The film “Avatar” is the highest-grossing movie of all time, grossing a whopping $2.9 billion US dollars (almost 4.5 billion AUD) at the international box office.
Written and directed by famed director James Cameron, the film went on to receive numerous other accolades. A sequel to the popular movie was released in 2022 to equal critical and financial success.
It’s hard to deny the absolute powerhouse that is Avatar. But with its success, Avatar has also attracted numerous legal battles, including several individuals suing Cameron and Avatar over a breach of copyright since its release in 2009. One of its biggest cases that Cameron and Avatar have faced came in 2013, with Roger Dean.
The Plaintiff: William Roger Dean
Roger Dean is a world-renowned artist and designer, whose works have been used and featured in films and games. He is mostly known for his paintings on album covers, including UK rock bands, Yes and Asia.
The defendant: James Cameron
James Cameron. Photo Credit: Javier Corbalan
James Cameron is one of the most recognisable and prolific directors of this generation. With an almost four decade career, Cameron has directed, written and produced some of the most memorable, successful and influential films like The Terminator, Aliens, Titanic, as well as Avatar.
The Case: Dean v Cameron
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
In June, 2013, William Roger Dean, filed a copyright complaint against Cameron, 20th Century Fox and Lightstorm Entertainment, the film studio behind Avatar. He sought more than US $50 million (77 million AUD) in damages for infringing on 14 of his paintings.
The following are several side-to-side comparisons between Dean’s paintings (left) and scenes featured in Avatar (right).
In court Dean argued that these elements of the Na’vi world were taken from his works.
Furthermore, other evidence surfaced in a 2010 interview with Entertainment Weekly, when asked about inspiration and the similarities of Dean’s art and the floating mountains, Cameron replied with a laugh: “It might have been …back in my pot-smoking days.”.
On September 17, 2014 U.S. District Court Judge Jesse M. Furman dismissed the case. Furman said: “The works are indisputably similar.” But his ultimate ruling was“…the plaintiff does not have a monopoly on the idea of floating or airborne land.” As Dean claimed that Avatar infringed on his style, the Copyright Act protects individual works, not artistic styles. Dean lost the case.
How Copyright differs between Australia and the United States
Around these media related cases, people will often discuss ‘fair use‘. Fair use is used to defend copyright infringement. However, Australia does not use the principle of fair use but instead they use the principle of fair dealing. Is there a difference between the two terms? Yes, there is.
For Australia’s side, The Copyright Act 1968 contains Australia’s fair dealing principles. The Act outlines instances where you can use somebody else’s material in a way that doesn’t infringe copyright. But just because a person does not make money from a copyrighted work, doesn’t make it an exception.
The Copyright Act includes some “fair dealing” exemptions, if the work is used for the purposes of:
- Reporting the news
- Criticism or review
- Research or study
- Parody or satire
- Reproduction for professional advice or judicial proceedings
- Enabling a person with a disability to access material
But even these exemptions have their limits.
In the US, Section 107 of The US Copyright Act 1976 describes how fair use allows the use of copyrighted works without infringement. Instead of providing limited cases where you are allowed to use certain works, the US law provides ‘fair use factors’. Unlike Australia, the US law provides more examples of uses that are fair. Meaning, there are plenty of other instances of fairly using works and materials without infringing copyright or breaking the law.
To put it simply, both fair dealing and fair use allow you to use other copyrighted work on your own without breaking the law. But fair use allows for a lot more flexibility when it comes to using other works than fair dealing.
Avatar: A History of Battles in the Courts
The Dean case isn’t the first time an individual has attempted to sue Cameron and Avatar.Several others have also taken the blockbuster to court for various reasons.
- 2010: Emil Malak, a Canadian restaurant owner, sued Cameron for copyright infringement, claiming that “Avatar” bears a striking resemblance to his screenplay, “Terra Incognita,” copyrighted in 1998. Malak sought $100 million in damages and a share in the profits of its sequels. The case was dropped after one day in court.
- 2011: Bryant Moore sued Cameron claiming he ripped off two of his screenplays: “Aquatica” & “Descendants: The Pollination”. Moore was seeking $2.5 billion in damages. But “…failed to demonstrate any valid claim of a violation of his copyrights.”, and was dismissed.
- 2011: Eric Ryder sued Cameron for plagiarism over a script he had written called “R.Z. 2068” and created treatments, photos, 3D imagery and characters. Was also dismissed.
- 2011: Gerald Morawski sued Cameron for stealing his ideas. The judge dismissed the case.
- 2012: Elijah Schkeiban filed a copyright infringement suit against Cameron over his screenplay “Bats and Butterflies”. Was ultimately dismissed as the judges ruled that it was “not substantially similar”.
As of today, James Cameron has not lost a single case.
Copyright is a fundamental aspect of filmmaking that impacts everything from scriptwriting to distribution. Filmmakers need to be well-versed in copyright law to avoid legal issues and protect intellectual property. Understanding the concept of “fair use” or ‘fair dealing’ is essential.
As media practitioners, we can learn several important lessons from copyright cases to better understand the legal landscape.