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The Monkey Business in the “Monkey Wrench” Copyright Infringement Lawsuit

By September 16, 2012 Posted in Copyright

The Monkey Wrench Gang is a 1975 novel about eco-terrorism, written by Edward Abbey.  Although I have never read it, I am certainly aware of it, and know that the term “monkey wrenching” (meaning sabotage done to protect the environment) was derived from the novel.  Edward Abbey died in 1989, and his wife,  Clarke Abbey, recently granted a license to producer Edward Pressman (Wall StreetConan the Barbarian, many others) to make a movie based on the book. The movie is currently in development, with Henry Joost and Ariel Schulman (Catfish, Paranormal Activity 3) set to direct.

Last week, while attending the Toronto International Film Festival, Mr. Pressman found out that another movie about eco-terrorism was being developed.  This second movie, titled Night Moves, will be directed by Kelly Reichardt (Old Joy, Meek’s Cutoff) and is set to star Jesse Eisenberg, Dakota Fanning, and Peter Sarsgaard.

Mr. Pressman apparently does not believe that Hollywood is big enough for two eco-terrorism movies to come out at the same time, so, last Thursday he sued the screenwriter, the director, the producer, the production company, the distributor, and anyone else involved in the movie for copyright infringement.  But, what’s apparent upon reading the complaint, is just how tenuous their claim of copyright infringement is.

In order to prove copyright infringement, the plaintiff has to show substantial similarity of plot, characters, dialogue, theme, mood, and sequence of events.  And most complaints for copyright infringement will go to great lengths detailing the similarities between the two works. What’s interesting about the Pressman complaint is how few similarities are listed.  The Complaint basically lists just three similarities: 1) that both works feature the targeting of a dam for destruction by means of ammonium fertilizer-laden boats, 2) that in both works, the principal bomb maker is a beer guzzling veteran who served overseas, where he acquired his knowledge of explosives, and 3) that both works feature a 20-something woman who starts out as a companion of another member of the group but develops a sexual relationship with the bomb-making veteran, despite his initial objections to her participation in the group’s illegal activities.

Now the complaint does state that these similarities are by way of example only, and so there may be many more similarities between the works, but in my experience, if they had more (or better similarities) they would have included them in the complaint.  The similarities listed above are not even close to the level of substantial similarity required to prove copyright infringement.   The first similarity, that both deal with a plot to blow up a dam by eco-terrorists, is just an idea, it’s not even protectable.  It’s like saying the idea of a movie about terrorists trying to blow up a building in New York is protectable.  And how about the third similarity? How many movies have you seen about a gang of criminals where the female character starts with one of the guys and then switches over to another guy during the movie (and usually the one that doesn’t want her around).  It’s just a cliché.  But for good measure the complaint includes an allegation that the similarities are so obvious that “internet bloggers have commented about [them].”

Well, that settles it doesn’t it?  I mean, if internet bloggers have commented about the similarities, then what do we need a trial for?   Of course, most internet bloggers have taken courses in copyright law and fully understand the legal standard required for proving copyright infringement.  So we can rely on everything they say.  In my opinion, the fact that Pressman’s lawyer put that in the complaint means that he knows how weak his case is.

So, what’s going on here?  If the case is so weak, how come the lawsuit was filed?  I’m glad you asked.  Here is my theory.

Most likely, the plaintiffs understand that the similarities between Night Moves and Monkey Wrench Gang would not be sufficient to win in court.  But right now, they are not in court.  They are trying to raise financing for the film and having another high-profile movie out there about eco-terrorism is only going to hurt their chances to find money.  By filing the lawsuit, potential buyers and investors will possibly be scared out of giving money to Night Moves (since they may be added as a defendant to the case) The plaintiffs  believe that by filing the lawsuit they can slow down the development of Night Moves enough that they can get ahead in the race to the screen.   Pressman only needs to slow down the other movie for six months or so, but it will take a year or more for the lawsuit to get resolved.  In that time, Pressman can get his movie in production and pass Night Moves in the development process.  

In effect, Pressman is doing to the producers of Night Moves what the characters did in the Abbey novel, he’s monkey wrenching them.

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