(...and other terrible “Frozen” legal puns brought on by Wilson v. Disney)
This isn’t the first time in forever that Disney has been at the center of a copyright dispute.
And Wilson v. Walt Disney Co., 3:14-cv-01441-NC, isn’t likely to get much further than a settlement between the parties. But the complaint filed by the plaintiff last month does illustrate an interesting problem in copyrights – how do you go after a solid-looking infringement claim that has little chance at recovering damages?
Wilson is the creator of an animated short film entitled “The Snowman,” released in 2010. The four-minute film, which is readily available on the internet, introduces a hapless living snowman who loses his carrot nose, which slides to the middle of a frozen pond and attracts the notice of a group of rabbits. Snowman and rabbits try to get across the pond from opposite sides, but find it too slippery to get across easily. Each side gets creative in trying to navigate the ice, with the Snowman ultimately winning the race. The losing rabbit, however, cracks the ice and falls into the chilling water; the Snowman rescues him with the carrot and the rabbit, safely out, ends up with the carrot in his mouth. In a final gesture of good will, the rabbit returns the carrot to the Snowman.
Wilson entered her film into several animated film competitions and festivals, some of which were also attended by Pixar employees. Wilson apparently knew they were from Pixar because they too had entered films in the competition and got up to discuss their entries with other film-goers. Wilson also submitted the film as part of four different job applications between 2009 and 2012 to Disney. It doesn’t appear that Disney wanted to hire her.
In 2013, Disney began releasing teaser trailers for its upcoming blockbuster “Frozen,” also now widely available on the internet. One trailer gave audiences a preview of two of the film’s sidekick characters, a magically living snowman (Olaf) and a carrot-mad reindeer (Sven), in a short comedic vignette. The snowman takes a sniff of an early budding flower in the snow, and sneezes his carrot nose off. It lands in the middle of a frozen pond, attracting the notice of the reindeer. Neither of the two being agile enough to easily get to the carrot, each gets creative in navigating the pond. They get to the carrot at the same time, and in struggling for it, it flies back into a snow bank. The reindeer races to get it ahead of the snowman, but finally the reindeer returns the carrot to the snowman in a gesture of friendship.
Sound familiar? Watching the two films side by side, it’s hard to deny the similarities. There are clearly plenty of differing details between the two, but repeated viewing strongly hints that Disney has done more than copying an idea and crossed into the gray area between idea and expression. If Wilson’s allegations regarding Pixar and Disney having seen her work are true, she may have a solid case. The “substantially similar” inquiry for copyright infringement weighs several factors to determine whether infringement has occurred, and whether or not the accused infringer has seen or was aware of the copyright owner’s work can be a decisive factor in many cases.
The problem for Wilson is that virtually none of Disney’s trailer is actually part of “Frozen.” This trailer, like many others that Pixar and Disney have made for their films, is designed to introduce the film’s concept and a few characters without actually disclosing any part of the film itself. Olaf and Sven, of course, are characters in the film, and the setting of the trailer suggests the frozen setting of the full movie, but the trailer doesn’t actually depict any part of “Frozen” the feature film. There would thus appear to be no elements copied from “The Snowman” into “Frozen.” Yet it’s “Frozen” that made money for Disney, not a teaser trailer. Hence the problem for Wilson – even if she can win over a jury on the infringement claim, what damages can she demonstrate resulted from the infringement?
Wilson’s solution is to get a hook into “Frozen” through Olaf the snowman. Wilson alleges not only that Disney copied the essential story elements of “The Snowman” into its trailer, but that Olaf himself is copied from her speechless and nameless snowman, and therefore “Frozen,” as well as all other trailers Disney made for the film, infringe on her short film. The complaint goes to great lengths to compare the two characters in broad terms, conceding only that Olaf differs in being professionally rendered in 3-D while her snowman is hand-drawn two-dimensional animation work.
Here the complaint begins to fall apart. The idea of living, talking snowmen is nothing new; the concept appears in numerous works, and predates even “Frosty the Snowman” from the 1950’s. Aside from this problem, the similarities that Wilson points to in the complaint are either elements that are ubiquitous to snowmen (e.g., coal buttons and carrot noses) or that are no more than comparisons of broad ideas rather than specific expressions (e.g., the snowmen both being “awkward” or willing to sacrifice themselves in some fashion for another’s benefit). Wilson would have a difficult go of producing any credible evidence or argument that Olaf is specifically based on her film. Disney, for its part, is well known for mining the depths of the public domain for its films, being careful (in most cases) to never produce a movie or character that will end up putting royalty money in someone else’s hands. Disney could likely point to any number of other magically-living snowmen, public domain or not, that inspired the character of Olaf, some of which likely also inspired Wilson’s snowman. As well, like many other movie studios, Disney preserves records of the development of its films from initial concept to final product. It turns out that Olaf was not initially destined to be the comedy-relief sidekick to Princess Anna as he appears in “Frozen.” Rather, Olaf was originally set to be Elsa’s annoying and malicious snowman sidekick. This original concept proved to be difficult to execute and ultimately unworkable – the only remnant of this idea in the final product is the giant snow creature named “Marshmallow” that Elsa conjures to protect herself. Without Olaf to provide a connection between “Frozen” and “The Snowman,” there seems to be no way that Wilson can sustain her claim.
But Wilson’s case is not hopeless, and Disney may well want to offer a settlement to Wilson before any trial proceedings. It may be coincidence or it may be extremely good timing on the part of Wilson and her attorney, but the choice to file suit on March 28, shortly after the film’s release on DVD and Blu-ray, is fortuitous for Wilson. As part of the disc’s bonus features, Disney included the Olaf and Sven trailer – millions of discs are now sitting on chain store shelves and in homes, carrying a copy of the allegedly infringing teaser trailer. Over three million sales of the disc were made on the firstday of its release in stores, making it not only the most successful animated film in theaters but also on home video. Even if Wilson could not show that she’s owed a dime of the film’s profits from its theatrical release, she could make the case that she should be paid from the disc sales. While the bonus features of a disc or disc set may not be the primary driver for buying a movie, they are one motivation for people to buy the movie rather than waiting for the movie to become available through Netflix, renting the disc, or paying to see it on an on-demand video service like Pay-Per-View. Even an award of a half-percent of the profits from the disc sales could wind up being a lottery-sized win for Wilson, especially as disc sales continue domestically and overseas.
Both Disney and Wilson have other good reasons to settle this case. If Wilson were to prevail at trial and be awarded any share of the money from “Frozen,” even if that were limited to only a share in the disc sales, there could ensue a spate of suits from other aspiring animators who, like Wilson, have submitted their work to Disney or other studios without result, only to find substantial parts of their submissions later co-opted into a film release, whether in a trailer or full-length movie. Yet even if Wilson did prevail, Wilson’s complaint seeks a share of the profits Disney has made from “Frozen.” As anyone in the movie business might have told Wilson, Hollywood studios are notoriously famous for shifting profits from hit films to money-losing ventures so that, on paper, even the blockbuster hits appear to be barely profitable, if not a financial loss. Actors and other movie-making professionals have known for decades that it’s usually a sucker’s bet to contract for nothing more than a share in the profits. The most unfortunate scenario for Wilson would be winning a percentage of the “Frozen” profits, only to find that Disney is more creative in its accounting than her snowman had to be in retrieving his nose.