Today, the Hollywood Report ran a story about a copyright lawsuit involving the movie Frozen. Only the plaintiff was not suing regarding the film. The suit, filed by aspiring animator Kelly Wilson, alleges that the teaser trailer for Frozen was appropriated from her short animated film titled The Snowman.
The Snowman is about a clumsy snowman that loses its carrot nose on a frozen lake and then battles with a gang of rabbits to get it back. You can watch it here.
The Frozen trailer is also about a clumsy snowman that loses its carrot nose on a frozen lake and then battles with a reindeer to get it back. You can watch it here.
Do you think the Frozen trailer is similar enough to The Snowman so that Ms. Wilson prevails in her copyright infringement lawsuit? Personally, I would say probably not, especially based on the standard of similarity judges in the 9th circuit are requiring just to get a case to a jury. But I can certainly see why Ms. Wilson believes she was ripped off. But are these just two films with the same idea? Or did Disney copy Ms. Wilson’s expression of that idea? That will be up to the judge to decide. I want to talk about the fact that even if Ms. Wilson wins, she has cost herself hundreds of thousands of dollars simply because she did not register her script with the Copyright Office until after she discovered the infringement.
As I have written many times (most notably here, and here), copyright registration is so important because if your work is infringed, a registration prior to the infringement gives you the opportunity to obtain both statutory damages and attorney’s fees. Without prior registration, you get neither. This case provides a good example of how this will play out to hurt Ms. Wilson.
The Snowman was created in 2010 and, according to the Complaint, was not registered with the Copyright Office until July 6, 2013, after Ms. Wilson saw the Disney trailer. So, if Ms. Wilson prevails in the lawsuit (and that’s a big if in itself), she can only collect “actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement.” 17 U.S.C. §504.
In terms of “actual damages suffered” that number would be difficult to quantify, but I would say, at best, it would be the cost to license the right to the story of The Snowman to use in a trailer. That number would not be very large. At best, we’re talking about something in the low five-figures.
Well, what about Disney’s profits? Frozen is the highest grossing animated movie in history. Shouldn’t that mean a big check for Ms. Wilson? It might, if the scene in the Frozen trailer had appeared in the film. But it doesn’t. The scene in the trailer doesn’t appear in the film at all. In fact, people thought this was sort of underhanded since the trailer is very misleading as to what the film is about.
Ms. Wilson’s lawyers will no doubt argue that it was the success of the “infringing” trailer that led to the success of the film (and all the profits). Good luck with that. Assuming Ms. Wilson’s prevails on her claim of infringement, will a judge allow a jury to determine what percentage of the profits of Frozen are due to a teaser trailer released six months before the film’s release? That is going to be a very hard sell. Also very expensive in terms of experts.
And that is why the Ms. Wilson’s failure to register the film with the copyright office is so costly. Had she registered earlier, she could ask for statutory damages of up to $150,000 for willful copyright infringement. And she could make the election to go for statutory damages (as opposed to actual damages) at any time before the case went to the jury. That means that she could try to get the judge to allow her to obtain some portion of the profits of the movie, but if that didn’t work, she could change strategy and ask for statutory damages instead.
I’m sure that Ms. Wilson’s attorneys are working on a contingency fee basis as it seems doubtful that a struggling animator would have the money to pay them by the hour. If the lawyers could obtain their attorney’s fees at the end of the case, it would mean hundreds of thousands more dollars that Ms. Wilson would receive if she prevailed. This would also put some pressure on Disney to settle.
As it is, it’s an interesting case, but it just serves as one more example of the importance of registering your work with the copyright office (never with the WGA) as soon as you are sending it out to the public.