Intellectual Property

Dodgeball: So Unoriginal Anyone Could Have Written It

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At first, it seemed quite plausible to me that Rawson Marshall Thurber, who wrote and directed the 2004 Ben Stiller/Vince Vaughn comedy Dodgeball, stole ideas for the movie from a screenplay co-written by a struggling actor named David Price, who charges Thurber with violating his copyright. The idea of adults playing dodgeball as a spectator sport just seemed too weird to have been independently conceived by two different people around the same time. But then I learned that the spectator sport, which I had thought when I saw the movie was an entirely fanciful invention, actually exists. In fact, David Price's screenplay was based (very loosely) on his own experiences playing it.

So the basic idea is not unique. Still, some of the similarities between Price's screenplay and Thurber's are pretty striking, as U.S. District Judge Shira Scheindlin decided when she allowed Price's lawsuit to proceed. Part of Thurber's defense, The New York Times reports, is that "any similarities between the two scripts occurred because both relied on formulaic plot elements." Does every athletic underdog movie feature a fat misfit named Gordon and a coach in a wheelchair who dies in a bizarre accident and comes back as a ghost to offer advice?

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  1. Does every athletic underdog movie feature a fat misfit named Gordon and a coach in a wheelchair who dies in a bizarre accident and comes back as a ghost to offer advice?

    Yes.

  2. a coach in a wheelchair who dies in a bizarre accident and comes back as a ghost to offer advice

    Besides, this was clearly lifted from Happy Gilmore.

  3. So Unoriginal Anyone Could Have Written It

    But only Ben Stiller could’ve starred in it.

  4. According to this morning’s Columbus Dispatch, the plaintiff is a 30-year-old ‘struggling actor’ from columbus’ richest suburb who ‘enjoys shopping for vintage clothing’ and works part-time as a nanny.

  5. Eh, I could care less about these 2 movie scripts. However, at the Tribeca Film Festival 6 years ago I saw an excellent short by the same name.

  6. So let me see if I can wrap my head around the whole Reason H&R position on copyright and intellectual property.

    A. Taking someone else’s idea for a movie and using it as your own is bad.

    B. Pirating or downloading a copy of that finished movie so you can “own” it without paying for it is good.

    C. Any action taken by the copyright holder of that finished movie to prevent such copying (DRM) is bad.

    Did I get it close?

  7. No Stephen,

    That is the position of all people named “Robert”

  8. Stephen Macklin:

    (A) Ideas are not copyrightable, even in the most restrictive interpretation of copyright. I’m not sure you have your terminology straight.

    (B) I’ve never seen Reason or anyone else make the case you claim for “pirating” a movie. Perhaps there is a story behind copying the DVD? You basically say the story behind it doesn’t matter.

    (C) Any abrupt change taking away the rights of consumers is bound to have a backlash.

  9. Did I get it close?

    Yes. Yes you did.

  10. ed: Macklin doesn’t even know that ideas aren’t copyrightable. You’re signing on to that?

  11. Well, I post fairly often on H&R, and my position is:

    A) No it’s not bad – although it might be polite to admit that you got the idea from someone else.

    B) No it’s not bad, unless the person who is making his copy available for further duplication is violating a contract he signed prohibiting it, or the person doing the copying is trespassing on the first guy’s property.

    C) No it’s not bad – ultimately futile (Unless, of course, they want to use violence to prohibit people from using non-DRM technology).

  12. Lamar,

    Macklin made a very broad statement about the apparent contradictions inherent in libertarian views on copyright infringement, in this case the alleged theft of an idea. But no, that idea by itself is not protected by copyright. The manuscript is, however. I’m no lawyer, but the “struggling actor”‘s copyright case hinges on an allegedly purloined manuscript, not the fact that he had an idea.

  13. (Having an idea isn’t enough. One must act on it and create something tangible.)

