High school English teacher sues online streaming service for copyright infringement. WOOTEN v. NETFLIX

A copyright is a set of exclusive rights granted to the creator of a new artistic expression. In the United States an artist is granted a copyright when the artist fixes their work in a tangible medium. This means when a painter paints a picture, a photographer takes a picture or a singer records a song they are granted a copyright to their work. A copyright gives an artist the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original work. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

An important aspect of copyright law is that a copyright protects an artist’s expression of an idea and not the underlying idea. The public policy behind this aspect of copyright law is that artists frequently draw inspiration from other artists, to grant a copyright owner the exclusive right to an idea embodied in a copyrighted work would have a chilling effect on creativity. This means that an artist that paints a picture of a tree has a copyright on their painting, but other artists are free to create their own painting of a tree.

When a copyrighted work is reproduced it is trivial to prove copyright infringement, a plaintiff must show he or she owns a valid copyright, and that the defendant actually copied the work. When two works are similar, but not identical, it is more difficult to prove copyright infringement. In that case a plaintiff must show that the defendant had access to the copyrighted work and that the degree of similarity between the two works is so striking or substantial that the similarity could only have been caused by copying, and not, through coincidence, independent creation, or a prior common source.

When a court is faced with a copyright infringement suit that claims striking similarity, the court must filter the elements of the work that are protected by copyright from elements that are unprotectible. Copyright will not protect 1) ideas, 2) stock themes, and 3) generalized characters.

KEVIN WOOTEN v. NETFLIX, INC., 1:20-cv-05166 (N.D.GA 2020) is a case that will heavily rely on a substantial similarity analysis.

Plaintiff in this case is a high school English teacher. Plaintiff wrote the novel Pennywise: The Hunt for Blackbeard’s Treasure! (the “Novel”) and published it in 2016. Plaintiff also registered the copyright to the Novel. The Novel is a fictional adventure/mystery story set in the outer banks of North Carolina, where a group of young adults overcome dangerous and challenging obstacles in following clues to a hidden treasure recovered from a fabled shipwreck.

Defendant is an online media streaming service that also produces original content. On April 15, 2020, Defendants released the first season of the television series Outer Banks (the “Series”). The Series is also about a group of young adults overcoming dangerous and challenging obstacles while following clues to a hidden treasure recovered from
a fabled shipwreck. In interviews promoting the Series, the creators of the series stated that they were inspired by novels written by others. The creators of the Series also stated that they had spent time in Wilmington, North Carolina, one of the cities in which Plaintiff sold physical copies of his book.

Plaintiff sued Defendant for copyright infringement. In the complaint Plaintiff claims that the Series is strikingly similar to the Novel. Plaintiff claims that Defendant had access to the Novel and that the similarities between the characters, settings and progression of the stories are so strikingly similar that it constitutes copyright infringement.

The Defendant has yet to answer the complaint, however the answer will undoubtedly claim that the similarities between the works are unprotected ideas, stock themes and generalized characters. This case will turn on the evidence and the argument the Plaintiff can produce.

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