The Avengers movie may be copyright infringement

A copyright is a group of exclusive rights granted to the creator of a new work of art. Copyright grants the creator of a new work the exclusive right to reproduce, perform, distribute and make derivative works based on the original work. If someone other than the copyright owner exercises one of these exclusive rights, that can be copyright infringement. The exclusive rights of a copyright owner are subject to several limitations including fair use. A copyright owner can sue to stop infringement of their copyright with an injunction and also to get monetary damages for infringement which has occurred.

Because technology is constantly evolving law has a difficult time keeping up. Computer programs are treated like a literary work for copyright purposes in the United States. A computer program is granted copyright protection in a similar ways as books and other written material. Books and computer programs are similar in that, they both can be copied and sold. A book can teach people how to perform a task. Computer software, unlike books, performs a task.

The question then becomes, if you perform a task using a copyrighted work which was copied without the copyright owner’s permission, do the products created infringe on the copyright of the original work? The products are not derivative works of the copyrighted works, but the products were created using an infringing copy of the copyrighted work.

That is the question posed in Rearden LLC. v. The Walt Disney Company et al. 17-cv-04006 (N.D.C.A. 2017). The Rearden case is very complicated and spans the intellectual property family of patent law, trademark law and copyright law. For the purpose of this blog post we will focus on the copyright issues of the case. Rearden owns a piece of software called the MOVA Contour Reality Capture Program. The MOVA software is a type of motion capture software, it takes video of real life actors and converts it into information which can be used to animate a digital actor. The movies of the defendants used the MOVA software to create some of the most popular movies of this decade like the movie, The Avengers. The Defendants did not directly purchase and use the MOVA software, instead they contracted with the company Digital Domain 3.0 to create the scenes of the movies which were created using motion capture. Rearden alleges that the copies of MOVA which were used by Digital Domain 3.0 were not authorized by Rearden and therefore infringed on Rearden’s copyright. Rearden sued Disney and other movies studies alleging that the scenes of the movies which were created using MOVA infringed on Rearden’s copyright.

The defendants requested that the court dismiss Rearden’s complaint because the copyright owner does not own products created with copyrighted software. The court granted the request. The court reasoned that MOVA does a significant amount of work to create a movie scene, but that there is a significant amount of human contribution from actors and directors. Because all computer programs take inputs and turn them into outputs, there is not enough evidence in this case to justify finding that Reardon owns the copyright to the output of the MOVA software.

But, Rearden amended the complaint to allege that the defendants are liable for vicarious and contributory copyright infringement. To succeed in imposing vicarious liability, a plaintiff must establish that the defendant exercises the requisite control over the direct infringer and that the defendant derives a direct financial benefit from the direct infringement. A defendant is a contributory infringer if it (1) has knowledge of a third party’s infringing activity, and (2) “induces, causes, or materially contributes to the infringing conduct. In a motion to dismiss the court is not tasked with scrutinizing the truth of the facts alleged by the plaintiff, merely whether or not the facts, if true, state a claim which is plausible. The court found that Rearden has alleged facts which make its claims of vicarious and contributory copyright infringement plausible. The case will continue and Rearden’s plausible allegations will have to be proven.

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