You probably shouldn’t sue somebody for stealing your idea

One of these days I’ll get around to reviewing Haxan (which I really want to write a review about) but it won’t be today sadly, because today somebody named Peter Joseph Gallagher sued Joss Whedon and basically everybody Whedon works with over The Cabin in the Woods.

Now let’s start by making sure to draw some goalposts. I’m an advocate for a robust public domain, I’ve come on record calling for shorter copyright periods before. I’ve also said privately that if anybody ever cared enough about anything I wrote to make fanfic / other stories in the world I built / etc. I wouldn’t likely care as long as they A) were not profiting from my IP and B) gave credit where credit was due.

However I’m not an advocate for unrestricted copyright violation. And this isn’t going to be a screed on the evils of copyright. As far as I’m concerned a content creator has every right to expect that other people won’t start profiting off their work.

Now copyright is a prickly subject, especially when you’re dealing with something so deliberately tropey as Cabin in the Woods (which is in the host of various media that probably, quite legitimately, owes Sam Raimi $10.) So before we descend into an issue as laden with satire / fair use wiggle room and overtly archetypal elements as The Cabin in the Woods let’s examine a much more straightforward example.

The Life of Pi and Max and the Cats

With thanks to Heather Emme for bringing this example to my attention.

In 1981 Moacyr Scliar wrote a novella called Max and the Cats about a boy who finds himself trapped on a lifeboat with a jaguar after his ship sinks.

In 2002 Yann Martel wrote a novel called Life of Pi, about a boy who ends up trapped on a lifeboat with a tiger after his ship sinks. Martel’s book went on to win the Booker Prize. In Life of Pi, Martel thanked Scliar, calling his earlier story the “spark of life,” for the latter.

Martel later said some very douchey comments, claiming not to have read the book and saying, “I didn’t really want to read it. Why put up with the gall? Why put up with a brilliant premise ruined by a lesser writer?”

Scliar and his publisher originally considered pursuing legal action but the authors were eventually able to settle their dispute without intervention from the courts.

There’s SO much going on in this example. We have an author who openly admits the influence of the previous work and then back-pedals in the nastiest way possible when he’s called on it. We have premises that are effectively identical. We have similar executions (lit-fic novella vs lit-fic novel) and in both cases we have widely respected authors. Scliar was one of Brazil’s most respected authors. Martel is widely regarded as a powerful writer (they don’t give away Bookers to just anybody).

And yet…

And yet…

Ultimately this wasn’t settled in the courts. And as much as I think how Martel responded to the initial complaints was awful. Despite Martel’s straight up lie that he read an Updike review of the book (such a review does not exist), despite how similar these stories were in both premise and execution, ultimately what they really shared was an idea: a boy, on a boat, with a predator cat.

And that’s not really what copyright is there to protect. The ability of ideas to cross-pollinate, of Tolkien to be influenced by Wagner who was influenced by Germanic myth, is a fundamentally important one. And yes, it can be abused. No system is immune to abuse. But when we strike out at the fact of literary inspiration and cross-fertilization in the name of copyright protection it is ultimately more harmful to the arts as a whole than not doing so would be.

I’m not saying Yann Martel was justified ripping off a respected Brazilian author and expecting nobody would notice. I’m not saying he was right to double-down by insulting the author when he was caught out. But there’s a difference between doing something worthy of social censure and something worthy of legal censure. Ultimately I think Martel earned scorn, but not a judgment of the courts.

Complicate a Situation: Just add tropes, parody, and Hollywood money

So here’s what we know about Peter Joseph Gallagher’s book:

  1. He self-published a run in 2007 of 2,500 which he claims in his court statement nearly sold out, leading him to print a second run of 5,000 copies.
  2. He was selling books on the street in a neighborhood that Joss Whedon has lived in.
  3. The book describes a group of five highly archetypical horror movie type protagonists going to a cabin in the woods, encountering a weird artifact room (a-la evil dead) and then are attacked by a killer. The twist is that they’re being manipulated into reliving horror movie tropes for the amusement of a viewing audience.
  4. There are other cosmetic similarities described between the book and the film, but they mostly boil down to tropes will be tropey.

So ultimately what this boils down to is Gallagher saying that Whedon used the idea of a trope-aware horror story in which an in-universe audience is secretly controlling the protagonists.

Most of the other elements of the stories boil down to the fact that Whedon deliberately used tropes. Heck, the archetypes that each character represented are carved on giant walls below the secret base. There are conversations in the book about the role that the characters, as archetypal avatars fulfill in stories. Whedon et. al weren’t going for “original idea” so much as “deconstruction of very well-worn ideas.”

I haven’t read Gallagher’s book. And since copies of it on Amazon are currently selling at over $1000 a copy thanks to opportunistic bookjackers (and the one and only copy at the Barnes and Noble website is going for almost $90) I’m not going to read his book. However, even if we assume that he was also doing a deliberately self-aware deconstruction of the horror genre based on an examination of well-worn ideas, that still doesn’t make this copyright violation. Because you can’t copyright a concept. And that’s all that this is, a concept.

But there’s more. Because Whedon’s work is largely considered a satire. And fair use gives extra leniency to works of satire and parody to play fast and loose with copyright. So even if Whedon was lampooning Gallagher rather than Raimi he’d still have a strong defense for these alleged violations.

What we have here is unfortunately a common dispute: person has idea, writes book, makes no money. Later, somebody in Hollywood has similar idea. Writes script. Makes movie. Makes much money. Book writer says, “but I was first,” and sues for a chunk of the money for “their” idea. Except you can’t copyright an idea. That’s why Sophia Stewart will probably never get any money from the Wachowskis.

And unlike in the case between Scliar and Martel, the execution between Gallagher and Whedon is vastly different. Gallagher framed his story, according to the reports I’ve read, around issues surrounding reality television and the ways in which reality TV producers deploy fiction tropes against unscripted participants to create conflict and ratings. Whedon deconstructed the genre by suggesting a shadowy cabal trying to keep down a world-ending menace by committing lesser evils to keep it placated. In one execution, entertainment is evil. In the other, entertainment placates evil. These are different riffs on  theme.

And of course, one is a book, the other a film and they have vastly diverging plots, trope use notwithstanding.

I imagine it can be very frustrating to see a product succeed when it’s so similar to something you worked on in relative obscurity. However, even when there is a very clear link between two very similar pieces of media, resolving out of court may be the better option. When all the two stories share is the kernel of an idea, it’s not theft. There’s an old adage, I think I read it in Writer magazine back in the day: Ideas are cheap. And they are. Artists, for the most part, get ideas like most people get cups of coffee. Sometimes an idea sticks, and you do something noteworthy with it. Other times it doesn’t.

If two people happen to have the same idea it might be because one inspired the other, in which case they should own up to that (I’ve never hidden the influence of Jin Yong on my work) in other cases it might just be random chance. Regardless, suing over an idea probably isn’t the best way to handle it.

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