James Bond Knockoff? Not if MGM has anything to say about it

I read about an interesting case today that not only involves a personal favorite character of mine, but serves to illustrate the way that even old law can continue to change and advance through court interpretation. U.S. District Judge James Otero declined to dismiss a lawsuit brought by MGM – the holder of the James Bond copyright – against Universal. The latter studio is in the early stages of producing a film called Section 6, a spy film that intends to focus on the early days of British spy agency MI-6.

MGM alleges that the film bears similarities in theme, character, plot and dialog to the films featuring Mr. Bond, and as such should be killed. Screenwriter Aaron Berg has made fair use and de minimis arguments, while Universal advanced the argument that the film has not yet even received a green light, making litigation about it a “patent waste of resources.”

That Otero opted not to dismiss the lawsuit is in itself not remarkable, given that he is expected to take the plaintiff’s allegations as true for the purposes of this stage. However, his reasoning and further statements appear to be indicative of the strong case that MGM might have. We will discuss these statements after a brief recap of the legal arguments made by the defendants.

Fair use
I’ve mentioned this before, but copyright law does not entitle the owner to be the sole user of a certain work in every situation. Neither would this be desirable – we largely agree as a society that parody should be allowed. When determining whether someone has the right to “fair use,” courts consider the following four factors:

1. The purpose and character of the use – i.e. has the work been ‘transformed’ or was it simply copied?
2. The nature of the copyrighted work – i.e. is the work good for society, like a utility, or an original creation, like an artwork?
3. The amount and substantiality of the portion taken – i.e. is the copied portion unsubstantial, like an unremarkable guitar riff, or central, like an entire chorus?
4. The effect of the use on the potential market – i.e. will the defendant’s use deprive the original owner of the ability to make money?

De minimis
There are some cases in which the amount of material that the defendant has copied is so small that the court doesn’t need to consider the above four factors. Keep in mind that the actual size of the material copied isn’t always relevant. Even a small part can be considered significant if it is somehow central to the “heart” of the copyrighted work.

Otero’s ruling
Otero could have simply declined to dismiss the lawsuit and deal with the trial when it occurred, but chose to write a lengthy opinion that looks bad for Universal’s prospects.

Otero noted that the phrase ‘Bond. James Bond’ appears in the defendant’s work, making Berg’s de minimis​ argument unlikely. He also mentioned a 1995 Honda commercial that was determined to be substantially similar to the James Bond movie, and wrote that “In the current case, Section 6 bears more similarities than the Honda commercial.”

Regarding Universal’s argument that such litigation is a waste of resources at this stage, Otero went even further. Perhaps in light of U.S. District Judge Dolly Gee’s decision to allow a similar case to move forward, ruling that the creation of a script alone can constitute ‘intermediate copying’ in the absence of a film or final script, Otero wrote the following:

“Far from being theoretical or abstract, according to Plaintiffs’ allegations, Universal possesses the right to use the screenplay, and has hired various people for the development of the motion picture project. Those types of ‘transitory’ film-making product make the copyright issues ripe for review. Universal’s assertion that it does not intend to infringe Plaintiffs’ copyright is also irrelevant because good faith is not an excuse for copyright infringement.”

The opinion itself is so redacted that it could pass for a spy agency’s document itself, making it difficult to tell precisely what or how much was copied as an observer. It seems clear, however, that Universal will have to mount an extremely strong defense or dramatically change its script if it wishes to produce this film.

This isn’t the first time that MGM had legal issues protecting one of their most prominent films. Check out the article Raging Bull Case Headed to the U.S. Supreme Court

As a New York entertainment attorney, Check out some of my other posts regarding the legal aspects of copyright in the entertainment industry:

• Seth MacFarlane Accused of Copyright Infringement
• What are the repercussions of copyright and trademark violations?
• Is Copyright Infringement an Issue in Hollywood?