Intellectual Property

Plaintiff In Lawsuit Against Disney And Marvel Wants To Destroy DVDs Of Guardians Of The Galaxy, Avengers: Age Of Ultron, And Beauty And The Beast

The most egregious part of this complaint comes from the prayer for relief, which is a bit scorched earth.

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The legal saga between Rearden, a visual effects firm, and the movie studios involved in the making of three movies — Guardians of the Galaxy, Avengers: Age of Ultron, and Beauty and the Beast — apparently continued with an amended complaint filed last week. The lawsuit involves several intellectual property claims — patents, copyright, and trademark — though I focus on the copyright issues in this post. Oh, and the remedies Rearden seeks are pretty extreme.

The basic facts are these: Rearden claims ownership to software involving facial motion-capture that allows for special effects, like aging an actor forward or backward, putting a completely different person’s face on an actor, and transforming the actor into something other than human. Rearden won a prior lawsuit in which it claimed that its software was stolen by another company and then asserted that those who used its technology (presumably after purchasing it from the company ruled to have stolen it from Rearden) violated copyright and other intellectual property rights.

Previously, a district court judge tossed out Rearden’s copyright claims because they were pretty crazy. I almost wish he had allowed them to go forward because the parade of horribles from amici everywhere would’ve made for entertaining reading. Rearden was essentially arguing that because it was the copyright owner of the software program, it therefore owned the output of the software, as well. As a result, any computer-generated characters using the software were unauthorized derivatives, at least according to Rearden.

Think about the impacts if copyright law actually worked this way. Microsoft could claim ownership of the term paper a student wrote using Microsoft Word. Adobe could claim ownership of the edited photographs made using Photoshop or Lightroom. Apple could make a claim over the edited footage from iMovie. Hollywood movie studios made these points and, perhaps unsurprisingly, the district court judge agreed and dismissed the copyright claims.

Instead of simply moving forward with the remaining patent and trademark infringement claims, Rearden decided to double down on copyright and amend its complaint in a 112-page filing. Rearden is now arguing that its software, when stored on the hard drives of the studios computers, is an original work and protectable under copyright. When the program is run, Rearden claims that the temporary copies that are made in the random access memory — something that constantly happens and is necessary to the functioning of copyright — violate its copyright. That these necessary, temporary copies are reproductions triggering copyright infringement is a ridiculous idea that would cripple the functioning of our digital world. Indeed, as the digital environment has evolved and become more prominent, courts over the last decade or so have clarified the law around temporary copies, finding that transitory copies are not subject to copyright, such as the temporary copies in a computer’s RAM or buffering copies made in streaming video. Rearden then alleges that the studios are liable for vicarious and contributory infringement.

Perhaps the most egregious part of the complaint might come from the prayer for relief. Aside from seeking monetary damages, attorneys fees, and an injunction against distribution, the complaint requests, “Pursuant to 15 U.S.C. 1118, order the impoundment and destruction of all copies of Guardians of the Galaxy, Avengers: Age of Ultron, and Beauty and the Beast motion pictures in any medium.” That’s right, Rearden wants to impound and destroy all copies of these movies “in any medium,” meaning they want the originals, the DVDs and BluRays, and the digital copies all destroyed. It’s as if Rearden wants to erase the existence of these movies. Some companies take a scorched earth policy in litigation and it definitely seems as if Rearden falls into that category.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at [email protected].

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