The latest plagiarism kerfuffle involves the Oscar-nominated movie—whose makers are being sued by a well-known scriptwriter. But what constitutes theft in the world of cinema—and why aren’t half the producers in Bollywood tied up in lawsuits?
Wait, what happened to ‘The Holdovers’?
Screenwriter Simon Stephenson—whose credits include ‘Luca’ and ‘Paddington 2’—claims that the movie’s script is a copy/paste of his screenplay ‘Frisco’:
Stephenson wrote [in his complaint], “the evidence the holdovers screenplay has been plagiarised line-by-line from frisco is genuinely overwhelming—anybody who looks at even the briefest sample pretty much invariably uses the word ‘brazen.’”
The plot: of the two scripts sound very similar. ‘The Holdovers’ is about a “world-weary middle-aged boarding school teacher” and a 15-year-old student he has to look after. ‘Frisco’ is about a “world-weary middle-aged children’s doctor” and the 15-year-old patient he has to look after.
The evidence: rests on Stephenson’s claim that he sent the script to director Alexander Payne—first in 2013—when it was rated as one of the hottest in Hollywood. There are a number of emails that back this up. For example:
UTA’s [United Talent Agency] Geoff Morley seemed to indicate that Payne had read “Frisco,” writing: “I spoke to Alexander Payne’s exec Jim Burke directly a while back and he said that Payne did like it but was not interested in prod or directing it.”
The script again reached Payne in 2019—this time via a Netflix exec. That attempt failed, as well: “Sorry to say that Alexander has now read but says it is not quite what he is looking for.”
The other version: The Holdovers’ script was written by an entertainment lawyer—turned TV writer. This is Davind Hemingson’s first feature film—written with the assistance of Payne—or so the director claims:
I had the idea for the movie—that I stole from a 1935 French movie I’d seen at a film festival about a dozen years ago—and I thought ‘That’s a good premise for a movie.’ Not the story, how it pans out, but the premise… And then about five years ago, I received, completely randomly, a TV pilot set at a boarding school. So that’s when I called up [Hemingson] and I said, ‘Hey, you’ve written a great pilot. I don’t want to do it. But would you consider writing a story for me, set in that same world?’—that’s how it happened.
Where we are now: Stephenson has repeatedly complained to the Writers Guild of America (WGA)—and those emails have now become public. The guild has repeatedly refused to get involved. It is most likely—given his great outrage—that Stephenson will end up in court.
Doesn’t this happen a lot? Accusations of plagiarism?
Yes, almost every famous Hollywood movie you can think of has been accused of theft—sometimes multiple times. A good example: Guillermo del Toro’s ‘The Shape of Water’—which faced three separate charges of theft—including a copyright lawsuit. All of them were thrown out. The same was true of ‘Avatar’ and many others.
Some accusations are more colourful than others. The legendary Kim Novak was mad at ‘The Artist’ for borrowing music from her most famous film ‘Vertigo’—declaring most dramatically: “I want to report a rape… my body of work has been violated by The Artist.” Not coincidentally, all of these are Oscar-nominated films. Plagiarism charges have almost become a signal of a movie’s cachet.
Surely, they aren’t all bs?
No, there have been a number of successful court victories—though most of them are quietly settled out of court. It’s interesting to see what constitutes plagiarism—and what does not.
The most infamous case: That prize goes to the well-known French filmmaker Luc Besson—who in 2012 for inexplicable reasons decided to rip off the 1981 classic—‘Escape from New York’. To make things worse, the film was directed by Hollywood’s legendary “master of horror”, John Carpenter—who took Besson to court and won. Let’s look at why ‘Lockout’ got in trouble.
Idea vs expression: Abstract ideas, tropes or themes cannot be copyrighted. The law only protects the expression of an idea—“things like dialogue, mood, pace, setting - not the idea itself.” For example this:
A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The Sting, Reservoir Dogs, Ocean’s Eleven, Now You See Me and Baby Driver that were released in between.
So you could argue—if you were Holdovers’ director Payne—the story of a grumpy old man stuck with a teenager has also been iterated ad nauseam.
The degree of specificity: The devil truly lies in the details—as in how that idea is expressed, so to speak. To prove plagiarism, you have to establish an exceptionally high level of similarity. Besson’s argument that ‘Escape from New York’ itself was inspired by the classics ‘Rio Bravo’ and ‘Mad Max’—which fell on deaf ears, and here’s why:
Its judges said there are many similarities between the films. The heroes of both “got into the prison by flying in a glider/space shuttle, had to confront inmates led by a chief with a strange right arm, found hugely important briefcases and meet a former sidekick who then dies,” they ruled. “And at the end [of both films, the heroes] keep secret documents recovered during their mission,” the judgement added.
The appeals court instead increased the damages more than 5X—and Besson paid nearly €450,000 for his crimes.
Another example: Tri-Star Pictures paid a seven-figure sum to settle charges of plagiarism against its 1989 hit ‘Look Who's Talking’: “The agreement was struck after [the judge]... issued a particularly trenchant finding -- that nearly identical dialogue in both works pointed to nothing short of ‘copying.’”
The flip side: is that the accused can also point to details in their defence. ‘Total Recall’ writer Gary L Goldman sued Disney over its film ‘Zootopia’. Disney’s winning argument:
Judy [from Zootopia] is a rabbit; Mimi [Goldman’s creation] is a squirrel. Judy is shown wearing a police officer’s uniform; Mimi wears no clothing at all. Judy is a complex three-dimensional, full color, computer-animated character; Mimi is a two-dimensional hand drawing. No reasonable juror could view these two characters and conclude that they are substantially similar.
