Copyright & Colourable Imitation – Inside Out or Upside Down?

November 7, 2019
By Catherine Lovrics, Naomi Zener and Jasmine Godfrey

Damon Pourshian wrote a script and made a short film titled “Inside Out” when he was a student at Sheridan College’s Faculty of Film and Television in 2002 in their Media Arts Program (“Sheridan”). Sheridan is generally considered to be well-known for its animation program. Animation studios, the likes of Pixar Animation Studios (“Pixar”) and The Walt Disney Company (“Disney”), have a reputation for recruiting students from the program. In not one, but two actions, Pourshian has sued Disney (along with Disney’s related companies), Pixar and the American Broadcasting Company, Inc. (“ABC”) for copyright infringement of his script and short film. The suits were advanced in the California Northern District Court in California (U.S.A.) (case NO, 5:18-cv-3624) and the Ontario Superior Court of Justice (Canada) (2019 ONSC 5916), respectively.

Pourshian’s Inside Out tells the story of the reactions of a boy named Lewis to events in his everyday life, through anthropomorphized representations of his bodily organs that influence (and react to) his actions, as seen from the inside of his body. His brain is the command center and his internal characters—brain, heart, colon, stomach and bladder—communicate and squabble with each other. His short film was shown widely at Sheridan and won the inaugural People’s Choice award at Sheridan’s Media Arts Award Show.

Disney/Pixar’s Inside Out is about a girl named Riley and her reactions to events in her everyday life. Disney/Pixar’s Inside Out shows Riley’s outside world as well as inside world in which her emotions sit in a command center and use a complicated control desk within her body to control and influence her interactions with the outside world. Riley’s emotions—fear, joy, disgust, anger and sadness—communicate and quibble with each other. Each has a distinct personality and influences Riley’s actions in various ways.

Mr. Pourshian argued that Disney/Pixar’s Inside Out is substantially similar to Mr. Pourshian’s Inside Out, and in particular that:

o  both works are substantially similar in content, theme and characters;

o  the works are substantially similar in setting, mood and pace; and,

o  numerous additional similarities exist between the two works, including the depiction of the characters themselves and the mise-en-scène accompanying those characters.

Furthermore, Pourshian claims that Disney/Pixar had access to Mr. Pourshian’s Inside Out by virtue of the fact that Disney and Pixar were actively recruiting on Sheridan’s campus when his short film was being screened.

The first suit brought by Pourshian in the California Northern District Court was voluntarily dismissed on a without prejudice basis by Pourshian on August 15, 2018, so no judicial decision was ever rendered. Pourshian has now brought a second copyright infringement lawsuit in Ontario and the Court was asked to determine whether the named defendants, Disney et al, Pixar and ABC have sufficient nexus to Ontario for the claim to proceed in Ontario courts. The Court asserted jurisdiction against the defendants, Pixar Animation Studios, Walt Disney Pictures Inc. and Disney Shopping Inc., involved in distributing Disney/Pixar’s Inside Out for release in Canada, importing it into Canada, and by allowing it to be shown in Ontario theatres. Based on these activities, the Court found a sufficient connection exists between these defendants and Ontario. The Court stayed the action against Walt Disney Company, Disney Enterprises Inc., Walt Disney Studios Home Entertainment, Disney Consumer Products and Interactive Media, Walt Disney Studios Motion Pictures and American Broadcasting Company, Inc. as no nexus was established between those defendants and Ontario.    

For now, the case is moving forward, and is one to watch. If there is a decision on the merits, it will be interesting to see how the Court approaches infringement. The seminal Canadian case involving colourable imitation and animation is Cinar Corporation v Robinson [2013] 3 SCR 1168. In that case, the original and copyright-infringing productions were both animated television series, and the Court found colourable imitation involving “non-literal” copying. Pourshian’s Inside Out is a live action short film whereas Disney/Pixar’s Inside Out is an animated feature film, which adds further complexity to the infringement analysis.

It has long been held that elements such as basic plot ideas, themes, artistic devices, character archetypes, anthropomorphism, and tropes that define and are common in the genre of children’s animations are not protected by copyright. Rather, they remain in the public domain for all to use. In Cinar, the Supreme Court confirmed “[t]he need to strike an appropriate balance between giving protection to the skill and judgment exercised by authors in the expression of their ideas, on the one hand, and leaving ideas and elements from the public domain free for all to draw upon, on the other, forms the background against which the arguments of the parties must be considered.” On the other hand, copyright infringement is not limited to literal copying (‘copy and paste’), but extends to colourable imitation and non-literal copying. In Cinar, the Court confirmed creators are protected from "both literal and non-literal copying, so long as the copied material forms a substantial part of the infringed work … [T]he “part” which is regarded as substantial can be a feature or combination of features of the work, abstracted from it rather than forming a discrete part … [T]he original elements in the plot of a play or novel may be a substantial part, so that copyright may be infringed by a work which does not reproduce a single sentence of the original.” As a result, the line between idea and expression is not always clear.   

Following Cinar, Canadian Courts are to take a qualitative and holistic approach to infringement, and not filter out non-protectable elements (as is the case with the US abstraction-filtration-comparison method). The cumulative effect of the copied features are to be considered, and the perspective of a layperson in the intended audience is a useful one. A holistic approach to whether the works are substantially similar means that the respective works are not dissected into their component parts. The analysis will not focus on the differences between the works, but similarities.

Considering the cumulative effect of the copied features on the audience, was a substantial part of Pourshian’s skill and judgment—or original expression—in his short film Inside Out as a whole copied? It would be interesting to see: (1) what weight is given to the different formats (live action vs. animation) and divergent methods of production; (2) how the originality of a cast of characters and their respective traits should be addressed as part of the infringement analysis; (3) what weight is given to the “cumulative effect” of the features copied on the intended audience, including whether and how the perspective of children is weighed; and (4) issues surrounding Disney/Pixar’s access (if any) to Pourshian’s Inside Out.

Stay tuned for developments.

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