stranger things – Techdirt (original) (raw)

from the idea-vs.-expression dept

As one of, if not the, largest player in the streaming platform wars, Netflix is oft the target of copyright infringement threats and lawsuits. These actions against it have by and large been found to be absolutely baseless. Whether it’s estates of long-dead authors, private prisons, or the brother of dead drug kingpin Pablo Escobar, there are plenty of folks out there who see a wealthy company on the rise and try to get a piece of that cash for themselves by making dubious intellectual property claims.

But if Netflix is the biggest player in streaming, then certainly its hit show Stranger Things is its most notable contribution. And, so, it’s no surprise that the show has faced copyright challenges in the past and is being sued once again by someone claiming the idea for the show was his first.

A lawsuit filed by Irish Rover Entertainment on Wednesday (July 15) in California federal court claims that Stranger Things has copied a number of things from Totem, a screenplay written by Jeffrey Kennedy (via TheWrap).

The suit alleges that the Netflix show lifted the “plot, sequence, characters, theme, dialogue, mood, and setting, as well as copyrighted concept art” from Totem.

The filing itself is embedded below, but it’s exactly what one who follows this sort of thing would expect. Rather than alleging any concrete examples of directly copying Totem, the suit’s allegations string together a zillion elements of supposed copying, none of which would be actionable on their own. This is a common tactic, with courts in the past having found that the composition of otherwise unprotectable elements can be afforded copyright protection if that composition on its own is creatively sufficient in a unique way. It’s something roughly like how you can’t copyright a single note from a guitar, but an original composition of notes can be protected.

But about those elements cited, well, have a look for yourself at some examples.

Some of the events in Totem take place in the woods where Agent Sam Miller, under Azrael’s control, chases Kimimela. Similarly, in Stranger Things, Eleven is also pursued by the “Bad Men” through the woods.

…okay, but…

Characters interact with Azrael in an alternate plane. The interaction is marked by Lightning. Characters interact with the Shadow Monster in an alternate plane is also marked by lightning.

Well, yeah, it’s a creepy thriller movie about the supernatural, so you’d expect-

In Totem, the tag line “promise?” is used as a literary device in the dialogue throughout the script. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition. In Stranger Things, the tag line “promise?” is used as a literary device in the dialogue throughout the series. Multiple characters use the word “promise” to either verbally ask or verbally commit to an agreement. This dialogue tag is used countless times in the story and often marks the end of a scene and creates a transition.

But putting “promise?” at the end of dialogue is really common in both fiction and in life, so-

Sam Miller is an FBI agent who is involved in a crash near an industrial area. This is when Azrael takes control of Sam. Billy Hargrove also is involved in an accident in an industrial area. This is when the Shadow Monster takes control of Billy’s mind and forces him to do his bidding.

Those don’t actually seem that similar at all?

It can be easy to get fooled by this sort of thing. What the lawsuit is listing is a bunch of ideas, some of which have similarities between Totem and Stranger Things. But there is an idea/expression dichotomy in copyright. Thematic elements, generic settings, and even character traits aren’t afforded copyright protection. Instead, the specific expression of those ideas is. So, when _Stranger Things_‘ character isn’t an FBI agent and is instead a rogue thug of a lifeguard, you don’t have a copyright claim there.

And yet I listed only a small sample of the accusations in the filing. The hope with this sort of thing is that if you string together enough vague similarities among the non-protected elements, you can convince the court or jury that copying of the composition had been committed and that composition is what gets copyright protection. It’s a strategy that rarely works, however, as seen in a previous lawsuit over Stranger Things.

This isn’t the first time the Duffer Brothers have been sued over the creation of Stranger Things. In 2018, the pair were accused of stealing the show’s concept by filmmaker Charlie Kessler. Kessler produced a short film in 2012 called Montauk and alleged that he and his agents pitched the idea of turning it into a full series to the Duffer Brothers in April 2014.

Kessler dropped his lawsuit the day before it was set to go to trial.