  14. Pirating a movie or software is wrong, no matter how you did it.

    The problem is enforcement, especially when copyright holders make “goodwill” copies and distribute them for free. Or wink at ‘personal use’ when someone copies from a TV broadcast, then bring out the legal big guns on some kid who’s downloaded 200 movies.

    Have I done it?
    Silencio aurum est.

  15. DRM was/is generally bad because it can impose a huge burden on how people use their own electronic devices for non-copyright infringing purposes that can easily exceed whatever loss the copyright holders are suffering.

  16. But only Ben Stiller could’ve starred in it.

    Exactly my thought when I didn’t see “A Night at the Museum.”

  17. My favorite Ben Stiller performance was when Andy Dick made him look like an ass on the Andy Dick Show and Stiller threw a whiny, crybaby fit.

  18. No Stephen,

    That is the position of all people named “Robert”

    Close!

  19. So let me see if I can wrap my head around the whole Reason H&R position on copyright and intellectual property.

    A. Taking someone else’s idea for a movie and using it as your own is bad.

    B. Pirating or downloading a copy of that finished movie so you can “own” it without paying for it is good.

    C. Any action taken by the copyright holder of that finished movie to prevent such copying (DRM) is bad.

    Did I get it close?

    No Stephen. You are not close.

    First, you cannot copyright an idea. You can only copyright the expression of an idea. Stealing ideas would be plagiarism. There has never been a post on H&R that I remember that said that plagiarism was considered an acceptable practice.

    There is a very vocal group of libertarians here that say that copyright (the right to copy and distribute a particular expression of an idea) should be abandoned. There are also other libertarians (like me) that think intellectual property rights (patents, trademarks, and copyrights) are every bit as important as physical property rights.

    However, I think that the DCMA is an abomination and should be repealed and the DRM strategies by content providers are almost always misguided and do more damage than good.

  20. I’m with you Stephen…the contradiction is often painful. Apparently it is based on whatever is most convenient and beneficial at the time.

  21. Matt,

    I don’t get it. Why your scare quotes around struggling actor? Parental socioeconomic background has no implicit impact on an individual’s current cash-flow (and I suspect more aspiring actors come from upper-class backgrounds than not), vintage clothing runs a gamut from consignment coture to Goodwill, and part-time child care is precisely the sort of casual-schedule service job one would expect a struggling actor to hold. So, I don’t get your comment. Explain.

  22. I find it kinda funny that a number of people, like Sullum, had no idea dodgeball was a common gymclass activity and therefore thought this entire movie’s premise was the product of a whimsical imagination.

    It may even explain its success amongst older demographics.

  23. “Water Polo?! What a delightfully inane presumption! Five fucking stars!”

  24. Should we care who rips off ideas when the ideas are really bad ideas?

  25. had no idea dodgeball was a common gymclass activity

    I’m sure Jacob is aware that it’s a common gym-class activity (though the version I played in elementary school didn’t bear much resemblance to the version in the movie). What’s surprising is that it is also a spectator sport played by adults.

  26. I’m so old I remember when dodgeball (or some variation thereof) was called “smear the queer” with nary a twitter

  27. SxCx: I will be the first to admit I’m not very interested in sports and don’t know much about them. But as you can see if you read my post carefully, what surprised me was not the existence of dodgeball–which I, like pretty much everyone my age (I assume) played in gym class and during recess as a kid–but the fact that it was a quasi-professional spectator sport played by adults. I thought that part was a joke, on the order of professional tag.

    Stephen Macklin: My post was not meant to elucidate my position on intellectual property rights, let alone Reason‘s official position, which does not exist. As Carrick notes, libertarians differ on this subject. I myself tend to be skeptical of intellectual property. I am troubled by, among other things, the tendency of I.P. defenders to shift back and forth between moral and pragmatic defenses, the way intellectual property rights interfere with physical property rights, and the arbitrariness of details such as the length of copyright terms and the kinds of intellectual creations than can be copyrighted or patented. As for your hypotheticals:

    A. Stealing someone else’s movie idea(s), like plagiarism generally, is unethical, but that does not mean it should be illegal.

