USDC, S.D.N.Y., September 17, 2014

In Depth


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Court dismisses artist’s copyright infringement suit against defendants, including James Cameron, involved in production and distribution of blockbuster feature film Avatar, finding no substantial similarity existed between film and copyrightable elements of plaintiff’s paintings.

Roger Dean, a well-known visual artist, sued the director, James Cameron, and the producers of the film Avatar. Dean claimed that Avatar, one of the most financially successful films in history, infringed on 14 of his paintings, several of which appeared as rock album covers in the 1970s for bands such as Yes and Asia. Defendants moved to dismiss for failure to state a claim, arguing that Dean could not show that there was actionable similarity between Avatar and any of the 14 Dean works at issue. The court granted defendants’ motion. 

Avatar is a science fiction film about a military veteran, Jake, who assumes the identity of an avatar in order to infiltrate the community of Na’vi, alien creatures who live on a fictional world called Pandora and on top of a deposit of an energy source called unobtanium. Humans from Earth seek to displace or destroy the Na’vi in order to harvest the unobtanium. Jake, initially on a mission to infiltrate the Na’vi, ends up joining their community and fighting against the humans who want to destroy them. 

This case was not about the story of Avatar but rather its imagery. The Na’vi fantastical world is populated with airborne landmasses, epic waterfalls, exotic creatures and mystical trees. Dean claimed that these elements of the Na’vi world, and others, were taken from his works. 

In dismissing the case, the court engaged in a detailed comparison of the works to determine whether “a substantial similarity exists between the defendants’ work and the protectable elements of plaintiff’s.” The court noted that plaintiff could not aggregate his works for the sake of the comparisons and that Avatar had to be separately compared to each of the 14 individual Dean works. Nor could Dean claim that Avatar infringed on his style, or oeuvre, since the Copyright Act protects individual works, not artistic styles. 

In its analysis, the court first stated that it would not consider Dean’s claims that certain illustrations in companion books about Avatar (e.g.,The Making of Avatar and The Art of Avatar) infringed his works, as Dean admitted that these books were not part of his claim. The court next noted that many of the comparisons that Dean sought to make were in fact distortions, the product of Dean’s cropping, rotating and otherwise manipulating the images used in the comparisons in an effort to create similarities where there were none. “Such tactics,” the court held, “cannot be used to bolster an infringement claim.”

The court also declined to credit statements about the perceived similarities between Avatar and Dean’s work that were made in the various articles and anonymous Internet postings that Dean submitted to the court. These statements were irrelevant to the issue of whether the works could be found to be substantially similar as a matter of law, which was an issue for the court to decide. Moreover, many of the articles merely noted that Dean’s work seemed to have inspired Avatar, not that Avatar infringed on Dean’s work.

Having dealt with these preliminary issues, the court found that any similarities between Avatar and Dean’s works arose out of shared features that no one owns.

Airborne landmasses, for instance, have been around as an idea since at least Gulliver’s Travels (1726), and suspending a landmass “is a predictable — if not common — way to make a vista more sweeping, breathtaking, and fantastical, and is plainly subject to both the principle that ideas are not protected.” Other shared elements — such as foliage and waterfalls — could be found in nature and are therefore in the public domain. Yet other elements, such as flying dragonlike creatures, were staples of fantasy works.

Finally, the court found that even if there were protectable similarities between Avatar and Dean’s works, they were overwhelmed by their differences. For instance, even if the works shared the similarity of stone arches, the arches in plaintiff’s work are relatively smooth and set in barren surroundings, whereas the arches in Avatar are thick, jagged, and craggy and covered in trees and moss. The court concluded that no reasonable layperson looking at the works could conclude that Avatarinfringed on Dean’s paintings. The court also noted that inspiration is not equivalent to infringement. The makers of Avatar could have been inspired by Dean’s work, but that does not mean that they copied it nor that they copied elements of Dean’s work that are copyright-protected.