and��Avengers��produced by Marvel Studios) will feature a different actor playing dissimilar versions of Quicksilver on the silver screen with likely disparate back stories and characterizations.

Researching the Marvel Cinematic Universe reveals an interesting occurrence – commonly called����– which pertains to trade-mark, copyright and licensing issues surrounding Marvel Studios’ creative assets and intellectual property. This ��in��a 1993��licence agreement��is the source of the division of various intellectual properties between Marvel and Fox.

Twentieth Century Fox Film Corp v Marvel: A��Rip-Off Use of Fox’s Mutants by Marvel?

Between the late 1970s and the early 90s, Marvel��licensed-out the names and likenesses of��many of��its superheroes.��This trade-mark strategy enabled Marvel to distribute its comic-book characters across multiple media formats – including film, television, and video games. One of these licensees was Twentieth Century Fox Film Corp (Fox), which acquired certain rights from Marvel in the X-Men comic book series such that they could produce theatrical motion pictures. Fox painstakingly developed its��X-Men��film franchise, finally releasing the first live-action installment in 2000. It was an instant success, both critically and financially, but led to litigation primarily centered on the following key contractual clauses of the 1993��between Fox and Marvel:

“The ‘X-Men’ comic book series, referred to in the [1993] Agreement as the ‘Property’, includes the X-Men Characters, specifically the ‘core’ Characters and the Characters of the ‘X-Universe’; their origin stories; storylines from individual comic books; and ‘all other elements relating to the Property and the Characters’. The rights granted to Fox included ‘the right to use the title (or subtitle or portion of the title) of the Property or any component of the Property as the title of any Picture or related exploitation’. The Agreement reserved all television rights to Marvel, subject to a proviso, critical to Fox’s pending contract claim, that Marvel would not ‘produce, distribute or exploit or authorize the production, distribution or exploitation of any live-action motion picture’ without Fox’s consent (the ‘Freeze’)”.

This provision proved problematic mostly because Marvel then made a��Mutant X��live-action television series and released it one year later in 2001. Fox complained of infringement of its exclusive rights to develop��X-Men,��and essentially claimed that��these “hour-long episodes of movies made for TV” were so substantially similar that “Mutant X [became] a��” of the X-men film. However, Fox’s efforts proved unfruitful – both at the and levels – which ultimately allowed��Mutant X��to go forward until 2004.��At this point,��the parties ��signed a��confidential��settlement��agreement to resolve the dispute. Nonetheless, a key contractual term can be inferred, largely based on subsequent developments in the following years such as the establishment of the mutant-less Marvel Cinematic Universe in 2006.

It is reasonable to presume that the agreement requires Marvel to abstain from using mutant characters in either film, or television. This is likely what has led to a bifurcation of the Quicksilver character into a mutant character in X-Men, and a non-mutant variety that will likely appear in The Avengers.

Can Marvel Studios Ever Get All Their IP Rights Back?

Now that Fox has the rights to X-Men mutants, it has been reported that they��are keen to��hold onto the source of��a lucrative revenue stream:

“Word on the street is Fox has made it very clear that they will not let go of any of the properties under their control for any live action medium. We’ve also been told that if it ever came to the point where they were going to lose any property they own because of failing to have a movie in production, they would simply produce a low budget, straight-to-DVD feature and stick it in any theater to fulfill their theatrical release clause…”.

The one avenue for Marvel to reacquire their IP rights, and what is alluded to in the quote above, is what is known as a theatrical release clause. This clause is included in Marvel’s contracts, and has been public knowledge since the��. In that dispute, it was revealed that the rights to��X-Men��would revert back to Marvel if Fox failed to film sequels by contractually-set control dates.

Over the years, the reversion of other character IP rights back to Marvel have shown this specific clause appears in most, if not all, of the company’s confidential licensing agreements. Furthermore, past experiences show this is also the primary means by which Marvel can claw back some of its desired film rights in the��future. For instance, after New Line Cinema spent several years unsuccessfully developing��Iron Man, the rights����back to Marvel in 2005 and the character’s use in his own film trilogy as well as��The Avengers��was thus made possible. Similarly, when Universal Studios failed to initiate principal photography of a��Hulk��sequel and make significant payments towards filming by a specified date in 2006, the rights also����back and made the Hulk available for use in��The Incredible Hulk,��The Avengers,��and at least five other films.

Other than the theatrical release clause, Marvel’s primary contractual protection in the case of licensed-out characters concerns its right to define the logistics of the licensee’s film production plans. In the 2002��X-Men��dispute, the following��was also revealed to exist which requires that Marvel must approve:

“(i) the “fundamental elements” of the story, namely the basic storyline, character integrity, living habitat, and conformity with the so-called “X-Men Handbook” written by Marvel; (ii) the screenplay, to the extent it substantially alters a fundamental element; (iii) costumes; (iv) the photography of scenes, to the extent it substantially alters a fundamental element; and (v) the content of director’s cuts, to the extent it substantially alters a fundamental element.”

However, even without these contractual provisions, it should be noted that Marvel is still financially protected to some extent by its trade-mark strategy should it ultimately be unable to regain control of its characters’ film rights in the future. Over the years, Marvel’s merchandising reach has been shown to have few limits, as it can include anything ranging from perfume to toys and luxury cars to clothing. Indeed, protecting the names and likenesses of its characters has allowed Marvel to significantly profit from film-related merchandise sales even when the film (produced by another studio) itself disappointed at the box office. This was the case with Ang Lee’s 2003 Hulk film where costumes and role-play toys like “Hulk Hands” became valued at $100 million.

Conclusion

So when you're checking out X-Men: Days of Future Past and Avengers: Age of Ultron and Quicksilver doesn't seem to look quite the same - don't worry! There's nothing wrong with your eyes or 3D glasses, it's simply uncanny intellectual property rights dealings at play. If you're seeing��double��in the coming years, don’t think your eyes have mutated, its only��strange licensing agreements that��have created parallel universes for our beloved characters.

Harjot Atwal is an IPilogue Editor and recent graduate of the JD program at Osgoode Hall Law School.

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