    B. I am agnostic on the ethics of downloading an unauthorized copy of a movie, which, in the absence of a contract barring unauthorized use, hinges on the question of whether I.P. has the same moral status as physical property.

    C. Companies have a right to use whatever DRM technology they see fit, although they should be prepared for a backlash from customers who can no longer use music and video products in ways to which they have become accustomed. If it’s done right, DRM might be a workable substitute for the protections afforded by copyright law.

    But I was not trying to raise any of these issues by commenting on the Dodgeball lawsuit. I just thought it was a funny story, and I wondered how plausible Thurber’s defense was.

  28. Matt,

    I don’t get it. Why your scare quotes around struggling actor? Parental socioeconomic background has no implicit impact on an individual’s current cash-flow (and I suspect more aspiring actors come from upper-class backgrounds than not), vintage clothing runs a gamut from consignment coture to Goodwill, and part-time child care is precisely the sort of casual-schedule service job one would expect a struggling actor to hold. So, I don’t get your comment. Explain.
    ===============================
    I don’t really have any explanation or defense to give, I’m just snarking randomly as I think of the struggling actors I have known.

  29. I am troubled by, among other things, the tendency of I.P. defenders to shift back and forth between moral and pragmatic defenses, the way intellectual property rights interfere with physical property rights, and the arbitrariness of details such as the length of copyright terms and the kinds of intellectual creations than can be copyrighted or patented.

    It’s alot harder to defend intellectual property rights when the assholes the run music and movie studios begin to proprose attacking and destroying computing systems to punish those that store unauthorized copies of copyrighted content.

    It’s even harder when predatory distributors have gotten content creators to sign away their rights so that the distributors take in the lion’s share of the proceeds of the legitimate sale of copyrighted content.

    But none of that gets down to the real issue about whether the fruits of intellectual work are morally equivalent to the fruits of physical labor. I think they are, while many other libertarians don’t.

  30. Carrick: I agree about the fundamental difference in the nature of IP verse physical or real property. Here’s an important nuance, at least for me. I don’t think IP is the moral equivalent of physical or real property for several reasons. However, I support the granting of a property interest in certain ideas of the mind as a practical incentive to create more. In my opinion, corporations have taken ahold of the privilege granted in the Constitution and convinced people that it is an inalienable property right. Once they did that, they were able to ratchet up the protections to a stifling level. I think there should be copyright, but it’s just too thick and heavy, and has been for 50 years or so. The current copyright regime, in my view, works against the incentives in the Constitution and stifles creativity (though, admittedly, it doesn’t stifle raw production).

  31. predatory distributors have gotten content creators to sign away their rights

    Boo hoo hoo. At the point of a gun, right?

    The current copyright regime, in my view, works against the incentives in the Constitution and stifles creativity

    No way. Everyone and his queer uncle is creating something these days and posting it online for the whole world to experience. You can argue about the quality, but the quantity is exploding. DRM, copyright issues, fear of lawsuits…none of this is stopping anyone from writing that song or posting that video.

  32. I’m so old I remember when dodgeball (or some variation thereof) was called “smear the queer” with nary a twitter

    No way, “smear the queer” is completely different game. That game involves one person with the ball (the “queer”) and everyone else chasing them then tackling and trying to separate them from the ball (the smearing). It was generally considered poor form to toss the ball befoer smearing, often it would lead to a retributive smearing. For some reason, everyone wanted to be the queer despite the inevitable beatdown.

  33. The current copyright regime, in my view, works against the incentives in the Constitution and stifles creativity

    This is always an interesting comment. The “stiffling creativity” arugment is raised because it is seen as being bad for society. I will grant that there is truth to the view that copyright protection prevents many people from being creative while producing derivative works from a copyrighted work.

