Thomas v Walt Disney: Nemo son of squisher?

A Californian District Court has dismissed a claim by Deborah Thomas against Walt Disney and Pixar for breach of copyright concerning the animated movie Finding Nemo.

The Facts

The plaintiff wrote an original literary work entitled Squisher the Fish in 2000. In April 2001 she submitted it to Disney “for the purpose of selling her work for use as a movie, published book, television show, game or other commercial application.” Two months later Disney returned the screenplay and informed her that they did not consider unsolicited submissions. The plaintiff claimed that during the time Disney had her screenplay they copied it and incorporated it into their movie Finding Nemo.

The Copyright Claim

In considering the defendants’ motion to dismiss the copyright claim the court looked at both screenplays and compared their plots, their sequence of events, their characters, their mood and their setting.

a) The Plot

The court found that although Squisher the Fish and Finding Nemo both begin with an egg hatching into a young fish, that was one of the few ways the plots of the two stories were the same. While Squisher focuses on Squisher’s discovery of the ocean and his eventual capture by divers, Finding Nemo focuses on Marlin’s attempt to find Nemo after he was captured by divers. While Squisher’s capture and placement in an aquarium is the culmination of his story, Nemo’s capture is the catalyst for his father’s adventures which, together with Nemo’s attempt to escape from the fish tank in a dentist’s office, are the central plot of the Disney/Pixar story.

The court observed that on a general level “both stories deal with young fish in the ocean that are captured by divers and put in a fish tank.” However, it went on to observe that “courts have consistently held that such basic plot ideas are not protected by copyright law.” Reviewing earlier authority, it noted that “no-one can own the basic idea for a story because general plot ideas are not protected by copyright law … rather such ideas remain forever the common property of artistic mankind.”

b) The Sequence of Events

The plaintiff argued that despite the differences in the overall story lines, “the Defendants have copied the entirety of the fundamental essence and structure of her work and Nemo’s story cannot begin or end without the Squisher story.” The court, however, concluded that “a comparison of the sequence of events in the two works does not support a finding of substantial similarity.”

c) The Characters

The plaintiff argued that the title characters are both “curious and inquisitive” and “cautioned … to be wary of dangers”. The court found, however, that a young character who is inquisitive and whose curiosity leads him/her into danger was merely “a stock character”. It also found that the plaintiff’s description of Squisher was not reflected in any of the physical characteristics of Nemo, who was an orange clown fish with wide eyes and white stripes whereas Squisher was described as “a tiny yellow fish”. Later it is disclosed that he has a “blue circle” marking.

The court also rejected the suggestion that the characteristic of the injured/deformed fin which was found in Squisher and found twice in Nemo was a protectable characteristic.

d) The Mood

The Defendant argued rather disparagingly that “Plaintiff’s work does not have a mood while Nemo’s mood is exciting and suspenseful.” The plaintiff claimed that the works both had the mood of a “happy, light, chilled children’s tale” and of “wonderment for the ocean and its inhabitants”. The court found that the comparison of the moods of the two works did not support a finding of substantial similarity.

e) The Setting

Both stories took place on a reef in the ocean and in a fish tank. The court found that this “naturally and necessarily flows from the basic plot premise common to the two stories, of a fish captured from the ocean and put into a fish tank.”

The court concluded that none of the factors weigh in finding of a substantial similarity between Squisher the Fish and Finding Nemo, and the plaintiff’s copyright claim therefore failed.

The Breach of Confidence Claim

The court found that “a breach of confidence claim requires a confidential relationship that arises when an idea is offered to another in confidence and is voluntarily accepted by the offeree in confidence.” It observed that a plaintiff may raise an inference of a confidential relationship in a number of ways including through “proof that the material submitted was protected by reason of sufficient novelty and elaboration” or proof that she “offered the idea upon condition of confidence and a clear understanding that payment would be made upon use.”

The plaintiff claimed that the defendants either knew or should have known that the screenplay was submitted in confidence. However, no assertion of confidence was made in the covering letter which also failed “to provide a clear basis from which to infer that the Plaintiff expects a payment if her story was used.” The court observed that California law clearly requires “understanding or voluntary acceptance of the confidential disclosure” on the defendant’s part. It found that “the content of the Plaintiff’s cover letter, together with the Defendant’s return of her submission without review belies any such understanding on acceptance.”

Would the Outcome have been different in the UK?

The finding of the US court that there was no implied duty of confidence in these circumstances is in contrast to the position in the UK, where there is a clear indication in Fraser v Thames Television that unsolicited submissions can be made in circumstances where a court implies a duty of confidence.

This suggests that a breach of confidence claim in the UK based on the same facts might have had better prospects of success than in the US court. The copyright claim would surely have been dismissed in the UK for much the same reasons, as was the claim in respect of the Da Vinci Code where similarly vague assertions of copyright infringement were rejected by both the trial judge and the Court of Appeal.



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