United States: The Devil (And The Copyright) Is In The Details

Would-be filmmakers often see the ghostly reflection of their own work in allegedly infringing films that actually get made. With many such copyright claims, the devil is – figuratively – in the details, but in the recent case of Brown v. Twentieth Century Fox, the satanic details were quite literal.

Last year, a film called Devil's Due premiered. It was greeted by unappreciative reviews, unenthusiastic audiences and then by a lawsuit.  With a whopping 18% rating on Rotten Tomatoes, the critical consensus was that the film was "derivative and mostly uninspired."  One viewer, Rhonda Kay Jackson Brown, believed that she knew what the film was derivative of: specifically, her self-published novel Jackson Road and her adapted screenplay Mother's Son. So she filed a pro se complaint for copyright infringement in the Eastern District of Kentucky.

The Works

The Devil's Due and Jackson Road each involve a woman who is impregnated with an antichrist, and the idea – attributed in both to a specific verse from the Bible – that there will be more than one antichrist.  There the similarities end.

In a mostly unsuccessful attempt to get myself into the Halloween spirit, I watched Devil's Due this past weekend.  The most ghoulish part of the experience was the moaning and groaning of the friends I forced to sit through it with me.  Through an often nausea-inducing collection of "found" footage, we watched a nondescript, relatively likeable young couple named Zach and Sam get married and travel to the Dominican Republic for their honeymoon.  They couldn't remember the final, drunken night of their celebration, orchestrated by an insistent cab driver, but the viewer can tell something wicked has happened.  Upon their return home, they learn that – despite her birth control – Sam is pregnant with a "honeymoon baby."  The remainder of the movie consists of Sam's cursed pregnancy.  She has nose bleeds and severe pains, exhibits bizarre and aggressive behavior, gives her priest a stroke, develops powers of telekinesis, and ultimately escalates to killing deer and hapless teenagers in the woods.  Throughout, the couple is monitored by the Dominican cab driver and a creepy replacement OB-GYN.  On the night of her due date, Sam kills her sister-in-law and slices open her own stomach.  Her husband, telekinetically pinned to a wall, watches as the cab driver and his cultist cohorts take the baby (who, much to our disappointment, did not have horns).  The film ends with the same cab driver picking up different honeymooners at the Eiffel Tower.  Hands down the best part of the film is the moment when you realize that the title, Devil's Due, refers not to what the Devil is owed, but to his mother's approaching due date.

As described by the Court, the plaintiff's work, Jackson Road, is about a "hillbilly" named Racquel who suffers from vertigo and marries a scientist at a(n evil) medical research company called "Biomed."  Well after the wedding, Racquel's husband goes missing and she teams up with her priest to learn why.  Racquel and Father Willis (for reasons that are not clear in the decision, and may or may not be clear in the book) ultimately end up searching for the Dead Sea Scrolls in the Holy Land.  Racquel is sedated on the trip home, and thereafter is surprised to find herself pregnant.  Her pregnancy is normal, and she gives birth to a son. Ten years later, her husband returns, and helps her raise the boy, who thrives and eventually becomes the CEO of Biomed.  At the end of the book, it is revealed through Father Willis' journal entries that Biomed impregnated Racquel using the blood of Jesus Christ, and that her son is an antichrist.

The Analysis

Brown claimed that her copyrighted work was infringed by Devil's Due because the two stories are substantially similar. She alleged that each story involved:

But the Court found that the overall plots of the works are hugely divergent.  Devil's Due covers only the tumultuous pregnancy, while Jackson Road features an unexceptional pregnancy and follows the antichrist well into adulthood.  Additionally, as with many similar copyright claims,  the more specific similarities alleged by Brown did not hold up to even the gentlest scrutiny.  Brown stressed that both plots involve blood, deer, the protagonist's health problems and a honeymoon. But Racquel was impregnated through the use of Jesus Christ's blood, while Sam smears standard, non-sacred blood on the floor during the film's climax.  Racquel's car collided with a deer; Sam killed and ate a deer in the forest.  Racquel suffers from a lifelong battle with vertigo; Sam suffers immediate effects of her demonic pregnancy.  Both couples take honeymoons "in warm climates, out of the Country," but Racquel returns from hers unscathed, while Sam returns already pregnant with an antichrist.

The court easily dismissed the other similarities alleged by Brown as unprotectable "scènes à faire," standard storytelling tools that would appear in any narrative about a woman pregnant with the (an) antichrist.  The idea of multiple antichrists is far from original – both works expressly draw that from the Bible.  Women wearing white, the involvement of priests, and occult or supernatural impregnation are de rigueur for such tales – Brown certainly doesn't own those elements.

In dismissing Brown's complaint, the court explained that ideas can't be copyrighted.  Only the expression of an idea is protectable.  If one zooms out far enough from the details of any given story, it will eventually appear to be a copy of any number of works that have come before.  As the First Circuit impeccably described in another copyright decision about the fictional descendants of Jesus (in The DaVinici Code), "one could as easily claim...that Hemingway’s Old Man and the Sea violated the copyright of Melville’s Moby Dick (aging seaman encounters large fish), Hardy’s Tess of the d’Urbervilles violated the copyright of Tolstoy’s Anna Karenina (woman succumbs to passion, suffers consequences), or Joyce’s Portrait of the Artist as a Young Man violated the copyright of Dickens’ David Copperfield (troubled childhood leads to writing career)."  In this case, the Court appropriately determined that "woman involuntarily impregnated with an antichrist" should be added to that list.

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