On September 14, 2011, acclaimed science fiction writer Harlan Ellison filed a copyright infringement lawsuit against Regency Productions alleging infringement of his copyright by the soon-to-be-released film In Time starring Justin Timberlake.  Ellison previously filed a similar action against Orion Pictures asserting that the 1984 film Terminator directed by James Cameron infringed his copyright in an episode called Soldier written by Ellison for the series The Outer Limits.  That case ended in a settlement where Orion Pictures agreed to give Ellison credit in future copies of the work and to pay an undisclosed amount to Ellison.

The film In Time is set in a dystopian future controlled by corporate conglomerates where citizens are allotted a specific amount of time to live. A person’s remaining amount of time is displayed by an illuminated clock on the person’s arm.  At age 25, a person stops aging but has only one year to live, unless the person earns or inherits additional time.  The rich typically have many years to live, while the poor have only days or hours.  The film’s protagonist rebels against and is pursed by the authoritarian regime.

Ellison claims that In Time is similar to a short story written he wrote in 1965 titled “Repent Harlequin!” Said the Ticktockman.  In support of his claim, Ellison points to a statement made in a movie preview by film critic Richard Roeper that “In Time is based on a brilliant story by the great Harlan Ellison…”  Indeed, the two works have many similarities including:

  • Both works are set in a dystopian future where citizens are allotted an amount of time to live by an authoritarian regime.
  • In both works, the remaining amount of time a person has to live is displayed in some fashion.
  • In both works, a government entity called a Timekeeper tracks the amount of time each person has to live and uses an implanted device to stop the person’s heart when his/her time expires.
  • In both works, the government can manipulate a person’s remaining time to punish citizens for breaking rules of society and to enforce conformity to its rules.  For example, a person can be punished for being tardy to work by having a commensurate amount of time deducted from the person’s remaining time.
  • In both works, the protagonist rebels against the regime and is pursued by government agents.

While there are many parallels between the two works, enough apparently to confuse film critics, it is not certain that the similarities will be enough to sustain the claim for copyright infringement.  This case highlights an important principal of copyright law known as the idea/expression dichotomy.  Copyright protection for a work does not extend to ideas contained in the work, but only to the author’s particular expression of the ideas.  Common themes and customary treatments of a topic, known as scènes à faire, fall into the category of unprotected ideas.  It is permissible to copy ideas from a protected works so long as the copying does not appropriate the protected expression in the prior work.  Thus, if the similarities between the two works relate to ideas rather than to protected expression, the copying does not constitute copyright infringement

The underlying premise in the two works of a dystopian future in which an authoritarian regime allots its citizens a specific amount of time to live appears in other works (e.g., Logans’s Run) and is an unprotectible idea.  Elements such as a timekeeper to track a person’s time to live, and a display for displaying the time to live, follow naturally from the starting premise and probably constitute scènes à faire.  Likewise, the rebellion of the protagonist against the authoritarian regime is a standard element in stories about dystopian futures (e.g., 1984).  On the other hand, some elements in the works, such as the use of an implanted device to stop a person’s heart and the manipulation of a person’s time to live by the government to enforce conformity and punish wrongdoers, do not necessarily follow from the starting premise.  A court could find that these elements cross the line from unprotectible idea to protected expression.  As the case proceeds, other similarities could emerge.

Given the past success of Ellison in his earlier dispute with Orion Pictures and the large stakes in this case, it appears likely that the parties will reach some settlement before a court is given a chance to rule on the question whether the movie In Time borrowed too heavily from Ellison’s work.  If a settlement is not reached, time could be running out on Regency Productions.