Knocked down

Scott and Billy have already commented on the various merits of Judd Apatow's latest comedy, Knocked Up. I have not seen it (the "modern American man as stunted adolescent layabout" shtick in current romantic comedies is wearing thin) but do note that Apatow and Universal Pictures were sued for copyright infringement this week by a Canadian author who claims the film ripped off the premise of her own similar work. Nothing like a $30 million dollar opening weekend to bring the litigants out of the woodwork. A copy of the (bare bones) complaint is at TMZ.com.

At first blush, it may appear that Rebecca Eckler has something to be upset about, legally speaking. In 2004, she wrote a Sex and the City-ish memoir, Knocked Up: Confessions of a Hip Mother-to-Be, which recounted her own experiences with unexpected pregnancy and the acceleration in maturity that the baby brought (a central theme of the Apatow film). Also, like the Katherine Heigl character in the movie, Eckler is a journalist whose nights of partying are cut short by the impending delivery. Without knowing more, however, I'd guess that Eckler's lawsuit goes nowhere, for reasons that are important for all writers to understand and remember.

First, although not alleged, it's basic copyright law that titles are not protectable. So the fact that both works are entitled "Knocked Up" carries little weight as to Eckler's infringement claims. More than that, however, it is not enough for a plaintiff to contend that the alleged infringing work has borrowed (either in part or wholly) a protected work's premise or idea: IDEAS ARE NOT COPYRIGHTABLE. Protection under copyright law extends only to the tangible expression of the author's ideas, e.g., the completed screenplay, novel, song, etc. The premise of a story about a child who wishes that they could be grown up, for example, is not subject to copyright; that basic idea as expressed in the screenplays for the films Big or 13 Going on 30 is protected.

Indeed, the defense of independent creation allows for the possibility, remote as it may be, that two authors could create the exact same works independently, with both of them being entitled to equal copyright protection. Which is another way of saying, to prove actual infringement, Eckler will have to show more than her story and Apatow's are merely similar. In the absence of direct evidence of infringement -- which is rarely present -- the plaintiff must prove that the alleged infringer: (1) had access to the protected work; and (2) portions of the infringing work are substantially similar, i.e., so similar that it likely could not have been created absent copying. I suppose the facts will bear out whether Apatow ever read Eckler's book prior to writing his script (access), and whether there are any portions of the book that show up in the screenplay largely unchanged (substantial similarity). Both tall evidentiary hurdles for Eckler to cross but possibly good enough for nuisance value and a settlement with the defendants that just makes the case go away.