Science fiction stories featuring tardigrade not substantially similar, no copyright infringement. ABDIN, v. CBS

Copyright is a legal protection granted to the creator of a new work of expression. Painters, sculptors, photographers, musicians, authors are all creative occupations whose works can be protected by copyright. Copyright allows creators to prevent other people from copying their works. Frequently creators are inspired by the works of other creators. Drawing inspiration from an earlier work is not considered copyright infringement because copyright law protects the expression of ideas, not the ideas themselves. However there is a fine line between inspiration and imitation. If a new work is substantially similar to a prior work, then copyright infringement may have occurred.

The definition of substantial similarity in the context of copyright law is specific, yet open to interpretation. Proof of substantial similarity is satisfied by a two part test of extrinsic similarity and intrinsic similarity. The extrinsic test is objective in nature and requires the plaintiff to identify specific criteria which it alleges have been copied. Unprotectable elements such as idea, concepts and elements in the public domain are filtered out of the extrinsic test. The intrinsic test is an examination of an ordinary person’s subjective impression of the similarities between the two works, and is the exclusive province of the jury.

For example, if an artist creates a painting of a tree, the artist only has a copyright to their painting. Other people are free to create their own painting of a tree without infringing on the copyright of the artist. However, if a photographer takes a picture of the artist’s tree painting, the photograph of the painting would infringe on the copyright of the artist. The photograph merely copies the painting with no added value. Therefore the photographer’s picture is a derivative work of the artist’s painting. A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works.

The test for substantial similarity can be confusing, therefore it is helpful to study case law to understand how the courts have applied the law for different sets of facts.

ABDIN, v. CBS BROADCASTING INC., 19-3160-CV (2nd Cir. 2020) illustrates a case where a video game designer sued a television producer for copyright infringement based on two works both featuring a space fairing tardigrade. A tardigrade is a type of microscopic organism that can survive in space that has recently been the focus of several science fiction creations.

Plaintiff is an indie game developer who created a video game titled Tardigrades. Plaintiff published his concepts for the game on social media in 2014. The basic idea behind Plaintiff’s game is that a giant tardigrade facilitates space travel in the distant future. In 2018, plaintiff obtained a copyright registration for a version of his Tardigrades game which described the concept and characters in the game. An example of the Plaintiff’s artwork is reproduced above on the left.

Defendants in this case distribute the television series, Star Trek. The most recent creation in the Star Trek franchise is Star Trek: Discovery which premiered in 2017. Three episodes of Star Trek: Discovery featured a giant tardigrade that helped navigate through space. An example of the Defendant’s tardigrade is reproduced above on the right.

Plaintiff sued the Defendant alleging that Star Trek: Discovery violated the Copyright Act, 17 U.S.C. § 101, by copying creative aspects from Plaintiff’s unreleased science fiction videogame, including his use of a tardigrade traveling in space. The district court concluded that plaintiff-appellant’s copyright claim failed as a matter of law because his video game and the television series were not substantially similar. Plaintiff appealed this decision to the Court of Appeals for the Second Circuit.

The Second Circuit noted that 1) ideas, 2) stock themes, and 3) generalized characters, are not protected by copyright law. The Second Circuit extracted the unprotectible elements from Plaintiff’s videogame — the scientific facts, general ideas, science fiction themes constituting scènes à faire, and generalized character traits — and held that the videogame and Discovery were not substantially similar because the protectible elements were different. Because the two works were not substantially similar the Second Circuit affirmed the district court’s dismissal.

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