    But I find this argument very amusing in that libertarianism is normally focussed on protecting the rights of individuals even if there is some perceived negative outcome for society as a whole.

    Yet, in the case of intellectual property rights, many (and I mean many) libertarians activity promote the concept of stripping individuals of their property rights so that society as a whole can benefit from it.

    In my opinion, society benefits in the long-term when all creators know that they will be able to profit from their own creations for as long as the market will support, because they are protected from less ambitious people who might steal their work.

  34. KoWT, I remember “smear the queer”….we played it in jr. high in Idaho….The national championship went to Wyoming if I remember right….

  35. predatory distributors have gotten content creators to sign away their rights

    Boo hoo hoo. At the point of a gun, right?

    I said it was difficult to defend the property rights of people that take advantage of the stupidy of others.

    I didn’t say that the predators should be stopped from what they do, nor did I say that the stupid need to be protected from their selves.

  36. So Unoriginal Anyone Could Have Written It

    And so bad that no one should admit to having done so.

  37. Carrick: Allowing works to pass into the public domain doesn’t “benefit society.” It benefits individuals. Johnny Cash based most of his songs from public domain songs. So do many singers and songwriters. That means that the public domain benefits a large number of individuals, not “society” as a whole. I have never seen a song or book written by “society.”

    Given the sheer size of the content industries, and given the fact that IP is the fastest growing US export, I have to disagree with your implication that creators don’t think there’s enough money to be made.

  38. I’ll admit to dl’ing some movies and music illegally. For the most part, I would never have seen the movie or listened to the music if I hadn’t dl’ed it, so I don’t lose a lot of sleep over it. Additionally, I do buy a lot of music (I’m a vinyl collector and dj) and I even have that Blockbuster thing where I can have 3 movies out at any time. Sometimes I go to the movies at a theatre.

    Not really much to ad, just that I’m not sure where, exactly, I stand on IP.

  39. Allowing works to pass into the public domain doesn’t “benefit society.” It benefits individuals. Johnny Cash based most of his songs from public domain songs. So do many singers and songwriters. That means that the public domain benefits a large number of individuals, not “society” as a whole. I have never seen a song or book written by “society.”

    The difference between society and large numbers of individuals is just semantics.

    I agree that the public domain is a good thing. I just don’t think that creators should be forced to donate the fruit of their labor into the public domain against their will.

    So when you say that Mr. Cash based his on work on public domain works, do you mean he used the themes, ideas, concepts, etc? Or do you mean he “borrowed” lyrics and melodies?

    This is important, because the first case is not prohibited by copyright but the second is.

  40. Nope. Public domain means you can take the whole darn song, lyrics, melody, everything. I’ll leave Mr. Cash’s secrets to him. But “Don’t Take Your Guns To Town” is another song with changed lyrics.

    If your voluntary public domain were the law, there would be no Johnny Cash. The list of his songs taken from PD melodies is supposedly rather large (according to him in an interview from the 1990’s).

  41. So who is hurt if there is no Johnny Cash?

    That’s the question libertarians should care about.

    Obviously, Mr. Cash would have had to write his own stuff or find another job. He would either succeed or he wouldn’t. That would dependend upon his own skills.

    But if you say the rest of us get hurt, then you are back to that “bad for society” meme that I keep picking up from people who want to kill copyright. As far as I am concerned that is not a matter for libertarians to be worried about.

    It’s been good discussing this with you Lamar. I am sorry to bail out on you, but the rain/freezing-rain/sleet/snow/other-shit is starting to come down and I need to head home.

  42. This reminds me of a case a few years ago where some unknown songwriter sued Stevie Nicks for ripping off a song. The song: Sara, from the Tusk album.

    “Drowning in a sea of love/Where everyone would love to drown…”

    My question is why the hell would anyone cop to that, whether they actually wrote it or not…

  43. No way, “smear the queer” is completely different game. That game involves one person with the ball (the “queer”) and everyone else chasing them then tackling and trying to separate them from the ball (the smearing).