Here’s a hint: when several people can file lawsuits against a single work claiming copying of essentially the same elements, then you’re suing over non-protectable things.

Besides, everyone knows Stranger Things got all its ideas from Dungeons & Dragons.

Filed Under: copyright, expression, idea, idea expression dichotomy, jeffrey kennedy, stranger things, totem
Companies: netflix

What Netflix's Congenial Trademark 'Threat Letter' Says About Everyone's Tolerance For Trademark Bullying

from the progress dept

Readers of this site will be well-versed in trademark threat letters. With the sorts of trademark stories we cover here, our discussion about threat letters typically take the form of trademark holders going out of their way either to overstate their rights or to act as aggressive and threatening as possible. Or, of course, both of those things at the same time. But not every company goes full bully when sending out trademark cease and desist notices, as exemplified by Netflix this week, when it sent out a notice to a Chicago popup bar called The Upside Down, an obvious reference to Netflix’s hit show Stranger Things.

Writing to request an end to the use of its trademark, Netflix did not address the bar’s owners in threatening terms or legalistic language. Instead, it appealed to the owners’ appreciation of creativity and engaged with their shared appreciation of the Stranger Things brand, inserting references to characters and phrases from the show throughout the letter.

“Look, I don’t want you to think I’m a total wastoid, and I love how much you guys love the show”, the letter opens, “but unless I’m living in the Upside Down, I don’t think we did a deal with you for this pop-up”. It continues: “You’re obviously creative types, so I’m sure you can appreciate that it’s important to us to have a say in how our fans encounter the worlds we build”;. Making its point firmly and clearly, but humorously and politely, the letter states: “We’re not going to go full Dr Brenner on you, but we ask that you please 1) not extend the pop-up beyond its 6 week run ending September, and 2) reach out to us for permission if you plan to do something like this again.”

The letter checked all the right boxes to not come off as bullying. The letter was both humorous as well as transparent in its effort to incorporate the fandom of the show into its language. It didn’t promise punishment for any past acts, instead simply asking that the bar not extend its run even further and asking that it seek permission for its name for any future endeavors. Netflix didn’t treat its fans as the enemy, but managed to act human while at the same time asserting its trademark rights.

For this, the company not only got the bar to agree to its request, but the letter received praise both in the media and on social media.

Netflix elicited a torrent of internet praise for its handling of the situation. Local news website DNAinfo reported on the “super classy letter”, describing it as “adorably nerdy”, and emphasizing Saul’s lack of hard feelings towards the corporation. There was also positive coverage in the Sydney Morning Heraldand Fox News, while one blog lauded it as “the best cease-and-desist letter you’ve ever seen”.

On social media, where reaction can often be the most negative, the responses similarly lauded Netflix for its enforcement approach. On Reddit, one user commented that the move was “totally reasonable and nice of them”, with another calling the move “brilliant”, adding: “In the age of Twitter, you don’t want to anything to be used against you. Now it makes the pop-up look like bad guys for not reaching out to them.”

What is most interesting to me about this story isn’t Netflix’s letter itself, although it was certainly nice to see a company get this so right. More interesting was both the media’s and public’s reactions to the letter, which seems to indicate that on some level the media and general public are waking up to trademark bullying and the fact that there are other ways to handle trademark issues beyond being a jerk. While I cover trademark issues all the time, I don’t expect the everyman to have an understanding of ways to protect trademarks that goes beyond, “Company X has a trademark, so of course their lawyers sent out a threat.” The reaction to this story seems to indicate that the public is beginning to understand that enforcing trademark law doesn’t have to equal acting like a jerk. And that’s a good thing.

If lawyers finally understand that being an overaggressive jerk can backire, it will make them think twice about using that approach. It will also convince lawyers that being congenial can go viral in ways that a company does want. These are good things that will be propelled by a public starting to understand that not every C&D has to be all threat and nothing but.

Filed Under: cease and desist, fandom, fans, friendly letter, stranger things, the upside down, trademark
Companies: netflix