Disney argued that the only similarity between Goldman’s script and its movie is that both are buddy movies with “contrasting protagonists” who try to solve a problem. In other words, a trope not an expression.
Why this matters: Copyright laws are aimed at protecting their owners—but without squelching creativity:
It may seem like splitting hairs, but there’s a high bar to prove substantial similarity between works—and for good reason. “Copyright law wants more people to create more art,” says [lawyer Stephen] Doniger. “Someone writes a story about the plight of being an inner-city schoolteacher and, suddenly, it’s a genre. We want people to take a good idea and do different versions of it, so it enriches the tapestry of our creative expression.”
A war of attribution: Similarities in themselves don’t make a plagiarism case. It’s also about access to the pilfered material. In Besson’s case, he could have easily watched ‘Escape from New York’. But in many cases, the aggrieved party has a screenplay that has not been developed—or turned into a movie. And that’s when it gets tricky.
The implied contract: The problem with the entertainment biz is that professional interactions are often fuzzy:
People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.
There has to be some kind of “implied contract”—where it is clear that you’re pitching the idea because the other party in interested in buying it:
The truth is, if you communicate an idea - even an idea that's not, you know, it doesn't have to be novel, it doesn't have to be original - as long as you communicate it to somebody who wants to hear it and they want to hear for the purpose of buying it, and they use it, they have to pay for it.
But establishing that line is tricky in a place like Hollywood—where it is easy to forget where or when you first encountered something:
From unconscious borrowing to blatant pilfering, the practice of passing off someone else's work as one's own is especially endemic to Hollywood, where novel ideas are rare, stories are pitched orally, and the line between a remake (where credit is given and paid for) and a rip-off is often blurry.
Hilarious point to note: Here’s how forgetful Hollywood types can be. In 1980, a magazine submitted the screenplay for ‘Casablanca’ to hundreds of agents—but changed the title to ‘Everybody Comes to Rick's’. The outcome of this experiment: “Of 85 agencies that said they read it, only 33 recognized it as ‘Casablanca’, while three wanted to represent it, and one wanted to turn it into a novel.”
What about the biggest culprit—Bollywood?
Stealing ‘inspiration’ from Hollywood is so routine that it’s rarely worth a comment—except as fodder for jokes. But sometimes the theft is shameless enough to move our usually lenient courts.
The biggest rip-off: You may have never heard of a movie called ‘Banda Yeh Bindaas Hai’—a copy of the 1992 Oscar-winning comedy 'My Cousin Vinny’. In 2009, 20th Century Fox sued BR Films to block the release of the movie—for creating a “substantial reproduction.” Both parties ended up agreeing to an undisclosed settlement—and the movie was never released. In 2010, Fox also sued Sohail Maklai for ‘Knock Out’—which was a copy/paste of ‘Phone Booth’. The court ruled in its favour: “it is enough that substantial parts were lifted; no playwright can excuse wrong for showing how much of his work he did not pirate.”
An old but gold example: The Mumbai High Court ordered all prints of the 1957 Kishore Kumar-starrer ‘Begunah’ to be destroyed. Its producers lost the case to Paramount Pictures, which alleged the movie was a copy of ‘Knock on Wood’. Of course, now the entire movie is available on YouTube—or you can watch the clip below:
But, but, but: These victories are few and far between. Hollywood rarely sues for plagiarism because the legal process is tedious—and the financial settlements are paltry. But most importantly, Indian law is skewed toward the thief. Copyright cases rely on three ‘tests’:
- The Lay Observer Test asks “if an ordinary person, after viewing the works, is of a clear opinion that the subsequent work is a copy of the original.” This is like the US test for pornography—you know it when you see it.
- Scènes à Faire deems that “certain elements (incidents, characters, and scenes) are so intrinsically connected with the idea that they cannot be separated from the expression and thus are not copyrightable.”
- The Merger Doctrine holds that “where the idea merges with the expression and the work cannot be copyrighted.”
As a result, the line between an idea and its expression is blurry. And once a Hollywood movie is desi-fied, the studios can claim legal protection:
Most Bollywood production firms claim that they ‘Indianized’ Hollywood films by employing Indian actors and actresses, adding song and dance sequences, romanticising the plot, and expanding the narratives to include emotions specific to Indian culture. In such circumstances, maintaining that the phrase takes the same shape in both films becomes problematic.
Hence, an Aamir Khan can merrily rip off ‘Memento’ to make ‘Ghajini’.
The bottomline: Hollywood now releases its movies in multiple languages—appealing directly to the Indian viewer—who no longer needs Bollywood to play translator. But the more subtle kind of thievery will continue to flourish—as long as the movie business exists. As Jean Luc-Godard once said: “Cinema is the most beautiful fraud in the world”—though we’re pretty sure he wasn’t talking about plagiarism.
Reading list
Variety has the scoop on ‘The Holdovers’. The best overviews on plagiarism in Hollywood are older—this 1992 New York Times piece and this 2018 Guardian report. Hollywood Reporter has an excellent piece on why plagiarism cases are hard to file. Scroll offers some good examples of plagiarism cases in India. For the law in India, read this paper authored by Arjun Shah, the Indian Law Portal, RFMLR and SpicyIP. This older Asian Age report has more on the classic case of ‘Begunah’. Film Companion has a fun piece on rip offs of Hollywood movie posters.