    Now, when I was a kid, that game was called, I shit you not, “kill the guy with the ball.” Which is a lot like calling bowling “roll this ball down the lane and knock down as many pins as you can…don’t forget to add up your score.”

    Least imaginative. Game name. Ever.

  44. Sullum: understood. I actually didn’t know it was played at a quasi-pro level and figured you were referring to high school, effectively making me look unsavvy. Tip of the hat!

  45. I try to respect copyright for newer works; that is, works less than 10-15 years old. That’s enough time to make money off your “creation.” If you disagree, do you think patents should be awarded for decades past the death of the inventor? In such a world, musical artists would have to pay the inventor of their instruments every time they played a song. It would be much worse than that, though, because all recording media was invented by someone, so a share of the money from every CD sold would go to the inventor of the CD. Just imagine how many people would get a cut if all inventions related to the performance and recording of music were still under patent.

    Reduce copyright back to where it was before Congress monkeyed with it and I’ll respect copyright much more.

  46. Mr. Sullum,

    I did not mean to imply that you were elucidating the “official” Reason position on the issue. Nor do I think there is one. I was referring to the general range of opinion I have read in both posts and comments over several years.

    A. Stealing someone else’s movie idea(s), like plagiarism generally, is unethical, but that does not mean it should be illegal.

    I never said anything about illegal. Nor did I imply that you did. I merely said it seemed the prevailing opinion is that this was “bad.” Although I think your unethical is probably a better term.

    B. I am agnostic on the ethics of downloading an unauthorized copy of a movie, which, in the absence of a contract barring unauthorized use, hinges on the question of whether I.P. has the same moral status as physical property.

    Why does it become unethical to take someone’s intellectual property once it has been published if ti is unethical to take it before it was published?

    C. Companies have a right to use whatever DRM technology they see fit, although they should be prepared for a backlash from customers who can no longer use music and video products in ways to which they have become accustomed. If it’s done right, DRM might be a workable substitute for the protections afforded by copyright law.

    There really isn’t a DRM scheme yet that can stop you from doing whatever you want with music or video content. Even the oft vilified FairPlay from iTunes can be circumvented by simply burning the tracks to a cd and then ripping them back into iTunes. People haven’t been stopped from doing what they want, they are just annoyed that they have to work a little harder at it.

  47. The comment under B: should read:

    Why does it become ethical to take someone’s intellectual property once it has been published if IT is unethical to take it before it was published?

  48. Well, it ain’t bungee jumping, Jacob!

    I must admit that when I saw the 2001 Donald Bull short Dodgeballhttp://imdb.com/title/tt0305482 — which I highly recommend, at the Tribeca Film Festival, I too was unaware that the game was being played (albeit not as a spectator sport) by adults, in many cases for more or less the reason given in the film. Therefore I too took away more of a fantasy message from a movie by that name than it might otherwise have had.

    This one has everything — comedy, mystery, engaging drama, parable, parody, a warm glow — packed into an amazingly small package. I was amazed to learn afterward that its running time was just 20 mins., because it seemed like it had so much content that it could easily have run to twice that length.

  49. Macklin/Sollum:

    A) “Copyright infringement” is not stealing (and generally not even a crime). Stealing is a word used by Hollywood types to confuse the issue. If we’re going to just make up terms, why not just call it arson? Or any other unrelated crime? Carjacking? Sexual assault? Calling copyright infringement “stealing” disregards the long history of copyright (which is just what the hardcore copyrightists want).

    B) The issue is whether IP has a freshly created foundation akin to physical property, or whether it is founded on its traditional role as a privilege to encourage useful works and spread ideas.

    C) I have no opinion on the right of a company to use DRM, except to say that I’ll never buy an iPod or walk around with my collar up.

  50. Sullum, sorry.

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