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Clonus Associates v. Dreamworks

August 25, 2006

CLONUS ASSOCIATES AND ROBERT S. FIVESON D.B.A. FIVESON PRODUCTIONS, PLAINTIFFS,
v.
DREAMWORKS, LLC AND WARNER BROTHERS ENTERTAINMENT, INC., DEFENDANTS.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

This litigation involves two movies about secret facilities in which clones are unwittingly confined until their organs are harvested for the rich and powerful. Robert Fiveson alleges that defendants infringed the copyright of his 1979 movie, Parts: The Clonus Horror ("Clonus") through production and distribution of The Island, a movie released by defendants in July 2005. Following discovery, the parties filed cross-motions for summary judgment.*fn1 For the reasons described below, both motions are denied.

I. BACKGROUND

A. Procedural History*fn2

In 1978, Robert Fiveson produced and directed Clonus, which was based on a story and screenplay by Robert Sullivan.*fn3 The film was released in theaters in July 1979 and to VHS in the early 1980s.*fn4 It also aired on CBS and on a program called Mystery Science Theater 3000.*fn5 In March 2005, a DVD version of Clonus was released by Mondo Macabro, a distributor specializing in "cult film" reissues.*fn6

In early 2004, DreamWorks purchased the screenplay for The Island, which had been written on "spec" by Caspian Tredwell-Owen.*fn7 DreamWorks subsequently brought in two writers, Alex Kurtzman and Roberto Orci, to re-work the screenplay, and hired Michael Bay to direct the film.*fn8 Filming began in 2004, the general domestic theatrical release occurred on July 22, 2005, and the DVD and videocassette versions became available on December 13, 2005.*fn9

On August 8, 2005, plaintiffs filed a complaint alleging copyright infringement under the Copyright Act of 1976,*fn10 followed by a motion for a preliminary injunction on August 19.*fn11 This Court denied plaintiffs' motion for a preliminary injunction on October 27, 2005.*fn12 Following discovery, both parties filed motions for summary judgment.

B. The Movies

Because the determination of substantial similarity in a copyright case "requires a detailed examination of the works themselves," I have examined plaintiffs' movie Clonus and defendants' movie The Island.*fn13 A brief description of both works follows.

1. Clonus

Clonus is a movie about an isolated colony where clones are created to be organ donors for powerful people. These clones are not aware of their purpose or the fact that they are being held in captivity. Their lives are regimented to encourage physical health, and they are told that if they are fortunate enough to "qualify," they will go to "America," a happy and idyllic place.

The story is told from the point of view of a clone named Richard, who seems to be the first clone to question aspects of this existence. As Richard begins to raise doubts about life at Clonus, he is simultaneously falling in love with a female clone named Lena. Like Richard, Lena is a "control clone," meaning that her intellectual capacities have not been artificially diminished by her creators. Although Richard and Lena were never intended to interact and sexuality is discouraged at Clonus, the doctors allow them to develop a sexual relationship as an experiment, under video surveillance. While the romance between Richard and Lena progresses, the audience learns more about the nature of the colony. For example, when a clone named George reaches peak physical condition and is told that he has been chosen to go to America, he is instead killed and preserved in a plastic bag.

Doctors and guards at Clonus have the clones under constant surveillance. Richard discovers that he is being watched, and soon afterward he is told that he will be leaving for America in two days. Deciding he wants to learn more, Richard breaks into the building where George was taken. Richard finds a videotape about the facility's cloning activities, evidence that he is a clone of someone named Professor Richard Knight, and a room full of dead clones including George.

Richard's unauthorized exploration is discovered, and he flees from Clonus, pursued by a gunman on a motorcycle. He escapes with only superficial wounds and ends up at the home of an elderly couple, Jake and Anna Noble, who agree to help him find his "original." Professor Richard Knight ("Rich"), an older version of Richard himself, turns out to be the brother of Senator Jeff Knight, whose presidential campaign speech was shown in the opening minutes of the movie without previous explanation of its relevance. Senator Jeff Knight is revealed as a beneficiary and proponent of the cloning program, who enrolled his brother Rich for the service without Rich's knowledge. A struggle erupts about whether they should help the clones or prevent the revelation of information about the Clonus facility. This dispute results in the deaths of Rich, Rich's son Rick, and the elderly couple who initially helped Richard.

Richard had returned to Clonus before this violence in the outside world began, in hopes of rescuing Lena. Upon arrival, he discovers that she has been lobotomized, and the guards are awaiting Richard in her room. In the final moments of the movie, the deceased Richard is shown, preserved in his own plastic bag. Yet one positive outcome of Richard's adventure is revealed - there is a scene at a press conference that shows Senator Jeff Knight as a presidential candidate, paying lip service to human rights. The scene concludes with a question from a reporter who holds up a videotape and says, "Senator, could you please tell us about Clonus?"

2. The Island

The opening scenes of The Island are set in the Merrick Institute, a colony of unsuspecting clones who are raised for organ harvesting or to carry babies. The clones have been told that the earth is contaminated and that a place called "the island" is the only safe place left where one can enjoy nature; all clones are told they have a chance to go to this paradise if they "win the lottery." The male protagonist, "Lincoln Six Echo," suffers from unsettling nightmares, and seems to be the first clone to begin questioning various aspects of life within the Institute. Lincoln has a friend, "Mack," who turns out to be a non-clone who works as a ...


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